Modesto City Council
July 11, 2023

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MODESTO CITY COUNCIL
www.modestogov.com
AGENDA
City of Modesto

CITY COUNCIL MEETING
Chambers, Basement Level
Tenth Street Place, 1010 10th Street
Modesto, California
Tuesday, July 11, 2023 at 5:30 PM
Roll Call - Councilmembers Alvarez, Bavaro, Escutia-Braaton, Ricci, Williams, Wright, Mayor Zwahlen
“Wordly” can translate into 25+ different languages! To access written translation during the meeting, please scan the QR Code or click this link https://attend.wordly.ai/join/RJDY-6364.
"Wordly" puede traducir a más de 25 idiomas diferentes! Para acceder a la traducción durante la reunión, por favor escanee el código QR o haga clic en el enlace https://attend.wordly.ai/join/RJDY-6364.

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

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

You may observe a livestream of the meeting at http://media.modestogov.com. You may also participate in the meeting as indicated below.
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PARTICIPATING IN CITY COUNCIL MEETINGS
As a courtesy, the City of Modesto is providing alternatives to view Council meetings and provide public comments. If you wish to make either a general public comment or to comment on a specific agenda item, you may use one of the following options:

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

VIRTUAL PARTICIPATION BY ZOOM VIDEO

CONFERENCING AND TELEPHONE
Joining the City Council meeting via Zoom
The City of Modesto is now offering the ability to view and participate in Council meetings via telephonic conferencing via “Zoom” video conferencing computer technology. The meeting may be accessed through the use of Zoom using the following options:
 Enter the following link into an Internet Browser
https://us02web.zoom.us/j/86945970570,
 Enter the following link into an Internet Browser https://zoom.us/ and using the Webinar ID 869 4597 0570
 Passcode 84326
To use Zoom, please visit: https://zoom.us/ and either sign-up for a free Zoom account or continue as a guest. Once you have downloaded the app onto your mobile device, joined from your web browser, or downloaded the Zoom software on your computer you will be ready for the upcoming Council meeting.

Joining the City Council meeting via Telephone
If you don’t have a smart phone or computer to access the meeting via Zoom, you can participate by phone, by calling 1-877-853-5257 (Toll Free) or 1-888-475-4499 (Toll Free) and enter the Webinar ID 869 4597 0570 Passcode 84326
Providing Public Comment on Zoom and by Telephone
The Mayor will request public comment during the Public Comment periods on the meeting agendas and during each Public Hearing and Regular Calendar Item on the Council Agenda.

Once the Mayor has announced the public comment period, please do one of the following.

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

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

Additional Zoom resources/support
Please visit Zoom’s website support page on helpful tips to prepare for the meeting:
https://support.zoom.us/hc/en-us/categories/201146643
Pledge of Allegiance to the Flag
Invocation: Stuart Welch, Life Connection Church
City Clerk’s Announcements
Declaration of Conflicts of Interest
Reports from Closed Session

ACKNOWLEDGEMENTS AND PRESENTATIONS

1. Presentation of Proclamation proclaiming August 1, 2023, as National Night Out. (Funding Source: Not Applicable)
POLICE DEPARTMENT; Brandon Gillespie, 209-572-9533,
[email protected]

MISCELLANEOUS
Legislation, Appointments, and Other

2. Consider approving the appointments of Yelitza Pena to the role of Event Planning and Marketing Specialist and Michelle Buer to the role of Alternate Non-Permit Holder to the Entertainment Commission for a four-year term with term expiration of June 30, 2027. (Funding Source: Not Applicable)
Staff Recommendation:
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 Resolution approving the appointments of Yelitza Pena to the role of Event Planning and Marketing Specialist and Michelle Buer to the role of Alternate Non-Permit Holder to the Entertainment Commission for a four-year term with term expiration of June 30, 2027.

CED; Jessica Hill, 209-577-5321, [email protected]

PUBLIC COMMENT PERIOD
Please refer to the special comment instructions above.

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

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

Any and all of the following agenda items are subject to action by the Modesto City Council.

This Agenda is on file at the Modesto-Stanislaus Library Reference Room, 1500 I Street, Modesto, in the City Clerk’s Office, Sixth Floor, 10th Street Place, and is available on the City’s Web site at www.modestogov.com.

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

Consent

3. Consider approving the minutes from the June 27, 2023 Council Meeting. (Funding Source: Not Applicable)
Staff Recommendation:
 Motion approving the minutes from the June 27, 2023 Council Meeting.

CITY CLERK; Diane Nayares-Perez, 209-577-5396, [email protected] Consent

4. Consider approving Final Adoption of Ordinance 3765-C.S. amending Section 2-1.18 and adding Section 2-1.28 to Chapter 1 of Title 2 of the Modesto Municipal Code regarding the Audit Committee. (Funding Source: Not Applicable) Staff Recommendation:
 Motion approving Final Adoption of Ordinance 3765-C.S. amending Section 2-

1.18 and adding Section 2-1.28 to Chapter 1 of Title 2 of the Modesto Municipal Code regarding the Audit Committee.

CITY ATTORNEY; Jose Sanchez, 209-577-5284, [email protected] Consent

5. Consider appointing a voting delegate to the 2023 League of California Cities Annual Conference to be held in Sacramento, CA on September 20-22, 2023; and approving the Second Amendment to the Mayor’s Appointments to the City of Modesto’s City Council Liaison Committees list for the 2023 calendar year. (Funding Source: Not Applicable)
Staff Recommendation:
 Motion approving Councilmember Alvarez as a voting delegate and Vice Mayor Ricci and City Manager Lopez as the alternates for the 2023 League of California Cities Annual Conference to be held in Sacramento, CA on September 20-22, 2023.
 Motion approving the Second Amendment to the Mayor’s Appointments to the City of Modesto’s City Council Liaison Committees list for the 2023 calendar year.

CITY CLERK; Diane Nayares-Perez, 209-577-5396, [email protected] Consent

6. Consider approving a Legal Services Agreement with Norton Rose Fulbright US LLP, for continued representation in relation to financing matters, for an Agreement total not to exceed $450,000 and a Fifth Amendment to the Legal Services Agreement with Bartkiewicz, Kronick & Shanahan P.C. for a revised Agreement total not to exceed $292,300 for continued representation in water related matters. (Funding Source:

Redevelopment Successor Agency, General Fund, Employee Benefits Fund, Wastewater, Water, and Golf Fund))
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Staff Recommendation:
 Resolution approving a Legal Services Agreement with Norton Rose Fulbright US LLP, for continued representation in relation to financing matters, for an Agreement total not to exceed $450,000 and authorizing the City Manager or his designee, to execute the Agreement.
 Resolution approving a Fifth Amendment to the Legal Services Agreement with Bartkiewicz, Kronick & Shanahan P.C. in the amount of $75,000, for a revised Agreement total not to exceed $292,300 for continued representation in water related matters and authorizing the City Manager or his designee, to execute the Agreement.

CITY ATTORNEY; Jose M. Sanchez, 209-577-5284, [email protected] Consent

7. Consider approving the recommended Budget adjustments to Fiscal Year 2022-23 Annual Operating and Capital Improvement Program Budgets. (Funding Source:

Various Funds)
Staff Recommendation:
 Resolution amending Fiscal Year 2022-23 Annual Operating and Capital Improvement Project Fund Budgets and authorizing the City Manager, to make the necessary steps to implement the provisions of this Resolution.

BUDGET; Steve Christensen, 209-577-5390, [email protected] Consent

8. Consider approving a ten-year lease Agreement with Stanislaus County Affordable Housing Corporation (STANCO) in the amount of $1 per year, for the property located at 308 Locust Street, for the operation of affordable housing. (Funding Source:

Community Development Block Grant Funds)
Staff Recommendation:
 Resolution approving a ten-year Lease Agreement with Stanislaus County Affordable Housing Corporation (STANCO) in the amount of $1 per year, for the property located at 308 Locust Street, for the operation of affordable housing and authorizing the City Manager or his designee to execute the Agreement.

CED; Edgar Garcia, 209-577-5211, [email protected] Consent

9. Consider approving an Agreement with the Stanislaus Community Foundation for the implementation of the Stanislaus 2030 Investment Blueprint for a total amount not to exceed $225,000 over three years and approving an Agreement with Digital Nest to provide technical and professional skills to underserved youth for a total amount not to exceed $150,000 over three years. (Funding Source: American Rescue Plan Act Funds) Staff Recommendation:
 Resolution approving an Agreement with The Stanislaus Community Foundation for the implementation of the Stanislaus 2030 Investment Blueprint for a total amount not to exceed $225,000 over three years and approving an Agreement with Digital Nest to provide Technical and Professional Skills to - 6 -
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underserved youth for a total amount not to exceed $150,000 over three years and authorizing the City Manager or his designee to execute the Agreements.

CED; Edgar Garcia, 209-577-5211, [email protected] Consent

10. Consider approving a funding commitment for the development of 45 units at Morris Village (APN: 111005073) by Self-Help Enterprises for an amount not to exceed $3,500,000 in loans, $100,000 in activity delivery costs, for a grand total of $3,600,000 to apply for the State of California Multifamily Housing Program. (Funding Source:

Permanent Local Housing Allocation and American Rescue Plan HOME Investment Partnership)
Staff Recommendation:
 Resolution approving a funding commitment for the development of 45 units at Morris Village (APN: 111005073) by Self-Help Enterprises for an amount not to exceed $3,500,000 in loans, $100,000 in activity delivery costs for a grand total of $3,600,000 to apply for the State of California Multifamily Housing Program and authorizing the City Manager or his designee to execute any documentation to support the City’s commitment.

CED; Edgar Garcia, 209-577-5211, [email protected] Consent

11. Consider approving the Consultant Services Agreement with De Novo Planning Group for Environmental Planning Services, for a total amount not to exceed $900,000 over five years. (Funding Source: Developer Fees)
Staff Recommendation:
 Resolution approving the Consultant Services Agreement with De Novo Planning Group for Environmental Planning Services, for a two (2) year Agreement with three (3) one-year extension options, for a total amount not to exceed $900,000 over five years and authorizing the City Manager or his designee to execute the Consultant Services Agreement.

CED; Peter Ibrahim, 209-577-5211, [email protected] Consent

12. Consider approving the First Amendment to the Professional Services Agreement with Kosmont Companies, for an Enhanced Infrastructure Financing District (EIFD) Feasibility Study, increasing the not to exceed amount of the Agreement by $150,266 from $49,734 for a new total amount of $200,000. (Funding Source: American Rescue Plan Act (ARPA) Funds)
Staff Recommendation:
 Resolution approving the First Amendment to the Professional Services Agreement with Kosmont Companies, for an Enhanced Infrastructure Financing District (EIFD) Feasibility Study, increasing the not to exceed amount of the Agreement by $150,266 from $49,734 for a new total amount of $200,000; and authorizing the City Manager, or his designee to execute the amendment.

CED; Robert Kimball, 209-571-5540, [email protected] - 7 -
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Consent

13. Consider accepting the Public Improvements of Villa D'Este Subdivision located in Village One, east of Roselle Avenue and north of Kodiak Drive and releasing securities upon expiration of statutory periods. (Funding Source: Not Applicable) Staff Recommendation:
 Resolution accepting the public improvements for Villa D'Este Subdivision, located east of Roselle Avenue and north of Kodiak Drive, authorizing the City Clerk to file a Notice of Completion with the Stanislaus County Recorder’s Office, and to release securities upon expiration of statuary periods.

ENGINEERING SERVICES; Toby Wells, 209-571-5542, [email protected] Consent

14. Consider accepting the Public Improvements of Woodglen Subdivision Village One and Woodglen Subdivision Village Three located at an area bounded by Pelandale Avenue, Carver Road, Bangs Avenue, and Tully Road and releasing securities upon expiration of statutory periods. (Funding Source: Not Applicable) Staff Recommendation:
 Resolution accepting the public improvements for Woodglen Subdivision Village One Subdivision, located an area bounded by Pelandale Avenue, Carver Road, Bangs Avenue, and Tully Road, authorizing the City Clerk to file a Notice of Completion with the Stanislaus County Recorder’s Office, and to release securities upon expiration of statuary periods.  Resolution accepting the public improvements for Woodglen Subdivision Village Three Subdivision, located an area bounded by Pelandale Avenue, Carver Road, Bangs Avenue, and Tully Road, authorizing the City Clerk to file a Notice of Completion with the Stanislaus County Recorder’s Office, and to release securities upon expiration of statuary periods.

ENGINEERING SERVICES; Toby Wells, 209-571.5542, [email protected] Consent

15. Consider approving the Amended and Restated Measure L Regional Control Project Cooperative Agreement with Stanislaus Council of Governments (StanCOG) for the Project Initiation Document (PID) and Project Approval and Environmental Document (PAED) Phases of the Standiford Avenue at State Route 99 Interchange Improvement Project. (Funding Source: Capital Facilities Fees (CFF) and Regional Measure L funds) Staff Recommendation:
 Resolution approving the Amended and Restated Measure L Regional Control Project Cooperative Agreement with Stanislaus Council of Governments (StanCOG) for the Project Initiation Document (PID) and Project Approval and Environmental Document (PAED) Phases of the Standiford Avenue at State Route 99 Interchange Improvement Project and authorizing the City Manager, or his designee, to execute the Agreement.

ENGINEERING SERVICES; Toby Wells, 209-571-5542, [email protected] - 8 -
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Consent

16. Consider approving the Amended and Restated Measure L Regional Control Project Cooperative Agreement with Stanislaus Council of Governments (StanCOG) for the Project Initiation Document (PID) and Project Approval and Environmental Document (PAED) Phases of the Briggsmore Avenue at State Route 99 Interchange Reconstruction Project including additional $2,000,000 in Regional Measure L funding and authorizing all task items of work for the AECOM Design Services Agreement. (Funding Source: Regional Surface Transportation Funds (RSTP) and Regional Measure L funds)
Staff Recommendation:
 Resolution approving the Amended and Restated Measure L Regional Control Project Cooperative Agreement with Stanislaus Council of Governments (StanCOG) for the Project Initiation Document (PID) and Project Approval and Environmental Document (PAED) Phases of the Briggsmore Avenue at State Route 99 Interchange Reconstruction Project, including additional $2,000,000 in Regional Measure L funding, and authorizing the City Manager, or his designee, to execute the Agreement, and authorizing all task items of work for the AECOM Design Services Agreement
ENGINEERING SERVICES; Toby Wells, 209-571-5542, [email protected] Consent

17. Consider approving three Agreements for On-Call Land Surveying Services with Siegfried Engineering, Inc., of Modesto, CA., NorthStar Engineering, Inc., of Modesto, CA., and O’Dell Engineering of Modesto, CA., for a one-year Agreement with two (2) one-year extension options, for an annual estimated amount of $75,000 per consultant, and a total amount not to exceed $225,000 per consultant over three years. (Funding Source: Various Capital Improvement Program Projects)
Staff Recommendation:
 Resolution approving an Agreement with Siegfried Engineering, Inc., Modesto, CA., for On-Call Land Surveying Services for a one-year Agreement with two one-year extension options, for an annual estimated amount of $75,000, and a total amount not to exceed $225,000 per consultant over three years, and authorizing the City Manager, or his designee, to execute the Agreement.  Resolution approving an Agreement with NorthStar Engineering, Inc., Modesto, CA., for On-Call Land Surveying Services for a one-year Agreement with two one-year extension options, for an annual estimated amount of $75,000, and a total amount not to exceed $225,000 per consultant over three years, and authorizing the City Manager, or his designee, to execute the Agreement.
 Resolution approving an Agreement with O’Dell Engineering, Inc., Modesto, CA., for On-Call Land Surveying Services for a one-year Agreement with two one-year extension options, for an annual estimated amount of $75,000, and a total amount not to exceed $225,000 per consultant over three years, and authorizing the City Manager, or his designee, to execute the Agreement.

ENGINEERING SERVICES; Peter Kambel, 209-577-5444, [email protected] - 9 -
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Consent

18. Consider approving the purchase for various Fleet Replacements and Additions for Fleet Vehicles which includes three (3) One-Ton Trucks, two (2) Loaders with Claw Attachment, one (1) Grapple Loader Truck, and one (1) Stump Grinder in the amount not to exceed $1,011,344. (Funding Source: Fleet Replacement Fund, American Rescue Plan Act and Measure H)
Staff Recommendation:
 Resolution approving the Award of Bid for the purchase of three (3) One-Ton Trucks to American Chevrolet, Modesto, CA for a total amount not to exceed $214,251, and authorizing the Purchasing Manager, or her designee, to execute the Purchase Order; and authorizing the Purchasing Manager or her designee to execute any change orders not to exceed 15% of the total purchase price.  Resolution approving the competitive bidding process from Sourcewell to Caterpillar Inc. under the authorized dealer Holt to California, Stockton, CA, for Two (2) Loaders with Claw Attachment for an amount not to exceed $291,388; and authorizing the Purchasing Manager, or her designee, to issue the Purchase Order; and authorizing the Purchasing Manager or her designee to execute any change orders not to exceed 15% of the total purchase price.  Resolution approving the competitive bidding process from Sourcewell with Municipal Maintenance Equipment, Sacramento, CA to purchase One (1) Grapple Loader Truck for an amount not to exceed $284,236; and authorizing the Purchasing Manager, or her designee, to issue the Purchase Order; and authorizing the Purchasing Manager or her designee to execute any change orders not to exceed 15% of the total purchase price.
 Resolution approving the competitive bidding process from Sourcewell with Manufacture Bandit Industries, Inc. under the authorized dealer Cal-Line Equipment Inc, Livermore, CA to purchase one (1) Stump Grinder for an amount not to exceed $89,554; and authorizing the Purchasing Manager, or her designee, to issue the Purchase Order; and authorizing the Purchasing Manager or her designee to execute any change orders not to exceed 15% of the total purchase price.

FINANCE DEPARTMENT; Dianne Love, 209-571-5164, [email protected] Consent

19. Consider accepting an informational report for the May 2023 Accounts Payable Payment Register and Void report. (Funding Source: Not Applicable) Staff Recommendation:
 Motion accepting an informational report for the May 2023 Accounts Payable Payment Register and Void report.

FINANCE DEPARTMENT; Maria Garnica, 209-577-5249,
[email protected]
Consent

20. Consider accepting the Monthly Investment Report for April 2023. (Funding Source:

Various Funds)
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Staff Recommendation:
 Motion accepting the Monthly Investment Report for April 2023.

FINANCE DEPARTMENT; Calogero Maniscalco, 209-577-5219,
[email protected]
Consent

21. Consider an Ordinance amending sections of Title 8, Chapter 3 of the Modesto Municipal Code to increase the City Manager’s authority for all contracts and purchase orders from $50,000 to $100,000 for goods/services and $600,000 for emergency projects; increasing the formal bidding authority from $50,000 to $100,000; updating the list and increasing the City Manager’s authority for public works projects including the City Manager’s authority for emergency public works contracts to $600,000; expanding the definition of professional services; and adding language to allow for electronic bidding. (Funding Source: Not Applicable)
Staff Recommendation:
 Motion introducing and waiving the first reading of an Ordinance amending sections of Title 8, Chapter 3 of the Modesto Municipal Code to increase the City Manager’s authority for all contracts and purchase orders from $50,000 to $100,000 for goods/services and $600,000 for emergency projects; increasing the formal bidding authority from $50,000 to $100,000; updating the list and increase the City Manager’s authority for public works projects including the City Manager’s authority for emergency public works contracts to $600,000; expanding the definition of professional services; and adding language to allow for electronic bidding.

FINANCE DEPARTMENT; DeAnna Christensen, 209-577-5387,
[email protected]
Consent

22. Consider approving the Award of Proposal and Agreement for the purchase of ONEVIEW Enterprise Citizen Request Management application, to Granicus, LLC, Saint Paul, MN for a two (2) year Agreement with three (3) subsequent one-year extension options for a total of five (5) years in an amount not to exceed $299,364. (Funding Source: Information Technology Fund)
Staff Recommendation:
 Resolution approving the Award of Proposal and Agreement for the purchase of ONEVIEW Enterprise Citizen Request Management application to Granicus, LLC., Saint Paul, MN for a two (2) year Agreement with three (3) subsequent one-year extension options for a total of five (5) years for an annual estimated amount of $59,873 and a total amount not to exceed $299,364 over five years; and authorizing the City Manager or designee to execute the Agreement.

IT; James Dotson, 209-571-5508, [email protected] Consent

23. Consider 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. for a - 11 -
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total amount not to exceed $1,791,671 and approving payment in an amount not to exceed $70,000 to the National Fish and Wildlife Foundation to mitigate for the loss of critical fish habitat. (Funding Source: TRRP CIP Fund, Parks CFF Fund, and NonMotorized Boating Facilities Grant Program Funds) Staff Recommendation:
 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.

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

24. 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)
Staff Recommendation:
 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.

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

25. 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) Staff Recommendation:
 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 - 12 -
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$226,786, and authorizing the Purchasing Manager, or her designee, to issue the Purchase Order.

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

26. 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) Staff Recommendation:
 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.

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

27. Consider 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. (Funding Source: General Fund)
Staff Recommendation:
 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.

PRN; Ashley Weaver, 209-577-5428, [email protected] Consent

28. Consider approving 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. (Funding Source: General Fund) Staff Recommendation:
 Resolution approving 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 and authorizing the City Manager or his designee to execute this second amendment.

PRN; Ashley Weaver, 209-577-5428, [email protected] - 13 -
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Consent

29. 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)
Staff Recommendation:
 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.

PRN; Laurie Smith, 209-577-5437, [email protected]
Consent

30. 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) Staff Recommendation:
 Resolution approving adjustments to various Airport rates and fees for specific activities and services at the Modesto City-County Airport (Airport), effective July 12, 2023, and rescinding Resolution No: 2020-350.

PUBLIC WORKS; Gabe da Silva, 209-577-5319, [email protected] Consent

31. Consider the submittal of Grant Applications to the Federal Aviation Administration and the State of California Department of Transportation, Division of Aeronautics for eligible Airport Improvement Projects. (Funding Source: Not Applicable) Staff Recommendation:
 Resolution approving the submittal of applications to the Federal Aviation Administration (FAA) and State of California Department of Transportation (DOT) Division of Aeronautics for Airport Improvements, and authorizing the City Manager or his designee, to sign Grant Applications and related forms.

PUBLIC WORKS; Gabe da Silva, 209-577-5319, [email protected] Consent

32. Consider approving the purchase of 1.38 acres of real property at 131 9th Street owned by Varni Brothers Corporation for $2,500,000, plus $100,000 in closing costs to be used for the River Trunk Pump Station Project. (Funding Source: Wastewater Fund) Staff Recommendation:
 Resolution approving the purchase of 1.38 Acres of real property located at 131 9th Street owned by Varni Brothers Corporation for $2,500,000, plus $100,000 in closing costs, to be used for the River Trunk Pump Station Project, and authorizing the City Manager, or his designee, to execute the Purchase and Sale Agreement and all related documents required to complete the transaction.

UTILITIES; Cristian Ciotau, 209-577-5260, [email protected] - 14 -
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COUNCIL COMMENTS & REPORTS

CITY MANAGER COMMENTS & REPORTS

NEW BUSINESS

33. Consider an Ordinance amending the Modesto Municipal Code to Repeal Article 18, “Regulation of Cruising,” in its entirety, from Chapter 2, “Vehicles and Traffic Regulations,” of Title 3, “Public Safety,” relating to the City’s cruising ban (Funding Source: Not Applicable)
Staff Recommendation:
 Motion introducing and waiving the first reading of an Ordinance amending the Modesto Municipal Code to Repeal Article 18, “Regulation of Cruising,” in its entirety, from Chapter 2, “Vehicles and Traffic Regulations,” of Title 3, “Public Safety,” relating to the City’s cruising ban.

POLICE DEPARTMENT; Steven Stanfield, 209-572-9612, [email protected]

34. Consider an Ordinance amending the Modesto Municipal Code to add Article 21, titled “Sideshows, Street Races, and Reckless Driving Exhibition”, to Chapter 2, “Vehicles and Traffic Regulations,” to Title 3 “Public Safety”, to establish regulations and penalties related to Sideshows, Street Races, and Reckless Driving Exhibition. (Funding Source: Not Applicable)
Staff Recommendation:
 Motion introducing and waiving the first reading of an Ordinance amending the Modesto Municipal Code to add Article 21, titled “Sideshows, Street Races, and Reckless Driving Exhibition”, to Chapter 2, “Vehicles and Traffic Regulations,” to Title 3 “Public Safety”, to establish regulations and penalties related to Sideshows, Street Races, and Reckless Driving Exhibition.

POLICE DEPARTMENT; Steven Stanfield, 209-572-9612, [email protected]

MATTERS TOO LATE FOR THE AGENDA
These may be presented by members of the City Council and staff upon determination by a majority vote that an emergency exists, as defined by State law, or by a 2/3 vote that (1) there is a need to take immediate action, and (2) that the need for action came to the City’s attention after the agenda was posted.

ADJOURNMENT

CLOSED SESSION
Please take notice that a special Closed Session meeting of the Council of the City of Modesto has been called pursuant to Section 2-1.02 of the Modesto Municipal Code to be convened on
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7/11/2023 5:30:00 PM
TUESDAY, JULY 11, 2023 AT 4:45 PM
and after the regularly scheduled meeting in the Tenth Street Place, Chambers Conference Room, Basement Level, 1010 Tenth Street, Modesto, California.

Any and all of the following agenda items are subject to action being taken by the Modesto City Council.

The business to be considered at said City Council meeting shall consist of a Closed Session concerning the following:

CLOSED SESSION
CONFERENCE WITH LEGAL COUNSEL – EXISTING LITIGATION
One Case (Pursuant to Section 54956.9(d)(1) of the Government Code) Name of Case: Martinez v. City of Modesto
Case No. 19-006820
CONFERENCE WITH REAL PROPERTY NEGOTIATORS:
(Pursuant to Section 54956.8 of the Government Code)
Property: 131 9th Street, Modesto, CA 95351, APN: 103-006-002 Property Owners: Varni Bros Corporation
Negotiating Parties:

For City: Will Wong, Director of Utilities
Jose M. Sanchez, City Attorney
For Owner: Property Owner
Under Negotiation: Price and Terms
Posted pursuant to Government Code Section 54954.2 on the bulletin board at Tenth Street Place on
at by
date time signature
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1https://library.municode.com/ca/modesto/codes/code_of_ordinances?nodeId=CHTR_ARTXIAPBOCO_S1102APT E

CITY OF MODESTO

COUNCIL AGENDA REPORT
DATE OF MEETING:

July 11, 2023
Date: June 8, 2023
TO: Mayor and City Council
THROUGH: Joseph P. Lopez, City Manager
FROM: Jessica Hill, Interim Director of Community and Economic Development SUBJECT: Appointment for two vacancies to the Entertainment Commission CONTACT: Jessica Hill, Interim Director of Community and Economic Development [email protected], 209-577-5321
DESCRIPTION:

Consider approving the appointments of Yelitza Pena to the role of Event Planning and Marketing Specialist and Michelle Buer to the role of Alternate Non-Permit Holder to the Entertainment Commission for a four-year term with term expiration of June 30, 2027. (Funding Source: Not Applicable)
STRATEGIC PLAN ELEMENT:

The recommended action supports the City’s Governance and Service Delivery Strategic Plan Initiative: Build community trust in City government through responsive, transparent, and efficient service delivery; Goal I: “Promote trust and engagement between the community and the City.”
BACKGROUND:

The Entertainment Commission is responsible for overseeing the entertainment permit process, including dances and processing of special event requests within the City of Modesto. The Entertainment Commission’s purpose is to encourage the development of new entertainment businesses as well as assist the organizers and operators to plan and coordinate City services for major events. This will allow the business or event to flourish while meeting the City’s public health, safety and welfare needs.

Section 11021 of the Charter of the City of Modesto authorizes the City Council to appoint members to various Boards and Commissions with the recommendation of the City’s Appointments Committee.

DISCUSSION:

The Entertainment Commission is comprised of seven members and two alternates. The member composition for the Entertainment Commission is: one Business Permit Holder, one Non-profit/special event permit holder, one Board of Directors member of an Economic or Tourist Organization that promotes Modesto, three Citizen at Large, one event planning or #2..
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City Council, July 11, 2023
Appointment for two vacancies to the Entertainment Commission

marketing specialist, and two alternative Citizen at Large. Each member of the Entertainment Commission is eligible to serve two (2) consecutive four-year terms.

Board Member Julia Washington resigned from her position as the Event Planning/Marketing Specialist effective September 20, 2021, leaving a vacancy on the Entertainment Commission.

Due to a commission vote to lapse in Commissioner Qualification, the Alternate Non-Permit Holder was also vacated effective October 3, 2019, leaving a second vacancy on the Entertainment Commission. The City received four applications to fill the two vacancies, each for the four (4) year term with a term expiration of June 30, 2027, which were reviewed by the Appointments Committee on May 24, 2023.

Of the three candidates eligible for the Event Planning and Marketing Specialist role, Yelitza Pena was selected by the committee to fill the vacancy. Ms. Pena has years of experience in fundraising and organizing community events. She is looking for a way to engage with the community and use her skills to benefit the City and is a great fit for this position.

Of the four candidates eligible for the Alternate Non-Permit Holder role, Michelle Buer was selected by the committee to the fill the vacancy. While she does not have direct applicable experience in Entertainment, she has been an active member of boards for large foundations and is interested in lending a helping hand to the community. She would make an excellent addition to the commission.

FISCAL IMPACT:

Appointing members to a committee is administrative in nature, therefore, does not have a fiscal impact to the General Fund.

COMMITTEE RECOMMENDATION:

This item was presented to the Appointments Committee on May 24, 2023, and a recommendation was made to forward both appointments to Council for approval.

RECOMMENDED COUNCIL ACTION:

Staff Recommendations:

Resolution approving the appointments of Yelitza Pena to the role of Event Planning and Marketing Specialist and Michelle Buer to the role of Alternate Non-Permit Holder to the Entertainment Commission for a four-year term with term expiration of June 30, 2027.

Approved by:

Jessica Hill, Interim Director of Community and
Economic Development
Joseph P. Lopez, City Manager
Attachments:

1. Resolution
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Appointment for two vacancies to the Entertainment Commission

2. Entertainment Commission Ordinance No. 3492-C.S.

3. Pena Entertainment Commission Application

4. Buer Entertainment Commission Application
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07/11/2023/CED/JHill/ Item X 1 2023-XXX

MODESTO CITY COUNCIL
RESOLUTION NO. 2023-XXX

RESOLUTION APPROVING THE APPOINTMENTS OF YELITZA PENA TO

THE ROLE OF EVENT PLANNING AND MARKETING SPECIALIST AND

MICHELLE BUER TO THE ROLE OF ALTNERATE NON-PERMIT HOLDER

TO THE ENTERTAINMENT COMMISSION FOR A FOUR-YEAR TERM WITH TERM EXPIRATIONS OF JUNE 30, 2027
WHEREAS, Section 1102 of the Charter of the City of Modesto authorizes the City Council to appoint members to various Boards and Commissions; and WHEREAS, the Entertainment Commission is a seven-member advisory commission on matters pertaining to entertainment-related permits for the City of Modesto; and
WHEREAS, the Event Planning and Marketing Specialist role was left vacant following the resignation of former member, Julia Washington; and WHEREAS, the Alternate Non-Permit Holder role was left vacant due to a commission vote to lapse in Commissioner Qualification; and WHEREAS, on May 24, 2023, the Appointments Committee recommended the appointment of Yelitza Pena and Michelle Buer to serve on the Entertainment Commission.

NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Modesto that it hereby appoints to the Entertainment Commission Yelitza Pena in an Event Planning and Marketing Specialist position and Michelle Buer as an Alternate NonPermit Holder to serve a four-year term ending on June 30, 2027. #2..
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07/11/2023/CED/JHill/ Item X 2 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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ORDINANCE NO. 3492-C.S.

ORDINANCE AMENDING ARTICLE 4 OF CWTER I OF
TITLE 4 OF THE MODESTO MUNICIPAL CODE

RELATING TO ENTERTAINMENT
WHEREAS, the Council of the City ofhlodesto recognizes and values the variety of entertainment and entertainment venues that exist in the City which provide a rich and diverse cultural experience for he residents of the City as well as visitors to the City, and WHEREAS, the City Council hereby finds that entertainment establishments are a key component of a well-rounded and vibrant community and are an important part of the local economy, and
WHEREAS, entertainment establishments have a need to be regulated in order to protect the community from excess noise generation, disorderly conduct by patrons, and the attendant adverse health, safety and welfare of the surrounding business and residential communities, and
WHEREAS, it is the purpose of this Article to encourage the development of new entertainment businesses and to regulate entertainment establishments to maintain the public health, safety and welfare of the City, and
WHEREAS, the City Council finds that the irnposi tion of conditions tailored to fie particular estabIishment will allow the business or event to flourish while meeting the City's public health, safety and welfare needs. This approach also would avoid placing unnecessary conditions on existing establishments or organizations with a history of compliance with the City laws and requirements.

The Council of the City of Modesto does ordain as follows:

SECTION 1. AMENDMENT OF CODE. Article 4 of Chapter 1 of Title 4 of the Modesto Municipal Code is hereby amended to read as follows:

ARTICLE 4. ENTERTAINMENT ESTABLISHMENTS AND SPECIAL EVENTS 4- 1.40 1 . DEFINITIONS.

For the purpose of this Article, the following words and phrases shall mean and include:

Ordinance No. 3492-C.S,
Effective Date: August 1. 2008
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"ABC License" means the license issued by the California Department of Alcoholic Beverage Control.
"Police Chief' means the Police Chief of the City of Modesto, or his or her designee.
"City" means the City of Modesto.
"City Manager" means the City Manager of the City of Modesto, or his or her designee.
"Dance and Dancing" means moverrlent of the human body, accompanied by music or rhythm.
"Entertainment" or "Entertainment EstabIishment" means any single event, a series of events, or an ongoing activity or business, occurring alone or as part of another business, to which the public is invited or aIIowed to watch, listen, or participate or that is conducted for the purposes of holding the attention of, gaining the attention of or diverting or amusing guests or patrons, and that is not exempted by this Article, including, but not limited to:
(1) Presentations by single or multiple performers, such as hypnotists, mimes, comedians; musical song or dance acts, plays, concerts, any type of contest; sporting events, exhibitions, carnival, rodeo or circus acts, demonstrations of talent, shows, reviews and any other such activity which may be attended by members of the public; (2) Dancing to live or recorded music.
"Entertainment Commission" and "Commission" means the Modesto Entertainment Commission, and includes, where appropriate, the Permit Administrators and other staff designated by the City Manager to perform the functions of the Commission specified by this Article. the Modesto Municipal Code, or other applicable law.
"Operations Plan" means a plan that (i) provides the number of patrons anticipated to attend the event and the number of security guards , [iil plans on how to secure a perimeter around the establishment that will prevent injury to persons andlor damage to property, (iii) provides for the orderly disbursement of persons and traffic from the Entertainment Ordinance No. 3492-C.S.

Effective Date: August 1, 2008
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Establishment or Special Event, (iv) the idcntj ty of the manager or managers who shall be on the premises during any hours of operation, and (v) the amount of parking, both on-site and off-site, to be provided. The Entertainment Commission, in consultation with the appropriate City departments, such as, Police and Fire, shall develop rules and regulations implementing this Ordinance.

Ii) "Operator" means any person operating an Entertainment Establishment in the City of hfodesto, either directly or indirectly, including, but not limited to, the owner or proprietor of such premises, lessee, sublessee, mortgagee in possession, permittee or any other person operating such place of entertainment or amusement.
"Permit" means a conditional authorization from the City to own, conduct, operate, maintain, or participate therein, an Entertainment Establishment. (k) ''Permittee" means a person, persons, or business entity that has been issued a permit as provided in this Article.
(1) "Permit Administrator" means the Permit Administrator who serves as staff to the Modesto Entertainment Commission, as appointed by the City Manager.
(m) "Person" means any person, individual, firm, partnership, joint venture, association, social club, fraternal organization, joint stock company, corporation, estate, trust, business trust, receiver, trustee, syndicate or any other group or combination acting as a unit excepting the United States of America, the State of California, and any political subdivision of either thereof.
(n) "Public Dance" means any dance to which members of the public may gain admittance under any of the following circumstances:
(1) Paymentofanytypeoffee,dues,orchargeforadmission
whatsoever, whether collected in advance of the event at which dancing is conducted or whether collected during said event; (2) Payment for entrance or attendance at an event at which dancing is conducted by purchase of tickets, dues, fees, or other admission devices:

Ordinance No. 3492-C.S.

Effective Date: August 1,2008
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(3) Dances conducted or given in connection with the sale of food or beverages in restaurants, bars, cafes, or hotel dining rooms to which the general public is admitted;
(4) Dances conducted in connection with the provision of other amusement or entertainment for profit.
"Public Dance" also includes, but is not limited to, the presentation of prerecorded or live music, whether advertised or referred to as a dance, concert, festival, "battle of the bands" or any other presentation or event involving public dancing conducted or operated by the management of a hotel, restaurant, bar or cafe, or any agent, employee, representative or concessionaire of such person or entity. "Public Dance" does not include on stage-live performances where patrons ate not dancing.
(o) "Public Dance Halt'' means a room, ballroom, patio, garden, space, area, premises or place which is part of a permanent building, structure or installation designed, maintained or operated for dancing or with an improved surface suitable for dancing, including, but not limited to, such areas located in a hotel, restaurant, bar or cafe.
(p) "Reasonable efforts" means the provision of an adequate number of licensed security personnel, the adoption and posting of operating policies that are consistent with the requirements of this Article and the permit and the adherence to those policies, the documented training of employees in the carrying out of the establishment operating policies, notifying the police of apparent criminal activity, and the taking of all additional measures, consistent with sound business judgment, necessary to accomplish the required result.
(Q) L'Responsible Person" means the officers, managers, or members with a right of possession or use of the establishment, that are responsible for the management of business, special event, activity or gothering. (r) "Special event" means an anticipated gathering of persons on or adjacent to public property or roadways that is likely to require police services, fire sen7ices, toilet facilities, traffic control, exclusive of residential traffic control, tho availability of potable water or other City services to protect the health, safety and welfare of participants, neighbors or other persons likely to be affected by the event. including but not limited to spontaneous gatherings on Halloween, Fat Tuesday, X Fest, St. Patrick's Day md New Year's Eve, and where all of the following circumstances exist:

Ordinance No. 3492-C.S.

Effective Date: August 1, 2008
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(I) Entertainment will only be offered for a limited period of time, not to exceed five (5) days;
(2j The entertainment is not a recurring or regularly scheduled event or celebration.

If a business that currently holds an Entertainment Estabtishrnent Permit wants to conduct an event outside the four walls of their establishment, then they must secure a Special Event permit.
(s) "Theater" means any establishment where regular sporting events, concerts, motion picture screenings or theatrical performances are given, usuaiiy on a stage, and usually with ascending row seating or some arrangement of permanent seating.
4-1.402. ESTABLISHMENT OF ENTERTAINMENT COMMISSION;
QUALIFICATIONS.
(a) Establishment of Commission. There is hereby established the Modesto Entertainment Commission consisting of seven (7) members. (b) Appointment of Commissioners. Appointment of the members of the Commission shall be made by the City Council upon recommendation by the City Council Safety and Communities Committee. The Commission members shall be subject to removal by resolution of the Council if adopted by at least four (4) City Council member votes. (c) Terms of Commissioners. For purposes of staggering the terms of the commissioners, the initial appointments shall have terms as follows: three (3) commissioners shall have initial terms of four (4) years, two (2) commissioners shall have initial terns of three (3) years, and two (2) commissioners shall have initial terms of two (2) years. All terms of the initial appointees to the Commission shall be deemed to commence upon the same date, which shall be the date upon which the last of the seven (7) initial appointees assumes office. Thereaffer, all appointments and reappointments shall be for a term of four (4) years.
(d) Chairperson. The Commission shall elect annually a chairperson who will serve for a tenn of one ( 1) year. The Commission may reappoint the chairperson to serve additional terms. The chairperson may call special meetings, instruct City staff to undertake all steps necessary or appropriate Ordinance No, 3492-C.S.

Effective Date: August 1.2008
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for the Commission to issue, deny, condition, suspend, revoke and transfer entertainment-related permits in a timely manner, and to perform such other duties as may be set forth in the by-laws of the Commission. 4-1.403. POWRS AND DUTIES OF THE ENTERTAINMENT
COMMISSION.

The Commission shall have the following powers and duties:
(a) Accept, review, gather information regarding, and conduct hearings upon applications for entertainment establishment permits, and special event permits, md rule upon and issue, deny, condition, suspend, modify, revoke or transfer these permits in accordance with applicable laws and regulations set forth in this Article. The Commission may authorize the Permit Administrator to rule upon applications and issue, deny, condition, transfer or modify specified types of entertainment permits deemed by the Commission to be routine and unli ke1y to pose significant negative impacts on persons in the vicinity of the event or establishment for which the permit is sought, provided that any City department with an interest in the permit or person having a right to appeal to the City Council, as set forth in Chapter 4 of Title 1 of the Modesto Municipal Code may, in writing, (i) request that the permit application be heard in the first instance by the Commission, or (ii) request reconsideration by the Commission of the Permit Administrator's decision. If the Commission grants a request for reconsideration, it may hear the matter de novo, or may limit its review to the administrative record that was before the Permit Administrator at the time of his or her decision. If the Permit Administrator ruies on a completed application, the decision must be presented to the Commission as a consent item.
(b) Impose reasonable conditions upon the issuance or renewal of entertainment establishment permits and special event permits consistent with the applicable rules, laws and regulations.
(c) Suspend, revoke or withdraw entertainment establishment permits and special event permits in accordance with the laws and regulations governing such permits.
(d) Conduct an appeal hearing of fines or penalties imposed and may affirm, modify, or suspend the imposition of such fines and penalties. (e) Coordinate with all relevant City departments for the conduct of my inspection or investigation necessary or appropriate for the full and fair 6 Ordinance No. 3492-C.S.

Effective Date: August 1,2008
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6/27/2023 5:30:00 PM

MODESTO CITY COUNCIL
www.modestogov.com

MINUTES
City of Modesto

CITY COUNCIL MEETING
Chambers, Basement Level
Tenth Street Place, 1010 10th Street
Modesto, California
Tuesday, June 27, 2023 at 5:30 PM
Roll Call – Present: Councilmembers Alvarez, Bavaro, Escutia-Braaton, Ricci, Williams, Wright, Mayor Zwahlen
Pledge of Allegiance to the Flag
Invocation: Matt Fraze, The Church of Jesus Christ of Latter-Day Saints City Clerk’s Announcements: None
Declaration of Conflicts of Interest: None
Reports from Closed Session: No reportable action.

ACKNOWLEDGEMENTS AND PRESENTATIONS

1. Proclamation declaring June as Portuguese Heritage Month. (Funding Source: Not Applicable)
CITY COUNCIL; Ariana Harbottle-Jarrett, 209-571-5597, [email protected] ACTION: Mayor Zwahlen presented a proclamation declaring June as Portuguese Heritage Month.
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2. Proclamation declaring July as Parks and Recreation Month. (Funding Source: Not Applicable)
CITY COUNCIL; Ariana Harbottle-Jarrett, 209-571-5597, [email protected] ACTION: Mayor Zwahlen presented a proclamation declaring July as Parks and Recreation Month.

MISCELLANEOUS

3. Consider approving the appointments of Alexandra von Stade, Galen Carroll, Kirstie Boyett, Chris Guptill, Mike Kelly, Jesse Franco, Aaron Anguiano, Michael Moradian, and Tom Hallinan for the Measure H Oversight Board beginning June 30, 2023, to serve their respective terms. (Funding Source: Not Applicable) Staff Recommendation:
 Resolution approving the appointments of Alexandra von Stade, Galen Carroll, Kirstie Boyett, Chris Guptill, Mike Kelly, Jesse Franco, Aaron Anguiano, Tom Hallinan, and Michael Moradian for the Measure H Oversight Board beginning on June 30, 2023, to serve their respective terms.

BUDGET; Steve Christensen, 209-577-5390, [email protected] ACTION: (Wright/Williams; 7/0) Resolution 2023-295 approving the appointments of Alexandra von Stade, Galen Carroll, Kirstie Boyett, Chris Guptill, Mike Kelly, Jesse Franco, Aaron Anguiano, Tom Hallinan, and Michael Moradian for the Measure H Oversight Board beginning on June 30, 2023, to serve their respective terms.

4. Consider approving the appointments of Jennifer Barillas and Camille Garcia for the City of Modesto Public Members of the Audit Committee with four-year terms with term expirations of June 30, 2027. (Funding Source: Not Applicable) Staff Recommendation:
 Resolution approving the appointments of Jennifer Barillas and Camille Garcia for the City of Modesto Public Members of the Audit Committee with four-year terms with term expirations of June 30, 2027.

FINANCE DEPARTMENT; DeAnna Christensen, 209-577-5387,
[email protected]
ACTION: (Wright/Alvarez; 7/0) Resolution 2023-296 approving the appointments of Jennifer Barillas and Camille Garcia for the City of Modesto Public Members of the Audit Committee with four-year terms with term expirations of June 30, 2027.

PUBLIC COMMENT PERIOD
 Derek Castle spoke regarding the refurbishment of the tennis courts at Graceada Park.

He also spoke regarding an idea for a Safe Sleep Site. His proposal allows the homeless to sleep near the Day Center overnight, until something more suitable is implemented.
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 Steve spoke regarding the upcoming Fourth of July holiday, and the different perspectives people may have regarding the meaning of the holiday. He spoke regarding an incident that happened on the 4th of July a year ago, when Officer Mertz and his partner responded to a call for service of a person with mental health issues and knives that resulted in an officer involved shooting. He asked the Council to keep the police accountable.
 Ramon Rodriguez spoke regarding parks in West and South Modesto that need to be revitalized. He also expressed support for a stadium and affordable housing at Municipal Golf Course. He also spoke against hate crimes and bigotry against LGBTQ+ community.
 Alissia Hager spoke regarding the importance of being healthy. She expressed her feelings regarding the police, and the need for them to have mental health evaluations, as well as training for how to handle people with mental health issues. She expressed concerns regarding the appointments to the Community Police Review Board and Police Auditor and feels there needs to be a safety plan for the police.  Brittoni Chavez agreed with the previous speaker, and spoke regarding police issues, and the shooting of Paul Chavez. She asked what the Council is going to do about it.  Teresa Clutter spoke regarding the death of her son-in-law Paul Chavez. She expressed the sadness they feel over how their lives have been without him, especially at holidays like Father's Day. She asked for accountability in the police department, and justice for Paul Chavez.
 Nico Solorio spoke regarding the Measure H Oversight Committee. He spoke against former Chief of Police; Galen Carroll being appointed on the Measure H Oversight Committee. He feels there will be a conflict of interest.  Loretta Carhart spoke regarding the audio in the Chambers. She also asked that the online speakers come down and speak directly to the Council. She also asked if garbage was going to be on the agenda.

CONSENT ITEMS – ROLL CALL VOTE REQUIRED
ACTION CONSENT ITEMS 5-14: (Bavaro/Wright; 7/0)

CONSENT
Consent

5. Consider approving the minutes from the June 13, 2023 Council Meeting. (Funding Source: Not Applicable)
 Motion approving the minutes from the June 13, 2023 Council Meeting.

CITY CLERK; Diane Nayares-Perez, 209-577-5396, [email protected] ACTION: (Bavaro/Wright; 7/0) Motion approving the minutes from the June 13, #3..
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6/27/2023 5:30:00 PM
2023 Council Meeting.

Consent

6. Consider an Ordinance amending Section 2-1.18 and adding Section 2-1.28 to Chapter 1 of Title 2 of the Modesto Municipal Code regarding the Audit Committee. (Funding Source: Not Applicable)
 Motion introducing and waiving the first reading of an Ordinance amending Section 2-1.18 and adding Section 2-1.28 to Chapter 1 of Title 2 of the Modesto Municipal Code regarding the Audit Committee.

CITY ATTORNEY; Jose Sanchez, 209-577-5284, [email protected] ACTION: (Bavaro/Wright; 7/0) Motion introducing and waiving the first reading of an Ordinance 3765-C.S. amending Section 2-1.18 and adding Section 2-1.28 to Chapter 1 of Title 2 of the Modesto Municipal Code regarding the Audit Committee.

Consent

7. Consider approving the renewal of eight Commercial Cannabis Retail Permits for dispensaries in the City for a further two-year period ending June 30, 2025; approving a change in ownership policy for Commercial Cannabis Permits within the City of Modesto; and approving changes in ownership for Jonesa, LLC and CV Wellness, LLC. (Funding Source: Cannabis Permit Fees)
 Resolution approving a renewal of the eight Commercial Cannabis Retail Permits for dispensaries in the City for a further two-year period ending June 30, 2025.
 Resolution approving a change in ownership policy for Commercial Cannabis Permits within the City of Modesto.
 Resolution approving a change in ownership for Jonesa, LLC.  Resolution approving a change in ownership for CV Wellness, LLC.

CED; Jessica Hill, 209-577-5321, [email protected]
ACTION: (Bavaro/Wright; 7/0) Resolution 2023-297 approving a renewal of the eight Commercial Cannabis Retail Permits for dispensaries in the City for a further two-year period ending June 30, 2025.

ACTION: (Bavaro/Wright; 7/0) Resolution 2023-298 approving a change in ownership policy for Commercial Cannabis Permits within the City of Modesto.

ACTION: (Bavaro/Wright; 7/0) Resolution 2023-299 approving a change in ownership for Jonesa, LLC.

ACTION: (Bavaro/Wright; 7/0) Resolution 2023-300 approving a change in ownership for CV Wellness, LLC.

Consent

8. Consider approving a Will Serve Letter and an Outside Service Agreement for sewer #3..
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connection for the property located at 1008 Panama Drive, in unincorporated Stanislaus County just outside of the city limits of Modesto (APN: 030-015-030). (Funding Source: Sewer Fund, General Fund)
 Resolution approving a Will Serve letter and an Outside Service Agreement between the City of Modesto and Mr. Benjamin Jimenez, a single man, to connect to the City of Modesto’s existing sewer system for the property located at 1008 Panama Drive (APN: 030-015-030), and authorizing the City Manager, or his designee, to execute the Will Serve Letter and Outside Service Agreement.

CED; Toby Wells, 209-571-5542, [email protected]
ACTION: (Bavaro/Wright; 7/0) Resolution 2023-301 approving a Will Serve Letter and an Outside Service Agreement between the City of Modesto and Mr. Benjamin Jimenez, a single man, to connect to the City of Modesto’s existing sewer system for the property located at 1008 Panama Drive (APN: 030-015-030), and authorizing the City Manager, or his designee, to execute the Will Serve Letter and Outside Service Agreement.

Consent

9. Consider approving the submission of a Grant Application for the Organized Retail Theft Prevention Grant Program to the Board of State and Community Corrections for up to $6.125 million in grant funds. (Funding Source: Grant Funds)  Resolution approving the submission of a Grant Application for the Organized Retail Theft Prevention Grant Program to the Board of State and Community Corrections for up to $6.125 million in grant funds, and authorizing the City Manager, or his designee, as agent to execute and submit all documents which may be necessary for the completion of the grant application.

POLICE DEPARTMENT; Bob Meredith, 209-572-9500, [email protected] ACTION: (Bavaro/Wright; 7/0) Resolution 2023-302 approving the submission of a Grant Application for the Organized Retail Theft Prevention Grant Program to the Board of State and Community Corrections for up to $6.125 million in grant funds, and authorizing the City Manager, or his designee, as agent to execute and submit all documents which may be necessary for the completion of the grant application.

Consent

10. Consider approving an Agreement with West Yost Associates, Davis, CA, for Engineering Services for the Pump Station at Jennings Water Quality Control Plant Project for a total amount not to exceed $510,177. (Funding Source: Wastewater Fund)  Resolution approving an Agreement with West Yost Associates, Davis, CA, for Engineering Services for the Pump Station at Jennings WQCP Project in the amount of $463,797, plus $46,380 in additional services, if needed, for a total amount not to exceed $510,177 and authorizing the City Manager, or his designee, to execute the Agreement.
 Resolution amending the Fiscal Year 2023-24 Capital Improvement Program Budget in the amount of $3,005,177 to be transferred into the Project from #3..
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Wastewater Reserves to fund the Pump Station at Jennings Water Quality Control Plant Project and authorizing the City Manager, or his designee, to implement the provisions of the Resolution.

UTILITIES; Cristian Ciotau, 209-577-5260, [email protected] ACTION: (Bavaro/Wright; 7/0) Resolution 2023-303 approving an Agreement with West Yost Associates, Davis, CA, for Engineering Services for the Pump Station at Jennings WQCP Project in the amount of $463,797, plus $46,380 in additional services, if needed, for a total amount not to exceed $510,177 and authorizing the City Manager, or his designee, to execute the Agreement.

ACTION: (Bavaro/Wright; 7/0) Resolution 2023-304 amending the Fiscal Year 2023-24 Capital Improvement Program Budget in the amount of $3,005,177 to be transferred into the Project from Wastewater Reserves to fund the Pump Station at Jennings Water Quality Control Plant Project and authorizing the City Manager, or his designee, to implement the provisions of the Resolution.

Consent

11. Consider approving an Agreement for the furnishing of Cathodic Protection Testing and Reporting Services to Corrpro Companies, Inc., Hayward, CA, for a total amount not to exceed $896,192 over five years. (Funding Source: Sewer Operations Fund)  Resolution approving the Award of Bid and Agreement for the furnishing of Cathodic Protection Testing and Reporting Services to Corrpro Companies, Inc., Hayward, CA, for a two year Agreement with three one-year extension options, for an annual estimated amount of $240,000 for the first year, and a total amount not to exceed $896,192 over five years, and authorizing the City Manager, or his designee, to execute the Agreement.

UTILITIES; Jason Farnsworth, 209-577-6255, [email protected] ACTION: (Bavaro/Wright; 7/0) Resolution 2023-305 approving the Award of Bid and Agreement for the furnishing of Cathodic Protection Testing and Reporting Services to Corrpro Companies, Inc., Hayward, CA, for a two year Agreement with three one-year extension options, for an annual estimated amount of $240,000 for the first year, and a total amount not to exceed $896,192 over five years, and authorizing the City Manager, or his designee, to execute the Agreement.

Consent

12. Consider approving a Memorandum of Understanding (MOU) for a Mutual Pay Agreement for the Far-Field Dilution and Constituents of Emerging Concern Studies between the City of Modesto, the City of Turlock and the Del Puerto Water District to comply with State Permit requirements. (Funding Source: Sewer Operations Fund)  Resolution approving a Memorandum of Understanding (MOU) for a Mutual Pay Agreement for the Far-Field Dilution and Constituents of Emerging Concern Studies between the City of Modesto, the City of Turlock and the Del Puerto Water District to comply with State Permit requirements and authorizing the City Manager, or his designee, to execute the Agreement. #3..
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UTILITIES; Jason Farnsworth, 209-577-6255, [email protected] ACTION: (Bavaro/Wright; 7/0) Resolution 2023-306 approving a Memorandum of Understanding (MOU) for a Mutual Pay Agreement for the Far-Field Dilution and Constituents of Emerging Concern Studies between the City of Modesto, the City of Turlock and the Del Puerto Water District to comply with State Permit requirements and authorizing the City Manager, or his designee, to execute the Agreement.

Consent

13. Consider accepting the Jennings Emergency Bypass as complete, and authorizing all payments to Rain for Rent, Stockton, CA and Americore Inc., Hilmar, CA, for a total cost of $72,820. (Funding Source: Sewer Operations Fund)  Resolution accepting the Jennings Emergency Bypass as complete and authorizing all payments totaling $62,973 to Rain for Rent, Stockton, CA, and authorizing all payments totaling $9,847 to Americore Inc., Hilmar, CA, for a total cost not to exceed $72,820, and authorizing the City Manager, or his designee, to implement the provisions of this Resolution.

UTILITIES; Jason Farnsworth, 209-577-6255, [email protected] ACTION: (Bavaro/Wright; 7/0) Resolution 2023-307 accepting the Jennings Emergency Bypass as complete and authorizing all payments totaling $62,973 to Rain for Rent, Stockton, CA, and authorizing all payments totaling $9,847 to Americore Inc., Hilmar, CA, for a total cost not to exceed $72,820, and authorizing the City Manager, or his designee, to implement the provisions of this Resolution.

Consent

14. Consider accepting the Well 71 Surface Improvements Project as complete, releasing securities, and releasing payments totaling $2,511,017 to Conco West, Inc., Manteca, CA. (Funding Source: Water Fund)
 Resolution accepting the Well 71 Surface Improvements Project as complete, releasing securities, and releasing payments totaling $2,511,017 to Conco West, Inc., of Manteca, CA. and authorizing the City Clerk to file a Notice of Completion.

UTILITIES; Peter Kambel, 209-577-5444, [email protected] ACTION: (Bavaro/Wright; 7/0) Resolution 2023-308 accepting the Well 71 Surface Improvements Project as complete, releasing securities, and releasing payments totaling $2,511,017 to Conco West, Inc., of Manteca, CA. and authorizing the City Clerk to file a Notice of Completion.

COUNCIL COMMENTS & REPORTS
Councilmember Bavaro spoke regarding the Meet the Mayor in his district at East La Loma Park, and the opportunity to meet with constituents. He also met with constituents from Lincoln Estates and listened to their concerns, of which blue recycle cans were a popular topic.
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Vice Mayor Ricci thanked staff for proactive strategies that have been enacted over the last couple of weeks at Graceada Park. He has heard from constituents that they are seeing improvements in safety at that park. He also spoke regarding 4th of July and the upcoming parade. He encouraged the public to purchase Safe and Sane fireworks from local non-profits, such as the Beyer High School Band where his son marches. He also noted that illegal fireworks result in $1000 fine, and asked the public to report illegal fireworks on the GoModesto app. or by calling the Non-Emergency line at 209-552-2470.

He also wished Good Luck to Modesto Marching Brigade who will proudly be representing Modesto in Washington D.C. at the National Fourth of July Celebration.

Councilmember Escutia-Braaton had honor to speak at a Women’s Empowerment Luncheon. The theme was how women can overcome adversities in life through strength and perseverance. Also, she and the Mayor visited Chrysler Elementary School and addressed traffic safety issues including speeding around the campus. They were delighted to inform them that they would be receiving Flashing School Zone signs indicating 15 mph, through the Traffic Calming Program. She wished everyone a Happy Fourth of July, and encouraged everyone to stay cool,
Mayor Zwahlen spoke regarding cooling zones available in the County as the weather is anticipated to be excessive. Two cooling centers she mentioned are the StanRTA bus station on 9th Street, as well as the library. Also, she mentioned what a festive and well attended ceremony the official re-opening of the Transit Center was on June 15th.

Councilmember Williams praised Councilmember Escutia-Braaton for her speech at the women's luncheon. He thanked Councilmember Alvarez for attending the Juneteenth festivities and representing the City. They did a march around the park, and had a great turnout. He also congratulated Riverbank for their first Annual Juneteenth festivities. He also mentioned that MoBand is happening every Thursday. He also thanked Vice- Mayor Ricci for mentioning the students going to Washington, D.C. to represent Modesto. Also, the Fourth of July Parade is coming. He encouraged everyone to get there early, and also to visit the Graffiti Car Museum. He also thanked Bryan and Laura Genie for all the things they have done for the community. He also congratulated DaRon Bland and mentioned him as a Hometown Hero who was just recruited to the Dallas Cowboys. He also thanked Steve Christensen and all the staff that worked on Measure H. He also mentioned the Stanislaus County Faire is coming, and there is Free Admission from 12-3 on Sundays. And lastly he thanked the Parks and Rec department for their partnership with the Kiwanis for the Fourth of July Parade. The theme is Sunshine, Stars and Stripes, and looking forward to Deputy City Manager Allison Van Guilder who will be singing the National Anthem to begin the Parade, and there will be fireworks show at John Thurman Field that evening.

Councilmember Alvarez reiterated what Councilmember Williams said, and expressed having a great time at Juneteenth march and festivities. He also is looking forward to participating in the Fourth of July Parade. He also spoke regarding affordable housing on Muni Golf Course, and the possibility of a stadium that Modesto High is advocating in #3..
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favor of. He is advocating Public/Private partnership with investors for development.

And lastly he invited Modesto City Schools to contact him to discuss a possible partnership for a stadium.

CITY MANAGER COMMENTS & REPORTS
None

HEARINGS
Published in the Modesto Bee on June 16, 2023.

15. Hearing to consider approving Fiscal Year 2023-24 Diagram and Annual Assessment, and ordering the Levy and Collection of Charges within Landscape Maintenance Assessment District No. 1 for Dry Creek Meadows Subdivisions Nos. 1-6. (Funding Source: Landscape Maintenance District No. 1)
 Resolution approving the Fiscal Year 2023-24 Diagram and Annual Assessment, and ordering the Levy and Collection of Charges within Landscape Maintenance Assessment District No. 1 for Dry Creek Meadows Subdivisions Nos. 1-6.

CED; Peter Ibrahim, 209-577-5211, [email protected] ACTION: (Wright/Alvarez; 7/0) Resolution 2023-309 approving the Fiscal Year 2023-24 Diagram and Annual Assessment and ordering the Levy and Collection of Charges within Landscape Maintenance Assessment District No. 1 for Dry Creek Meadows Subdivisions Nos. 1-6.

Published in the Modesto Bee on June 16, 2023.

