Agenda packet, first session — Modesto City Council, September 12, 2023 (part 6 of 8)

63500 Painting Equipment and Accessories, 90910 Airport Facility Construction; 90911 Airport Facility Maintenance and Repair, 91054 Painting, Maintenance and Repair Services, 91461 Painting and Wallpapering, 93400 Equipment Maintenance and Repair desirable appearance. Each year, the Airport has been painting one to two rows of hangars to extend the life of these structures. These services include rust treatment and conversion as well as priming and multiple coats of paint. This standing agreement will preserve City resources by eliminating a need to complete the purchasing process each year.

On February 14, 2023, the Purchasing Division issued Invitation for Bids (IFB) 2223-22 for Painting Services for Airport Facilities on the City website under commodity codes (1). Three hundred fifty-nine prospective bidders were notified online and via email of the bid opportunity.

Thirty companies downloaded the IFB Document. On February 27, 2023, we held a mandatory on-site visit and 13 bidders attended. On March 21, 2023, five bids were formally opened in the City Clerk’s office and broadcast via Microsoft Teams Livestream. The initial low bidder Aiden’s Quality Painting out of Santa Clara, CA notified the Purchasing Division on May 15, 2023, they would like to withdraw from the running due to realizing after another site visit on May 11, 2023, they had mistakenly bid the project incorrectly. With their withdrawal, the next lowest bidder, HB Restoration out of Rio Linda, CA was selected.

Modesto Municipal Code Section 8-3.203 generally requires all purchases, which meet or exceed $50,000 for material, equipment, or contractual services to follow the formal bid procedures. An Award of Bid and Agreement for Painting Services for the Airport to use to HB Restoration, conforms to the Modesto Municipal Code because the City complied with the formal bid procedures and HB Restoration was the lowest responsive and responsible bidder.

FISCAL IMPACT:

This recommended agreement is accounted for annually out of the Stanislaus County Aircraft Tax Fund and does not affect the Airport Operating Budget or the General Fund.

Five Year History of Hangar Painting Expenditures beginning in 2019 Hangar Rows A and D $ 41,000
Hangar Row C $ 18,400
Hangar Row B $ 18,550
Hangar Row E $ 19,750
Hangar Rows F and J $ 43,450
Total $ 141,150
COMMITTEE RECOMMENDATION:

This agreement was presented to the Finance Committee on August 21, 2023, and was recommended to forward to Council for approval.

RECOMMENDED COUNCIL ACTION:

Staff Recommendations:

Resolution approving the Award of Bid and Agreement for Painting Services to HB Restoration, Rio Linda, CA, for a two-year Agreement with three one-year extensions options, for an annual estimated amount of $50,000 and a total amount not to exceed $250,000 over five years, and authorizing the City Manager or his designee, to sign the Agreement. #21..
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City Council, September 12, 2023
Award of Bid and Agreement for Painting Services at the Modesto City-County Airport

Page 3 of 3 ends

Bill Sandhu, Public Works Director
Joseph P. Lopez, City Manager
Attachments:

1. Resolution

2. Agreement and Exhibits

3. Cost Abstract

4. City Invitation for Bid (IFB)

5. IFB for awarding Bidder
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1 MODESTO CITY COUNCIL
RESOLUTION NO. 2023-

RESOLUTION APPROVING THE AWARD OF BID AND AGREEMENT FOR PAINTING SERVICES TO HB RESTORATION, RIO LINDA, CA, FOR A TWOYEAR AGREEMENT WITH THREE ONE-YEAR EXTENSION OPTIONS, FOR AN ANNUAL ESTIMATED AMOUNT OF $50,000 AND A TOTAL AMOUNT NOT TO EXCEED $250,000 OVER FIVE YEARS, AND AUTHORIZING THE

CITY MANAGER, OR HIS DESIGNEE, TO SIGN THE AGREEMENT
WHEREAS, the Modesto City-County Airport (Airport) operates for the benefit of businesses, industries, visitors and residents in the City of Modesto, Stanislaus County, and the surrounding areas; and
WHEREAS, the Airport is maintained and developed in such a manner that it will continue to be a high-quality aviation facility for its users; and WHEREAS, the Airport has 140 hangars that are leased to tenants for recreational flying, private business use and aviation related business; and WHEREAS, each year, the Airport receives approximately $180,000 in revenue from Aircraft Taxes. The Stanislaus County Aircraft Tax Fund is used to make improvements to the Airport; and
WHEREAS, on February 14, 2023, the Purchasing Division issued Invitation for Bids (IFB) 2223-22 for Painting Services for Airport Facilities on the City website under commodity codes (1). Three hundred fifty-nine prospective bidders were notified online and via email of the bid opportunity; and
WHEREAS, thirty companies downloaded the IFB Document. On February 27, 2023, we held a mandatory on-site visit, and 13 bidders attended. On March 21, 2023, five bids were formally opened in the City Clerk’s office and broadcast via Microsoft Teams Livestream; and
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2 WHEREAS, the initial low bidder Aiden’s Quality Painting out of Santa Clara, CA notified the Purchasing Division on May 15, 2023, they would like to withdraw from the running due to realizing after another site visit on May 11, 2023, they had mistakenly bid the project incorrectly. With their withdrawal, the next lowest bidder was selected HB Restoration out of Rio Linda, CA; and
WHEREAS, Modesto Municipal Code Section 8-3.203 generally requires all purchases, which meet or exceed $50,000 for material, equipment, or contractual services to follow the formal bid procedures; and
WHEREAS, an Award of Bid and Agreement for Painting Services for the Airport to use to HB Restoration, conforms to the Modesto Municipal Code because the City complied with the formal bid procedures and HB Restoration was the lowest responsive and responsible bidder.

NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Modesto that it hereby approves the Award of Bid and the Agreement for Painting Services to HB Restoration, Rio Linda, CA, for a two-year term with 3 one-year extension options, for an annual estimated amount of $50,00 and a total amount not to exceed $250,000 over five years.

BE IT FURTHER RESOVOVED that the City Manager, or his designee, is authorized to sign the agreement, in a form approved by the City Attorney. #21..
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3 The foregoing resolution was introduced at a regular meeting of the Council of the City of Modesto held on the 12th day of September, 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: Councilmember: ?
NOES: Councilmember: ?
ABSENT: Councilmember: ?
ATTEST: ___________________________
DIANE NAYARES-PEREZ, CMC, City Clerk
(SEAL)
APPROVED AS TO FORM:

BY:

JOSE M. SANCHEZ, City Attorney
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1 ANNUAL AGREEMENT NO 249568

PAINTING SERVICES FOR AIRPROT FACILITIES
This agreement, hereinafter called AGREEMENT, made and entered into in the City of Modesto, State of California, this ____ day of _________, 2023, by and between the City of Modesto, a municipal corporation of the State of California, hereinafter called CITY, and HB Restoration, Inc, a California Corporation, hereinafter called CONTRACTOR.

W I T N E S E T H:

WHEREAS, the Modesto City Council adopted Resolution No. authorizing the Award of Bid and agreement for the PAINTING SERVICES FOR AIRPORT FACILITIES to CONTRACTOR, attached hereto as Exhibit “A” and made a part hereof, and WHEREAS, the CONTRACTOR provided a responsive and responsible submittal that best meets the CITY needs, attached hereto as Exhibit “B” and made a part hereof, and WHEREAS, the CITY and CONTRACTOR shall enter into an agreement for the PAINTING SERVICES FOR AIRPORT FACILITIES as described in IFB 2223-22, attached hereto as Exhibit “C”, and made a part hereof (hereinafter called IFB).

NOW, THEREFORE, the parties hereto mutually agree as follows:
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2 1. THE WORK:
a) CONTRACTOR shall furnish all labor, materials, equipment, fuel, tools, licenses, bonds and insurance necessary to perform and complete the required work as specified in Exhibit “C”, and in strict accordance with the conditions of the complete AGREEMENT. b) CONTRACTOR shall do and perform the work contemplated hereby in a good workmanlike manner under the direction of and to the satisfaction of the CITY Representative. c) CONTRACTOR shall maintain proper insurance with the CITY for the duration of the AGREEMENT.
d) CONTRACTOR shall maintain a CITY business license for the duration of the AGREEMENT.
e) CONTRACTOR shall furnish said services at the following AGREEMENT rates for an estimated annual amount $50,000. The total amount paid by CITY to CONTRACTOR over the full term of the AGREEMENT shall not exceed $250,000. Unless the services provided are for a lump sum or flat fee, fees for work performed by CONTRACTOR on an hourly basis shall not exceed the amounts shown on Bid attached hereto as Exhibit B.
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3 AGREEMENT PRICING
The payment of Prevailing Wages is required for this project.

PRICE TABLE
Item No. Description A Description B Price Per Service
A1 Hanger G Pressure wash, rust treatment, priming
and multiple coats of paint. Paint to all
sides and the roof. Paint color 4k white
$25,600.00 /Service
A2
Hanger H Pressure wash, rust treatment, priming
and multiple coats of paint. Paint to all
sides and the roof. Paint color 4k white
$22,800.00 /Service
A3
Hanger I Pressure wash, rust treatment, priming
and multiple coats of paint. Paint to all
sides and the roof. Paint color 4k white
$22,800.00 /Service
A4
Hanger L Pressure wash, rust treatment, priming
and multiple coats of paint. Paint to all
sides and the roof. Paint color 4k white
$22,800.00 /Service
A5
Hanger K Pressure wash, rust treatment, priming
and multiple coats of paint. Paint to all
sides and the roof. Paint color 4k white
$20,800.00 /Service
Total Items: $114,800.00 /Total
Labor Craft Direct Labor Rate*
Fringe Benefit
Rate**
Labor
Markup
(percent)
Price Per
Service
$62.64 /HR $0.95 /HR 25 % $ 79.48 /HR
$ /HR $ /HR % $ /HR
$ /HR $ /HR % $ /HR
*Direct Labor Rate cannot be less than the minimum state prevailing wage. **Provide a copy of the current Fringe Benefit Statement. During the term of the agreement, ensure the City has a copy of the current, applicable statement on file. #21..
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4 2. PREVAILING WAGES:
. In accordance with California Labor Code Section 1771, CONTRACTOR shall pay all workers, and shall ensure its subcontractors pay all of their workers, engaged in performing the services described in Exhibit “C” not less than the general prevailing rate of per diem wages for work of a similar character in the locality in which the services described in Exhibit “C” are to be performed, and not less than the general prevailing rate of per diem wages for holiday and overtime work as provided in the California Labor Code. In accordance with California Labor Code Section 1773.2, the City has obtained the general prevailing wages in the locality in which the services described in Exhibit A are to be performed for each craft or type of work needed to be as published by the State of California Department of Industrial Relations, Division of Labor Statistics and Research, a copy of which is on file in the CITY’s Purchasing Department and shall be made available on request. Contractor must comply with all applicable laws and regulations that apply to wages earned in performance of the services described in Exhibit “C”, including those set forth in Labor Code section 1770 et. seq. and in the IFB.

DIR Project ID#: 470638

3. CITY REPRESENTATIVE:

CITY Representative is:

Gabe da Silva, Airport Manager (209) 577-5319
CITY Purchasing is:

Kim Presson, Buyer (209) 577-5375
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5 The CITY Representative is not authorized to commit the CITY to changes in specifications, requirements, or scope of work, changes in price(s), period of performance or delivery date(s) or method of shipment. Changes of a contractual or business nature shall be effective only by written change to the AGREEMENT, issued by the City of Modesto, Purchasing Division.

4. TERM OF AGREEMENT:

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

Year 1: August 22, 2023 through July 31, 2024
Year 2: August 22, 2024 through July 31, 2025
Year 3: August 22, 2025 through July 31, 2026
Year 4: August 22, 2026 through July 31, 2027
Year 5: August 22, 2027 through July 31, 2028
Pricing as set forth in Section 1.e. above shall remain firm for the first two years of the AGREEMENT.

Price increases for any subsequent AGREEMENT years following the second year, shall not exceed the percentage change in the Consumer Price Index (CPI) for the West Urban Area in any one AGREEMENT year, and shall be negotiated through the Purchasing Division. Requests for price increases shall be submitted by CONTRACTOR in writing, ninety (90) days prior to the annual anniversary date of the AGREEMENT to be effective for the subsequent year.

5. LIABILITY INSURANCE:

The CONTRACTOR shall provide, at its own expense, and maintain at all times the following insurance with insurance companies licensed in the State of California and shall provide evidence of such insurance to the CITY as may be required by the City Clerk of the CITY. The policies or certificates thereof shall provide that, at least 30 days prior to cancellation or material change in the policy, notices of same shall be given #21..
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6 to the Risk Manager of the CITY via PINS Advantage Insurance Program, for all of the following stated insurance policies.
a. General Liability - insurance with a minimum limit of liability per occurrence of $1,000,000 for bodily injury and property damage. The insurance shall indicate on the certificate of insurance the following coverage and indicate the policy aggregate limit applying to: premises and operations; broad form contractual; independent contractors and subcontractors; products and completed operations; and/or professional liability. b. Automobile Liability – insurance with a minimum limit of liability per occurrence of $1,000,000 for bodily injury and property damage and transportation related pollution liability. This insurance shall cover any automobile for bodily injury and property damage.
c. Workers' Compensation - in compliance with the statutes of the State of California, plus employer's liability with a minimum limit of liability of $1,000,000 per accident for bodily injury or disease.

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

The CITY, its agents, officers, employees, and volunteers shall be named as an additional insured on all insurance policies required herein, except Workers' Compensation.

The Workers' Compensation insurer shall agree to waive all rights of subrogation against the CITY, its agents, officers, employees, and volunteers for losses arising from work performed by CONTRACTOR for the CITY.
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7 The CONTRACTOR’s insurance policy(ices) shall include a provision that the coverage is primary as respects the CITY; shall include no special limitations to coverage provided to additional insured; and, shall be placed with insurer(s) with acceptable Best's rating of A:VII or with approval of the CITY’s Risk Manager.

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

6. PAYMENT:

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

Invoice to: City of Modesto
Attn: Accounts Payable
P.O. Box 642
Modesto, CA 95353
Email to: [email protected]
At a minimum, invoices shall state the following:
• This AGREEMENT number 249568
• CITY department/division name and address
• Billing period
• Service hours worked day and week
• Unit price, extended price, sales tax and total

7. INDEMNITY: The CONTRACTOR shall hold the CITY, its agents, officials, officers, employees, and volunteers, harmless from and save, defend and indemnify them against any and all claims, losses, liabilities, #21..
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8 judgments or damages from every cause, including but not limited to injury to person or property or wrongful death, including reasonable costs and expenses of defense of any judicial or administrative action, arising directly or indirectly out of any negligent or intentional act or omission of CONTRACTOR, or its agents, officials, officers, employees, or volunteers relating to or during the performance of its obligations under this AGREEMENT. CONTRACTOR’s obligation to defend, indemnify, and hold the CITY, its agents, officials, officers, and employees harmless under the provisions of this paragraph is not limited to or restricted by any requirement in this AGREEMENT for CONTRACTOR to procure and maintain a policy of insurance.

8. VENUE & GOVERNING LAW:

Venue for any dispute or claim arising or related to this AGREEMENT its performance, breach, or interpretation (including issues about its validity or enforceability), shall be exclusively in the Superior Court of Stanislaus County or the United States District Court for the Eastern District of California This AGREEMENT shall be deemed made in, governed by, performed in, and construed and enforced in accordance with the laws of the State of California, without giving effect to its conflicts of laws provisions or principles.

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

10. COMMENCEMENT AND COMPLETION OF THE WORK:

The work contemplated herein shall be commenced after the agreement administrator receives and has on file:

Proofs of insurance (approved by CITY Risk Manager); and Executed Agreement;
a. Resolution No.2023- ;
b. CONTRACTOR Bid submittal;
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9 c. IFB No. 2223-22;
d. Contractor’s City of Modesto business license

11. TERMINATION OF SERVICES:

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

Termination by City for Convenience: The City may also terminate this AGREEMENT the Contractor's performance underthe Agreement, eitherin whole orin part, at its own discretion and without cause.