16. Hearing to consider approving Fiscal Year 2023-24 Diagram and Annual Assessment and ordering the Levy and Collection of Charges within Landscape Maintenance Assessment District No. 2 for Dry Creek Meadows Subdivisions Nos. 7-10, Creekwood Meadows Subdivision and Yosemite Meadows Subdivisions Units 1 and 2. (Funding Source: Landscape Maintenance District No. 2)
 Resolution approving the Fiscal Year 2023-24 Diagram and Annual Assessment, and ordering the Levy and Collection of Charges within Landscape Maintenance Assessment District No. 2 for Dry Creek Meadows Subdivisions Nos. 7-10, Creekwood Meadows Subdivision, and Yosemite Meadows Subdivision Units 1 and 2.

CED; Peter Ibrahim, 209-577-5211, [email protected] ACTION: (Wright/Ricci; 7/0) Resolution 2023-310 approving the Fiscal Year 2023- 24 Diagram and Annual Assessment and ordering the Levy and Collection of Charges within Landscape Maintenance Assessment District No. 2 for Dry Creek Meadows Subdivisions Nos. 7-10, Creekwood Meadows Subdivision, and Yosemite Meadows Subdivision Units 1 and 2.

Published in the Modesto Bee on June 16, 2023.

17. Hearing to consider approving Fiscal Year 2023-24 Diagram and Annual Assessment, #3..
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and ordering the Levy and Collection of Charges within Shackelford Landscape and Lighting District. (Funding Source: Shackelford Landscape and Lighting District)  Resolution approving the Fiscal Year 2023-24 Diagram and Annual Assessment, and ordering the Levy and Collection of Charges within Shackelford Landscape and Lighting District.

CED; Peter Ibrahim, 209-577-5211, [email protected] ACTION: (Bavaro/Escutia-Braaton; 7/0) Resolution 2023-311 approving the Fiscal Year 2023-24 Diagram and Annual Assessment and ordering the Levy and Collection of Charges within Shackelford Landscape and Lighting District.

Recessed: 6:50 p.m.

Resumed: 6:55 p.m.

Published in the Modesto Bee on June 16, 2023

18. Hearing to consider approving the Annual Rate Adjustment to the Maximum Rate Schedule for City Solid Waste Collection Services provided by the solid waste haulers, for an increase of $4.76 per month for residential services with weekly green/organics container collection, an increase of $1.52 per cubic yard for commercial services, and an increase of $36.82 per pull for industrial services, to become effective August 1, 2023, and rescinding Resolution No. 2022-276 for the July 1, 2022 annual rate adjustment, and adjusting the fuel rates for an adjustment of $0.04 per month for residential services, and an adjustment of $0.08 per cubic yard for commercial services, to become effective August 1, 2023, and rescinding Resolution No. 2022-277 for the July 1, 2022 annual rate adjustment, and an agreement with HF&H Consultants LLC., to conduct an audit and performance review for the solid waste haulers, to analyze the current rate setting methodology and test it for validity, and develop new rates methodology, for a total amount not to exceed $150,000. (Funding Source: General Fund, Solid Waste Fund, Geer Road Landfill Fund, Green Waste Fund,)  Resolution approving the Annual Rate Adjustment to the Maximum Rate Schedule for City Solid Waste Collection Services provided by the solid waste haulers, for an increase of $4.76 per month for residential services with weekly green/organics container collection, an increase of $1.52 per cubic yard for commercial services, and an increase of $36.82 per pull for industrial services, to become effective August 1, 2023, and rescinding Resolution No. 2022-276 for the July 1, 2022 annual rate adjustment.
 Resolution approving a quarterly fuel rate adjustment to the maximum rate schedule for City Solid Waste Collection Services provided by the haulers, for an adjustment of $0.04 per month for residential services, and an adjustment of $0.08 per cubic yard for commercial services, to become effective August 1, 2023, and rescinding Resolution No. 2022-277 for the July 1, 2022 annual rate adjustment.
 Resolution approving an agreement with HF&F Consultants LLC., to conduct an audit and performance review for the solid waste haulers, to analyze the current rate setting methodology and test it for validity, and develop new rates methodology, for a total amount not to exceed $150,000 and authorizing the #3..
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City Manager, or his designee, to execute the agreement.

PUBLIC WORKS; Rosene Nguyen, 209-577-5453, [email protected] ACTION: (Bavaro/Ricci; 7/0) Resolution 2023-312 approving the Annual Rate Adjustment to the Maximum Rate Schedule for City Solid Waste Collection Services provided by the solid waste haulers, for an increase of $4.76 per month for residential services with weekly green/organics container collection, an increase of $1.52 per cubic yard for commercial services, and an increase of $36.82 per pull for industrial services, to become effective August 1, 2023, and rescinding Resolution No. 2022-276 for the July 1, 2022 annual rate adjustment.

ACTION: (Bavaro/Ricci; 7/0) Resolution 2023-313 approving a quarterly fuel rate adjustment to the maximum rate schedule for City Solid Waste Collection Services provided by the haulers, for an adjustment of $0.04 per month for residential services, and an adjustment of $0.08 per cubic yard for commercial services, to become effective August 1, 2023, and rescinding Resolution No. 2022-277 for the July 1, 2022, annual rate adjustment.

ACTION: (Bavaro/Ricci; 7/0) Resolution 2023-314 approving an agreement with HF&F Consultants LLC., to conduct an audit and performance review for the solid waste haulers, to analyze the current rate setting methodology and test it for validity, and develop new rates methodology, for a total amount not to exceed $150,000 and authorizing the City Manager, or his designee, to execute the agreement.

UNFINISHED BUSINESS

19. Consider approving the Water System Engineer’s Report prepared by West Yost as complete; the Water Rate Study prepared by Bartle Wells Associates as complete and authorizing Staff to initiate the Proposition 218 process to adjust the City’s Water Rates beginning in Fiscal Year 2023-24 through Fiscal Year 2027-28. (Funding Source: Water Fund)
 Resolution approving the Water Engineer’s Report prepared by West Yost Associates as complete.
 Resolution approving the Water Rate and Fee Study prepared by Bartle Wells Associates as complete.
 Resolution authorizing Staff to initiate a Proposition 218 process to adjust the City’s Water Rates to be effective October 1, 2023 through Fiscal Year 2027-

28. UTILITIES; William Wong, 209-571-5801, [email protected] ACTION: (Bavaro/Alvarez; 6/1; Ricci-No) Resolution 2023-315 approving the Water Engineer’s Report prepared by West Yost Associates as complete.

ACTION: (Bavaro/Alvarez; 6/1; Ricci-No) Resolution 2023-316 approving the Water Rate and Fee Study prepared by Bartle Wells Associates as complete. #3..
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ACTION: (Bavaro/Alvarez; 6/1; Ricci-No) Resolution 2023-317 authorizing Staff to initiate a Proposition 218 process to adjust the City’s Water Rates to be effective October 1, 2023, through Fiscal Year 2027-28.

NEW BUSINESS

20. Consider accepting an update on available funding for the Utility Billing Assistance Program (UBAP) with an increase to the monthly discount amount; and approving two new Utility Billing discount programs for customers who enroll in Auto-Pay and Paperless Billing for their City of Modesto Utility Bill. (Funding Source: Water and Wastewater Funds)
 Resolution approving an update on available funding for the Utility Billing Assistance Program (UBAP) with an increase to the monthly discount amount from $35 to $45.
 Resolution approving two new Utility Billing discount programs for customers who enroll in Auto-Pay and Paperless Billing for their City of Modesto Utility Bill.

FINANCE DEPARTMENT; Jeni Martin, 209-571-5892, [email protected] ACTION: (Escutia-Braaton/Wright; 7/0) Resolution 2023-318 approving an update on available funding for the Utility Billing Assistance Program (UBAP) with an increase to the monthly discount amount from $35 to $45.

ACTION: (Escutia-Braaton/Wright; 7/0) Resolution 2023-319 approving two new Utility Billing discount programs for customers who enroll in Auto-Pay and Paperless Billing for their City of Modesto Utility Bill.

21. Consider approving a successor Memorandum of Understanding (MOU) between the City of Modesto and Modesto City Police Officers Association (MPOA) for a term of July 1, 2023, to June 30, 2027; granting salary changes and benefit offerings to unrepresented sworn police management; and amending the Fiscal Year 2023-24 Operating Budget. (Funding Source: General Fund, Traffic Safety Fund, American Rescue Plan Act Fund)
 Resolution approving an agreement including language changes for a successor Memorandum of Understanding (MOU) between the City of Modesto and the Modesto Police Officers Association (MPOA) for a term of July 1, 2023, to June 30, 2027, and related salary schedules; and authorizing the City Manager or designee to take the necessary administrative action to implement the agreement.
 Resolution approving salary changes for Unrepresented Sworn Police Management and Confidential employees, including executives consistent with those in represented units, effective June 20, 2023, as set forth in attached Exhibit A, “Summary of Salary Ranges and Schedules for Unrepresented Sworn Management and Non-Sworn Management and Confidential Employees, Including Charter Officers and Executives”; amending the Summary of Salary Ranges and Schedules previously approved by Resolution 2023-288, and #3..
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authorizing the City Manager or designee to take the necessary administrative action to implement the provisions of this resolution.
 Resolution approving changes to benefit offerings for Unrepresented Sworn Police Management and Confidential employees, including executives consistent with those in represented units as set forth in attached Exhibit A, “Summary of Benefit Offerings for Unrepresented Sworn Management and Non-Sworn Management and Confidential Employees, Including Charter Officers and Executives”; and authorizing the City Manager or designee to take the necessary administrative action to implement the provisions of this resolution.
 Resolution amending the fiscal year 2023-24 annual operating budget for the necessary adjustments required to appropriate the funds for the approved Memorandum of Understanding (MOU) between the City of Modesto and Modesto City Police Officers Association (MPOA) for the term of July 1, 2023, through June 30, 2027; and authorizing the City Manager to take the necessary steps to implement the required budget adjustments.

HUMAN RESOURCES; Christina Alger, 209-571-5126, [email protected] ACTION: (Wright/Ricci; 7/0) Resolution 2023-320 approving an agreement including language changes for a successor Memorandum of Understanding (MOU) between the City of Modesto and the Modesto Police Officers Association (MPOA) for a term of July 1, 2023, to June 30, 2027, and related salary schedules; and authorizing the City Manager or designee to take the necessary administrative action to implement the agreement.

ACTION: (Wright/Ricci; 7/0) Resolution 2023-321 approving salary changes for Unrepresented Sworn Police Management and Confidential employees, including executives consistent with those in represented units, effective June 20, 2023, as set forth in attached Exhibit A, “Summary of Salary Ranges and Schedules for Unrepresented Sworn Management and Non-Sworn Management and Confidential Employees, Including Charter Officers and Executives”; amending the Summary of Salary Ranges and Schedules previously approved by Resolution 2023-288, and authorizing the City Manager or designee to take the necessary administrative action to implement the provisions of this resolution.

ACTION: (Wright/Ricci; 7/0) Resolution 2023-322 approving changes to benefit offerings for Unrepresented Sworn Police Management and Confidential employees, including executives consistent with those in represented units as set forth in attached Exhibit A, “Summary of Benefit Offerings for Unrepresented Sworn Management and Non-Sworn Management and Confidential Employees, Including Charter Officers and Executives”; and authorizing the City Manager or designee to take the necessary administrative action to implement the provisions of this resolution.

ACTION: (Wright/Ricci; 7/0) Resolution 2023-323 amending the fiscal year 2023- 24 annual operating budget for the necessary adjustments required to appropriate the #3..
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funds for the approved Memorandum of Understanding (MOU) between the City of Modesto and Modesto City Police Officers Association (MPOA) for the term of July 1, 2023, through June 30, 2027; and authorizing the City Manager to take the necessary steps to implement the required budget adjustments.

MATTERS TOO LATE FOR THE AGENDA
None

ADJOURNMENT
This meeting adjourned at 8:43 p.m.

Closed Session Matters Head Prior to the Meeting

CLOSED SESSION
CONFERENCE WITH LEGAL COUNSEL – EXISTING LITIGATION
One Case (Pursuant to Section 54956.9(d)(1) of the Government Code) Name of Case: ALL US TACOS, INC. v. CITY OF MODESTO
Stanislaus County Superior Court
Case No.: CV-23-001171
Attest: ______________________________
Dana Sanchez, Assistant City Clerk
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- 1 - ORDINANCE NO. 3765-C.S.

EFFECTIVE DATE: August 10. 2023
ORDINANCE NO. 3765-C.S.

ORDINANCE AMENDING SECTION 2-1.18 AND ADDING SECTION 2-1.28 TO CHAPTER 1 OF TITLE 2 OF THE MODESTO MUNICIPAL CODE REGARDING

THE AUDIT COMMITTEE
WHEREAS, Modesto Municipal Code (MMC) Section 2-1.18 currently establishes the Audit Committee as a standing committee of the City Council; and WHEREAS, on November 8, 2022, Modesto voters adopted Measure G to make various amendments to the City of Modesto’s Charter; and WHEREAS, Measure G added Section 902.2 to the City of Modesto Charter to govern the Audit Committee; and
WHEREAS, Charter Section 902.2 requires the Audit Committee to be comprised of the Mayor, two members of the City Council, and two members of the public who meet certain requirements; and
WHEREAS, because members of the public will now serve on the Audit Committee, the Audit Committee will no longer be a committee of the City Council and therefore the existing provisions of the Modesto Charter and Municipal Code will not apply; and
WHEREAS, the Council desires to amend the Modesto Municipal Code to establish procedures regarding the Audit Committee, consistent with Charter Section 902.2.

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

SECTION 1 AMENDMENT OF CODE. Section 2-1.18 “Standing
Committees” of Chapter 1 of Title 2 of the Modesto Municipal Code is amended to read #4..
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EFFECTIVE DATE: August 10. 2023
as follows.
“2-1.18 - Standing Committees.

The standing committees of the Council shall be the Safety and Communities Committee, the Economic Development Committee, the Finance Committee, the Appointments Committee, and the Cannabis Program and Permit Review Committee, each of which committees shall consist of three (3) members of the Council appointed by the Mayor. The responsibility of the Appointments Committee shall be to review and make recommendations for appointments to City Boards, Commissions, and Committees, and such other responsibilities established from time to time by resolution of the City Council.”
SECTION 2 AMENDMENT OF CODE. Section 2-1.28 “Audit Committee,” is hereby added to Chapter 1 of Title 2 of the Modesto Municipal Code to read as follows:
“2-1.28 – Audit Committee.

The Audit Committee of the City of Modesto is established by Section 902.2 of the Modesto Charter.
(a). Duties. The duties of the Audit Committee are those established by Section 902.2 of the Modesto Charter and such other duties as assigned by the City Council.
(b). Membership. Pursuant to Section 902.2 of the Modesto Charter, the Audit shall be comprised of:
(1) The Mayor;
(2) Two members of the City Council, who shall be appointed by the Mayor with the advice and consent of the City Council; and #4..
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EFFECTIVE DATE: August 10. 2023
(3) Two members of the public who are residents of the City of Modesto and shall possess a minimum of two (2) years of experience in financial or performance auditing. Strong consideration shall be given to residents who are Certified Public Accountants. Such members shall be appointed by the City Council, and may be removed by the City Council. Public members of the Audit Committee shall be appointed to a four (4) year term.
(c). Chair & Vice Chair. The Mayor shall serve as the chair of the Audit Committee, and shall designate a member to serve as the vice chair in the absence of the chair.”
SECTION 3. SEVERABILITY
If any provision of this Ordinance or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of this Ordinance which can be given effect without the invalid provision or application, and to this end the provisions of this Ordinance are severable. This City Council declares that it would have adopted this ordinance irrespective of the invalidity of any particular portion thereof and intends that the invalid portions should be severed and the balance of the Ordinance be enforced.

SECTION 4. CALIFORNIA ENVIRONMENTAL QUALITY ACT.

The proposed Ordinance is exempt from CEQA under the general rule in CEQA Guidelines section 15061(b)(3), that CEQA only applies to projects that have the potential for causing a significant effect on the environment.

SECTION 5. EFFECTIVE DATE
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EFFECTIVE DATE: August 10. 2023
This Ordinance shall go into effect and be in full force and operation from and after thirty (30) days after its final passage and adoption.

SECTION 6. PUBLICATION
At least two (2) days prior to its final adoption, copies of this Ordinance shall be posted in at least three (3) prominent and distinct locations in the City; and a notice shall be published once in The Modesto Bee, the official newspaper of the City of Modesto, setting forth the title of this ordinance, the date of its introduction and the places where this Ordinance is posted.
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- 5 - ORDINANCE NO. 3765-C.S.

EFFECTIVE DATE: August 10. 2023
The foregoing Ordinance was introduced at a regular meeting of the Council of the City of Modesto held on the 27th day of June, 2023, by Councilmember Bavaro, who moved its introduction and passage to print, which motion being duly seconded by Councilmember Wright, was upon roll call carried and ordered printed and published by the following vote:

AYES: Councilmembers: Alvarez, Bavaro, Escutia-Braaton, Ricci, Williams, Wright, Mayor Zwahlen
NOES: Councilmembers: None
ABSENT: Councilmembers: None
APPROVED: _____________________________
SUE ZWAHLEN, Mayor
ATTEST:

By: _________________________________
DIANE NAYERES-PEREZ, City Clerk
(SEAL)
APPROVED AS TO FORM:

By: _________________________________
JOSE M. SANCHEZ, City Attorney
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EFFECTIVE DATE: August 10. 2023

FINAL ADOPTION CLAUSE
The foregoing ordinance, having been published as required by the Charter of the City of Modesto, and coming on for final consideration at the regular meeting of the Council of the City of Modesto held on the 11th day of July, 2023, Councilmember ?? moved its final adoption, which motion being duly seconded by Councilmember ??, was upon roll call carried and the ordinance adopted by the following vote:

AYES: Councilmembers: Alvarez, Bavaro, Escutia-Braaton, Ricci, Williams, Wright, Mayor Zwahlen
NOES: Councilmembers: None
ABSENT: Councilmembers: None
APPROVED: ________________________

SUE ZWAHLEN, MAYOR
ATTEST: ___________________________________
DIANE NAYARES-PEREZ, City Clerk
Effective Date: August 10, 2023
5388346.1
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CITY OF MODESTO
ORDINANCE NO. 3765-C.S.

The following Ordinance was introduced by the City Council of the City of Modesto at the meeting of June 27, 2023:

ORDINANCE AMENDING SECTION 2-1.18 AND ADDING SECTION 2-1.28 TO CHAPTER 1 OF TITLE 2 OF THE MODESTO MUNICIPAL CODE REGARDING THE

AUDIT COMMITTEE
Copies of the above-mentioned ordinance are posted at the following locations:
 Tenth Street Place, 1010 10th Street
 Maddux Youth Center, 615 Sierra Drive
 Senior Citizen Center, 211 Bodem Street
Diane Nayares-Perez
City Clerk
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CITY OF MODESTO

COUNCIL AGENDA REPORT
DATE OF MEETING:

July 11, 2023
Date: July 5, 2023
TO: Mayor and City Council
THROUGH: Joseph P. Lopez, City Manager
FROM: Diane Nayares-Perez, City Clerk
SUBJECT: Appointing a voting delegate to the 2023 League of California Cities Annual Conference and approving the second amendment to the Mayor’s Appointments to the City of Modesto’s City Council Liaison Committees list CONTACT: Diane Nayares-Perez, CMC, City Clerk, [email protected], 209-577-5396
DESCRIPTION:

Consider appointing a voting delegate to the 2023 League of California Cities Annual Conference to be held in Sacramento, CA on September 20-22, 2023; and approving the second amendment to the Mayor’s Appointments to the City of Modesto’s City Council Liaison Committees list for the 2023 calendar year. (Funding Source: Not Applicable) STRATEGIC PLAN ELEMENT:

This item supports the City’s 2020-2025 Strategic Plan Goals to build community trust in City government through responsive, transparent and efficient service delivery.

BACKGROUND:

League of California Cites Voting Delegate
The League of California Cities1 (League) is an association of California city officials who work together to enhance their knowledge and skills, exchange information, and combine resources so they may influence policy decisions that affect cities. Founded in 1898, the League is a member organization that represents California’s incorporated cities. The League strives to protect the authority and autonomy of city government and help California’s cities effectively serve their residents. The League has eight standing policy committees which make recommendations to the Board of Directors on legislation, new policy guidelines, and key issues impacting cities. The committees are composed of elected and appointed city officials throughout the State of California.
1 League of California Cities - https://www.calcities.org/ #5..
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City Council, July 11, 2023
Appointing a voting delegate to the 2023 League of California Cities Annual Conference and approving the second amendment to the Mayor’s Appointments to the City of Modesto’s City Council Liaison Committees list

Amendment to the Mayor’s Appointments to the City of Modesto’s City Council Liaison Committees
Section 601(g) of the City of Modesto Charter (Charter), “the Mayor may appoint with the advice and consent of the Council, a Chairman, a Vice Chairman, one regular member and one alternate member to each standing, special, and ad hoc committee of the Council.” In accordance with the above outlined provisions of the Charter, the Mayor recommended the following appointments to the City’s Liaison committees as set forth in the Attachment, respectively for the 2023 calendar year. With the approval of the Council at the December 6, 2022, Council meeting, these appointments went into effect January 1, 2023. A first amendment to the City’s Liaison committee was approved by the Council on February 28, 2023, and that went into effect on March 1, 2023.

DISCUSSION:

League of California Cites Voting Delegate
Each year the League holds an annual conference. This year’s annual conference is scheduled for September 20-22, 2023, in Sacramento, California. An important part of the annual conference is the General Assembly Meeting which is where the membership considers and takes action on resolutions that establish League policy. The General Assembly Meeting is scheduled for Friday, September 22, 2023. To vote at the General Assembly Meeting, the City Council must, by formal Council action, designate a voting delegate. In the event the designated voting delegate is unable to serve in that capacity, Council may appoint up to two alternate voting delegates. The voting delegate and alternates must be registered to attend the conference. At least one must be present.

The Mayor has recommended Councilmember Alvarez serve as the voting delegate with Vice Mayor Ricci and City Manager Lopez as the alternate voting delegates.

Amendment to the Mayor’s Appointments to the City of Modesto’s City Council Liaison Committees
The annual process of committee assignments is a critical element of public engagement and promoting a diversity of opinions in the City’s standing and liaison committees.

The second amendment addresses the appointment of an alternate to the League of California Cities - Central Valley Division to appoint Council Member Escutia-Braaton as the alternate to the League of California Cities - Central Valley Division.

FISCAL IMPACT:

There is no direct cost in direct cost in designating a Delegate and Alternate; however, the Delegate and Alternate must be registered to participate. This year the conference will be held in Sacramento at a cost of $650 per attendee, plus associated travel and lodging expenses.

Participation in this event has been budgeted for and there are sufficient funds in the budget for this purpose.

COMMITTEE RECOMMENDATION:

This item did not go to Committee as it is not required. #5..
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City Council, July 11, 2023
Appointing a voting delegate to the 2023 League of California Cities Annual Conference and approving the second amendment to the Mayor’s Appointments to the City of Modesto’s City Council Liaison Committees list

RECOMMENDED COUNCIL ACTION:

Staff Recommendations:

Motion approving Councilmember Alvarez as a voting delegate and Vice Mayor Ricci and City Manager Lopez as the alternates for the 2023 League of California Cities Annual Conference to be held in Sacramento, CA on September 20-22, 2023.

Motion approving the second amendment to the Mayor’s Appointments to the City of Modesto’s City Council Liaison Committees list for the 2023 calendar year.

Approved by:

Diane Nayares-Perez, CMC, City Clerk
Joseph P. Lopez, City Manager
Attachments:

1. 2023 LCC Voting Delegate Packet

2. Revised 2023 City Council Liaison Committees – Redlined

3. Revised 2023 City Council Liaison Committees – Final Version #5..
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1400 K Street, Suite 400, Sacramento, CA 95814 • 916.658.8200 • calcities.org DATE: Wednesday, June 21, 2023
TO: Mayors, Council Members, City Clerks, and City Managers RE: DESIGNATION OF VOTING DELEGATES AND ALTERNATES
League of California Cities Annual Conference and Expo, Sept. 20-22, 2023, Sacramento SAFE Credit Union Convention Center
Every year, the League of California Cities convenes a member-driven General Assembly at the Cal Cities Annual Conference and Expo. The General Assembly is an important opportunity where city officials can directly participate in the development of Cal Cities policy.

Taking place on Sept. 22, the General Assembly is comprised of voting delegates appointed by each member city; every city has one voting delegate. Your appointed voting delegate plays an important role during the General Assembly by representing your city and voting on resolutions.

To cast a vote during the General Assembly, your city must designate a voting delegate and up to two alternate voting delegates, one of whom may vote if the designated voting delegate is unable to serve in that capacity. Voting delegates may either be an elected or appointed official.

Please complete the attached voting delegate form and email it to Cal Cities office no later than Monday, August 28.

New this year, we will host a pre-conference information session for voting delegates to explain their role. Submitting your voting delegate form by the deadline will allow us time to establish voting delegate/alternate records prior to the conference and provide preconference communications with voting delegates.

Please view Cal Cities’ event and meeting policy in advance of the conference.

Action by Council Required. Consistent with Cal Cities bylaws, a city’s voting delegate and up to two alternates must be designated by the city council. When completing the attached Voting Delegate form, please attach either a copy of the council resolution that reflects the council action taken or have your city clerk or mayor sign the form affirming that the names provided are those selected by the city council.

Please note that designating the voting delegate and alternates must be done by city council action and cannot be accomplished by individual action of the mayor or city manager alone.

Council Action Advised by August 28, 2023
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Conference Registration Required. The voting delegate and alternates must be registered to attend the conference. They need not register for the entire conference; they may register for Friday only. Conference registration is open on the Cal Cities website.

For a city to cast a vote, one voter must be present at the General Assembly and in possession of the voting delegate card and voting tool. Voting delegates and alternates need to pick up their conference badges before signing in and picking up the voting delegate card at the voting delegate desk. This will enable them to receive the special sticker on their name badges that will admit the voting delegate into the voting area during the General Assembly.

Transferring Voting Card to Non-Designated Individuals Not Allowed. The voting delegate card may be transferred freely between the voting delegate and alternates, but only between the voting delegate and alternates. If the voting delegate and alternates find themselves unable to attend the General Assembly, they may not transfer the voting card to another city official.

Seating Protocol during General Assembly. At the General Assembly, individuals with a voting card will sit in a designated area. Admission to the voting area will be limited to the individual in possession of the voting card and with a special sticker on their name badge identifying them as a voting delegate.

The voting delegate desk, located in the conference registration area of the SAFE Credit Union Convention Center in Sacramento, will be open at the following times:

Wednesday, Sept. 20, 8:00 a.m.- 6:00 p.m. and Thursday, Sept. 21, 7:30 a.m.- 4:00 p.m. On Friday, Sept. 22, the voting delegate desk will be open at the General Assembly, starting at 7:30 a.m., but will be closed during roll calls and voting.

The voting procedures that will be used at the conference are attached to this memo.

Please share these procedures and this memo with your council and especially with the individuals that your council designates as your city’s voting delegate and alternates.

Once again, thank you for completing the voting delegate and alternate form and returning it to Cal Cities office by Monday, Aug. 28. If you have questions, please contact Zach Seals at [email protected].

Attachments:
• General Assembly Voting Guidelines
• Voting Delegate/Alternate Form
• Information Sheet: Cal Cities Resolutions and the General Assembly #5..
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1400 K Street, Suite 400, Sacramento, CA 95814 • 916.658.8200 • calcities.org General Assembly Voting Guidelines

1. One City One Vote. Each member city has a right to cast one vote on matters pertaining to Cal Cities policy.

2. Designating a City Voting Representative. Prior to the Cal Cities Annual Conference and Expo, each city council may designate a voting delegate and up to two alternates; these individuals are identified on the voting delegate form provided to the Cal Cities Credentials Committee.

3. Registering with the Credentials Committee. The voting delegate, or alternates, may pick up the city's voting card at the voting delegate desk in the conference registration area. Voting delegates and alternates must sign in at the voting delegate desk. Here they will receive a special sticker on their name badge and thus be admitted to the voting area at the General Assembly.

4. Signing Initiated Resolution Petitions. Only those individuals who are voting delegates (or alternates), and who have picked up their city’s voting card by providing a signature to the credentials committee at the voting delegate desk, may sign petitions to initiate a resolution.

5. Voting. To cast the city's vote, a city official must have in their possession the city's voting card and voting tool; and be registered with the credentials committee. The voting card may be transferred freely between the voting delegate and alternates but may not be transferred to another city official who is neither a voting delegate nor alternate.

6. Voting Area at General Assembly. At the General Assembly, individuals with a voting card will sit in a designated area. Admission to the voting area will be limited to the individual in possession of the voting card and with a special sticker on their name badge identifying them as a voting delegate.

7. Resolving Disputes. In case of dispute, the credentials committee will determine the validity of signatures on petitioned resolutions and the right of a city official to vote at the General Assembly.
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CITY: ________________________________________
2023 ANNUAL CONFERENCE

VOTING DELEGATE/ALTERNATE FORM
Please complete this form and return it to Cal Cities office by Monday, August 28, 2023.

Forms not sent by this deadline may be submitted to the Voting Delegate Desk located in the Annual Conference Registration Area. Your city council may designate one voting delegate and up to two alternates.

To vote at the General Assembly, voting delegates and alternates must be designated by your city council. Please attach the council resolution as proof of designation. As an alternative, the Mayor or City Clerk may sign this form, affirming that the designation reflects the action taken by the council.

Please note: Voting delegates and alternates will be seated in a separate area at the General Assembly. Admission to this designated area will be limited to individuals (voting delegates and alternates) who are identified with a special sticker on their conference badge. This sticker can be obtained only at the voting delegate desk.

1. VOTING DELEGATE
Name:

Title:

2. VOTING DELEGATE - ALTERNATE
Name:

Title:

Email: _______________________________
Email: ______________________________

3. VOTING DELEGATE - ALTERNATE
Name:

Title:

Email: _____________________________

ATTACH COUNCIL RESOLUTION DESIGNATING VOTING DELEGATE AND ALTERNATES OR ATTEST: I affirm that the information provided reflects action by the city council to designate the voting delegate and alternate(s).

Name: ____________________________________ Email: _________________________________ Mayor or City Clerk: ________________________ Date: __________ Phone: ________________ (circle one) (signature) Please complete and email this form to [email protected] by Monday, August 28, 2023.
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Sixty days before the
Annual Conference and
Expo, Cal Cities members
may submit policy
proposals on issues of
importance to cities. The
resolution must have the concurrence
of at least five additional member cities
or individual members.

How it works: Cal Cities
Resolutions and the General Assembly
General Assembly
General Resolutions
Policy Committees
Developing League of California Cities policy is a dynamic process that engages a wide range of members to ensure that we are representing California cities with one voice. These policies directly guide Cal Cities advocacy to promote local decision-making, and lobby against statewide policy that erodes local control.

The resolutions process and General Assembly is one way that city officials can directly participate in the development of Cal Cities policy. If a resolution is approved at the General Assembly, it becomes official Cal Cities policy. Here’s how Resolutions and the General Assembly works.

The petitioned resolution
is an alternate method
to introduce policy
proposals during the
annual conference. The
petition must be signed by
voting delegates from 10% of member
cities, and submitted to the Cal Cities
President at least 24 hours before the
beginning of the General Assembly.

Petitioned Resolutions
The Cal Cities President
assigns general resolutions
to policy committees where
members review, debate,
and recommend positions for
each policy proposal. Recommendations are
forwarded to the Resolutions Committee.

Who’s who
The Resolutions
Committee includes
representatives from
each Cal Cities diversity
caucus, regional
division, municipal
department, policy
committee, as well as
individuals appointed by
the Cal Cities president.

Voting delegates
are appointed by each
member city; every city
has one voting delegate.

The General Assembly
is a meeting of the
collective body of
all voting delegates —
one from every
member city.

Seven Policy
Committees meet
throughout the year to
review and recommend
positions to take on
bills and regulatory
proposals. Policy
committees include
members from each Cal
Cities diversity caucus,
regional division,
municipal department,
as well as individuals
appointed by the Cal
Cities president.

During the General Assembly, voting delegates
debate and consider general and petitioned
resolutions forwarded by the Resolutions Committee.

Potential Cal Cities bylaws amendments are also
considered at this meeting.

Cal Cities policy
development is a
member-informed
process, grounded
in the voices and
experiences of city
officials throughout
the state.

For more information visit www.calcities.org/general-assembly Prior to the Annual Conference and Expo
Resolutions Committee
The Resolutions Committee
considers all resolutions.

General Resolutions approved1
by either a policy committee
or the Resolutions Committee
are next considered by the General
Assembly. General resolutions not approved,
or referred for further study by both a policy
committee and the Resolutions Committee
do not go the General Assembly. All
Petitioned Resolutions are considered by the
General Assembly, unless disqualified.2
• Voting delegates will receive increased communications to prepare them for their role during the General Assembly.
• The General Assembly will take place earlier to allow more time for debate and discussion.
• Improvements to the General Assembly process will make it easier for voting delegates to discuss and debate resolutions.

What’s new in 2023?
During the Annual Conference and Expo
1 The Resolution Committee can amend a general resolution prior to sending it to the General Assembly. 2 Petitioned Resolutions may be disqualified by the Resolutions Committee according to Cal Cities Bylaws Article VI. Sec. 5(f). #5..
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7/5/2023 1
City of Modesto
City Council Liaison Committees
July 11, 2023

BLIGHT ABATEMENT ADVISORY COMMITTEE
Member (Non-Voting): David Wright
Meets: Monthly
The Blight Abatement Advisory Committee acts as an advisory body to the City Council on policies to address blight in the community.

CITY-COUNTY AIRPORT ADVISORY COMMITTEE
Member(s): Eric Alvarez
Alternate: Jeremiah Williams
Meets: Bi-Monthly
The City of Modesto operates the Modesto City-County Airport for the benefit of all residents, business owners and visitors in and around the City of Modesto and surrounding areas. The Committee advises the City Manager and The Modesto City council on policy matters pertaining to the operation and management of the Modesto CityCounty Airport, the uses of the property adjacent to the airport if such uses may impact operations at the airport and any other matters as the City Manager may from time to time request.

CITY–COUNTY LIAISON COMMITTEE
Member(s): Rosa Escutia-Braaton
Nick Bavaro
David Wright
Joe Lopez
Jose Sanchez
Meets: Quarterly
The City–County Liaison Committee meets to discuss issues involving both agencies.

CITIZENS HOUSING AND COMMUNITY DEVELOPMENT COMMITTEE
Member(s): Chris Ricci
Eric Alvarez
Alternate: Jeremiah Williams
Meets: Monthly
The Citizens Housing and Community Development Committee provides overall review of the City’s HUD funds. The committee makes funding recommendations to the Modesto City Council regarding the HUD Community Development Block Grant, Emergency Shelter Grant, and HOME Investment Partnership Grant programs. 6 #5..
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7/5/2023 2
CITY’S REDEVELOPMENT AGENCY (RDA) / SUCCESSOR AGENCY- STANISLAUS COUNTY Member: Rosa Escutia-Braaton
Alternate: Jeremiah Williams

HOUSING REHABILITATION LOAN COMMITTEE
Member(s): Jeremiah Williams
Mayor/Council Appointment(s): Mayor or Designee
Meets: First Thursday (Monthly)
The Rehabilitation and Loan Committee develops the administrative procedures and policies for housing rehabilitation loan funds as well as the down payment assistance program, eligibility and extent of governmental and private sector commitment of funds, and makes recommendations on policy issues to the Citizens Housing and Community Development Committee.

STANISLAUS LOCAL AGENCY FORMATION COMMISSION (LAFCO)
Member(s) Turlock/Riverbank
Mayor/Council Appointments: Majority of City Selection Committee Meets: Monthly
Stanislaus LAFCO is responsible for coordinating logical and timely changes in local governmental boundaries, conducting special studies which review ways to reorganize, simplify, and streamline governmental structure and preparing Spheres of Influence for each city and special district within each county. The Commission's efforts are directed to seeing that services are provided efficiently and economically while agricultural and open-space lands are protected.

LEAGUE OF CALIFORNIA CITIES – CENTRAL VALLEY DIVISION EXECUTIVE COMMITTEE Member: Eric Alvarez
Alternate: Rosa Escutia-Braaton
Mayor Appointment: Mayor
Meets: Quarterly

MODESTO IRRIGATION DISTRICT (MID) DOMESTIC WATER POLICY BOARD Member(s): David Wright
Jeremiah Williams
Alternate: Sue Zwahlen
Mayor/Council Appointment(s): Two members of City Council Meets: Monthly
The MID Domestic Water Policy Board is the Policy Board that implements the Treatment and Delivery Agreement between MID and the City of Modesto for the Modesto Water Treatment Plant. It was originally comprised of three agencies: MID, City of Modesto, and Del Este each with two seats on the Policy Board. Since the City of Modesto bought Del Este on 1995, the City now holds four of the six seats. The revised TDA changes the number of seats for the City of Modesto from four seats to two seats effective November 1, 2005.
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7/5/2023 3
NORTH COUNTY CORRIDOR JOINT POWERS AUTHORITY (JPA) INACTIVE SINCE 2020 Member (s): David Wright
Alternate: Jeremiah Williams
Meets: Monthly

NORTH VALLEY REGIONAL RECYCLED WATER JOINT POWERS AUTHORITY (JPA) Member(s): Chris Ricci
Meets: As Needed

SAN JOAQUIN VALLEY SPECIAL CITY SELECTION COMMITTEE
Member: Chris Ricci
Alternate: Eric Alvarez
Meets: As needed
On September 30, 2008 Governor Schwarzenegger signed SB 1548 (Florez) which creates Section 40600.5 of the Health and Safety Code (H&SC) establishing a valley-wide Special City Selection Committee which is charged with making appointments of city representatives to the San Joaquin Valley Air Pollution Control District’s (District’s) Governing Board. The Special City Selection Committee consists of one member selected by a majority vote of the council of each city located within the District. An alternate can be selected to attend if the primary member is unable to attend a meeting.

STANISLAUS COUNCIL OF GOVERNMENTS (STANCOG) - EXECUTIVE COMMITTEE Member: Sue Zwahlen
Alternate: Rosa Escutia-Braaton
Meets: Second Monday of the Month
The Executive Committee is one of StanCOG's Standing Committees. The Committee is responsible for appointing members to Standing Committees, and for reviewing and making recommendations on special matters.

STANISLAUS COUNCIL OF GOVERNMENTS (STANCOG) - POLICY BOARD Member(s): Sue Zwahlen
Rosa Escutia-Braaton
David Wright
Alternate: Eric Alvarez
Meets: Third Wednesday of the Month
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7/5/2023 4
StanCOG (Stanislaus County Council of Governments) is comprised of representatives from each city in Stanislaus County and is responsible for regional planning, transportation, and housing within the county.

STANISLAUS COUNTY DISASTER COUNCIL
Member(s): Sue Zwahlen
Alternate: Nick Bavaro
The Disaster Council makes recommendations to local governing agencies on matters pertinent to the development of mitigation, disaster preparedness, response and recovery plans, and programs for any potential local emergency. This allows for consistent and uniform standards so that plans do not conflict with one another. Disaster Council meetings provide for communication and coordination between the public and private sectors in the County in analyzing and developing plans, projects, policies, and procedures for emergency operations.

STANISLAUS ECONOMIC DEVELOPMENT ACTION COMMITTEE
Member(s): Sue Zwahlen
Alternate: David Wright
Meets: Quarterly
The Economic Development Action Committee coordinates local participation in activities that stimulate new public and private investment, and seeks grants and local funds from the Federal Economic Development Administration.

STANISLAUS COUNTY LOCAL TASK FORCE ON SOLID WASTE MANAGEMENT Member(s): Chris Ricci
Alternate: Rosa Escutia-Braaton
Meets: Second Thursday of the Month
The Task Force serves as the advisory body for both the County and all nine incorporated cities relative to Integrated Solid Waste Management. The group assists the jurisdictions in identifying, developing, and implementing environmentally sound solid waste management policies, procedures, and programs. The Task Force assists, advises, and provides technical support relative to meeting the mandates of the California Integrated Waste Management Act of 1989.

STANISLAUS COUNTY WASTE-TO-ENERGY (SWEC) JOINT POWERS AUTHORITY (JPA) Member(s): Chris Ricci
Nick Bavaro
Alternate: Eric Alvarez
Mayor/Council Appointment(s): Two members of City Council Meets: Quarterly (or more often as needed)
The Waste to Energy Joint Powers Authority is the policy board over the City – County Waste to Energy Plant managed by Covanta. The committee meets a minimum of once a quarter throughout the year.
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7/5/2023 5

STANISLAUS HOMELESS ALLIANCE (SHA)
Member: David Wright
Meets: Monthly

STANISLAUS REGIONAL TRANSIT AUTHORITY JOINT POWERS AUTHORITY (JPA) Members: David Wright
Chris Ricci
Alternate: Jeremiah Williams
Meets: Monthly
Stanislaus Regional Transit Authority (StanRTA), was formed to improve transit efficiencies and operations in the Stanislaus region. StanRTA will merge the City of Modesto MAX and the Stanislaus County StaRT transit systems into one system to better serve transit users.

TENTH STREET PLACE JOINT POWERS AUTHORITY (JPA)
Member(s): Chris Ricci
Nick Bavaro
Alternate: Rosa Escutia-Braaton
Meets: Monthly
The Tenth Street Place Joint Powers Authority is comprised of a six-member policy board overseeing the operation of Tenth Street Place.

TUOLUMNE RIVER REGIONAL PARK JOINT POWERS AUTHORITY (JPA) COMMISSION Member(s): Nick Bavaro
Eric Alvarez
Meets: Bi-Monthly
The Tuolumne River Regional Park Committee acts in an advisory capacity to City of Modesto staff in carrying out the provisions of the TRRP Park agreement. The committee also serves in an advisory capacity to the legislative bodies of the parties in the agreement.

STANISLAUS REGIONAL (SR) 911 EMERGENCY DISPATCH JOINT POWERS AUTHORITY (JPA)

COMMISSION
Member(s): Sue Zwahlen
Alternate: Nick Bavaro
Meets: Third Wednesday of Every
Month
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7/5/2023 6
Call processing and dispatch protocols are developed in conjunction with the responder agencies and adopted by our Dispatch Advisory Board (Sheriff, County Fire Warden, Modesto Police Chief and Modesto Fire Chief). SR9-1-1 staff apply these protocols when processing information for dispatch or in providing referral information to callers. #5..
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7/5/2023 1
City of Modesto
City Council Liaison Committees
July 11, 2023

BLIGHT ABATEMENT ADVISORY COMMITTEE
Member (Non-Voting): David Wright
Meets: Monthly
The Blight Abatement Advisory Committee acts as an advisory body to the City Council on policies to address blight in the community.

CITY-COUNTY AIRPORT ADVISORY COMMITTEE
Member(s): Eric Alvarez
Alternate: Jeremiah Williams
Meets: Bi-Monthly
The City of Modesto operates the Modesto City-County Airport for the benefit of all residents, business owners and visitors in and around the City of Modesto and surrounding areas. The Committee advises the City Manager and The Modesto City council on policy matters pertaining to the operation and management of the Modesto CityCounty Airport, the uses of the property adjacent to the airport if such uses may impact operations at the airport and any other matters as the City Manager may from time to time request.

CITY–COUNTY LIAISON COMMITTEE
Member(s): Rosa Escutia-Braaton
Nick Bavaro
David Wright
Joe Lopez
Jose Sanchez
Meets: Quarterly
The City–County Liaison Committee meets to discuss issues involving both agencies.

CITIZENS HOUSING AND COMMUNITY DEVELOPMENT COMMITTEE
Member(s): Chris Ricci
Eric Alvarez
Alternate: Jeremiah Williams
Meets: Monthly
The Citizens Housing and Community Development Committee provides overall review of the City’s HUD funds. The committee makes funding recommendations to the Modesto City Council regarding the HUD Community Development Block Grant, Emergency Shelter Grant, and HOME Investment Partnership Grant programs. 6 #5..
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7/5/2023 2
CITY’S REDEVELOPMENT AGENCY (RDA) / SUCCESSOR AGENCY- STANISLAUS COUNTY Member: Rosa Escutia-Braaton
Alternate: Jeremiah Williams

HOUSING REHABILITATION LOAN COMMITTEE
Member(s): Jeremiah Williams
Mayor/Council Appointment(s): Mayor or Designee
Meets: First Thursday (Monthly)
The Rehabilitation and Loan Committee develops the administrative procedures and policies for housing rehabilitation loan funds as well as the down payment assistance program, eligibility and extent of governmental and private sector commitment of funds, and makes recommendations on policy issues to the Citizens Housing and Community Development Committee.

STANISLAUS LOCAL AGENCY FORMATION COMMISSION (LAFCO)
Member(s) Turlock/Riverbank
Mayor/Council Appointments: Majority of City Selection Committee Meets: Monthly
Stanislaus LAFCO is responsible for coordinating logical and timely changes in local governmental boundaries, conducting special studies which review ways to reorganize, simplify, and streamline governmental structure and preparing Spheres of Influence for each city and special district within each county. The Commission's efforts are directed to seeing that services are provided efficiently and economically while agricultural and open-space lands are protected.

LEAGUE OF CALIFORNIA CITIES – CENTRAL VALLEY DIVISION EXECUTIVE COMMITTEE Member: Eric Alvarez
Alternate: Rosa Escutia-Braaton
Mayor Appointment: Mayor
Meets: Quarterly

MODESTO IRRIGATION DISTRICT (MID) DOMESTIC WATER POLICY BOARD Member(s): David Wright
Jeremiah Williams
Alternate: Sue Zwahlen
Mayor/Council Appointment(s): Two members of City Council Meets: Monthly
The MID Domestic Water Policy Board is the Policy Board that implements the Treatment and Delivery Agreement between MID and the City of Modesto for the Modesto Water Treatment Plant. It was originally comprised of three agencies: MID, City of Modesto, and Del Este each with two seats on the Policy Board. Since the City of Modesto bought Del Este on 1995, the City now holds four of the six seats. The revised TDA changes the number of seats for the City of Modesto from four seats to two seats effective November 1, 2005.
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7/5/2023 3

NORTH VALLEY REGIONAL RECYCLED WATER JOINT POWERS AUTHORITY (JPA) Member(s): Chris Ricci
Meets: As Needed

SAN JOAQUIN VALLEY SPECIAL CITY SELECTION COMMITTEE
Member: Chris Ricci
Alternate: Eric Alvarez
Meets: As needed
On September 30, 2008 Governor Schwarzenegger signed SB 1548 (Florez) which creates Section 40600.5 of the Health and Safety Code (H&SC) establishing a valley-wide Special City Selection Committee which is charged with making appointments of city representatives to the San Joaquin Valley Air Pollution Control District’s (District’s) Governing Board. The Special City Selection Committee consists of one member selected by a majority vote of the council of each city located within the District. An alternate can be selected to attend if the primary member is unable to attend a meeting.

STANISLAUS COUNCIL OF GOVERNMENTS (STANCOG) - EXECUTIVE COMMITTEE Member: Sue Zwahlen
Alternate: Rosa Escutia-Braaton
Meets: Second Monday of the Month
The Executive Committee is one of StanCOG's Standing Committees. The Committee is responsible for appointing members to Standing Committees, and for reviewing and making recommendations on special matters.

STANISLAUS COUNCIL OF GOVERNMENTS (STANCOG) - POLICY BOARD Member(s): Sue Zwahlen
Rosa Escutia-Braaton
David Wright
Alternate: Eric Alvarez
Meets: Third Wednesday of the Month
StanCOG (Stanislaus County Council of Governments) is comprised of representatives from each city in Stanislaus County and is responsible for regional planning, transportation, and housing within the county.

STANISLAUS COUNTY DISASTER COUNCIL
Member(s): Sue Zwahlen
Alternate: Nick Bavaro
The Disaster Council makes recommendations to local governing agencies on matters pertinent to the development of mitigation, disaster preparedness, response and #5..
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7/5/2023 4
recovery plans, and programs for any potential local emergency. This allows for consistent and uniform standards so that plans do not conflict with one another. Disaster Council meetings provide for communication and coordination between the public and private sectors in the County in analyzing and developing plans, projects, policies, and procedures for emergency operations.

STANISLAUS ECONOMIC DEVELOPMENT ACTION COMMITTEE
Member(s): Sue Zwahlen
Alternate: David Wright
Meets: Quarterly
The Economic Development Action Committee coordinates local participation in activities that stimulate new public and private investment, and seeks grants and local funds from the Federal Economic Development Administration.

STANISLAUS COUNTY LOCAL TASK FORCE ON SOLID WASTE MANAGEMENT Member(s): Chris Ricci
Alternate: Rosa Escutia-Braaton
Meets: Second Thursday of the Month
The Task Force serves as the advisory body for both the County and all nine incorporated cities relative to Integrated Solid Waste Management. The group assists the jurisdictions in identifying, developing, and implementing environmentally sound solid waste management policies, procedures, and programs. The Task Force assists, advises, and provides technical support relative to meeting the mandates of the California Integrated Waste Management Act of 1989.

STANISLAUS COUNTY WASTE-TO-ENERGY (SWEC) JOINT POWERS AUTHORITY (JPA) Member(s): Chris Ricci
Nick Bavaro
Alternate: Eric Alvarez
Mayor/Council Appointment(s): Two members of City Council Meets: Quarterly (or more often as needed)
The Waste to Energy Joint Powers Authority is the policy board over the City – County Waste to Energy Plant managed by Covanta. The committee meets a minimum of once a quarter throughout the year.

STANISLAUS HOMELESS ALLIANCE (SHA)
Member: David Wright
Meets: Monthly
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7/5/2023 5

STANISLAUS REGIONAL TRANSIT AUTHORITY JOINT POWERS AUTHORITY (JPA) Members: David Wright
Chris Ricci
Alternate: Jeremiah Williams
Meets: Monthly
Stanislaus Regional Transit Authority (StanRTA), was formed to improve transit efficiencies and operations in the Stanislaus region. StanRTA will merge the City of Modesto MAX and the Stanislaus County StaRT transit systems into one system to better serve transit users.

TENTH STREET PLACE JOINT POWERS AUTHORITY (JPA)
Member(s): Chris Ricci
Nick Bavaro
Alternate: Rosa Escutia-Braaton
Meets: Monthly
The Tenth Street Place Joint Powers Authority is comprised of a six-member policy board overseeing the operation of Tenth Street Place.

TUOLUMNE RIVER REGIONAL PARK JOINT POWERS AUTHORITY (JPA) COMMISSION Member(s): Nick Bavaro
Eric Alvarez
Meets: Bi-Monthly
The Tuolumne River Regional Park Committee acts in an advisory capacity to City of Modesto staff in carrying out the provisions of the TRRP Park agreement. The committee also serves in an advisory capacity to the legislative bodies of the parties in the agreement.

STANISLAUS REGIONAL (SR) 911 EMERGENCY DISPATCH JOINT POWERS AUTHORITY (JPA)

COMMISSION
Member(s): Sue Zwahlen
Alternate: Nick Bavaro
Meets: Third Wednesday of Every
Month
Call processing and dispatch protocols are developed in conjunction with the responder agencies and adopted by our Dispatch Advisory Board (Sheriff, County Fire Warden, Modesto Police Chief and Modesto Fire Chief). SR9-1-1 staff apply these protocols when processing information for dispatch or in providing referral information to callers. #5..
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CITY OF MODESTO

COUNCIL AGENDA REPORT
DATE OF MEETING:

July 11, 2023
Date: June 19, 2023
TO: Mayor and City Council
THROUGH: Joseph P. Lopez, City Manager
FROM: Jose M. Sanchez, City Attorney
DeAnna Christensen, Director of Finance
Will Wong, Director of Utilities
SUBJECT: Legal Services Agreement with Norton Rose Fulbright US, LLP and Bartkiewicz, Kronick, and Shanahan for Continued Representation
CONTACT: Jose M. Sanchez, City Attorney, 209-577-5284, [email protected] DESCRIPTION:

Consider approving a Legal Services Agreement with Norton Rose Fulbright US LLP, for continued representation in relation to financing matters, for an Agreement total not to exceed $450,000 and a Fifth Amendment to the Legal Services Agreement with Bartkiewicz, Kronick & Shanahan P.C. for a revised Agreement total not to exceed $292,300 for continued representation in water related matters. (Funding Source: Redevelopment Successor Agency, General Fund, Employee Benefits Fund, Wastewater, Water, and Golf Fund) STRATEGIC PLAN ELEMENT:

This item supports the City’s 2020-2025 Strategic Plan Goals to build a high-performance organization and improve community safety.

BACKGROUND:

In 2014, in order to improve the transparency and delivery of legal services, the City Attorney’s Office prepared a standard legal services agreement for the City to use when hiring outside counsel. This standard legal services agreement template was approved by the Council. The City Attorney’s Office tracks the assigned budget and requests that Council amend the agreements when necessary.

DISCUSSION:

Norton Rose Fulbright US, LLP
On December 21, 2016, the City entered into a standard legal services agreement with Norton Rose Fulbright US LLP (NRF) for representation in bond related and other finance matters, in the amount of $47,500. The agreement has been amended over the last several years, with #6..
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City Council, July 11, 2023
Legal Services Agreement with Norton Rose Fulbright US, LLP and Bartkiewicz, Kronick, and Shanahan for Continued Representation

Council approval for a total not to exceed amount of $615,000. The remaining budget on this agreement is approximately $65,000.

Over the last year and half, legal services related to bond related transaction have increased drastically compared to prior years. NRF has recently assisted the City will a three-year extension of the irrevocable direct pay Letter of Credit (LOC) with BMO Harris Bank N.A. (formerly Bank of the West) supporting the Lease Revenue Bonds, Series 2008 and a threeyear Standby Certificate Purchase Agreement (SCPA) with BMO Harris Bank N.A. (formerly Bank of the West) supporting the Water Refunding Revenue Certificates of Participation, Series 2008A. Both of these transactions resulted in an overall savings in the amount of $200,000.

These two bond transactions required the need to update and amend the legal bond documents for these two bonds for the City.

In the upcoming fiscal years, the City anticipates additional bond funding will be needed for the Water and Sewer Funds for various Capital Improvement projects. In addition, with the delay in addressing major deferred maintenance projects for aged public facilities City staff anticipates bond financing will be an option to address the long-term financing for these projects. Each bond issuance will require bond counsel services which could range from $50,000 to $90,000.

City staff anticipates this new Agreement for bond counsel services will be sufficient to address these future bond financing needs for at least three fiscal years.

Bartkiewicz, Kronick & Shanahan, P.C
On December 6, 2016, by Resolution No. 2016-479, Council approved an agreement with Bartkiewicz, Kronick & Shanahan, P.C. (BKS) to provide legal services for the State Water Resources Control Board Substitute Environmental Document, in the amount of $57,300. On July 11, 2017, by Resolution No. 2017-282, Council approved a First Amendment to the Legal Services Agreement with BKS in the amount of $35,000 for a not to exceed amount of $92,300.

On August 13, 2019, by Resolution No. 2019-367, Council approved a Second Amendment increasing the contract amount by $50,000 for a total agreement amount not to exceed $142,300. On May 3, 2022, by Resolution 2022- 202, Council approved a Third Amendment to the Legal Services Agreement in the amount of $75,000, for a total not to exceed $217,300 for continued representation, and on February 14, 2023, by Resolution No. 2023-46, Council approved a Fourth Amendment to the Legal Services Agreement to adjust hourly rates. The City is currently seeking to overturn the State Water Resources Control Board’s action in approving the Bay-Delta Plan. This is the suit challenging the State Water Board’s approval of regulatory changes that require that about 40% of the flow of the Tuolumne River remain in the stream for fish; the regulations are known locally as the “water grab”. The City relies on Tuolumne River supplies from Modesto Irrigation District to help meet the demands of City customers, and the City filed this suit to protect its interests in that water. Our office is requesting a Fifth Amendment to the Legal Services Agreement in the amount of $75,000 for a total amount not to exceed $292,300 for continued representation.

In accordance with Modesto Municipal Code Sec. 8-3.204(a), Exceptions to Formal Bidding Requirements, the agreements are for professional services and, therefore, exempt from the bidding requirement. The approval of these Legal Services Agreements conforms to Modesto Municipal Code 8-3.204, subsection (a) as they are providing professional services for continued representation in bond, financing and water related matters. #6..
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City Council, July 11, 2023
Legal Services Agreement with Norton Rose Fulbright US, LLP and Bartkiewicz, Kronick, and Shanahan for Continued Representation

Attached are the legal services agreements for Council approval.

FISCAL IMPACT:

Costs for Norton Rose Fulbright US LLP will be absorbed by the General Fund, Redevelopment Successor Agency, Wastewater, Water, and Employee Benefit Fund based on the bond counsel legal services provided for these bond impacts. Costs associated with the BKS Legal Services Agreement will be paid from the Water Funds. The expenses will be absorbed within the Fiscal Year 2023-2024 adopted budget for the various funds.

COMMITTEE RECOMMENDATION:

This item was not presented to a committee.

RECOMMENDED COUNCIL ACTION:

Staff Recommendations:

Resolution approving a Legal Services Agreement with Norton Rose Fulbright US LLP, for continued representation in relation to financing matters, for an Agreement total not to exceed $450,000 and authorizing the City Manager or his designee, to execute the Agreement.

Resolution approving a Fifth Amendment to the Legal Services Agreement with Bartkiewicz, Kronick & Shanahan P.C. in the amount of $75,000, for a revised Agreement total not to exceed $292,300 for continued representation in water related matters and authorizing the City Manager or his designee, to execute the Agreement.

Approved by:

Jose M. Sanchez, City Attorney
_____
DeAnna Christensen, Director of Finance
__________________________________
Will Wong, Director of Utilities
Joseph P. Lopez, City Manager
Attachments:

1. Resolution- Norton Rose Fulbright US LLP

2. Resolution- Bartkiewicz, Kronick & Shanahan P.C.

3. Legal Services Agreement- Norton Rose Fulbright US LLP

4. Legal Services Agreement -Bartkiewicz, Kronick & Shanahan P.C. #6..
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07/11/2023/CAO/JSanchez/Item X 1 2023-XX

MODESTO CITY COUNCIL
RESOLUTION NO. 2023-XX

RESOLUTION APPROVING A LEGAL SERVICES AGREEMENT WITH

NORTON ROSE FULBRIGHT US LLP, FOR CONTINUED REPRESENTATION

IN RELATION TO FINANCING MATTERS, FOR AN AGREEMENT TOTAL NOT TO EXCEED $450,000 AND AUTHORIZING THE CITY MANAGER OR

HIS DESIGNEE, TO EXECUTE THE AGREEMENT
WHEREAS, the City is in need of outside counsel services that relate to bond financing matters; and
WHEREAS, Norton Rose Fulbright US LLP has represented the City in bond financing matters since December of 2016; and
WHEREAS, in the upcoming fiscal years, the City anticipates additional bond funding will be needed for the Water and Sewer Funds for various Capital Improvement projects; and
WHEREAS, in addition, with the delay in addressing major deferred maintenance projects for aged public facilities City staff anticipates bond financing will be an option to address the long-term financing for these projects; and WHEREAS, the City Attorney’s office has drafted a Legal Services Agreement with Norton Rose Fulbright US LLP to continue services; and WHEREAS, City staff anticipates this new Agreement for bond counsel services will be sufficient to address these future bond financing needs for at least three fiscal years.

NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Modesto that it hereby approves a Legal Services Agreement with Norton Rose Fulbright US LLP, for continued representation in relation to financing matters, for an agreement total not to exceed $450,000 to continue representing the City in finance matters, as provided in #6..
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07/11/2023/CAO/JSanchez/Item X 2 2023-XX
Exhibit A attached hereto and incorporated herein, and further authorizes the City Attorney to execute such agreement in a form substantially similar to Exhibit A.

BE IT FURTHER RESOLVED that the City Manager or his designee, are hereby authorized to execute the agreement, in a form approved by the City Attorney.

The foregoing resolution was introduced in 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
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07/11/2023/CAO/JSanchez/Item X 1 2023-XX

MODESTO CITY COUNCIL
RESOLUTION NO. 2022-XX

RESOLUTION APPROVING A FIFTH AMENDMENT TO THE LEGAL

SERVICES AGREEMENT WITH BARTKIEWICZ, KRONICK & SHANAHAN, P.C. IN THE AMOUNT OF $75,000, FOR A REVISED AGREEMENT TOTAL NOT TO EXCEED $292,300, FOR CONTINUED REPRESENTATION IN

WATER RELATED MATTERS AND AUTHORIZING THE CITY MANAGER

OR HIS DESIGNEE, TO EXECUTE THE AGREEMENT
WHEREAS, on December 6, 2016, by Resolution No. 2016-479, Council approved an agreement with Bartkiewicz, Kronick & Shanahan, P.C. (BKS) to provide legal services for the State Water Resources Control Board Substitute Environmental Document, in the amount of $57,300; and
WHEREAS, on July 11, 2017, by Resolution No. 2017-282, Council approved a First Amendment to the Legal Services Agreement with BKS for continued services in an amount of $35,000, for a total agreement not to exceed $92,300; and WHEREAS, on August 13, 2019, by Resolution No. 2019-367, Council approved a Second Amendment for continued services in the amount of $50,000, for a total agreement not to exceed $142,300; and
WHEREAS, on May 3, 2022, by Resolution 2022-202, Council approved a Third Amendment to the Legal Services Agreement in the amount of $75,000, for a total not to exceed $217,300 for continued representation; and
WHEREAS, on February 14, 2023, by Resolution No. 2023-46, Council approved a Fourth Amendment to the Legal Services Agreement to adjust hourly rates; and WHEREAS, the City is currently seeking to overturn the State Water Resources Control Board’s action in approving the Bay-Delta Plan; and #6..
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WHEREAS, this is the suit challenging the State Water Board’s approval of regulatory changes that require that about 40% of the flow of the Tuolumne River remain in the stream for fish; the regulations are known locally as the “water grab”; and WHEREAS, the City Attorney’s office has drafted a Fifth Amendment to the Legal Services agreement with Bartkiewicz, Kronick & Shanahan, P.C., to continue services.

NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Modesto that it hereby approves a Fifth Amendment to the Legal Services Agreement with Bartkiewicz, Kronick & Shanahan, P.C., in the amount of $75,000, for a revised agreement total not to exceed $292,300 for continued representation in water related matters, as provided in Exhibit A attached hereto and incorporated herein, and further authorizes the City Attorney to execute such agreement in a form substantially similar to Exhibit A.

BE IT FURTHER RESOLVED that the City Manager or his designee, are hereby authorized to execute the amendment, in a form approved by the City Attorney. #6..
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07/11/2023/CAO/JSanchez/Item X 3 2023-XX
The foregoing resolution was introduced in 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
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Legal Services Agreement
City of Modesto and Norton Rose Fulbright US LLP 1

LEGAL SERVICES AGREEMENT
This Agreement for Legal Services (this “Agreement”) is made and entered into on the 11th day of July, 2023 (“Effective Date”), by and between the CITY OF MODESTO, a California Municipal Corporation (“CITY”), located at 1010 Tenth Street, Sixth Floor, Modesto, California 95353 and NORTON ROSE FULBRIGHT US LLP, a Texas limited liability partnership (“Attorney”), located at 555 California Street, Suite 3300, San Francisco, CA 94104.

City and Attorney are hereinafter collectively referred to as the “Parties,” and singularly as a “Party.”

RECITALS
WHEREAS, City desires to obtain Attorney’s services with respect to providing legal advice, representation and assistance to City in relation to financing matters; and WHEREAS, Attorney is specially trained, experienced and competent to perform such services; and
WHEREAS, the public interest, economy and general welfare will be served by this Agreement.

NOW, THEREFORE it is hereby agreed as follows:

1. Services.
a. Scope of Work: Subject to the terms and conditions set forth in this Agreement, Attorney shall provide to City the following services (“Services”):

Attorney will serve as bond counsel, and in some cases disclosure counsel, in connection with the various financing projects of the City. Services will include providing ongoing advice on an ad hoc basis as to financing matters, as well as advice for specific bond issuances.

Attorney shall not be compensated for services outside the scope of work identified under this Section unless prior to the commencement of such services:
(i) Attorney notifies City and City agrees that such services are outside the scope of work under this Section; (ii) Attorney estimates the additional compensation required for these additional services; and (iii) City, after notice, approves in writing a Supplemental Agreement specifying the additional services and amount of compensation therefor.
b. Term: This Agreement shall become effective on the Effective Date, and shall continue in effect until both Parties have fully performed their respective obligations under this Agreement unless sooner terminated as provided in Section #6..
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Legal Services Agreement
City of Modesto and Norton Rose Fulbright US LLP 2

7. c. Attorney in Charge: The attorney in charge of the work under this Agreement will be Eric D. Tashman. Stepan A. Haytayan, a Senior Counsel, will also be assigned to the City’s financing transactions, and will work on a day-to-day basis with the City. Attorney will utilize experienced associate attorneys and paralegals under attorney’s supervision. Eric D. Tashman will be the contact person for City and will make himself/herself and Stepan Haytayan reasonably available to respond to questions from the City Attorney or City Staff.

2. Fees and Costs.
a. Hourly Rates:

Attorney shall charge on hourly “blended rate” of Seven Hundred Twenty-Five Dollars ($725) for all attorney time, and Three Hundred Ten Dollars ($310) for Paralegal time. At least fifty percent (50%) of the attorney services provided for under this Agreement (determined on an aggregate and not task-by-task basis) shall be provided by a Partner of Attorney.

The total of all fees paid to Attorney for the performance of all services set forth in Section 1 (hereafter the “Services”), and for all authorized Reimbursable Expenses (as defined hereafter), shall not exceed the total sum of four-hundred and fifty thousand dollars ($450,000).
b. Reimbursable Expenses. City shall reimburse Attorney for the actual, reasonable and necessary expense of travel out of the Modesto metropolitan area, approved in advance, at $0.65 per mile. Attorney will not charge City for the cost of telephone calls. Litigation costs and expenses for statutory fees, witness fees, reporters’ per diem and stenographic transcriptions, jury fees, and the expenses of serving process shall be advanced by Attorney and reimbursed by City. Expert consultants and witnesses may be retained by Attorney on terms acceptable to City, approved in advance by email or letter by the City Representative (as defined hereafter), in which case City shall reimburse Attorney or pay such consultants or experts directly.
c. Billing:
i. Legal billings shall be submitted to City every thirty (30) days unless otherwise advised. Bills shall be submitted to:

City Attorney
1010 Tenth Street, Suite 6300
Modesto, CA 95354
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Legal Services Agreement
City of Modesto and Norton Rose Fulbright US LLP 3
ii. Each task shall be distinctly and completely identified. City will not pay invoices that contain block billing. Each billing entry must contain the initials of the individual performing the task, the nature of the task, the date it was performed, and the length of time it took.
iii. Costs under $1,000.00 shall be paid by Attorney and submitted with their normal billing.
iv. City reserves the right to audit all invoices.
v. Payments to Attorney shall be made within a reasonable time after receipt of Attorney’s invoice, generally within sixty (60) days of receipt.

Attorney shall be responsible for supplying all documentation necessary to verify the monthly billings to the satisfaction of City. vi. In addition to the provisions stated elsewhere in this Agreement regarding the payment of fees, billing and budgeting, the following guidelines for billing apply:
(1) City expects each individual working on the matter for which Attorney is retained to have the necessary experience to perform the services required to protect or pursue City’s interests in the matter in a cost effective manner, consistent with high professional and ethical standards.
(2) City expects Attorney to select the individual most suitable for the task required and the specific needs of the matter, and to use the maximum efficiencies available. Billings for services performed by the inappropriate level of personnel will be reduced by City based on rate adjustments for the appropriate level of personnel. (3) City will not pay for unnecessary review of texts, codes, rules of court, or other fundamental references. City will pay the hourly rate for specific legal research which is unique to the matter, assuming that Attorney has used maximum efficiencies and that Attorney has not already recently performed research in the same or very similar areas of law.
(4) City acknowledges the benefit of communications between attorneys in the firm. City does, however, expect that intra-office conferences will only be held as needed, and will be kept to a minimum. Intra-office conferences shall be for the purpose of discussing strategy and legal issues which directly further the #6..
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Legal Services Agreement
City of Modesto and Norton Rose Fulbright US LLP 4
matter. City will not pay for conferences which are supervisorial, instructional or administrative. Any invoice which lists an intraoffice conference that does not meet these guidelines must contain a full explanation and is subject to reduction by City. City will not pay for “team meetings” and City will scrutinize all intra-office conferences for “value added” to the matter by the conference, for the number of individuals attending the conference, the length of the conference, the subjects discussed at the conference and who participated in it, and will, in City’s sole discretion, determine if such value has been added.
(5) City will not pay for local telephone calls, incoming facsimiles, postage, time spent on filing, calendaring, indexing pleadings, conferences with Clerks of court or court reporters, proofreading, re-drafting due to substandard work, or opening, organizing or closing files. City will not pay for time billed by summer interns or associates, time for more than one individual to attend a trial, hearing, court appearance, arbitration, mediation, deposition, third party meeting, conference call or similar event, unless otherwise approved by City in advance.
(6) Vague billing which does not contain sufficient information to allow City’s reviewer of the invoice to determine the nature of the task, the reason for the task, and the individual performing the task is subject to reduction by City.
(7) City will not reimburse for overtime, word processing, supplies, anything identified on an invoice as “miscellaneous,” or any other unidentified charges.
d. Budget:
i. Within ten (10) days of the Effective Date, Attorney shall provide City with a proposed budget for the Services to be rendered pursuant to this Agreement. If Services involve tasks that have not yet been assigned by City, Attorney shall provide City with a proposed budget for all assigned new tasks with ten (10) days of receiving written notice from the City assigning Attorney the new task. Total compensation for all tasks under this Agreement shall not exceed the total compensation under Section 2 of this Agreement. The budget shall include all projected fees and costs to be incurred by Attorney and necessary for completion of the Services necessary to conclude the representation. The budget shall be a good faith estimate and shall be as complete and detailed as reasonable possible, including such things as discovery and motions for trial, preparation of documents for transactional services, and anticipated research and #6..
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Legal Services Agreement
City of Modesto and Norton Rose Fulbright US LLP 5
investigations. The proposed budget shall identify the projected total hours that will be billed to each task, and the individual that are anticipated to be performing the task. Any deviation from the budget in excess of ten percent (10%), must be approved in advance by the City Attorney or designee. Notwithstanding the foregoing, Should it become reasonably apparent to Attorney that the actual billings will exceed Attorney’s initial estimate of anticipated legal costs and fees, Attorney shall immediately notify City thereof in advance and shall submit a revised written estimate for City’s approval.

3. Reporting.
a. Attorney shall provide City with a preliminary status report and evaluation within thirty (30) days of the Effective Date and the assignment of such task which report shall include an evaluation of the likelihood the City will prevail, the total exposure to the City if it loses, major strengths and weaknesses in the City’s defense, and a budget of the anticipated total costs and fees for Attorney and experts through trial. Thereafter, Attorney shall provide a status update to the City representative, as defined in Section 4, every sixty (60) days on any matter under this Agreement.
b. Attorney shall provide to City representative an electronic version of all agreement, pleadings, motions, and discovery documents filed or propounded by Attorney in a Microsoft Word format compatible with that used by the City Attorney’s office.
c. In the event that Attorney’s handling of the above-designated matter exceeds a period of twenty-four (24) months, Attorney shall, in addition to providing regular status reports to City, also report directly to the City representative on an annual basis and no later than March 30th of each year, setting forth in detail the status of the matter, and Attorney’s plan for further handling of the matter, and the estimated length of time to conclude the matter.

4. City Representative. The City Attorney, or the City Attorney’s designee, shall be the “City Representative” under this Agreement and shall administer this Agreement for City, including any payments hereunder. All Attorney questions pertaining to this Agreement shall be referred to the City Representative or the Representative’s designee.

5. Insurance Requirements. During the entire term of this Agreement, Attorney shall maintain the following insurance:
a. Minimum Scope of Insurance: Coverage should be at least as broad as:
i. Insurance Services Office Form No. CG 0001 (Commercial General Liability);
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Legal Services Agreement
City of Modesto and Norton Rose Fulbright US LLP 6
ii. Insurance Services Office Form No. CA 0001 (Ed. 1/87) (Automobile Liability, Code “any auto”);
iii. Workers’ Compensation as required by the Labor Code of the State of California, and Employers’ Liability Insurance:
iv. Professional Liability (Errors and Omissions) insurance against loss due to error, omission or malpractice.
b. Minimum Limits of Insurance: Attorney shall maintain limits no less than:
i. Commercial General Liability: $1,000,000 combined single limit per occurrence, including endorsements for contractual liabilities, broad form property damage and personal injury.
ii. Automobile Liability: $1,000,000 combined single limit per accident for personal injury and property damage arising from owned, hired and nonowned vehicles. iii. Workers’ Compensation and Employers’ Liability: Workers’ compensation limits as required by the Labor Code of the State of California and Employers’ Liability limits of $1,000,000 per accident. iv. Professional Liability (Errors and Omissions): $2,000,000 combined single limit per occurrence.
c. Deductibles and Self-Insured Retentions: Any deductibles or self-insured retentions must be declared to and approved by the City. d. Other Insurance Provisions: The policies are to contain, or be endorsed to contain, the following provisions:
i. General Liability and Automobile Liability Coverages:
(1) The General Liability and Automobile Liability policies shall be written on an occurrence form and shall name City, its officers, officials, agents, employees and volunteers as additional insureds.

Such policy(ies) of insurance shall be endorsed so that Attorney’s insurance shall be primary and any insurance or self-insurance maintained by City, its officials, employees or volunteers shall be in excess of Attorney’s insurance and shall not contribute with it. (2) Any failure to comply with reporting provisions of the policies shall not affect coverage provided to City, its officials, employees or volunteers.
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Legal Services Agreement
City of Modesto and Norton Rose Fulbright US LLP 7
(3) Coverage shall state that Attorney’s insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer’s liability. ii. All Coverages:
(1) Each insurance policy required by this Agreement shall be endorsed to state that coverages shall not be canceled except after thirty (30) days prior written notice has been given to City. In addition, Attorney agrees that it shall not reduce its coverage or limits on any such policy except after thirty (30) days prior written notice has been given to City and City approves the reduction in coverage or limits. Attorney further agrees that it shall not increase any deductibles or self-insured retentions on any such policy except after thirty (30) days prior written notice has been given to City and City approves such increase.
(2) In the event claims made forms are used for any Professional Liability coverage, either (i) the policy(ies) shall be endorsed to provide not less than a five (5) year discovery period, or (ii) the coverage shall be maintained for a minimum of five (5) years following the termination of this Agreement and the requirements of this section relating to such coverage shall survive termination or expiration of this Agreement. Attorney shall furnish City with the certificate(s) and applicable endorsements for ALL required insurance prior to City’s execution of this Agreement.
e. Acceptability of Insurers: Insurance shall be placed with insurers with a Bests’ rating of no less than A:VII. This requirement may, however, be waived in individual cases for Errors and Omissions Coverages only; provided, however, that in no event shall a carrier with a rating below B:IX be acceptable. f. Verification of Coverage: Attorney shall furnish City with certificates of insurance showing compliance with the above requirements and with original endorsements affecting all coverages required by this Agreement both prior to the execution of this Agreement, and during the pendency of this Agreement at any time upon request by City. The certificates and/or endorsements shall set forth a valid policy number for City, and shall indicate the Issue Date, Effective Date and Expiration Date. The certificates and endorsements for each insurance policy shall be signed by a person authorized by the insurer to bind coverage on its behalf. The certificates and endorsements shall be forwarded to the City Representative.
g. Payment Withhold: City shall withhold payments to Attorney if the certificates of insurance and endorsements required in this section are canceled or Attorney #6..
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City of Modesto and Norton Rose Fulbright US LLP 8
otherwise ceases to be insured as required herein.

6. Indemnification.
a. Indemnity: Attorney shall fully indemnify and save harmless, City, its officers and employees, including without limitation the City Attorney, and each and every one of them, from and against all actions, damages, costs, liability, claims, losses, judgments, penalties and expenses of every type and description, including, but not limited to, any fees and/or costs reasonably incurred by City’s staff attorneys or outside attorneys and any fees and expenses incurred in enforcing this provision (hereafter collectively referred to as “Liabilities”), to which any or all of them may be subjected, to the extent such Liabilities are caused by or result from any negligent act or omission or willful misconduct of Attorney, its subcontractors or agents, and their respective officers and employees, in connection with the performance or nonperformance of this Agreement, whether or not the City, its officers or employees reviewed, accepted or approved any service or work product performed or provided by the Attorney, and whether or not such Liabilities are litigated, settled or reduced to judgment. b. Obligation to Defend: Attorney shall, upon City’s request, defend at Attorney’s sole cost any action, claim, suit, cause of action or portion thereof which asserts or alleges Liabilities to the extent such Liabilities are caused by or result from any negligent act or omission or willful misconduct of Attorney, its sub-attorneys, subcontractors or agents, and their respective officers and employees, in connection with the performance or nonperformance of this Agreement, whether such action, claim, suit, cause of action or portion thereof is well founded or not. c. Insurance Policies; Intellectual Property Claims: The existence or acceptance by City of any of the insurance policies or coverages described in this Agreement shall not affect or limit any of City’s rights under this section, nor shall the limits of such insurance limit the liability of Attorney hereunder. This section shall not apply to any intellectual property claims, actions, lawsuits or other proceedings subject to the provisions of Section 4 (Confidentiality of City Information) above.

The provisions of this section shall survive any expiration or termination of this Agreement.

7. Termination.
a. By City. City may terminate this Agreement at any time by written notice. After receiving such notice, Attorney will cease providing services. Attorney will cooperate with City in the orderly transfer of all related files and records to your new counsel.
b. By Attorney. Attorney may terminate this Agreement at any time with City’s consent or for good cause. Attorney may terminate this Agreement for any reason #6..
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City of Modesto and Norton Rose Fulbright US LLP 9
by giving to City Attorney not less than sixty (60) days prior written notice of termination. The notice shall specify the effective date of and reason for the termination. Good cause exists if (a) any statement is not paid within ninety (90) days of its receipt; (b) City fails to meet any other obligation under this Agreement and continues in that failure for 15 days after Attorney sends written notice to City; (c) City has misrepresented or failed to disclose material facts to Attorney, refused to cooperate with Attorney, refused to follow Attorney’s advice on a material matter, or otherwise made Attorney’s representation unreasonably difficult; or (d) any other circumstance exists in which ethical rules of the legal profession mandate or permit termination, including situations where a conflict of interest arises. If Attorney terminates Services, City agree to execute a substitution of attorneys promptly and otherwise cooperate in effecting that termination.

Termination of this Agreement, whether by City or by Attorney, will not relieve the obligation to pay for services rendered and costs incurred before our services formally ceased.

8. General Provisions.
a. Independent Contractor.
i. It is understood and agreed that Attorney (including Attorney’s employees) is an independent contractor and that no relationship of employer-employee exists between the Parties hereto for any purpose whatsoever. Neither Attorney nor Attorney’s assigned personnel shall be entitled to any benefits payable to employees of City. City is not required to make any deductions or withholdings from the compensation payable to Attorney under the provisions of this Agreement, and Attorney shall be issued an IRS Form 1099 for its services hereunder. As an independent contractor, Attorney hereby agrees to indemnify and hold City harmless from any and all claims that may be made against City based upon any contention by any of Attorney’s employees or by any third party, including but not limited to any state or federal agency, that an employeremployee relationship or a substitute therefor exists for any purpose whatsoever by reason of this Agreement or by reason of the nature and/or performance of any Services under this Agreement.
ii. It is further understood and agreed by the Parties hereto that Attorney, in the performance of its obligations hereunder, is subject to the control and direction of City as to the designation of tasks to be performed and the results to be accomplished by the Services agreed to be rendered and performed under this Agreement, but not as to the means, methods, or sequence used by Attorney for accomplishing such results. To the extent that Attorney obtains permission to, and does, use City facilities, space, #6..
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City of Modesto and Norton Rose Fulbright US LLP 10
equipment or support services in the performance of this Agreement, this use shall be at the Attorney’s sole discretion based on the Attorney’s determination that such use will promote Attorney’s efficiency and effectiveness. Except as may be specifically provided elsewhere in this Agreement, the City does not require that Attorney use City facilities, equipment or support services or work in City locations in the performance of this Agreement.
iii. If, in the performance of this Agreement, any third persons are employed by Attorney, such persons shall be entirely and exclusively under the direction, supervision, and control of Attorney. Except as may be specifically provided elsewhere in this Agreement, all terms of employment, including hours, wages, working conditions, discipline, hiring, and discharging, or any other terms of employment or requirements of law, shall be determined by Attorney. It is further understood and agreed that Attorney shall issue W-2 or 1099 Forms for income and employment tax purposes, for all of Attorney’s assigned personnel and subcontractors.
b. Licenses; Permits, Etc.: Attorney represents and warrants that Attorney has all licenses, permits, City Business Operations Tax Certificate, qualifications, and approvals of whatsoever nature which are legally required for Attorney to practice its profession or provide any services under the Agreement. _____________
Attorney’s Initial
Attorney represents and warrants that Attorney shall, at its sole cost and expense, keep in effect or obtain at all times during the term of this Agreement any licenses, permits, and approvals which are legally required for Attorney to practice its profession or provide such Services. Without limiting the generality of the foregoing, if Attorney is an out-of-state corporation, Attorney warrants and represents that it possesses a valid certificate of qualification to transact business in the State of California issued by the California Secretary of State pursuant to Section 2105 of the California Corporations Code.
c. Conflicts of Interest. Attorney represents and warrants that they have made a diligent effort to determine whether there are any actual or potential conflicts of interest that would preclude or interfere with Attorney’s performance of this Agreement, and that no such conflict of interest exists. Attorney shall indemnify and hold harmless City from and against any and all liability, loss, expense and obligation arising directly or indirectly out of any breach of the foregoing representation and warranty. Attorney agrees to avoid conflicts of interest or the appearance of any conflicts of interest with the interests of City at all times during the performance of this Agreement.
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Legal Services Agreement
City of Modesto and Norton Rose Fulbright US LLP 11
d. Confidentiality of City Information. Attorney understands and agrees that during the course performing the services required by this Agreement, or in contemplation thereof, Attorney may have access to private or confidential information which may be owned or controlled by City and that such information may contain proprietary or confidential details, the disclosure of which to third parties may be damaging to City. Attorney agree that all information disclosed by City to Attorney shall be held in confidence and used only in performance of the services required by this Agreement. A violation of this section shall be a material violation of this Agreement and shall justify legal and/or equitable relief. e. Publicity. The City Representative shall serve as the point of contact for press information regarding all matters performed by Attorney under this Agreement.

If any publicity is generated by the subject matter of this representation, Attorney will consult with and obtain approval of the City Representative before making any statement to any media outlet (whether radio, print, internet or television) about the content and timing of such statement.
f. Disqualification of Judges. At the option of the City Attorney, judges may be disqualified from hearing City litigation, and Attorney shall adhere to such decision of the City Attorney. In the event that Attorney is of the opinion that a judge ought to be disqualified, the City Attorney must be consulted in advance by Attorney, and Attorney must obtain the City Attorney’s written consent to such disqualification.
g. Equal Employment Opportunity. During the performance of this Agreement, Attorney, for itself, its assignees and successors in interest, agrees as follows:
i. Compliance With Regulations: Attorney shall comply with the Executive Order 11246 entitled “Equal Opportunity in Federal Employment”, as amended by Executive Order 11375 and 12086, and as supplemented in Department of Labor regulations (41 CFR Chapter 60), hereinafter collectively referred to as the “Regulations.” ii. Nondiscrimination: Attorney, with regards to the work performed pursuant to this Agreement, shall not discriminate on the ground of race, color, religion, sex, national origin, age, marital status, physical handicap or sexual orientation in selection and retention of subcontractors, including procurement of materials and leases of equipment. Attorney shall not participate either directly or indirectly in discrimination prohibited by the Regulations.
h. Severability. If any portion of this Agreement or the application thereof to any person or circumstance shall be held invalid or unenforceable, the remainder of this Agreement shall not be affected thereby and shall be enforced to the greatest extent permitted by law.
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Legal Services Agreement
City of Modesto and Norton Rose Fulbright US LLP 12
i. Waiver. Neither City acceptance of, or payment for, any Service or Additional Service performed by Attorney, nor any waiver by either Party of any default, breach or condition precedent, shall be construed as a waiver of any provision of this Agreement, nor as a waiver of any other default, breach or condition precedent or any other right hereunder.
j. Enforcement of Agreement. This Agreement shall be governed, construed and enforced in accordance with the laws of the State of California. Venue of any litigation arising out of or connected with this Agreement shall lie exclusively in the state trial court or Federal District Court located in Stanislaus County in the State of California, and the Parties consent to jurisdiction over their persons and over the subject matter of any such litigation in such courts, and consent to service of process issued by such courts.
k. Attorneys’ Fees. In any action to enforce the terms of this Agreement, the prevailing Party shall recover its reasonable attorneys' fees. l. Assignment Prohibited. The expertise and experience of Attorney are material considerations for this Agreement. City has a strong interest in the qualifications and capability of the persons and entities who will fulfill the obligations imposed on Attorney under this Agreement. In recognition of this interest, Attorney shall not assign any right or obligation pursuant to this Agreement without the written consent of the City. Any attempted or purported assignment without City’s written consent shall be void and of no effect.
m. Notice. Any notice, demand, request, consent, approval, communication either Party desires or is required to give the other party or any other person shall be in writing and either served personally or sent by prepaid, first-class mail to the address set forth below. Either Party may change its address by notifying the other Party of the change of address in writing. Notice shall be deemed communicated forty-eight (48) hours from the time of mailing if mailed as provided in this section.

To: City of Modesto: To: Norton Rose Fulbright US
LLP
Attention: City Attorney Attention: Eric Tashman
Contact Information: Contact Information:
1010 Tenth Street, Suite 6300
Modesto, CA 95353
Phone: (209) 577-5288
555 California Street, Suite
3300
San Francisco, CA 94104
Phone: 866-385-2744 x 16803

9. Entire Agreement. This document, including all Exhibits, contains the entire agreement between the Parties and supersedes whatever oral or written understanding they may have had prior to the execution of this Agreement. No alteration to the terms of this #6..
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City of Modesto and Norton Rose Fulbright US LLP 13
Agreement shall be valid unless approved in writing by Attorney, and by City, in accordance with applicable provision of the Modesto City Code.

10. Authority. The person signing this Agreement for Attorney hereby represents and warrants that he/she is fully authorized to sign this Agreement on behalf of Attorney and to bind Attorney to the performance of its obligations hereunder.

11. Exhibits. All exhibits referred to herein are attached hereto and are by this reference incorporated as if set forth fully herein.

IN WITNESS WHEREOF, the parties have executed this Agreement as of the dates stated below.

CITY OF MODESTO,
A Municipal Corporation
By:__________________________________
Print name: Joseph P. Lopez
Title: City Manager
APPROVED TO AS FORM:
_____________________________________
Jose M. Sanchez, City Attorney
ATTEST:
____________________________________
Diane Nayares-Perez, CMC City Clerk
________________________________
Joe Rodriguez, Risk Manager
[Signatures Continued on Next Page.]
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Legal Services Agreement
City of Modesto and Norton Rose Fulbright US LLP 14
ATTORNEY:

NORTON ROSE FULBRIGHT US LLP
______________________________________
__________________________________
Federal I.D. No.
______________________________________
State I.D. No.
______________________________________
City of Modesto Business Op. Tax Cert. No.

TYPE OF BUSINESS ENTITY (check one):
_____ Individual/Sole Proprietor
__X___ Partnership
_____ Corporation
_____ Limited Liability Company
_____ Other (please specify: ______________)
______________________________________
Signature of Authorized Person
______________________________________
Title
______________________________________
Additional Signature (if required)
______________________________________
Title
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FIFTH AMENDMENT TO LEGAL SERVICES AGREEMENT
This Fifth Amendment to the Legal Services (this “Fifth Amendment”), is made and entered into on this 11th day of July 2023 (“Effective Date”), by and between the CITY OF MODESTO, a California Municipal Corporation (“City”), and BARTKIEWICZ, KRONICK & SHANAHAN, P.C. (“Attorney”), located at 1011 22nd Street, Sacramento, California 95816.

City and Attorney are hereinafter collectively referred to as the “Parties,” and singularly as “Party”.

RECITALS
WHEREAS, City and Attorney entered into a Legal Services Agreement (“Agreement”) to provide legal services for the State Water Resources Control Board Substitute Environmental Document; and
WHEREAS, Attorney is specially trained, experienced and competent to perform such services; and
WHEREAS, the public interest, economy and general welfare will be served by the Agreement; and
WHEREAS, City and Attorney desire to amend the Agreement for further service by increasing the previously approved amount of fees from $217,300 to $292,300.

NOW, THEREFORE, it is hereby agreed that the Legal Services Agreement between the City of Modesto and Bartkiewicz, Kronick & Shanahan, P.C. dated December 6, 2016, and amended by Resolutions No. 2017-282, 2019-367, 2022-202 and 2023-46 is amended as follows:

1. Paragraph No. 3 “Compensation” is amended to state as follows:
“Consultant Services specifies the sum of TWO HUNDRED NINETY-TWO THOUSAND AND THREE HUNDRED DOLLARS ($292,300) as the total compensation, Consultant agrees to accept for performing all services and furnishing all staffing and materials for the project as well as performance by Consultant of all of its duties and obligations required in the Original Agreement.”

2. Entire Agreement. The parties to this Fifth Amendment understand and agree that except as stated herein all terms and conditions of the original Agreement, dated December 6, 2016, remain in full force and effect to the extent they are not in conflict with this Fifth Amendment. This document, including all exhibits, contain the entire amendment to the Agreement between the Parties and supersedes whatever oral or written understanding they may have had prior to the execution of this Fifth Amendment. No alteration to the terms of this Fifth Amendment shall be valid unless approved in writing by Attorney and by City, in accordance with applicable provision of the Modesto City Code.
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3. Authority. The person signing this Fifth Amendment for Attorney hereby represents and warrants that he/she is fully authorized to sign this Fifth Amendment on behalf of Attorney and to bind Attorney to the performance of its obligations hereunder.

IN WITNESS WHEREOF, the Parties have executed this Fifth Amendment as of the dates stated below.

CITY OF MODESTO,
A Municipal Corporation
By:

Print name: Joseph P. Lopez
Title: City Manager
APPROVED TO AS FORM:
_____________________________________
Jose M. Sanchez, City Attorney
ATTEST:
____________________________________
Diane Nayares-Perez, CMC City Clerk
________________________________
Joe Rodriguez, Risk Manager
[Signatures Continued on Next Page.]
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ATTORNEY:

BARTKIEWICZ, KRONICK & SHANAHAN, P.C.
______________________________________
______________________________________
Federal I.D. No.
______________________________________
State I.D. No.
______________________________________
City of Modesto Business Op. Tax Cert. No.

TYPE OF BUSINESS ENTITY (check one):
_____ Individual/Sole Proprietor
_____ Partnership
_____ Corporation
_____ Limited Liability Company
_____ Other (please specify: ______________)
______________________________________
Signature of Authorized Person
______________________________________
Title
______________________________________
Additional Signature (if required)
______________________________________
Title
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CITY OF MODESTO

COUNCIL AGENDA REPORT
DATE OF MEETING:

July 11, 2023
Date: June 21, 2023
TO: Mayor and City Council
FROM: Joseph P. Lopez, City Manager
SUBJECT: Monthly Budget Adjustment Report – June 2023
CONTACT: Steve Christensen, Budget Manager, [email protected] 209-577-5390
DESCRIPTION:

Consider approving the recommended Budget adjustments to Fiscal Year 2022-23 Annual Operating and Capital Improvement Program Budgets. (Funding Source: Various Funds)
STRATEGIC PLAN ELEMENT:

This item supports the City of Modesto 2020-2025 Strategic Plan focus on Governance and Service Delivery under Goal H: Achieve Financial Sustainability.

BACKGROUND:

Each month City staff presents a variety of budget adjustments requiring the approval of Council. These changes are submitted to the Finance Committee for review prior to submission to Council and include an explanation and justification for each transaction.