Post-Termination Procedure
Upon receipt of a written notice of termination pursuant to either of the foregoing paragraphs, the CONTRACTOR shall:
a. Cease its work as directed in the notice of termination as of the termination date and see to it that its employees, subcontractors and agents are notified of such termination and act as specified in the notice of termination; b. Terminate all orders and subcontracts except as necessary to complete any portion of the SERVICES that are not terminated;
c. If directed in writing by the CITY to do so, assign all right, title and interest in subcontracts and materials in progress to CITY, in which case the CITY will have the right at its discretion to settle, or pay any or all claims arising out #21..
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10 of the termination of such, but in no event shall recovery by any CONTRACTOR or subcontractor include lost profits for portions of the SERVICES not completed or undertaken, including materials not delivered; d. Deliver or otherwise make available to the CITY all data, drawings, specifications, reports, estimates, summaries and such other information and material as may have been accumulated by the CONTRACTOR in performing the SERVICES whether completed or in process;
e. Settle outstanding liabilities and claims, subject to the approval of CITY; f. Complete performance of such part of the SERVICES as has not been terminated; g. Take such other actions as may be necessary, or as may be directed by the CITY for the protection and preservation of the SERVICES and/or property related to the SERVICES;
h. If CITY so requests, and at CITY's cost, CONTRACTOR shall provide sufficient oral or written status reports to make CITY reasonably aware of the status of CONTRACTOR’s work on the SERVICES.
i. CONTRACTOR understands and agrees that CITY may, in CITY’s sole discretion, refuse to pay CONTRACTOR for that portion of CONTRACTOR's SERVICES which were performed by CONTRACTOR on the project prior to the termination date and which remain unacceptable and/or not useful to CONTRACTOR as of the termination date.

CITY will pay CONTRACTOR for SERVICES actually completed prior to the receipt of the termination notice or otherwise completed in accordance with the notice of termination. The final payment to the CONTRACTOR after termination for convenience shall be limited to amounts due and owing under the AGREEMENT at time of termination, including the following:
a. The cost of settling and paying valid claims arising out of the termination of the #21..
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11 SERVICES such as subcontractor agreements or contracts for materials; b. The AGREEMENT price allocable to the portion of the SERVICES properly performed or goods supplied to the work site by the CONTRACTOR as of the date of termination, as determined in accordance with the notice of termination, reduced by any sums previously paid to the CONTRACTOR for such SERVICES.

12. COMPLIANCE WITH ALL LAWS:

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

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

Those discrepancies and deficiencies in the SERVICES that remains uncorrected after the date set for correction may be the necessary justification for a billing adjustment in the month following the occurrence.

Unless otherwise negotiated, billing adjustments for this incomplete or uncorrected work shall be permanent retention of 100% of the estimated monthly cost for the SERVICES not corrected or completed. #21..
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12 14. ASSIGNMENT OF RIGHTS: The CONTRACTOR offers and agrees, and will require all subcontractors and suppliers to agree, to assign to the CITY all rights, title, and interest in and to all causes of action it and they may have under Section 4 of the Clayton Act (15 United States code, Section 15) or under the Cartwright Act (Business and Professions Code, Section 16700 et seq.), arising from the acquisition of goods, services, or materials pursuant to this AGREEMENT or any allowed subcontract. The assignment made by CONTRACTOR and all assignments made by subcontractors and suppliers shall be made and become effective at the time the CITY makes final payment to the CONTRACTOR, without further acknowledgment by the parties (Government Code, Sections 4550-4554).

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

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

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

18. NOTICES:

Any notice, payment or instrument required or permitted by this AGREEMENT to be given or delivered to either party shall be deemed to have been received when personally delivered, or one calendar #21..
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13 week following deposit of the same in any United States Post Office, registered or certified mail, postage prepaid, addressed as follows:

CONTRACTOR: HB Restoration, Inc
5907 26th Street
Rio Linda, CA 95673
Dimitries P. Rozakis, CEO
Phone: (916)-308-5193
Email: [email protected]
CITY: City of Modesto
Purchasing Division
P.O. Box 642
Modesto, CA 95353
Kim Presson, Buyer
Phone: (209) 577-5375
Each party may change its address for delivery of notice by delivering written notice of such change of address to the other party.

19. SIGNATORY(IES) FOR CONTRACTOR:

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

20. QUANTITIES: No minimum or maximum is guaranteed or implied.

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

22. OTHER GOVERNMENT/PUBLICLY FUNDED AGENCIES: If mutually agreeable to all parties, the issuance of any resultant contract/purchase order referencing these specifications and modified by mutual agreement between all parties may be extended to other government or publicly funded agencies. It shall be understood that all terms and conditions as specified herein shall apply. #21..
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14 23. NON-DISCRIMINATION:
a. During the performance of this AGREEMENT, CONTRACTOR and any allowed subcontractors shall not unlawfully discriminate against any employee or applicant for employment because of race, color, ancestry, religion, sex, national origin, marital status, age, medical condition (cancer related), physical handicap (including AIDS), sexual orientation, or any other basis prohibited by Federal or California law. Equal employment opportunity extends, but is not limited to recruitment, compensation, benefits, layoff, termination, and all other conditions of employment. The CONTRACTOR and any allowed subcontractors shall ensure that the evaluation and treatment of their employees and applicants for employment are free of such discrimination.

The CONTRACTOR and any allowed subcontractors shall comply with the provisions of the Fair Employment and Housing Act (Government Code, Section 12900 et seq.) and the applicable regulations promulgated thereunder (California Administrative Code, Title 2, and Section 7285.0 et seq.). The applicable regulations of the Fair Employment and Housing Commission implementing Government Code, Section 12900, set forth in Chapter 5 of Division 4 of Title 2 of the California Administrative Code are incorporated into this contract by reference and made a part hereof as if set forth in full. b. The CONTRACTOR and any allowed subcontractors shall give written notice of their obligations under this clause to labor organizations with which they have a collective bargaining or other agreement.
c. The CONTRACTOR shall include the nondiscrimination and compliance provisions of this clause in any allowed subcontracts to perform SERVICES. d. The Contractor shall permit access by representatives of the Department of Fair Employment and Housing and the CITY upon reasonable notice at any time during the normal business hours, but in no case less than 24 hour’s notice, to such of its books, records, accounts, other sources of information and its facilities as said Department or CITY shall require to ascertain compliance with this AGREEMENT. #21..
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15 e. By executing this AGREEMENT, CONTRACTOR certifies that it shall follow and be in compliance with the Americans with Disabilities Act of 1990, the applicable administrative requirements promulgated in response thereto, and any other applicable Federal laws and regulations relating to handicap discrimination and participation and will continue to do so for at least the duration of the AGREEMENT and any extensions thereof.

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

25. RECORDS. All final versions of reports, data, maps, models, charts, studies, surveys, photographs, memoranda, plans, studies, specifications, records, files, or any other documents or materials, in electronic or any other form, that CONTRACTOR prepares or obtains pursuant to this Agreement and that relate to the matters covered hereunder shall be the property of the CITY. CONTRACTOR hereby agrees to deliver those documents to the CITY upon termination of the AGREEMENT, and the CITY may use, reuse or otherwise dispose of the documents without CONTRACTOR’s permission. It is understood and agreed that the documents and other materials, including but not limited to those described above, prepared pursuant to this AGREEMENT are prepared specifically for the City and are not necessarily suitable for any future or other use.

26. FACILITIES AND EQUIPMENT. Except as set forth herein, CONTRACTOR shall, at its sole cost and expense, provide all facilities and equipment that may be necessary to perform the services required by this AGREEMENT. CITY shall make available to CONTRACTOR only the facilities and equipment listed in EXHIBIT “B” and “C”, and only under the terms and conditions set forth herein.

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

29. ASSIGNMENT:

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

30. WAIVER:

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

31. HEADINGS NOT CONTROLLING:

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

32. MISCELLANEOUS:

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

33. ENTIRE AGREEMENT:

This Agreement and its exhibits contain the entire understanding between CONTRACTOR and CITY. Additional or new terms contained in this AGREEMENT which vary from CONTRACTOR’S bid are controlling and are deemed accepted by CONTRACTOR by performance of any SERVICES or other commencement of performance hereunder. The terms and conditions of the IFB, attached hereto as Exhibit C, #21..
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17 are incorporated herein. In the event of a conflict between the IFB and this AGREEMENT, this AGREEMENT shall control. All previous bids, offers and communications relative to this Agreement, whether oral or written, are hereby superseded except to the extent that they have been incorporated into this Agreement. No future waiver or exception to any of the terms, conditions, and provisions of this AGREEMENT shall be considered valid unless specifically agreed to in writing by the parties.

34. PARTIAL INVALIDITY:

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

IN WITNESS WHEREOF, the CITY OF MODESTO, a municipal corporation, has authorized the execution of this Agreement in duplicate by its City Manager and attested by its City Clerk under authority of Resolution No. 2023- , adopted by the Council of the City of Modesto on the _____________ day of _____________________, 2023 and _____________________has caused this Agreement to be duly executed.
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City of Modesto
Modesto City- County Airport
Scope of Work
2-year Painting Contract 50k Annually
October 24, 2022
Introduction:

The Public Works Department, Airport Division seeks to obtain a 2-year contract for painting services with a maximum annual budget of 50k. This contract would have the possibility of three 1-year extensions.

Contractor Responsibilities:

Contractor is to provide the labor, needed materials and equipment for any painting project located on Airport property. Contractor is to adhere to all Airport safety protocols as well as follow all federal, state and local guidelines.

City Responsibilities:

The Airport will coordinate with their tenants to cover and/or remove any personal belongings, cars, aircraft etc. The Airport will provide access to the airfield as well as detailed instruction for path of travel to and from the specific jobsite.

Typical Type of Projects:

Painting of Airport facilities, primarily aircraft storage hangars. Aircraft storage hangars are galvanized steel siding with metal framing. These structures will require initial cleaning, rust treatment, priming and multiple coats of paint. There could potentially be other standard building type projects, if funds are available.

Schedule:

The contractor is to coordinate the project schedule with the Airport Manager. Contractor must give a minimum of two weeks’ advanced notice prior to start of project for the Airport to coordinate with their tenants. Any changes to the schedule once the project has begun, must be coordinated, and approved through the Airport Manager. When the project begins the contractor is to remain onsite until the completion of the project unless arrangements have been made and approval is granted by the Airport Manager. #21..
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Project Completion Criteria:

All project materials, masking and debris must be removed by the contractor. Job must be walked with the Airport Manager and Project Foreman for final inspection prior to acceptance of project completion.

Additional Terms and Conditions:

Rust treatment must be guaranteed for a minimum of 1 year. If rust returns within this timeframe, the contractor, at their expense, must retreat the rusted areas, prime and paint.