This report includes a number of adjustments that have been identified by monitoring department budgets. Due to the number of adjustments, they have been included as an attachment to this report (Exhibit A). As in past reports, adjustments are separated by fund and department as appropriate. The adjustments are reflected in a more summarized version and supporting documentation is available for review upon request.

Also included in this report as an attachment (Exhibit B) is a summary of the budget adjustments approved by the City Manager and/or Budget Manager consistent with the change in authority levels that was approved by Council with the passing of the Fiscal Year 2019-20 Operating Budget via Resolution No. 2019-305.

DISCUSSION:

The monthly budget adjustments attached as Exhibit A in this item include adjustments across various departments. These adjustments are explained in further detail within Exhibit A. #7..
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City Council, July 11, 2023
Monthly Budget Adjustment Report – June 2023

FISCAL IMPACT:

The fiscal impact of each item is noted in the attachments to this report. The adjustments are for Fiscal Year 2022-23.

COMMITTEE RECOMMENDATION:

This item was presented to the Finance Committee on June 26, 2023 and was recommended to be forwarded to Council for approval.

Since the approval of this item by the Finance Committee, there has been two additions to Exhibit A due to the timing of the construction/design contract award and the need to budget additional grant revenue received.

COMMUNITY & ECONOMIC DEVELOPMENT
 A budget adjustment in the amount of $3,555,000 necessary in the Capital Grants – Streets CIP Projects Fund 3160 for Project 101042 – Paradise Road Active Transportation Plan. The project was recently approved for an Amendment Modification Summary E-76 by the Department of Transportation (CalTrans) on June 25, 2023, which awarded additional funding. As a result, the projects revenue and expense budget are being increased. The project is also funded by a local match from Measure L Local Streets and Roads funds.
 A budget adjustment in the amount of $2,000,000 necessary in the Capital Grants – Streets CIP Projects Fund 3160 for Project 101271 – Briggsmore/SR-99 Interchange.

The project was recently awarded additional Regional Measure L funds by Stanislaus Council of Governments (StanCOG) Policy Board on June 21, 2023. As a result, the projects revenue and expense budget are being increased. The project is also funded with Regional Surface Transportation Program (RSTP) grant funds.

RECOMMENDED COUNCIL ACTION:

Staff Recommendations:

Resolution amending Fiscal Year 2022-23 Annual Operating and Capital Improvement Project Fund Budgets and authorizing the City Manager, to make the necessary steps to implement the provisions of this Resolution.

Approved by:

Joseph P. Lopez, City Manager
Attachments:

1. Resolution

2. Exhibit A – Budget Adjustments Requiring Council Approval

3. Exhibit B - Staff Approved Budget Adjustments
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07/11/2023/Budget/SChristensen/Item X 1 2023-XX

MODESTO CITY COUNCIL
RESOLUTION NO. 2023-
RESOLUTION AMENDING THE FISCAL YEAR 2022-23 ANNUAL

OPERATING AND CAPITAL IMPROVEMENT FUND BUDGETS AND

AUTHORIZING THE CITY MANAGER, TO TAKE THE NECESSARY

STEPS TO IMPLEMENT THE PROVISIONS OF THIS RESOLUTION
WHEREAS, a financial analysis has been completed and it has been determined that a budget adjustment is required to the Annual and Capital Improvement Budgets of the City of Modesto for Fiscal Year 2022-23.

NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Modesto that it hereby approves amending the Fiscal Year 2022-23 Annual Operating and Capital Improvement budget as shown in Exhibit A, which is attached hereto and incorporated by reference herein.

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. #7..
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07/11/2023/Budget/SChristensen/Item X 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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City Council, July 11, 2023
Monthly Budget Adjustment Report

EXHIBIT A
FISCAL YEAR 2022-23

COMMUNITY & ECONOMIC DEVELOPMENT
 A budget adjustment in the amount of $150,000 is necessary in the General Fund (0100) Community & Economic Development operating budget to reduce operating expenditures and to establish a transfer to the Economic Development/Strategic Plan Fund (1800) Econ Development Strategic Plan Project 101505. The budget will be allocated to the Economic Development Strategic Plan Project for the purpose of:

1. Defining and articulating a pragmatic Economic Development Strategy that reflects Modesto’s unique character, strengths and weaknesses, natural opportunities, and values.

2. Linking and leveraging Modesto’s Economic Development Strategy to and with the emerging Stanislaus County-wide Economic Development Strategy, Stanislaus2030. Illuminating potential opportunities and hurdles for the City of Modesto arising from the trend toward increasingly regionalized economic development.

3. Providing clear implementation guidance for five years with aspirational, transformative direction for another five to ten years.

4. Providing recommendations for traditional and emerging economic development practices that harmonize business and talent development.  A budget adjustment in the amount of $3,555,000 necessary in the Capital Grants – Streets CIP Projects Fund 3160 for Project 101042 – Paradise Road Active Transportation Plan. The project was recently approved for an Amendment Modification Summary E-76 by the Department of Transportation (CalTrans) on June 25, 2023, which awarded additional funding. As a result, the projects revenue and expense budget are being increased. The project is also funded by a local match from Measure L Local Streets and Roads funds.
 A budget adjustment in the amount of $2,000,000 necessary in the Capital Grants – Streets CIP Projects Fund 3160 for Project 101271 – Briggsmore/SR-99 Interchange.

The project was recently awarded additional Regional Measure L funds by Stanislaus Council of Governments (StanCOG) Policy Board on June 21, 2023. As a result, the projects revenue and expense budget are being increased. The project is also funded with Regional Surface Transportation Program (RSTP) grant funds.

HUMAN RESOURCES
 A budget adjustment in the amount of $1,500,000 is needed in the Liability Insurance Fund (5330) to pay for a settlement payment that was approved on April 4, 2023, as part of closed session. The increase in budget will come from the Liability Insurance Fund reserves.
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City Council, July 11, 2023
Monthly Budget Adjustment Report

 A budget adjustment in the amount of $394,496 is needed in the Liability Insurance Fund (5330) to pay for the increase in insurance premiums due to the Fiscal Year 2022-23 updated retrospective rating calculation. The increase in budget will come from the Liability Insurance Fund reserves.

MEASURE L - COMMUNITY & ECONOMIC DEVELOPMENT
 A budget adjustment is necessary to recognize actual revenue received in the Measure L Fund (1410) for the fiscal year FY 2022-23. The additional revenue to recognize is in an amount up to $4,500,000 for the Local Streets & Roads (14625), Traffic Management (14626), and Bike & Pedestrian (14627) cost centers.

NON-DEPARTMENTAL
 A budget adjustment is necessary to increase the Transfer Out from the Police Department Capital Facility Fee Fund 3440 to the General Fund 0100 in the amount of $185,000. There is additional fund balance available in the Police Department Capital Facility Fee fund that can be transferred for repayment on the Police Department Headquarters (7000).
 A budget adjustment is necessary to increase the Transfer Out from the Fire Department Capital Facility Fee Fund 3450 to the General Fund 0100 in the amount of $105,000.

There is additional fund balance available in the Fire Department Capital Facility Fee fund that can be transferred for repayment on the loan for Fire Station #11.  A budget adjustment is necessary to increase the Transfer Out from the General Government Capital Facility Fee Fund 3470 to the General Fund 0100 in the amount of $100,000. There is additional fund balance available in the General Government Capital Facility Fee fund that can be transferred for repayment on the Tenth Street Plan Project (7000).

POLICE DEPARTMENT
 A budget adjustment in the amount of $370,172 is necessary in the Traffic Safety Fund (1600) reserves to fund the purchase of the airplane that was approved by Council on February 28, 2023, per resolution 2023-087. The purchase was to be split 50/50 between the Traffic Safety Fund and Supplemental Law Enforcement Services funds (SLESF). There are two projects that make up the SLESF portion that have funds available, however, a budget resolution was not included when the item was approved to establish the budget from the Traffic Safety Fund reserves.

PUBLIC WORKS
 A budget adjustment is necessary to establish a transfer from the Surface Transportation Fund – Measure L/SB 1 Maintenance of Effort (MOE) Fund (1420) to the Surface #7..
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City Council, July 11, 2023
Monthly Budget Adjustment Report

Transportation Fund (1700) in the amount of $1,219,826 to offset transportation operations in the fund and meet the Senate Bill 1 RMRA/Measure L MOE requirement.  A budget adjustment in the amount of $186,033 is necessary to establish a transfer out of the Green Waste Fund (Fund 4892) to the Urban Forest Management Project (101440) in Fund 1341, for the In-Kind portion of the project funding.

UTILITIES
 A budget adjustment in the amount of $15,000,000 is required from the Water Fund (4100) to the Water CIP Fund (4180) for capital project expenditures related to the Water Fund. For tracking purposes, Capital projects are all expensed out of Water CIP Fund (4180) and at end of the fiscal year, a transfer from the Water Fund (4100) is needed to cover the expenses in the Water CIP Fund.
 A budget adjustment in the amount of $515,000 is necessary in the Water Fund – CIP Projects Fund (4180) Project 100576 – Residential Meter Installation – South Modesto to fund the project expenditures. The project has now been completed and prior to closing the project expenditure budget needs to be adjusted. The increase in the project budget will be covered by the Water Fund (4100) reserves.
 A budget adjustment in the amount of $13,025,000 is necessary in the Water CIP Fund (4180) to create and establish the expense budget for Project 101504 - Empire Strengthen & Replace Water Mains/Phase 2 & 3. This project will improve system reliability and upgrade existing infrastructure to meet City Standard Specifications. The project will be funded with Water Fund reserves and there are sufficient funds available. #7..
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Department Director/Budget Manager/City Manager Approved Budget Adjustments EXHIBIT B For FY2022/23
AT #
Approv
ed by
CM,
BM or
DD Fund Fund Name Cost Ctr/Project Name Account Name
Rev/E
xp/TI/
TO
Accou
nt Current Budget
Increase
(Decrease)
Revised
Budget Description
AT-164 BM 0100 General Fund FIN-Administration Miscellaneous Revenue Rev $ - $ 1,000 $ 1,000 AT-164 BM 0100 General Fund FIN-Administration Advertising Exp $ 820 $ 1,000 $ 1,820 AT-165 DD 0100 General Fund CED - Building Safety Budget Only - Salary Adjustment - Decrease Exp $ (9,835) $ (4,831) $ (14,666)
AT-165 DD 0100 General Fund CED - Building Safety Budget Only - Benefit Adjustment - Decrease Exp $ (4,215) $ (2,071) $ (6,286) AT-165 DD 0100 General Fund CED - Building Safety Professional Service Exp $ 2,000 $ 6,902 $ 8,902 AT-171 BM 0100 General Fund
33340 - PRN - Airport
Neighborhood Community
Center
Repair and Maintenance -
Vandalism Exp $ 10,000 $ (10,000) $ -
AT-171 BM 0100 General Fund
33340 - PRN - Airport
Neighborhood Community
Center
Repair and Maintenance - Real
Property Exp $ 5,085 $ (5,000) $ 85
AT-171 BM 0100 General Fund 31005 - PRN - Mary Grogan
Sports Complex
Repair and Maintenance - Real
Property Exp $ 13,000 $ (9,000) $ 4,000
AT-171 BM 0100 General Fund 31005 - PRN - Mary Grogan
Sports Complex Transfer Out to Fund 1380 TO $ - $ 15,000 $ 15,000 AT-171 BM 0100 General Fund
33340 - PRN - Airport
Neighborhood Community
Center
Transfer Out to Fund 1380 TO $ - $ 9,000 $ 9,000
AT-172 DD 0100 General Fund CED-Planning Budget Only - Salary Adjustment - Decrease Exp $ (85,675) $ (22,107) $ (107,782)
AT-172 DD 0100 General Fund CED-Planning Budget Only - Benefit Adjustment - Decrease Exp $ (36,718) $ (9,474) $ (46,192) AT-172 DD 0100 General Fund CED-Planning Services City Forces - Interfund Exp $ - $ 14,548 $ 14,548 AT-172 DD 0100 General Fund CED-Planning Services City Forces - Intrafund Exp $ - $ 4,797 $ 4,797 AT-172 DD 0100 General Fund CED-Planning Advertising Exp $ - $ 1,787 $ 1,787 AT-172 DD 0100 General Fund CED-Planning Business Expenses Exp $ 1,000 $ 2,980 $ 3,980 AT-172 DD 0100 General Fund CED-Planning Computer Equipment <$5,000 Exp $ 5,400 $ 7,469 $ 12,869 AT-175 DD 0100 General Fund 14410 - CED - Planning Budget Only Salary Adjustment - Decrease Exp $ (107,782) $ (75,390) $ (183,172)
AT-175 DD 0100 General Fund 14410 - CED - Planning Budget Only Benefit Adjustment - Decrease Exp $ (46,192) $ (32,310) $ (78,502)
AT-175 DD 0100 General Fund 14410 - CED - Planning Budget Only Salary Adjustment - Decrease Exp $ (36,628) $ (29,610) $ (66,238)
AT-175 DD 0100 General Fund 14410 - CED - Planning Budget Only Benefit Adjustment - Decrease Exp $ (15,698) $ (12,690) $ (28,388)
AT-175 DD 0100 General Fund 14180 - CED - Economic
Development Professional Services Exp $ - $ 150,000 $ 150,000 A budget adjustment of $1,000 is necessary to recognize revenue/expenses related to reimbursement/fees for the Modesto Bee advertising for the TEFRA hearing.

A budget adjustment of $6,902 is necessary in CED - Building Safety to move salary savings from Appropriation Unit A to Appropriation Unit C for the purchase of additional laptops.

A budget adjustment is necessary in the amount of $24,000 to establish the budget for Project 101500 for the increased security measures at the Mary Grogan soccer complex. The project budget will be funded by a reduction in the repair and maintenance expense budget from 31005 and 33340. A transfer is being established from the reduction to the project.

A budget adjustment of $31,581 is necessary for CED-Planning to move salary savings from Appropriation Unit A to Appropriation Unit C for underbudgeted expenses.

A budget adjustment is necessary in the amount of $150,000 to move CED salary savings to support the project of creating an Economic Development Strategi Plan.

These funds will then subsequently become encumbered into the following fiscal year.
#7..
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Department Director/Budget Manager/City Manager Approved Budget Adjustments EXHIBIT B For FY2022/23
AT #
Approv
ed by
CM,
BM or
DD Fund Fund Name Cost Ctr/Project Name Account Name
Rev/E
xp/TI/
TO
Accou
nt Current Budget
Increase
(Decrease)
Revised
Budget Description
AT-176 DD 0100 General Fund 14410 - CED - Planning Budget Only Salary Adjustment - Decrease Exp $ (212,782) $ (66,773) $ (279,555)
AT-176 DD 0100 General Fund 14410 - CED - Planning Budget Only Benefit Adjustment - Decrease Exp $ (78,502) $ (28,617) $ (107,119)
AT-176 DD 0100 General Fund 14210 - CED - Building Safety Budget Only Salary Adjustment - Decrease Exp $ (14,666) $ (143,227) $ (157,893)
AT-176 DD 0100 General Fund 14210 - CED - Building Safety Budget Only Benefit Adjustment - Decrease Exp $ (6,286) $ (61,383) $ (67,669)
AT-176 DD 0100 General Fund 14410 - CED - Planning Professional Services Exp $ - $ 300,000 $ 300,000 Total Changes for Fund 0100 $ (617,674) $ 2,000 $ (615,674) AT-163 DD 1300 Capital Improvement Support
Fund
42020 - UTL Construction
Administration PC Software and Supplies Exp $ 146,091 $ (7,500) $ 138,591 AT-163 DD 1300 Capital Improvement Support
Fund
42020 - UTL Construction
Administration Computer Equipment <$5,000 Exp $ 5,000 $ 7,500 $ 12,500 Total Changes for Fund 1300 $ 151,091 $ - $ 151,091
AT-166 BM 1342 Grants - Police 101010 - Multi Year Donations Miscellaneous Donations/Contribution Rev $ 29,853 $ 1,045 $ 30,898
AT-166 BM 1342 Grants - Police 101010 - Multi Year Donations AUC-52300 Tools & Field Supplies Exp $ 3,000 $ 1,000 $ 4,000
AT-166 BM 1342 Grants - Police 101010 - Multi Year Donations AUC-52300 Tools & Field Supplies Exp $ 829 $ 45 $ 874
Total Changes for Fund 1342 $ 33,682 $ 2,090 $ 35,772
AT-171 BM 1380 Non-Capital Parks Fund (NonGrant)
101500 - Grogan Security
Improvements Transfer In from Fund 0100 TI $ - $ 24,000 $ 24,000 AT-171 BM 1380 Non-Capital Parks Fund (NonGrant)
101500 - Grogan Security
Improvements Business Expenses Exp $ - $ 24,000 $ 24,000 Total Changes for Fund 1380 $ - $ 48,000 $ 48,000
AT-161 BM 1410 Measure L Road Tax Fund 101178 - Neighborhood Traffic Calming Program AUC - Construction Exp $ 900,000 $ (150,000) $ 750,000 AT-161 BM 1410 Measure L Road Tax Fund 101178 - Neighborhood Traffic Calming Program AUC - Eng/Design/Admin Exp $ 150,000 $ 150,000 $ 300,000 Total Changes for Fund 1410 $ 1,050,000 $ - $ 1,050,000 AT-174 BM 3130 Parks Fund 101501 - Rental Property
Improvements
Repair & Maintenance - Real
Property Exp $ - $ 25,000 $ 25,000 A budget adjustment is necessary to establish the initial project budget.

Total Changes for Fund 3130 $ - $ 25,000 $ 25,000
AT-159 BM 3140 Capital Grants - CIP Projects Transit Center Improvements Construction Administration Exp $ 407,254 $ (103,672) $ 303,582 AT-159 BM 3140 Capital Grants - CIP Projects Transit Center Improvements Eng/Design/Admin Exp $ 460,000 $ (1,000) $ 459,000 AT-159 BM 3140 Capital Grants - CIP Projects Transit Center Improvements Contingency - CIP Exp $ 368,628 $ 104,672 $ 473,300 Total Changes for Fund 3140 $ 1,235,882 $ - $ 1,235,882 AT-160 BM 3160 Capital Grants - Streets CIP 101271 - Briggsmore/SR-99 Interchange Eng/Design/Admin Exp $ 5,113,483 $ (4,800,000) $ 313,483 AT-160 BM 3160 Capital Grants - Streets CIP 101271 - Briggsmore/SR-99 Interchange Project Development Exp $ 499,000 $ (463,567) $ 35,433 AT-160 BM 3160 Capital Grants - Streets CIP 101271 - Briggsmore/SR-99 Interchange Eng/Design/Admin-AECOM Exp $ - $ 5,263,567 $ 5,263,567 Total Changes for Fund 3160 $ 5,612,483 $ - $ 5,612,483 A budget adjustment is necessary to re-allocate funds within the project to account for additional expenses related to change orders. The overall project budget is not changing.

A budget adjustment is necessary to re-allocate funds within the project to account for the AECOM contract to track in its own task. The overall project budget is not changing.

A budget adjustment is necessary to re-allocate funds to align the type of work that this project requires. Additional funds were added to the construction phase of the project, however, no additional design funds were added and additional design funds are needed to roll-out the project. The overall project budget is not changing.

A budget adjustment is necessary to reallocate funds between accounts within Construction Administration so that tracking can be completed to show purchase of new computer monitors.

A budget adjustment in the amount of $1,042.62 is needed to recognize revenue and program offsetting expenses in the same amount from donations to the Police Department.

A budget adjustment is necessary in the amount of $24,000 to establish the budget for Project 101500 for the increased security measures at the Mary Grogan soccer complex. The project budget will be funded by a reduction in the repair and maintenance expense budget from 31005 and 33340. A transfer is being established from the reduction to the project.

A budget adjustment is necessary in the amount of $300,000 to move CED salary savings to encumber the consultant service agreements with Precision Engineering Inc, Harris & Associates, and Environmental Science Associates. #7..
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Department Director/Budget Manager/City Manager Approved Budget Adjustments EXHIBIT B For FY2022/23
AT #
Approv
ed by
CM,
BM or
DD Fund Fund Name Cost Ctr/Project Name Account Name
Rev/E
xp/TI/
TO
Accou
nt Current Budget
Increase
(Decrease)
Revised
Budget Description
AT-173 CM 4210 Sewer Operations 101494 - Sewer Trunk
Rehabilitation
Engineering/Design/Administrati
on
Exp $ - $ 30,000 $ 30,000 A budget adjustment is necessary to establish the initial project budget.

Total Changes for Fund 4210 $ - $ 30,000 $ 30,000
AT-162 BM 6710 JPA TRRP Special Revenue
Fund - CIP
101071 - TRRP Neece Drive
Boat Launch Construction Exp $ 514,168 $ (25,000) $ 489,168 AT-162 BM 6710 JPA TRRP Special Revenue
Fund - CIP
101071 - TRRP Neece Drive
Boat Launch Eng/Design/Admin Exp $ 188,000 $ 25,000 $ 213,000 Total Changes for Fund 6710 $ 702,168 $ - $ 702,168
A budget adjustment is necessary to re-allocate funds to cover change orders 2 and 3 as well as staff time. The overall budget is not changing. #7..
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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: Jessica Hill, Interim Director of Community and Economic Development SUBJECT: Rehabilitation and lease of 308 Locust Street, for affordable housing CONTACT: Edgar Garcia, Housing and Urban Development Supervisor, [email protected], 209-577-5211
DESCRIPTION:

Consider approving a ten-year lease Agreement with Stanislaus County Affordable Housing Corporation (STANCO) in the amount of $1 per year, for the property located at 308 Locust Street, for the operation of affordable housing. (Funding Source: Community Development Block Grant Funds)
STRATEGIC PLAN ELEMENT:

The recommended action supports the City’s 2020-2025 Strategic Plan Initiatives: Develop a Homelessness and Housing Plan.

BACKGROUND:

The U.S. Department of Housing and Urban Development1 (HUD) requires the City of Modesto, as an entitlement community, to develop an Annual Action Plan that describes proposed activities funded with Community Development Block Grant2 (CDBG), HOME Investment Partnerships (HOME), and Emergency Solutions Grant (ESG) funds. The Annual Action Plan should align and support the priorities in the City’s five-year Consolidated Plan.

On May 05, 2022, by Resolution 2022-246, the City Council approved the Program Year 2022- 2023 Annual Action Plan through which CDBG, ESG, and HOME Program funds for Fiscal Year 2022-2023 were allocated and programmed.

CDBG funds may be used for acquisition, leasing, and supportive services. When such an activity is undertaken using Federal funds on a unit built before 1978, the Lead Safe Housing 1 https://www.hud.gov/
2 https://www.hud.gov/program_offices/comm_planning/communitydevelopment/programs/ - “The Community Development Block Grant (CDBG) program is a flexible program that provides communities with resources to address a wide range of unique community development needs”. #8..
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City Council, July 11, 2023
Rehabilitation and lease of 308 Locust Street, for affordable housing

Rule applies. Whenever Federal funds, such as CDBG, are used to assist housing built before 1978, steps must be taken to address lead hazards.

DISCUSSION:

In 1988, the City acquired the property at 308 Locust Street, during the foreclosure process on a housing rehabilitation loan. In 1997, the City began leasing the home to STANCO at the cost of $1 per year for use as transitional housing. STANCO’s current lease expired on June 30, 2022.

The previous lease was for a five-year period with an option to extend the term prior to the expiration date by a period of one year.

For the last five years, the property has served three households with a total of 12 unique individuals (including 7 children, and 5 adults) and has supported each household with transitioning into permanent housing. Each family stayed at the property for approximately 18 months. The service partnership for this property is between STANCO and County Behavioral Health and Recovery Services (BHRS) and is restricted to households of multiple individuals, one of which is required to have a serious mental illness and are either homeless or at risk of homelessness as defined by criteria in the Mental Health Service Act. BHRS screens and places qualifying tenants in the home on a temporary basis, provides case management and supportive services as the tenant transitions into a permanent housing opportunity.

The property was built prior to 1978, as such the HUD lead-based paint operating procedures must be adhered to protect the environment, workers, and residents. As the property owner, the City of Modesto is responsible for adhering to HUD’s lead-based paint standards and providing a lead clearance report prior to tenancy. STANCO inspected the property and noted that there were concerns regarding chipping paint on the exterior walls of the property and confirmed there was a lead-based paint hazard. Due to the need for repairs the lease between the City of Modesto and STANCO effective June 30, 2022 was not extended.

The City has completed the appropriate measures to remove the lead-based paint on the exterior of a one-story single-family property of 1,100 square feet. With the lead-based paint now removed, City staff recommends renewing a ten-year lease in the amount of $1 annually with automatic renewal options and authorizing STANCO to resume housing activities at this location.

This lease is exempt from the Surplus Land Act pursuant to Government Code sections 54221(f)(1)(A) and 37364.

FISCAL IMPACT:

The lease agreement and on-going operations has no impact to the General Fund.

COMMITTEE RECOMMENDATION:

On June 22, 2023, the Citizens Housing and Community Development Committee met and considered a ten-year lease agreement with Stanislaus County Affordable Housing Corporation (STANCO) in the amount of $1 per year, for the property located at 308 Locust Street, for the operation of affordable housing and forwarding to Council for approval.

RECOMMENDED COUNCIL ACTION:

Staff Recommendations:

Resolution approving a ten-year Lease Agreement with Stanislaus County Affordable Housing #8..
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City Council, July 11, 2023
Rehabilitation and lease of 308 Locust Street, for affordable housing

Corporation (STANCO) in the amount of $1 per year, for the property located at 308 Locust Street, for the operation of affordable housing and authorizing the City Manager or his designee to execute the Agreement.

Approved by:

Jessica Hill, Interim Director of Community
and Economic Development
Joseph P. Lopez, City Manager
Attachments:

1. Resolution

2. Lease for 308 Locust - Final
#8..
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07/11/2023/CED/JHill/Item # 1 2023-XX

MODESTO CITY COUNCIL
RESOLUTION NO. 2023-XX

RESOLUTION APPROVING A TEN-YEAR LEASE AGREEMENT WITH

STANISLAUS COUNTY AFFORDABLE HOUSING CORPORATION (STANCO) IN THE AMOUNT OF $1 PER YEAR, FOR THE PROPERTY LOCATED AT 308

LOCUST STREET, FOR THE OPERATION OF AFFORDABLE HOUSING AND

AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO EXECUTE

THE AGREEMENT
WHEREAS, in 1988 the City received the property at 308 Locust Street during the foreclosure process on a housing rehabilitation loan, and WHEREAS, in 1997 the City began leasing the home to Stanislaus County Affordable Housing Corporation (STANCO) at the cost of $1.00 per year, and WHEREAS, the lease terms have required that STANCO operate the property as transitional housing specifically for County Behavioral Health and Recovery Services (County) clients, and
WHEREAS, for the last five years, the property has served three households with a total of 12 unique individuals (including 7 children, and 5 adults) and has supported each household with transitioning into permanent housing, and WHEREAS, the service partnership for this property is between STANCO and County Behavioral Health and Recovery Services (BHRS) and is restricted to households with at least one person who has a serious mental illness and are either homeless or at risk of homelessness as defined by criteria in the Mental Health Service Act, and WHEREAS, STANCO has expressed interest in renewing the least that expired on June 30, 2022, and
WHEREAS, the property was built prior to 1978, as such the HUD lead-based paint operating procedures must be adhered to protect the environment, workers, and #8..
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07/11/2023/CED/JHill/Item # 2 2023-XX
residents, and
WHEREAS, as the property owner, the City of Modesto is responsible for adhering to HUD’s lead-based paint standards and providing a lead clearance report prior to tenancy, and
WHEREAS, STANCO inspected the property and noted that there were concerns regarding chipping paint on the exterior walls of the property and confirmed there was a lead-based paint hazard, and
WHEREAS, due to the need for repairs the lease between the City of Modesto and STANCO effective June 30, 2022 was not extended, and
WHEREAS, the City has completed the appropriate measures to remove the leadbased paint on the exterior of a one-story single-family property of 1,100 square feet, and WHEREAS, with the lead-based paint now removed, City staff recommends renewing a ten-year lease in the amount of $1 annually with automatic renewal options and authorizing STANCO to resume housing activities at this location, and WHEREAS, the Citizens Housing and Community Development Committee met on June 22, 2023 and considered a ten-year lease agreement with STANCO in the amount of $1 per year for the property located at 308 Locust Street, for the operation of affordable housing, and
WHEREAS, the lease agreement is exempt from the Surplus Land Act pursuant to Government Code sections 54221(f)(1)(A) and 37364.

NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Modesto that it hereby approves a ten-year lease agreement with Stanislaus County Affordable #8..
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07/11/2023/CED/JHill/Item # 3 2023-XX
Housing Corporation (STANCO) in the amount of $1 per year for the property located at 308 Locust Street, for the operation of affordable housing.

BE IT FURTHER RESOLVED that the City Manager, or his designee, is hereby authorized to execute the agreement with Stanislaus County Affordable Housing Corporation, 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 , was upon roll call carried and the resolution adopted by the following vote:

AYES: Councilmembers: None
NOES: Councilmembers: None
ABSENT: Councilmembers: None
ATTEST: _____________________________

DIANE NAYARES-PEREZ, CMC,
City Clerk
(SEAL)
APPROVED AS TO FORM:

BY: ________________________________
JOSE M. SANCHEZ, City Attorney
#8..
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LEASE AGREEMENT FOR 308 LOCUST STREET

BY AND BETWEEN THE CITY OF MODESTO

AND STANISLAUS COUNTY AFFORDABLE HOUSING CORPORATION
#8..
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i
.