Miscellaneous:

The Airport is not required to perform painting projects within the contract years. Contractor will only be paid if projects have been completed. Annual projects will be based on the Airport’s annual budget.
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ITEM # ITEM/DESCRIPTION QTY

MATERIALS
1 Hanger G 1 $25,600.00 $25,600.00 $12,278.00 $12,278.00 $212,000.00 $212,000.00 $50,800.00 $50,800.00 $69,000.00 $69,000.00 2 Hanger H 1 $22,800.00 $22,800.00 $12,278.00 $12,278.00 $212,000.00 $212,000.00 $50,800.00 $50,800.00 $69,000.00 $69,000.00 3 Hanger I 1 $22,800.00 $22,800.00 $12,278.00 $12,278.00 $212,000.00 $212,000.00 $59,900.00 $59,900.00 $69,000.00 $69,000.00 4 Hanger L 1 $22,800.00 $22,800.00 $6,939.00 $6,939.00 $190,000.00 $190,000.00 $54,800.00 $54,800.00 $45,000.00 $45,000.00 5 Hanger K 1 $20,800.00 $20,800.00 $5,864.00 $5,864.00 $190,000.00 $190,000.00 $52,200.00 $52,200.00 $45,000.00 $45,000.00 6 $114,800.00 $49,637.00 $1,016,000.00 268500.00 $297,000.00 $0.00
SUBTOTAL $114,800.00 $49,637.00 $1,016,000.00 268500.00 $297,000.00 SALES TAX 7.875%:

SHIPPING $0.00 $0.00
TOTAL: $114,800.00 $49,637.00 $1,016,000.00 268500.00 $297,000.00 5 Mac Painting
2 Aiden's Quality Painting Inc
Santa Clara, CA
3 CITY OF MODESTO
PO BOX 642 MODESTO CA 95353
1 4
Color New Company
Woodland Hills, CA
D C Vient, INC
Modesto, CA
H.B. Restoration Inc
Rio Linda, CA
RFB NO. 2223-22 Painting Services for Airport Facilities #21..
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H.B. Restoration Inc
Rio Linda, CA
Copies & Originals (2 Orig / 1 Copy / USB) X
Bid Acknowledgment (Signature) X
Pricing Schedule (Signature) X
City Business License & Expiration Date 1300243
Epay Opted No
Exceptions (if applicable) None
References Yes
Financial Interest Disclosure (Signature) Yes
Supplier of Local Vendor (if applicable) Not Local
Company History Statement Yes
Addenda Acknowledgement Page (if applicable) Yes
Warranty Statements Yes
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Aiden's Quality Painting Inc Color New Co
X X
X X
X X
Upon Award Upon Award
Opted No Opted No
None None
Yes Yes
Yes Yes
Not Local Not Local
Yes Yes
Yes Yes
Yes Yes
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DC Vient
Modest, CA Mac Painting
X X
X X
X X
Yes Upon Award
Opted No Opted No
Yes None
Yes Yes
Not Signed Yes
Yes Not Local
Yes Yes
Yes
Yes Yes
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1 INVITATION FOR BIDS (“IFB”) NO. 2223-22
FOR

PAINTING SERVICES FOR AIRPORT FACILITIES

THE PAYMENT OF PREVAILING WAGES IS REQUIRED
MANDATORY ON-SITE VISIT:

To be held on:

February 27, 2023 at 9:00 A.M.

Meeting Location: 700 Tioga Drive, Gate #2
Modesto, CA 95354
BID OPENING: March 21, 2023 at 11:00 A.M.

CITY OF MODESTO CONTACT: Kim Presson, Buyer
E-MAIL ADDRESS: [email protected]
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2 TABLE OF CONTENTS
Page
. Notice to Bidders............................................................................................................. 3-4 . City Contacts...................................................................................................................... 5 . Calendar of Events............................................................................................................. 5 . Precendence........................................................................................................................ 5 Virtual Opening.................................................................................................................. 6

GENERAL REQUIREMENTS
. Bid Submittal...................................................................................................................... 7 . Acceptance/Rejection of Irregular Bids............................................................................. 7 . Complete Bid Document................................................................................................. 7-8 . Compliance/Non-Compliance............................................................................................ 8 Support Local Vendor ....................................................................................................... 9 . Prevailing Wages.............................................................................................................. 10 . Protest and Appeal Procedures....................................................................................10-14 . Bid Submittal Check List................................................................................................. 15 REQUIRED BID SUBMISSION DOCUMENTS (Sign Wherever Indicated) . Bid Form A – IFB Acknowledgement…………………………………….……… 16-18 . Bid Form B – Bidder Company Information..............................................................19-20 . Bid Form C - Pricing Schedule...................................................................................21-22 . Bid Form D – Bidder Exceptions, Clarifications, Amendments..................................... 23 . Bid Form E – Bidder Customer References...............................................................24-25 . Bid Form F - Financial Interest Disclosure.................................................................26-28 . Bid Form G – Local Business Preference Declaration...............................................29-30 . Bid Form H – Bidder Company History Statement ....................................................... 31 . Bid Form I - Addenda Acknowledgement....................................................................... 32 . Bid Form J – Bidder Warranty Statements...................................................................... 33 . Bid Form K – Bidder Experience and Certifications....................................................... 34 . Bid Form L - Subcontractors List .................................................................................... 35

TECHNICAL REQUIREMENTS
. Scope of Work.................................................................................................................. 36 . Required Licenses............................................................................................................ 37 .

ATTACHMENTS
. Sample Annual Agreement ........................................................................................38-55 #21..
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INVITATION FOR BIDS # 2223-22

PAINTING SERVICES FOR AIRPORT

FACILITIES
3 NOTICE TO BIDDERS
NOTICE IS HEREBY GIVEN that the City of Modesto, County of Stanislaus, State of California (“City”), will receive at the City Clerk’s office, 1010 Tenth Street, Suite 6600, Modesto, CA 95354 sealed Bids (each, a “Bid”) from qualified Bidders (each, a “Bidder”) for the furnishing of Painting Services for Airport Facilities equipment, materials, supplies and/or related services (the “Services”) for the City of Modesto, Public Works Department, Airport Division.

All equipment, materials, and supplies shall be furnished F.O.B. City of Modesto (delivery charges borne by Bidder, included in the Services pricing herein, and not separately charged to the City).