TABLE OF CONTENTS
RECITALS.....................................................................................................................................................................1 ARTICLE I DEFINITIONS; DEMISE OF PROPERTY...........................................................................................1

1.1 DEFINITIONS.....................................................................................................................................................1

1.2 INCORPORATION OF RECITALS ........................................................................................................................2

1.3 CREATION OF LEASE........................................................................................................................................2

1.3 TERMINATION OF PRIOR LEASE.......................................................................................................................2 ARTICLE II TERM OF LEASE; RENT; SECURITY DEPOSIT............................................................................3

2.1 TERM. ...............................................................................................................................................................3

2.2 RENT.................................................................................................................................................................3

2.3 ADDITIONAL RENT............................................................................................................................................3

2.4 TRIPLE NET LEASE...........................................................................................................................................3 ARTICLE III TAXES, ASSESSMENTS AND OTHER CHARGES......................................................................3

3.1 IMPOSITIONS.....................................................................................................................................................3

3.1.1 Installments...........................................................................................................................................4

3.1.2 Evidence of Payment...........................................................................................................................4

3.2 TENANT RIGHT TO CONTEST...........................................................................................................................4

3.3 TENANT DUTY TO FILE.....................................................................................................................................4 ARTICLE IV SUBLEASE OF PROPERTY..............................................................................................................5 ARTICLE V ALTERATIONS AND NEW CONSTRUCTION ................................................................................6 ARTICLE VI MANAGEMENT, USE AND OPERATION OF THE PROPERTY................................................6

6.1 PERMITTED USES.............................................................................................................................................6

6.2 NONDISCRIMINATION........................................................................................................................................6

6.3 EASEMENTS; RESERVATION OF RIGHTS.........................................................................................................7

6.4 MAINTENANCE AND INSPECTION OF THE PROPERTY......................................................................................7

6.4.1 Maintenance. ........................................................................................................................................7

6.4.2 Inspection..............................................................................................................................................7

6.5 CITY’S RIGHT TO PERFORM TENANT OBLIGATIONS........................................................................................7

6.6 CITY NOT OBLIGATED TO PERFORM REPAIRS................................................................................................8

6.7 COMPLIANCE WITH LAWS.................................................................................................................................8

6.8 TENANT RIGHT TO CONTEST...........................................................................................................................8 ARTICLE VII CONDITION OF THE PREMISES; ENVIRONMENTAL MATTERS ..........................................8

7.1 CONDITION OF THE PROPERTY........................................................................................................................8

7.1.1 AS-IS Condition....................................................................................................................................9

7.1.2 No Representations.............................................................................................................................9

7.2 TENANT’S COVENANTS.....................................................................................................................................9

7.3 RELEASE OF CLAIMS......................................................................................................................................11

7.4 ENVIRONMENTAL INDEMNITY.........................................................................................................................11

7.5 DEFINITIONS...................................................................................................................................................11

7.5.1 Hazardous Materials..........................................................................................................................12

7.5.2 Hazardous Materials Laws...............................................................................................................12 ARTICLE VIII INDEMNITY AND INSURANCE ....................................................................................................12

8.1 INDEMNITY......................................................................................................................................................12

8.2 INSURANCE REQUIREMENTS..........................................................................................................................13 A. COMPREHENSIVE GENERAL LIABILITY INSURANCE AGAINST CLAIMS FOR BODILY AND PERSONAL INJURY, DEATH AND PROPERTY DAMAGE CAUSED BY OR OCCURRING IN CONJUNCTION WITH THE TENANT’S USE OF THE #8..
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ii Lease Agreement
Stanislaus County Affordable Housing Corp.

PROPERTY AND THE OPERATION OF A BUSINESS THEREON, WITH A POLICY LIMIT OF AT LEAST TWO MILLION DOLLARS ($2,000,000) PER OCCURRENCE...........................................................................................................13 B. TENANT SHALL MAINTAIN PROPERTY INSURANCE COVERING ALL RISKS OF LOSS INCLUDING FLOOD (IF REQUIRED) FOR 100% OF THE REPLACEMENT VALUE OF THE PROPERTY, THE FIXTURES AND ANY IMPROVEMENTS, NAMING THE CITY AS LOSS PAYEE AS ITS INTERESTS MAY APPEAR...........................................13

IF THE TENANT UNDERTAKES THE CONSTRUCTION OF ANY IMPROVEMENTS PURSUANT TO ARTICLE V, THE TENANT SHALL ENSURE THAT ITS GENERAL CONTRACTOR CARRIES LIABILITY, PROPERTY DAMAGE, WORKERS’ COMPENSATION, AND BUILDER’S RISK INSURANCE THROUGHOUT CONSTRUCTION OF THE IMPROVEMENTS,

NAMING THE INDEMNITEES AS ADDITIONAL INSUREDS AND OTHERWISE IN COMPLIANCE WITH ALL REQUIREMENTS SET FORTH IN THIS SECTION 8.2.............................................................................................................................13 ARTICLE IX DAMAGE AND DESTRUCTION......................................................................................................13

9.1 DAMAGE OR DESTRUCTION...........................................................................................................................13

9.2 NOTICE REQUIRED.........................................................................................................................................14

9.3 CITY’S RIGHT TO TERMINATE. .......................................................................................................................14 ARTICLE X AGENCY’S RIGHT TO PERFORM TENANT’S COVENANTS...................................................14

IF THE TENANT SHALL AT ANY TIME FAIL TO PAY ANY IMPOSITION OR OTHER CHARGE PAYABLE BY THE TENANT

TO A THIRD PARTY AS REQUIRED BY THIS AGREEMENT, OR TO COMPLY WITH THE REQUIREMENTS SET FORTH IN SECTION 8.2 PERTAINING TO INSURANCE, OR TO MAKE ANY OTHER PAYMENT OR PERFORM ANY OTHER ACT ON

ITS PART TO BE MADE OR PERFORMED HEREUNDER WITHIN THE TIME PERMITTED BY THIS AGREEMENT, THEN THE CITY, AFTER THIRTY (30) DAYS’ WRITTEN NOTICE TO THE TENANT AND WITHOUT WAIVING OR RELEASING THE TENANT FROM ANY OBLIGATION OF THE TENANT HEREUNDER, MAY (BUT SHALL NOT BE REQUIRED TO): (I) PAY SUCH IMPOSITION OR OTHER CHARGE PAYABLE BY THE TENANT; (II) PAY FOR AND MAINTAIN THE

INSURANCE POLICIES REQUIRED PURSUANT TO THIS AGREEMENT, OR (III) MAKE SUCH OTHER PAYMENT OR PERFORM SUCH OTHER ACT ON THE TENANT’S PART TO BE MADE OR PERFORMED UNDER THIS AGREEMENT;

AND THE CITY MAY ENTER UPON THE PROPERTY FOR SUCH PURPOSE AND TAKE ALL SUCH ACTION THEREON AS MAY BE REASONABLY NECESSARY THEREFOR........................................................................................................14 All sums paid by the City and all costs and expenses incurred by the City in connection with any such payment or the performance of any such act (together with interest thereon at the Default Rate from the respective dates of the City’s making of each such payment) shall constitute additional Rent payable by the Tenant under this Agreement and shall be paid by the Tenant to the City on demand. The “Default Rate” shall mean interest calculated at an annual rate equal to the lesser of ten percent (10%) or the maximum rate of interest permitted by law......................................................14 ARTICLE XI MORTGAGES.....................................................................................................................................15

11.1 NON-SUBORDINATION OF FEE.......................................................................................................................15 ARTICLE XII ASSIGNMENT, TRANSFER; NONDISTURBANCE...................................................................15

12.1 RESTRICTIONS ON TRANSFER, ASSIGNMENT AND ENCUMBRANCE. ............................................................15

12.2 NO INVOLUNTARY TRANSFERS......................................................................................................................15

12.3 NONDISTURBANCE. ........................................................................................................................................15 ARTICLE XIII DEFAULT, REMEDIES AND TERMINATION.............................................................................16

13.1 EVENT OF DEFAULT. ......................................................................................................................................16

13.2 NOTICE AND OPPORTUNITY TO CURE...........................................................................................................17

13.2.1 Notice of Default............................................................................................................................17

13.2.2 Failure to Give Notice; No Waiver..............................................................................................17

13.3 REMEDIES UPON DEFAULT............................................................................................................................17

13.3.1 City’s Remedies.............................................................................................................................17

13.3.2 Remedies Upon Abandonment...................................................................................................18

13.3.3 City Right to Continue Lease.......................................................................................................18

13.3.4 Right to Injunction; Specific Performance.................................................................................18

13.3.5 Right to Receiver...........................................................................................................................18

13.4 REMEDIES CUMULATIVE.................................................................................................................................19 #8..
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iii Lease Agreement
Stanislaus County Affordable Housing Corp.

ARTICLE XIV GENERAL PROVISIONS...............................................................................................................19

14.1 FORCE MAJEURE; EXTENSION OF TIMES OF PERFORMANCE......................................................................19

14.2 VACATION OF PROPERTY...............................................................................................................................19

14.3 CITY’S RIGHT TO ENTER THE PROPERTY......................................................................................................19

14.4 REPRESENTATIONS OF CITY AND TENANT....................................................................................................20

14.5 MISCELLANEOUS............................................................................................................................................20

14.5.1 Severability.....................................................................................................................................20

14.5.2 Notices............................................................................................................................................21

14.5.3 Captions; Construction.................................................................................................................21

14.5.4 Successors and Assigns..............................................................................................................21

14.5.5 Non-Liability of Officials, Employees and Agents. ...................................................................22

14.5.6 Governing Law...............................................................................................................................22

14.5.7 Attorney’s Fees..............................................................................................................................22

14.5.8 Indemnity Includes Defense Costs.............................................................................................22

14.5.9 No Third-Party Beneficiaries; Disclaimer of Partnership, Lender/Borrower Relationship..22

14.5.10 Entire Agreement. .........................................................................................................................23

14.5.11 Waiver; Modification......................................................................................................................23

14.5.12 Time is of the Essence.................................................................................................................23

14.5.13 Counterparts. .................................................................................................................................23

14.5.14 Action by the Parties.....................................................................................................................23 EXHIBIT A.....................................................................................................................................................................1 #8..
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1 .

This LEASE AGREEMENT (this “Lease” or this “Agreement”), dated as of _____________, 2023 (the “Effective Date”), is entered into by and between the by and between the City of Modesto, a California charter city (hereafter the “City” or the “Landlord”) and Stanislaus County Affordable Housing Corporation, a non-profit public benefit corporation (the “Tenant”). Landlord and Tenant are hereafter collectively referred to as the “Parties.”

RECITALS
A. City is the owner of real property and related improvements located at 308 Locust Street, Modesto, California, 95351 (the “Property”), known as Stanislaus County APN 101-004-049, as more particularly described in Exhibit A attached hereto and incorporated in this Lease by this reference. A single family residence is located on the Property.

B. City and Tenant previously entered into a lease in July 2017, pursuant to which City leased the Property to Tenant for Tenants Transitional Housing Program (the “Prior Lease”). Tenant has occupied the Property since at least 2008. The Prior Lease terminated by its own terms on June 30, 2022. Since that date, Tenant has continued to occupy the Property in accordance with the terms of the Prior Lease.

C. City and Tenant desire to enter into this Lease in order for Tenant to sublease the Property to households with children age six or older (each, an “Eligible Household”) under Tenant’s Permanent Supportive Housing (“PSH”) Program.

D. The Tenant desires to lease the Property from City, and City desires to lease the Property to the Tenant, subject to the terms and conditions contained herein.

E. This Lease does not qualify as a disposition of land subject to the Surplus Land Act because the no development will occur on the Property.

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the City and the Tenant hereby agree as of the Effective Date as follows.

ARTICLE I
DEFINITIONS; DEMISE OF PROPERTY

1.1 Definitions. For purposes of this Agreement, the following terms shall have the meanings set forth in this Section. Additional definitions are set forth in the Recitals and the text of this Agreement.
(a) “Applicable Laws” is defined in Section 6.7.
(b) “Claims” is defined in Section 3.2.
#8..
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2 Lease Agreement
Stanislaus County Affordable Housing Corp.
(c) “Commencement Date” is defined in Section 2.1.
(d) “Default Rate” is defined in Article X.
(e) “Eligible Household” is defined in Recital C.
(f) “Expiration Date” is defined in Section 2.1.
(g) “Force Majeure” is defined in Section 14.1.
(h) “Hazardous Materials” is defined in Section 7.5.1.
(i) “Hazardous Materials Claims” is defined in Section 7.2(c). (j) “Hazardous Materials Laws” is defined in Section 7.5.2. (k) “Impositions” is defined in Section 3.1.
(l) “Improvements” is defined in Article V.
(m) “Indemnitees” is defined in Section 3.2.
(n) “Lease Termination” is defined in Section 2.1.
(o) “Property” is defined in Recital A.
(p) “Remedial Work” is defined in Section 7.2(e).
(q) “Rent” is defined in Section 2.2.
(r) “Term” is defined in Section 2.1.

1.2 Incorporation of Recitals The Parties acknowledge the truth of the Recitals set forth above, and all such Recitals are hereby incorporated into this Agreement.

1.3 Creation of Lease. City hereby leases to Tenant, and Tenant hereby leases from City, the Property for the Term subject to the terms and conditions and for the purposes set forth in this Agreement.

1.3 Termination of Prior Lease. This Lease is intended to replace and supersede the Prior Lease.
#8..
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3 Lease Agreement
Stanislaus County Affordable Housing Corp.

ARTICLE II
TERM OF LEASE; RENT; SECURITY DEPOSIT

2.1 Term. The term of this Agreement (the “Term”) shall commence on July 1, 2023 (the “Commencement Date”), and unless terminated earlier or extended pursuant to the provisions hereof, shall expire June 30, 2033 (the “Expiration Date”). The expiration of the Term or the sooner termination of this Agreement is referred to herein as the “Lease Termination.” Either Party to this Lease has the right to terminate this Lease with one hundred eighty (180) days prior written notice to the other Party.

2.1.1 Option to Extend. This Term will automatically renew for additional one (1) year periods (each an “Extension”) unless either Party notifies the other Party of its intent to termination the Lease no later than 60 days prior to the Expiration Date.

2.2 Rent. Commencing on the first day of the month after the Commencement Date, the Tenant shall pay to the City rent for the Property (“Rent”) during the Term in the amount of One Dollar ($1.00) per year. Rent is due and payable on the day that this Lease is executed and annually July 1 thereafter during the Term and during any Extension.

2.3 Additional Rent. As additional rent (the “Additional Rent”), the Tenant shall pay and discharge when due, all Impositions described in Article III, all insurance premiums, utility costs, maintenance costs and all other liabilities and obligations which the Tenant assumes or agrees to pay or undertake pursuant to this Agreement.

2.4 Triple Net Lease. This is a triple net lease to the City. It is the intent of the Parties that the Rent shall be an absolutely net return to the City and that the Tenant shall pay all costs and expenses relating to the Property of any kind or nature whatsoever. Such costs and expenses shall include, without limitation, all amounts attributable to, paid or incurred in connection with the operation, repair, restoration, maintenance and management of the Property; real property taxes; possessory interest; rent taxes; gross receipt taxes (whether assessed against the City or assessed against the Tenant and collected by the City, or both); water and sewer charges; insurance premiums (including earthquake); utilities; refuse disposal; lighting (including outside lighting); fire detection systems including monitoring, maintenance and repair; security; janitorial services; labor; maintenance and repair costs and service contracts; costs of licenses, permits and inspections; and all other costs and expenses paid or incurred with respect to the Property.

ARTICLE III

TAXES, ASSESSMENTS AND OTHER CHARGES

3.1 Impositions. Throughout the Term, the Tenant shall pay prior to delinquency, all real property taxes, possessory interest taxes, license and permit fees, sales, use or occupancy taxes, assessments whether general or special, ordinary or extraordinary, unforeseen, as well as foreseen, of any kind or nature whatsoever, pertaining to the #8..
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Property or part thereof, including, but not limited to (i) any assessment, levy, imposition or charge in lieu of or in substitution for real estate taxes, and (ii) any assessment for public improvements or benefits which is assessed, levied, or imposed upon or which becomes due and payable and a lien upon (a) the Property or any part thereof or any personal property, equipment or other facility used in the operation thereof, (b) the rent or income received by the Tenant from subtenants or licensees, (c) any use or occupancy of the Property or part thereof, or (d) this transaction or any document to which the Tenant is a party creating or transferring an estate or interest in the Property or part thereof. All of the foregoing are hereinafter referred to as “Impositions.”

3.1.1 Installments. If by law any Imposition is payable, or may at the option of the taxpayer be paid in installments (whether or not interest shall accrue on the unpaid balance of such Imposition), the Tenant may pay the same together with any accrued interest on the unpaid balance of such Imposition in installments as the same respectively become due and before any fine or penalty may be added thereto for the nonpayment of any such installment and interest. Any Impositions relating to tax years that are only partially included in the Term of this Agreement shall be prorated between the Tenant and the City.

3.1.2 Evidence of Payment. Upon request by the City, the Tenant shall furnish, in form satisfactory to the City, evidence of payment prior to delinquency of all Impositions payable by the Tenant.

3.2 Tenant Right to Contest. The Tenant shall have the right before any delinquency occurs to contest or object to the amount or validity of any Imposition by appropriate legal proceedings, but such right shall not be deemed or construed in any way as relieving, modifying or extending the Tenant’s covenant to pay any such Imposition at the time and in the manner required by law. Any such contest shall be conducted in accordance with and subject to the requirements of all Applicable Laws and otherwise in a manner that does not subject the City’s title to the Property or Property to foreclosure or forfeiture. The Tenant shall indemnify, defend, and hold the City and its elected and appointed officers, officials, employees, agents and representatives (all of the foregoing, collectively the “Indemnitees”) harmless from and against all liabilities, losses, damages, fines, deficiencies, penalties, claims, demands, suits, actions, causes of action, legal or administrative proceedings, judgments, costs and expenses (including without limitation reasonable attorneys’ fees and court costs) (all of the foregoing, collectively “Claims”) arising as a result of or in connection with any such contest brought by the Tenant. During any contest of an Imposition, the Tenant shall (by payment of disputed sums, if necessary) prevent any advertisement of tax sale, foreclosure of, or any divesting of the City’s title, reversion or other interest in the Property. Upon final determination of the amount or validity of any Imposition contested pursuant to this Section 3.2, the Tenant shall immediately pay such Imposition and all costs and expenses relating to such challenge.

3.3 Tenant Duty to File. The Tenant shall have the duty of making or filing any declaration, statement or report which may be necessary or advisable in connection #8..
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with the determination, equalization, reduction or payment of any Imposition which is or which may become payable by the Tenant under the provisions of this Article III, and shall notify the City in writing upon making such filing, declaration, statement or report, and the City shall not be responsible for the contents of any such declaration, statement or report; provided however, the City shall cooperate with the Tenant in connection with the foregoing, including joinder in any application pertaining thereto to the extent required under Applicable Law, all at no cost to the City.

ARTICLE IV

SUBLEASE OF PROPERTY

4.1 Sublease to Eligible Households. Tenant may sublease the Property solely to Eligible Households under the PSH Program under the terms and conditions of this Article IV.

4.1.1 Sublease Rent. Tenant shall sublease the Property to Eligible Households at a rental rate appropriate to the financial means for the person in accordance with the provisions of CFR Section 291.415(c)(2) (the “Sublease Rent”). The Sublease Rent may be the greater of either thirty (30) percent of the Eligible Household’s monthly adjusted income or ten (10) percent of the Eligible Household’s monthly income, but in no event shall the Sublease Rent exceed the costs to Tenant to lease and operate the Property.

4.2 Sublease Terms. Tenant shall enter into an agreement (the “Sublease Agreement”) with each Eligible Household that includes the following minimum conditions:
i) a minimum term of one (1) year, unless the term of the Sublease Agreement will exceed the Term of this Lease, in which case the term of the Sublease Agreement may end co-terminally with this Lease; ii) notice to the Eligible Household that its tenancy is subject to the condition of this Lease, and the Sublease Agreement will be terminated in accordance with the requirements of state law upon any termination of this Lease; iii) the Eligible Household must agree to refrain from using the property for unlawful purposes including, but not limited to, the illegal use, possession or distribution of drugs or alcohol;
iv) the Eligible Household must agree to maintain the property in a manner consistent with community standards, which will uphold the value of the Property, in accordance with the Modesto Municipal Code.

4.3 No Conflict of Interest. Tenant shall refrain from subleasing to any individual, family or group of individuals in which a conflict of interest may occur. Employees, #8..
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officers of relatives of the Tenant, regardless of their financial circumstances, shall be subject to this restriction.

4.4 Removal of Sublessee. Tenant agrees to remove any sublessee, or pursue eviction proceedings, whichever may be the case, upon a conviction of such sublessee for breaching the peace. Tenant further agrees to remove sublessees or pursue eviction proceedings, whichever may be the case, upon receiving notice from the City that sublessees have been found by an administrative hearing officer or a court of law, to have maintained the Property or any portion thereof as a public nuisance or in violation of the Modesto Municipal Code, or to have engaged in any use of the Property that constitutes a public nuisance or violation of the Modesto Municipal Code.

ARTICLE V

ALTERATIONS AND NEW CONSTRUCTION
During the Term of this Agreement, the Tenant shall not make any permanent change, alteration or addition to the Property (collectively, the “Improvements”) without the prior written consent of the City. Once installed, all Improvements shall become the property of the City and may not be removed or altered without the prior written authorization of the City.

ARTICLE VI

MANAGEMENT, USE AND OPERATION OF THE PROPERTY

6.1 Permitted Uses. The Tenant may use the Property to sublease to Eligible Households in accordance with Article IV, and for no other purposes, without the prior written consent of the City. The Tenant shall not use or permit the Property to be used in whole or in part during the Term for any purpose other than as permitted pursuant to this Agreement or by the City’s written consent. Tenant shall continuously use the Property for the uses specified in this Section.

6.2 Nondiscrimination. The Tenant herein covenants by and for the himself or herself, his or her heirs, executors, administrators, and assigns, and all persons claiming under or through him or her, and this lease is made and accepted upon and subject to the following conditions: that there shall be no discrimination against or segregation of any person or group of persons, on account of any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, Section 12955.2 of the Government Code, or any other basis prohibited by law, in the leasing, subleasing, transferring, use, occupancy, tenure or enjoyment of the premises herein leased nor shall the Tenant himself or herself, or any person claiming under or through him or her, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, #8..
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number, use or occupancy of tenants, lessees, sublessees, subtenants, or vendees in the premises herein leased.

6.3 Easements; Reservation of Rights. The City reserves the right to locate and construct its own utilities and to grant nonexclusive easements across the Property for utility and other purposes including the installation, maintenance, repair and replacement of utilities; provided that the exercise of such rights do not unreasonably interfere with the Tenant’s use of the Property for the purposes set forth herein.

6.4 Maintenance and Inspection of the Property.

6.4.1 Maintenance. At the Tenant’s sole cost and expense throughout the Term, the Tenant shall operate, maintain and manage the Property, including all landscaping and improvements thereon in good order and repair and in neat, clean sanitary and safe condition in compliance with all local, state and federal laws, statutes and regulations relating to the use, occupancy or operation of the Property. The Tenant shall promptly, at the Tenant’s own cost and expense, make all necessary repairs, including replacements or renewals when necessary, and all such repairs shall be at least equal in quality to the original work, reasonable wear and tear accepted. The Tenant, and Tenant’s sublessees, shall keep and maintain all portions of the Property in a reasonably clean and orderly condition, free of accumulation of rubbish, graffiti and noxious weeds, and keep the Property in condition not detrimental to the surrounding properties and free from hazards to the general public. The Tenant’s failure to maintain the Property in accordance with this Agreement shall, in the City’s discretion, be grounds for termination of this Agreement pursuant to Article XIII.

6.4.2 Inspection. At any time during the Term, upon reasonable advance notice and during normal business hours, the City may conduct inspections of the Property to confirm that it is being properly maintained as required herein. Following its inspection, the City may deliver to the Tenant written notification of any portions of the Property which the City has determined are not being properly maintained, and the Tenant shall promptly prepare and deliver to the City the Tenant’s proposed plan for remedying the indicated deficiencies. The Tenant’s failure to deliver a remedial plan and to complete remedial work within a reasonable time as determined by the City in its reasonable discretion shall be a default under this Agreement.

The failure of the City to inspect or to notify the Tenant of any deficiency shall not be a waiver of default or of the City’s right to enforce the Tenant’s maintenance and repair obligations. The Tenant shall defend (with counsel reasonably acceptable to the City), indemnify and hold the Indemnitees harmless from and against any and all Claims arising out of the Tenant’s failure to fully and timely fulfill its obligations to maintain and repair the Property as required hereunder.

6.5 City’s Right to Perform Tenant Obligations. If following notice and the expiration of any applicable cure period as set forth in Section 13.2.1, the Tenant fails to perform its obligations to maintain the Property in accordance with the standards set forth in this #8..
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Agreement, the City shall have the right, but not the obligation, to perform such work upon delivery of written notice to the Tenant, and the Tenant shall reimburse the City for all expenditures the City incurs in connection with such work together with interest thereon at the Default Rate specified in Article X. The City’s election to undertake such obligation shall not operate as a waiver of any other right or remedy the City may have pursuant to this Agreement.

6.6 City Not Obligated to Perform Repairs. Notwithstanding any contrary provision herein, the City shall not be obligated to make any repairs, alterations, additions, improvements or betterments to the Property during the term of this Agreement nor shall the City be obligated to maintain or operate the Property.

6.7 Compliance with Laws. Tenant, at its sole cost and expense, shall comply with all applicable state and federal laws and regulations, including without limitation, all applicable state and federal labor laws and standards, and all applicable disabled and handicapped access requirements, including without limitation, the Americans with Disabilities Act, 42 U.S.C. Section 12101, et seq., California Government Code Section 4450, et seq., California Government Code Section 11135, et seq., and the Unruh Civil Rights Act, California Civil Code Section 51, et seq. Tenant shall comply with all City ordinances and regulations relating to noise, business hours, pertaining to the use, operation, and management of the Property. (All of the foregoing state, federal and local laws, regulations and ordinances are referred in this Lease as the “Applicable Laws.”) The Tenant shall not itself use the Property for any unlawful purpose or perform, permit or suffer any act of omission or commission upon or about the Property which would result in a nuisance or a violation of law. The Tenant shall use its best efforts to not permit any permittees, licensees, guests or invitees to use the Property for any unlawful purpose or perform, permit or suffer any act of omission or commission upon or about the Property which would result in a nuisance or a violation of law.

6.8 Tenant Right to Contest. The Tenant shall have the right to contest by appropriate proceedings, in the name of the Tenant, and without cost or expense to the City, the validity or application of any Applicable Law. If compliance with any Applicable Law may legally be delayed pending the prosecution of any such proceeding without the incurrence of any lien, charge or liability against the Property or Tenant’s interest therein, and without subjecting the Tenant or the City to any liability, civil or criminal, for failure so to comply therewith, the Tenant may delay compliance therewith until the final determination of such proceeding. The Tenant shall indemnify, defend (with counsel approved by the City), protect and hold the Indemnitees harmless from and against all Claims arising in connection with any such contest brought by the Tenant. The foregoing indemnity obligation shall survive the expiration or earlier termination of this Agreement.

ARTICLE VII
CONDITION OF THE PREMISES; ENVIRONMENTAL MATTERS

7.1 Condition of the Property.
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7.1.1 AS-IS Condition. The Tenant will lease the Property in its “AS IS” condition as such condition exists as of the Commencement Date, without any warranties whatsoever regarding its condition except as specifically described in this Agreement, and with all faults and defects, if any, that may be located on, under, or around the Property, whether known or unknown, suspected or unsuspected, actual or potential. Tenant has been in possession of the Property since at least 2008. During that period of time, Tenant has become very familiar with the Property. Accordingly, Tenant has no need or desire to complete physical inspections of the Property or due diligence related to the lease of the Property.

7.1.2 No Representations. The Tenant acknowledges that except as expressly set forth herein, the City makes no representations or warranties expressed or implied regarding the condition of the Property or the fitness or suitability thereof for the Tenant’s purposes, including but not limited to, the condition of the soil, its geology, topography, the presence or absence of fill, the presence or absence of Hazardous Materials, drainage, flood zone designation, or compliance with Hazardous Materials Laws, and no patent or latent defect or deficiency in the condition of the Property shall affect the rights of the Tenant or the City hereunder. The Tenant shall rely solely on its own independent investigation and judgment as to all matters relating to the Property The Tenant acknowledges and agrees that prior to the Effective Date it has made such investigations of the Property, including without limitation such inquiries of governmental agencies, soils testing, tests and inspections as Tenant deemed necessary to determine the condition of the Property, and has approved all such characteristics and conditions and shall lease the Property in its condition as of the Effective Date “AS-IS” “WHEREIS” AND WITH ALL FAULTS. The Tenant further acknowledges that the City has made available all data and information on the Property available to the City, but without warranty or representation by the City as to the completeness, correctness or validity of such data and information, except as otherwise set forth in this Agreement.

7.2 Tenant’s Covenants. The Tenant hereby covenants and agrees that throughout the Term:
(a) The Property, and the use and operation thereof, shall be in compliance with all Hazardous Materials Laws, and the Tenant shall not cause or permit the Property or any portion thereof to be in violation of any Hazardous Materials Laws. (b) The Tenant shall not permit the Property or any portion thereof to be a site for the use, generation, treatment, manufacture, storage, disposal or transportation of Hazardous Materials nor shall the Tenant permit the presence or release of Hazardous Materials in, on, under, about or from the Property with the exception of materials customarily used as part of a boat haul-out facility, marine repair yard and retail business for boat supplies, provided such materials are used, stored and disposed of in compliance with Hazardous Materials Laws.
(c) Upon receiving knowledge of the same, the Tenant shall immediately advise the City in writing of: (i) any and all enforcement, cleanup, removal or other #8..
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governmental or regulatory actions instituted, completed or threatened against the Tenant or the Property pursuant to any applicable Hazardous Materials Laws; (ii) any and all complaints, claims, citations, demands, inquiries, reports, or notices made or threatened by any third party against the Tenant or the Property relating to damage, contribution, cost recovery, compensation, loss or injury resulting from any Hazardous Materials; (iii) the presence or release of any Hazardous Materials in, on, under, about or from the Property; or (iv) Tenant’s discovery of any occurrence or condition on any real property adjoining or in the vicinity of the Property classified as "Border Zone Property" under the provisions of California Health and Safety Code, Sections 25220 et seq., or any regulation adopted in connection therewith, that may in any way affect the Property pursuant to any Hazardous Materials Laws or cause it or any part thereof to be designated as Border Zone Property. The matters set forth in the foregoing clauses (i) through (iv) are hereinafter referred to as “Hazardous Materials Claims.” The City shall have the right to join and participate in, as a party if it so elects, any legal proceedings or actions initiated in connection with any Hazardous Materials Claim, and to have its reasonable attorney's fees in connection therewith paid by the Tenant. (d) Without the City’s prior written consent, which shall not be unreasonably withheld, the Tenant shall not take any remedial action in response to the presence of any Hazardous Materials in, on, under, or about the Property (other than in emergency situations or as required by governmental agencies having jurisdiction in which case the City agrees to provide its consent), nor enter into any settlement agreement, consent decree, or other compromise with respect to any Hazardous Materials Claim. (e) If the presence of any Hazardous Material on the Property results in any contamination of the Property and/or Property in violation of Hazardous Materials Laws, except to the extent such contamination is caused by the City, the Tenant shall promptly take all actions at its sole expense as are necessary to remediate the Property and/or Property as required by law; provided that the City’s approval of such actions shall first be obtained, which approval may be withheld in the City’s reasonable discretion. All costs and expenses of any Remedial Work shall be paid by the Tenant, it being understood that the City shall incur no cost, expense or liability in connection with any Remedial Work. The City shall have the right, but no obligation, to join and participate in, as a party if it so elects at the City’s cost, any legal proceedings or actions initiated in connection with any Hazardous Material Claims. For purposes of this Agreement, “Remedial Work” means all investigation, testing, analysis, monitoring, restoration, abatement, detoxification, containment, handling, treatment, removal, storage, decontamination, clean-up, transport, disposal or other ameliorative work or response action required by (i) any Hazardous Materials Laws, (ii) any order or request of any federal, state or local governmental agency, or (iii) any judgment, consent decree, settlement or compromise with respect to any and all enforcement, clean-up, removal, remedial or other governmental or regulatory actions or agreements or orders threatened, instituted, or completed pursuant to any Hazardous Materials Laws or any actions, proceedings or claims by such entities or third parties relating to or arising out of the breach of any Hazardous Materials Laws or the presence or release of any Hazardous Material in, on, under or from the Property and/or Property. #8..
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7.3 Release of Claims. The Tenant hereby waives, releases and discharges forever the Indemnitees from all present and future Claims the Tenant may have arising directly or indirectly from the presence or alleged presence of Hazardous Materials on, under, in or about the Property; provided however, this release excludes and shall not apply to (i) any Hazardous Material that originates from any City-owned property other than the Property and which migrates onto the Property after the Commencement Date, or (ii) any Hazardous Materials that are generated or caused by the Indemnitees’ acts or omissions after the Commencement Date.