Bidders are highly recommended to download all IFB documents from the City’s Purchasing Division website at http://www.modestogov.com/257/Contracting-Bid-Opportunities; such IFB documents shall include all specifications necessary for Bidders to submit a responsive Bid..

Each Bid shall be sealed and filed with the City Clerk’s office, 1010 Tenth Street, Suite 6600, Modesto, CA 95354 prior to Tuesday, March 21, 2023 at 11:00 A.M., at which time Bids will be opened, read and recorded. The opening of bids will not be physically open to the public, but may be viewed simultaneously via video conferencing in the manner provided for herein. All Bids shall be available for review following City Council award approval at the Purchasing Division, 1010 Tenth Street, 5th Floor, Suite 5300, Modesto, CA 95354.

Bids will be received only at the address shown above, and prior to the time indicated. Any Bid received at or after said time and/or date, or at a place other than the stated address cannot be considered and will be returned to the Bidder unopened.

All Bids, whether delivered by an employee of the Bidder, U.S. Postal Service, courier or package delivery service must be received and time stamped at the stated address prior to the time designated.

The City Clerk’s time stamp shall be considered the official timepiece for the purpose of establishing the actual receipt of Bids. Bids will not be accepted by email or facsimile. The City of Modesto assumes no responsibility for delay in the delivery of the Bid. #21..
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INVITATION FOR BIDS # 2223-22

PAINTING SERVICES FOR AIRPORT

FACILITIES
4 On the outside of the Bid envelope and courier envelope, if any, the Bidder shall indicate the following:
“NAME AND ADDRESS OF BIDDER
BID IN RESPONSE TO INVITATION FOR BIDS # 2223-22
BID OPENING DATE: MARCH 21, 2023 AT 11:00 A.M.”
Bidder must deliver your Bid by a preferred method to the appropriate location below:

MAIL TO: CITY CLERK DELIVER/ COURIER TO: CITY CLERK

CITY OF MODESTO CITY OF MODESTO
P.O. BOX 642 1010 10TH STREET,
SUITE 6600, MODESTO, CA 95353 MODESTO, CA 95354
The City reserves the right to reject any or all Bids or to waive any informalities or minor irregularities in a Bid.

No Bidder may withdraw its Bid for a period of 90 days after the date set for the opening thereof. #21..
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INVITATION FOR BIDS # 2223-22

PAINTING SERVICES FOR AIRPORT

FACILITIES
5 CALENDAR OF EVENTS
Event Date
IFB Issued February 14, 2023
Mandatory Bid Walk February 27, 2023
Written Questions Due via Email March 8, 2023
Addendum Issued (if required) March 10, 2023 (approximate date) Bid Due Date & Time PRIOR 11:00 A.M. on Tuesday, March 21, 2023 Contract Award Approximately June, 2023

CITY CONTACT
All questions regarding these specifications, terms, and conditions shall be submitted in writing via email to the City’s Purchasing Division contact named on the cover page of this IFB (“City Contact”) by the date listed in the CALENDAR OF EVENTS above. The City will respond to pertinent questions through issuance of an Addendum to be available to all Bidders. All contact between Bidder and the City regarding the Bid process shall be through the City Contact. Attempts by the Bidder to contact other City personnel regarding this IFB and associated process may result in disqualification of the Bidder. Notwithstanding the foregoing, information intentionally or un-intentionally provided by any person other than the City Contact may not be correct and will not be binding upon the City.

BIDDER FAMILIARITY WITH SERVICE CONDITIONS
It is the responsibility of each Bidder to become familiar with all of the specifications, terms and conditions and the site condition (if applicable). The Bidder agrees to and acknowledges all IFB specifications, terms, and conditions and indicates the ability to perform by submission of a Bid. By the submission of a Bid, the Bidder certifies that if awarded a contract it will make no claim against the City based upon ignorance of conditions or misunderstanding of the specifications.

CALIFORNIA LABOR CODE SECTION 1771.1 (a)
The California Labor Code states that, “A contractor or subcontractor shall not be qualified to Bid on, be listed in a Bid proposal, subject to the requirements of Section 4104 of the Public Contract Code, or engage in the performance of any contract for public work, as defined in this chapter, unless currently registered and qualified to perform public work pursuant to Section 1725.5. It is not a violation of this section for an unregistered contractor to submit a Bid that is authorized by Section 7029.1 of the Business and Professions Code or by Section 10164 or 20103.5 of the Public Contract Code, provided the contractor is registered to perform public work pursuant to Section 1725.5 at the time the contract is awarded.” This IFB is subject to the registration requirement set forth above.

PRECEDENCE
Bidder agrees that any agreement resulting from City’s acceptance of its Bid, together with the terms in any City purchase order and associated specifications provided by the City to Bidder therewith, shall #21..
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PAINTING SERVICES FOR AIRPORT

FACILITIES
6 comprise the entire agreement between City and Bidder. Moreover, Bidder agrees that any additional or contrary terms contained in Bidder’s acknowledgement of, shall be null and void.

VIRTUAL BID OPENING
The City of Modesto will be broadcasting Bid openings live electronically via Microsoft Teams at 11:00 a.m. (Pacific Time) on Tuesday, March 21, 2023. The City Clerk Record of Bid document should be available on Planet Bids by the end of the same day.

The public Bid opening for this Invitation for Bids will be available using the URL link containing the Number and Title of the Bid on the cover page, provided below. By submitting your Bid for the abovestated IFB you acknowledge, understand, and agree to this modified Bid opening procedure.