The Tenant is aware of and familiar with the provisions of Section 1542 of the California Civil Code which provides:

A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE

CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT

THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.

As such relates to this Section 7.3, the Tenant hereby waives and relinquishes all rights and benefits which it may have under Section 1542 of the California Civil Code. ______________
Tenant Initials

7.4 Environmental Indemnity. The Tenant shall indemnify, defend (with counsel reasonably acceptable to the City) and hold the Indemnitees harmless from and against all Claims arising during the Term and resulting, arising, or based directly or indirectly in whole or in part, upon (i) the presence, release, use, generation, discharge, transport, storage or disposal of any Hazardous Materials on, under, in or about, or the transportation of any such Hazardous Materials to or from the Property during the Term, (ii) the failure of the Tenant, the Tenant’s employees, agents, contractors, subcontractors, licensees, permittees, or any person acting on behalf of any of the foregoing to comply with Hazardous Materials Laws, or (iii) the breach by the Tenant of any of its covenants contained in this Article VII. The foregoing indemnity shall further apply to any residual contamination in, on, under or about the Property or affecting any natural resources, and to any contamination of any property or natural resources arising in connection with the generation, use, handling, treatment, storage, transport or disposal of any such Hazardous Materials, and irrespective of whether any of such activities were or will be undertaken in accordance with Hazardous Materials Laws and shall include, without limitation, any Claims arising in connection with any investigation of site conditions or any cleanup, remedial, removal or restoration work ordered by a court or required by any federal, state, or local governmental agency or political subdivision. This Section 7.4 shall survive the expiration or earlier termination of this Agreement.

7.5 Definitions.
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7.5.1 Hazardous Materials. As used herein, “Hazardous Materials” means any substance, material, or waste which is or becomes regulated by any local, state or federal authority, agency or governmental body, including any material or substance which is: (i) defined as a “hazardous waste,” “extremely hazardous waste,” or “restricted hazardous waste” under Sections 25115, 25117 or 25122.7, or listed pursuant to Section 25140 of the California Health and Safety Code, Division 20, Chapter 6.5 (Hazardous Waste Control Law); (ii) defined as a “hazardous substance” under Section 25316 of the California Health and Safety Code, Division 20, Chapter 6.8 (CarpenterPresley-Tanner Hazardous Substance Account Act); (iii) defined as a “hazardous material,” “hazardous substance,” or “hazardous waste” under Section 25501 of the California Health and Safety Code, Division 20, Chapter 6.95 (Hazardous Materials Release Response Plans and Inventory); (iv) defined as a “hazardous substance” under Section 25281 of the California Health and Safety Code, Division 20, Chapter 6.7 (Underground Storage of Hazardous Substances); (v) petroleum; (vi) friable asbestos; (vii) polychlorinated biphenyls; (viii) listed under Article 9 or defined as “hazardous” or “extremely hazardous” pursuant to Article 11 of Title 22 of the California Administrative Code, Division 4, Chapter 20; (ix) designated as “hazardous substances” pursuant to Section 311 of the Clean Water Act (33 U.S.C. §1317); (x) defined as a “hazardous waste” pursuant to Section 1004 of the Resource Conservation and Recovery Act, 42 U.S.C. §6901, et seq. (42 U.S.C. §6903); or (xi) defined as “hazardous substances” pursuant to Section 101 of the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §9601, et seq., as the foregoing statutes and regulations now exist or may hereafter be amended.

7.5.2 Hazardous Materials Laws. As used herein “Hazardous Materials Laws” means all federal, state and local laws, ordinances, regulations, orders and directives pertaining to Hazardous Materials, including without limitation, the laws, statutes and regulations cited in the preceding Section 7.5.1, as any of the foregoing may be amended from time to time.

ARTICLE VIII

INDEMNITY AND INSURANCE

8.1 Indemnity. The Tenant shall indemnify, defend (with counsel reasonably acceptable to the City) and hold the Indemnitees harmless from and against any and all Claims arising during the Term and arising from or in connection with any of the following: (i) the operation or management of the Property, (ii) any work or thing done on or in the Property, (iii) any condition of any alteration or addition constructed by the Tenant on the Property, (iv) any breach or default by the Tenant in the performance of any covenant or agreement to be performed by the Tenant pursuant to the terms of this Agreement, (v) any negligence of the Tenant, or any of its agents, contractors, subcontractors, employees, or licensees, (vi) any accident, injury or damage caused to any person occurring during the Term in or on the Property, and (vii) the furnishing of labor or materials by the Tenant or its contractors, subcontractors, employees, or agents. In the event any such action or proceeding is brought against the City by reason #8..
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of any such Claim, the Tenant, upon notice from the City, covenants to defend such action or proceeding by counsel reasonably satisfactory to the City. If an insurer under insurance required to be maintained by the Tenant hereunder shall undertake to defend the City under a reservation of rights with respect to ultimate coverage and the City shall reasonably deem it necessary to retain independent counsel with respect to such matter, the Tenant shall pay the reasonable fees of such counsel. The obligations of the Tenant under this Article XIII shall not apply to any Claim or other matter to the extent such arises as a result of the gross negligence or willful misconduct of the Indemnitees.

This Section shall survive the expiration or earlier termination of this Agreement.

8.2 Insurance Requirements. The Tenant shall procure, at its sole expense, and maintain in full force and effect during the Term, the following insurance naming the City as additional insured and/or loss payee:
a. Comprehensive General Liability insurance against claims for bodily and personal injury, death and property damage caused by or occurring in conjunction with the Tenant’s use of the Property and the operation of a business thereon, with a policy limit of at least Two Million Dollars ($2,000,000) per occurrence. b. Tenant shall maintain property insurance covering all risks of loss including flood (if required) for 100% of the replacement value of the Property, the Fixtures and any Improvements, naming the City as loss payee as its interests may appear.

If the Tenant undertakes the construction of any improvements pursuant to Article V, the Tenant shall ensure that its general contractor carries liability, property damage, workers’ compensation, and builder’s risk insurance throughout construction of the Improvements, naming the Indemnitees as additional insureds and otherwise in compliance with all requirements set forth in this Section 8.2.

ARTICLE IX

DAMAGE AND DESTRUCTION

9.1 Damage or Destruction. In the event of any damage to or destruction of the Property during the Term, the City shall elect by written notice delivered to Tenant within sixty (60) days following the date of the occurrence of the damage to either remove the Property or restore and rebuild the Property as nearly as possible to their condition immediately prior to such damage or destruction, subject to any restrictions imposed by changes in any Applicable Law. If the City elects to restore the Property, the City shall commence diligently and continuously to carry out such rebuilding to full completion as soon as possible and shall commence reconstruction of the Property within the earlier of ninety (90) days following the date of occurrence of the damage or the date upon which insurance proceeds are made available for such work. Upon the occurrence of damage or destruction, all insurance proceeds paid in respect of such damage or destruction shall be applied to the payment of the costs of the restoration and rebuilding required to #8..
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be performed by the City pursuant to this Agreement. If the City does not elect to restore the Property and the City does not exercise its right to terminate this Agreement pursuant to Section 13.3 within 120 days following the date of the occurrence of the damage, then at the City’s option this Agreement shall terminate upon delivery of written notice to the Tenant. If the City elects to restore the Property, the City shall confer with the Tenant regarding the design and plans for such restoration of the Property.

9.2 Notice Required. In the event of material damage to or destruction of the Property, or any part thereof, the Tenant shall promptly give the City notice of such occurrence and take all actions reasonably required to protect against hazards caused by such damage or destruction. For purposes of this Article IX, damage or destruction shall be deemed to be material if the estimated cost to repair equals or exceeds Fifty Thousand Dollars ($50,000).

9.3 City’s Right to Terminate. Notwithstanding any contrary provision of this Article IX, the City shall have the option to terminate this Agreement and be relieved of the obligation to restore the Property where all or substantially all of the Property are substantially damaged or destroyed.

ARTICLE X
AGENCY’S RIGHT TO PERFORM TENANT’S COVENANTS
If the Tenant shall at any time fail to pay any Imposition or other charge payable by the Tenant to a third party as required by this Agreement, or to comply with the requirements set forth in Section 8.2 pertaining to insurance, or to make any other payment or perform any other act on its part to be made or performed hereunder within the time permitted by this Agreement, then the City, after thirty (30) days’ written notice to the Tenant and without waiving or releasing the Tenant from any obligation of the Tenant hereunder, may (but shall not be required to): (i) pay such Imposition or other charge payable by the Tenant; (ii) pay for and maintain the insurance policies required pursuant to this Agreement, or (iii) make such other payment or perform such other act on the Tenant’s part to be made or performed under this Agreement; and the City may enter upon the Property for such purpose and take all such action thereon as may be reasonably necessary therefor.

All sums paid by the City and all costs and expenses incurred by the City in connection with any such payment or the performance of any such act (together with interest thereon at the Default Rate from the respective dates of the City’s making of each such payment) shall constitute additional Rent payable by the Tenant under this Agreement and shall be paid by the Tenant to the City on demand. The “Default Rate” shall mean interest calculated at an annual rate equal to the lesser of ten percent (10%) or the maximum rate of interest permitted by law.
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ARTICLE XI

MORTGAGES

11.1 Non-Subordination of Fee. Nothing in this Agreement shall be construed as an agreement by the City to subordinate its fee interest in the Property or its right to rent payments hereunder or any other right of the City herein. Tenant shall not mortgage its interest in the Property without the City’s prior written approval. The City shall have no obligation to encumber or otherwise subordinate its fee interest in the Property or approve any mortgage of the Tenant’s leasehold estate.

ARTICLE XII
ASSIGNMENT, TRANSFER; NONDISTURBANCE

12.1 Restrictions on Transfer, Assignment and Encumbrance. Other than the subleases to Eligible Households permitted under Article IV above, Tenant shall have no right to sell, transfer, assign, encumber, hypothecate or otherwise convey (“Transfer”) its leasehold interest hereunder or any portion of its interest in the Property or this Agreement voluntarily, involuntarily, by operation of law, or otherwise, without the City’s prior written consent. No voluntary or involuntary assignee, subtenant, or successor in interest of the Tenant shall acquire any rights or powers under this Agreement absent such consent.

12.2 No Involuntary Transfers. Without limiting any other restrictions on transfer contained in this Agreement, no interest of the Tenant in this Agreement, the Property or part thereof shall be assignable or transferable: (i) pursuant to any voluntary or involuntary proceeding under federal or state bankruptcy or insolvency law; (ii) pursuant to any assignment of the Tenant’s assets for the benefit of its creditors; or (iii) pursuant to any order of attachment, garnishment, receivership, or similar action.

Any transfer described in this Section 12.2 shall constitute an Event of Default under this Agreement by the Tenant, and the City shall have the right to terminate this Agreement pursuant to Article XIII as a result of any such transfer taking place, in which case this Agreement shall not be treated as an asset of the Tenant.

12.3 Nondisturbance. Provided that the Tenant is not in default under this Agreement, the Tenant’s possession, use and enjoyment of the Property shall not be interfered with, disturbed or diminished, or otherwise affected in any manner as a result of any act or omission of the City, or any exercise of any remedies under this Agreement. #8..
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ARTICLE XIII

DEFAULT, REMEDIES AND TERMINATION

13.1 Event of Default. The Tenant shall be in default under this Agreement upon the occurrence of any of the following (“Events of Default”):
(a) Payment of Rent. The Tenant at any time is in default hereunder as to payment of Rent and such default continues for three (3) days. City is not required to provide written notice of Tenant’s failure to pay Rent. (b) Other Monetary Obligations. The Tenant at any time is in default hereunder as to any monetary obligation (including without limitation, the Additional Rent and the Tenant’s obligation to pay taxes and assessments due on the Property or part thereof, subject to the Tenant’s rights to contest such charges pursuant to Section

3.2), and such default continues for thirty (30) days after the date upon which the City shall have given the Tenant a Notice of Default (as defined in Section 13.2.1); (c) Insurance. The Tenant fails to obtain and maintain any insurance required pursuant to Section 8.2 of this Agreement, and the Tenant fails to cure such default within ten (10) days following receipt of Notice of Default; (d) Abandonment. The Tenant abandons the Property and ceases to use it for the purposes authorized hereby for a period of ninety (90) days or more or as established pursuant to Section 1951.3 of the California Civil Code except when prevented by Force Majeure.
(e) Transfer. A voluntary or involuntary Transfer of all or any portion of the Tenant’s interest in this Agreement occurs in violation of the provisions of Article XII; (f) Non-Monetary Obligations. The Tenant defaults in the performance of any term, provision, covenant or agreement contained in this Agreement other than an obligation enumerated in this Section 13.1, and unless a shorter cure period is specified for such default, the default continues for thirty (30) days after the date upon which the City shall have given written notice of the default to the Tenant; provided however, if the default is of a nature that it cannot be cured within thirty (30) days, an Event of Default shall not arise hereunder if the Tenant commences to cure the default within thirty (30) days and thereafter prosecutes the curing of such default with due diligence and in good faith to completion and in no event later than one hundred and eighty (180) days after receipt of a Notice of Default;
(g) Bankruptcy. The Tenant files a voluntary petition in bankruptcy or files any petition or answer seeking or acquiescing in any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief for itself under any present or future federal, state or other statute, law or regulation relating to bankruptcy, insolvency or other relief for debtors; or seeks or consents to or acquiesces in the appointment of any trustee, receiver or liquidator of the Tenant or of all or any #8..
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substantial part of its property, or of any or all of the royalties, revenues, rents, issues or profits thereof, or makes any general assignment for the benefit of creditors, or admits in writing its inability to pay its debts generally as they become due; (h) Reorganization. A court of competent jurisdiction enters an order, judgment or decree approving a petition filed against the Tenant seeking any reorganization, dissolution or similar relief under any present or future federal, state or other statute, law or regulation relating to bankruptcy, insolvency or other relief for debtors, and such order, judgment or decree remains unvacated and unstayed for an aggregate of sixty (60) days from the first date of entry thereof, or any trustee receiver or liquidator of the Tenant or of all or any substantial part of its property, or of any or all of the royalties, revenues, rents, issues or profits thereof is appointed without the consent or acquiescence of the Tenant and such appointment remains unvacated and unstayed for an aggregate of sixty (60) days, such sixty (60) day period to be extended in all cases during any period of a bona fide appeal diligently pursued by Tenant; (i) Attachment. A writ of execution or attachment or any similar process is issued or levied against all or any part of the interest of the Tenant in the Property and such execution, attachment or similar process is not released, bonded, satisfied, or vacated or stayed within sixty (60) days after its entry or levy, such sixty (60) day period to be extended during any period of a bona fide appeal diligently pursued by Tenant;

13.2 Notice and Opportunity to Cure.

13.2.1 Notice of Default. Upon the occurrence of a default hereunder, the nondefaulting party shall deliver a notice to the nonperforming party (the “Notice of Default”), stating the nature of the obligation which such nonperforming party has failed to perform, and stating the applicable period of time, if any, permitted to cure the default.

13.2.2 Failure to Give Notice; No Waiver. Failure to give, or delay in giving, the Notice of Default shall not constitute a waiver of any obligation, requirement or covenant required to be performed hereunder. No failure or delay by either party in asserting any rights and remedies as to any breach shall operate as a waiver of any breach or of any such rights or remedies. Delay by either party in asserting any of its rights and remedies shall not deprive such party of the right to institute and maintain any action or proceeding which it may deem appropriate to protect, assert or enforce any such rights or remedies.

13.3 Remedies Upon Default.

13.3.1 City’s Remedies. Upon the occurrence of any Event of Default and in addition to any and all other rights or remedies of the City hereunder and/or provided by law, the City shall have the right to terminate this Agreement and/or the Tenant’s possessory rights hereunder, in accordance with Applicable Law to re-enter the Property and take possession thereof and of the Fixtures and any Improvements, and #8..
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except as otherwise provided herein, to remove all persons and property therefrom, and to store such property at the Tenant’s risk and for the Tenant’s account, and the Tenant shall have no further claim thereon or hereunder. The City’s re-entry or taking of possession of the Property shall not be construed as an election on the City’s part to terminate this Agreement unless the City shall have given written notice of such intention to the Tenant. In no event shall this Agreement be treated as an asset of the Tenant after any final adjudication in bankruptcy except at the City’s option so to treat the same but no trustee, receiver, or liquidator of the Tenant shall have any right to disaffirm this Agreement.

13.3.2 Remedies Upon Abandonment. If the Tenant should default under this Agreement and abandon the Property, the City may, at its option, enforce all of its rights and remedies under this Agreement, including the right to recover the rent as it becomes due hereunder. Additionally, the City shall be entitled to recover from the Tenant all costs of maintenance and preservation of the Property, and all costs, including attorneys’ and receiver’s fees incurred in connection with the appointment of and performance by a receiver to protect the Property and the City’s interest under this Agreement.

13.3.3 City Right to Continue Lease. In the event of any default under this Agreement by the Tenant (and regardless of whether or not the Tenant has abandoned the Property), this Agreement shall not terminate (except by an exercise of the City’s right to terminate under Section 13.3.1) unless the City makes such election by the giving of any notice (including, without limitation, any notice preliminary or prerequisite to the bringing of legal proceedings in unlawful detainer) to terminate the Tenant’s right to possession. For so long as this Agreement continues in effect, the City may enforce all of the City’s rights and remedies under this Agreement, including, without limitation, the right to recover all rent and other monetary payments as they become due hereunder. For the purposes of this Agreement, the following shall not constitute termination of the Tenant’s right to possession: (a) acts of maintenance or preservation or efforts to relet the Property; or (b) the appointment of a receiver upon initiative of the City to protect the City’s interest under this Agreement.

13.3.4 Right to Injunction; Specific Performance. In the event of a default by the Tenant under this Agreement, the City shall have the right to commence an action against the Tenant for damages, injunction and/or specific performance. The Tenant’s failure, for any reason, to comply with a court-ordered injunction or order for specific performance shall constitute a breach under this Agreement.

13.3.5 Right to Receiver. Following the occurrence of an Event of Default, if the Tenant fails after receipt of a Notice of Default to cure the default within the time period set forth in this Agreement, the City, at its option, may have a receiver appointed to take possession of the Tenant’s interest in the Property with power in the receiver (a) to administer the Tenant’s interest in the Property, (b) to collect all funds available in connection with the operation of the Property, and (c) to perform all other acts #8..
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consistent with the Tenant’s obligations under this Agreement, as the court deems proper.

13.4 Remedies Cumulative. No remedy specified in this Article XIV shall be considered exclusive of any other remedy, but the same shall be cumulative and shall be in addition to every other remedy provided hereunder or now or hereafter existing at law or in equity or by statute, and every power and remedy provided by this Agreement may be exercised from time to time and as often as occasion may arise or as may be deemed expedient, subject to any limitations set forth herein.

ARTICLE XIV

GENERAL PROVISIONS

14.1 Force Majeure; Extension of Times of Performance. Subject to the limitations set forth below, performance by either Party shall not be deemed to be in default, and all performance and other dates specified in this Agreement shall be extended where delays are due to: war, insurrection, strikes, lockouts, riots, floods, earthquakes, fires, casualties, acts of God, acts of the public enemy, epidemics, quarantine restrictions, freight embargoes, governmental restrictions or priority, litigation, including court delays, unusually severe weather, acts or omissions of the other Party, acts or failures to act of any public or governmental agency or entity (other than the Parties which shall not excuse delay in performance), or any other cause beyond the affected Party’s reasonable control (all of the foregoing “Force Majeure”). An extension of time for any such cause shall be for the period of the enforced delay and shall commence to run from the time of the commencement of the cause, if notice by the Party claiming such extension is sent to the other Party within thirty (30) days of the commencement of the cause and such extension is not rejected in writing by the other Party within ten (10) days of receipt of the notice. Neither Party shall unreasonably withhold consent to an extension of time pursuant to this Section.

Times of performance under this Agreement may also be extended in writing by the mutual agreement of the Tenant and the City (acting in the discretion of its City Manager unless he or she determines in his or her discretion to refer such matter to the City Council). Each Party expressly assumes the risk of such adverse economic or market changes and/or financial inability, whether or not foreseeable as of the Effective Date.

14.2 Vacation of Property. Tenant agrees that the Property will be vacant upon the Expiration of this Lease or the earlier termination of this Lease.

14.3 City’s Right to Enter the Property. The City and its agents may enter the Property from time to time with reasonable notice, except in the case of emergency in which case no notice shall be required, to inspect the same, to post notices of nonresponsibility and similar notices, and to discharge the Tenant’s obligations #8..
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hereunder when the Tenant has failed to do so within a reasonable time after written notice from the City.

14.4 Representations of City and Tenant.

14.4.1 The Tenant hereby represents and warrants that all of the following are true and correct as of the Effective Date:
(a) The Tenant has taken all requisite action in connection with the execution of this Agreement and the undertaking of the obligations set forth herein.

This Agreement constitutes the legally valid and binding obligation of the Tenant, enforceable against the Tenant in accordance with its terms, except as it may be affected by bankruptcy, insolvency or similar laws or by legal or equitable principles relating to or limiting the rights of contracting parties generally; and (b) The execution of this Agreement and the acceptance of the obligations set forth herein do not violate any court order or ruling binding upon the Tenant or any provision of any indenture, agreement or other instrument to which Tenant is a party or may be bound. Neither the entry into nor the performance of this Agreement will violate, be in conflict with or constitute a default under any charter, bylaw, partnership agreement, trust agreement, mortgage, deed of trust, indenture, contract, judgment, order or other agreement, charge, right or interest applicable to the Tenant.

14.4.2 City hereby represents and warrants that all of the following are true and correct as of the Effective Date:
(a) The City has taken all requisite action in connection with the execution of this Agreement and the undertaking of the obligations set forth herein.

This Agreement constitutes the legally valid and binding obligation of the City, enforceable against the City in accordance with its terms, except as it may be affected by bankruptcy, insolvency or similar laws or by legal or equitable principles relating to or limiting the rights of contracting parties generally; and (b) The execution of this Agreement and the acceptance of the obligations set forth herein do not violate any court order or ruling binding upon the City or any provision of any indenture, agreement or other instrument to which the City is a party or may be bound. Neither the entry into nor the performance of this Agreement will violate, be in conflict with or constitute a default under any charter, bylaw, partnership agreement, trust agreement, mortgage, deed of trust, indenture, contract, judgment, order or other agreement, charge, right or interest applicable to the City.

14.5 Miscellaneous.

14.5.1 Severability. If any term or provision of this Agreement or the application thereof to any person or circumstance shall, to any extent, be held by a court of #8..
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competent jurisdiction to be invalid or unenforceable, the remainder of this Agreement, or the application of such term or provision to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby, and each term and provision of this Agreement shall be valid and be enforced to the fullest extent permitted by law.

14.5.2 Notices. Except as otherwise specified herein, all notices to be sent pursuant to this Agreement shall be made in writing, and sent to the Parties at their respective addresses specified below or to such other address as a Party may designate by written notice delivered to the other parties in accordance with this Section. All such notices shall be sent by:
(i) personal delivery, in which case notice is effective upon delivery; (ii) certified or registered mail, return receipt requested, in which case notice shall be deemed delivered on receipt if delivery is confirmed by a return receipt; (iii) nationally recognized overnight courier, with charges prepaid or charged to the sender’s account, in which case notice is effective on delivery if delivery is confirmed by the delivery service; or
City of Modesto: 1010 Tenth Street, Suite 4300
Modesto, CA 95354
P.O. Box 642
Attention: Community Development Manager
Phone: (209) 577-5417
Tenant: Stanislaus County Affordable Housing Corporation 1207 13th St Suite 2
Modesto, CA 95354
Attention: ____________
Phone: (209) 574-1155

14.5.3 Captions; Construction. The section headings and captions used herein are solely for convenience and shall not be used to interpret this Lease. The Parties acknowledge that this Agreement is the product of negotiation and compromise on the part of both Parties, and the Parties agree that since both Parties have participated in the negotiation and drafting of this Agreement with the advice of counsel, this Agreement shall not be construed as if prepared by one of the Parties, but rather according to its fair meaning as a whole, as if both Parties had prepared it.

14.5.4 Successors and Assigns. Subject to the restrictions on transfer set forth in Article XIV, this Agreement shall be binding upon and shall inure to the benefit of the Parties and their respective successors and assigns. Any reference in this Lease to a specifically named Party shall be deemed to apply to any permitted successor and #8..
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assign of such Party who has acquired an interest in compliance with this Agreement as if in every case so expressed.

14.5.5 Non-Liability of Officials, Employees and Agents. No member, official, employee or agent of the City shall be personally liable to Tenant or its successors in interest in the event of any default or breach by the City or for any amount which may become due to the Tenant or the Tenant’s permitted successors in interest pursuant to this Agreement.

14.5.6 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California without regard to principles of conflicts of laws. Any action to enforce or interpret this Agreement shall be filed in the Superior Court of Stanislaus County, California or in the Federal District Court for the Northern District of California.

14.5.7 Attorney’s Fees. If either Party commences an action against the other to enforce any obligation contained herein, or to interpret any provision hereof, the prevailing party shall be entitled to recover from the other Party reasonable counsel fees, costs and necessary disbursements, as determined by the court having jurisdiction over the action.

14.5.8 Indemnity Includes Defense Costs. In any case where either Party is obligated under an express provision of this Lease, to indemnify and to save the other Party harmless from any damage or liability, the same shall be deemed to include defense of the indemnitee by the indemnitor, such defense to be through legal counsel reasonably acceptable to the indemnitee.

14.5.9 No Third-Party Beneficiaries; Disclaimer of Partnership, Lender/Borrower Relationship. Nothing contained in this Agreement is intended to or shall be deemed to confer upon any person, other than the Parties any rights or remedies hereunder. The relationship of the parties under this Agreement is solely that of landlord and tenant, and it is expressly understood and agreed that the City does not as a result of this Agreement in any way nor for any purpose become a partner of the Tenant or a joint venturer with the Tenant in the conduct of the Tenant’s business or otherwise. This Agreement is not intended to, and shall not be construed to, create the relationship of principal and agent, partnership, joint venture, or association as between the City and the Tenant. It is further expressly understood and agreed that this Agreement is not intended to, and shall not be construed to create the relationship of lender and borrower, and the City does not, solely as a result of this Agreement, become a lender to the Tenant.
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14.5.10 Entire Agreement. This Agreement, together with Exhibit A, which by this reference is hereby incorporated herein, contains the entire agreement between the Parties relative to the transactions covered hereby. All previous correspondence, communications, discussions, agreements, understandings or proposals and acceptances thereof between the Parties or their representatives, whether oral or written, are deemed to have been integrated into and superseded by this Agreement and are of no further force and effect except as expressly provided in this Agreement.

14.5.11 Waiver; Modification. No waiver of any breach of any covenant or provision of this Agreement shall be deemed a waiver of any subsequent breach of the same or any other covenant or provision hereof. No waiver shall be valid unless in writing and executed by the waiving party. An extension of time for performance of any obligation or act shall not be deemed an extension of the time for performance of any other obligation or act, and no extension shall be valid unless in writing and executed by the waiving party. This Agreement may be amended or modified only by a written instrument executed by the Parties.

14.5.12 Time is of the Essence. Time is of the essence of this Agreement and of each provision hereof.

14.5.13 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be an original and all of which together shall constitute one and the same instrument.

14.5.14 Action by the Parties. Except as may be otherwise specifically provided herein, whenever any approval, notice, direction, consent or request by the City in its capacity as landlord hereunder is required or permitted under this Agreement, such action shall be in writing, and such action may be given, made or taken by the City Manager or by any person who shall have been designated by the City Manager, without further approval by the City Council unless the City Manager determines in his or her discretion that such matter requires consideration by the City Council.

SIGNATURES ON THE NEXT PAGE
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IN WITNESS WHEREOF, the Parties have entered into this Lease as of the Effective Date.
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Exhibit A

PROPERTY
(Attach legal description.)
5390898.1
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CITY OF MODESTO

COUNCIL AGENDA REPORT
DATE OF MEETING:

July 11, 2023
Date: May 8, 2023
TO: Mayor and Council
THROUGH: Joseph P. Lopez, City Manager
FROM: Jessica Hill, Interim Director of Community and Economic Development SUBJECT: Agreement with Stanislaus 2030 and agreement with Digital Nest CONTACT: Edgar Garcia, Housing & Development Supervisor, [email protected], 209-571-5101
DESCRIPTION:

Consider approving an Agreement with the Stanislaus Community Foundation for the implementation of the Stanislaus 2030 Investment Blueprint for a total amount not to exceed $225,000 over three years and approving an Agreement with Digital Nest to provide technical and professional skills to underserved youth for a total amount not to exceed $150,000 over three years. (Funding Source: American Rescue Plan Act Funds) STRATEGIC PLAN ELEMENT:

The recommended action supports the City of Modesto’s 2020-2025 Strategic Plan - Goal E:

Drive the success of a vibrant and economically sustainable climate.

BACKGROUND:

Stanislaus 2030 is an ambitious and far-ranging economic development study that began in Fall 2021 and extended through the Fall of 2022. At the heart of Stanislaus 2030 study, were two essential questions: how a more resilient economy for more residents to experience financial wellbeing be built and how can industry and small business growth in the next decade and beyond be supported.

The Stanislaus 2030 effort was co-led by local business leaders, higher education and government partners alongside labor and community-based organizations, Stanislaus 2030 articulates a concrete plan for community members to achieve economic mobility by building an economy that is diverse, inclusive, connected, vibrant, and sustainable. The study included a comprehensive market assessment and governance report developed by advisors from the Brookings Institution, from Washington DC. Stanislaus 2030 using frameworks for both drivers of resilient economies (talent, innovation, traded sectors) and analyzed the enablers of economic vibrancy (infrastructure and governance).
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Agreement with Stanislaus 2030 and agreement with Digital Nest