URL: https://teams.microsoft.com/l/meetupjoin/19%3ameeting_NTI0YzBiMDMtNDQ0Yi00YjNlLWIwZjYtYzg4ZDVjMDdkM2Mz%40thread.v2 /0?context=%7b%22Tid%22%3a%22125ccacf-fc61-463c-9976-
189f876ff90b%22%2c%22Oid%22%3a%229715c333-c997-4dd7-8984-12cd4deaa705%22%7d Join Microsoft Teams Meeting (Click here to join the meeting) • +1 (469)-998-7409
• Conference ID: 961 656 049#
Should you have any questions regarding this, please do not hesitate to contact the Purchasing Department Contact listed on the Cover Page.
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INVITATION FOR BIDS # 2223-22

PAINTING SERVICES FOR AIRPORT

FACILITIES
7 GENERAL BID REQUIREMENTS
A. BID SUBMITTAL: Bidders should submit two “inked” (preferably blue ink) signed original Bid document, plus one copy of the signed original Bid document, and one electronic copy submitted via USB. The original Bid document shall be clearly marked. Photocopies do not constitute an original Bid. FAILURE TO FURNISH AT LEAST ONE “INKED” SIGNED ORIGINAL BID DOCUMENT MAY RESULT IN DISQUALIFICATION.

B. CONFIDENTIAL BIDDER INFORMATION: It is the responsibility of the Bidders to identify information in their Bid submission that they may consider to be confidential under the California Public Records Act. To the extent that the City agrees with that designation, such information will be held in confidence whenever possible. All other information will be considered public.

C. BIDDER COSTS INCURRED IN RESPONDING TO IFB: All costs associated with the preparation and submission of a Bid shall be borne by the Bidder.

D. BIDDER EXCEPTIONS: All exceptions taken to this IFB and associated specifications shall be specifically and clearly identified on Exceptions, Clarifications and Amendments form.

Failure to comply with this provision may deem the Bid as non-responsive. Please review the Sample Agreement and make note on the Exceptions, Clarifications, and Amendments form for any changes. Exceptions taken shall not affect the overall performance and quality of equipment, materials and/or provision of Services required by the City. The Purchasing Manager or designated agent shall make the final decision regarding the acceptability of equipment, materials and/or provision of Services with exceptions.

E. CITY ACCEPTANCE/REJECTION OF IRREGULAR BIDS: An agreement shall be awarded to the Bidder whose Bid most closely satisfies the needs of the City and is deemed the most advantageous to the City. The City reserves the right to reject any or all Bids or to waive any informalities or minor irregularities in a Bid.

F. COMPLETE BID DOCUMENT: The following forms constitute the makeup of a complete Bid document and shall be signed wherever indicated and submitted to the City in the order listed ):
• Bid Form A - IFB Acknowledgement
• Bid Form B – Bidder Company Information
• Bid Form C - Pricing Schedule
• Bid Form D – Bidder Exceptions, Clarifications, Amendments • Bid Form E – Bidder Customer References
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INVITATION FOR BIDS # 2223-22

PAINTING SERVICES FOR AIRPORT

FACILITIES
8 • Bid Form F - Financial Interest Disclosure
• Bid Form G – Local Business Preference Declaration
• Bid Form H – Bidder Company History Statement
• Bid Form I - Addenda Acknowledgement Page (if applicable) • Bid Form J – Bidder Warranty Statements
• Bid Form K– Bidder Experience and Certifications
• Bid Form L - Subcontractor List
Failure to furnish any of these documents may result in disqualification.

G. COMPLIANCE/NON-COMPLIANCE: If Bidder cannot comply with a specification requirement in this IFB, note on the Exception, Clarifications, Amendments form of the specification paragraph, your exception, and your recommendation. The Purchasing Manager will evaluate your recommendation. If after evaluation it is determined that the Bidder is not in compliance with the specification, the Bid may be rejected.

H. PROPOSED PRICING FORMAT:
• The cost of labor, equipment, fuel, licenses, bonds, permits, and insurance necessary to perform the required provision of Services shall be included in Bid pricing, along with Bidder’s profit margin and any other cost factors.
• Unless otherwise stated, the Bidder agrees that, in the event of a price decline, the benefit of such lower pricing shall be extended to the City.
• The City of Modesto shall not pay mileage charges or travel time from the Contractor’s place of business to the job site, or from site to site, or for the Contractor’s travel time to pick up materials.
• Bidder shall use the pricing schedule provided in this IFB to present Bid pricing. No other form or format shall be accepted. Bid must be submitted on the Pricing Schedule provided. No alterations may be made to the pricing schedule. Any exceptions, amendments or adjustments should be noted on the Exception, Clarification, Amendments Form.

I. AWARD OF BID:
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9 • The City may award one or more agreements to one or more Bidder in order to provide for backup, or in case the “primary” contractor is unable to meet the City’s needs. • The City reserves the right to decline to award any agreement if it is determined that the proposed pricing is not competitively priced based on similar agreements with public agencies within the State of California or if the bids received fail to meet the City’s requirements.
• The City reserves the right to select that Bid, which best suits the City’s needs. In addition to price, consideration will be given to the quality and performance of the service to be purchased, and the criteria listed in Modesto Municipal Code Section 8-

3.203(f). Regardless of City staff’s recommendation, the City Council reserves the right to award an agreement to the Bidder that best suits the City’s needs as determined by the City Council whether or not said award is consistent with City staff’s recommendation for award.

J. SUPPORT OF LOCAL VENDORS: Should the Bidder that submits the lowest responsive Bid or and would otherwise normally qualify to receive the Bid pursuant to Sections 8-3.203 and 8-

3.204 of the Modesto Municipal Code (MMC) not be a local business as defined herein, the lowest Bid or quote submitted by a local business that is within 5%of the lowest Bid, whether or not that Bidder is the second lowest Bidder, may be deemed to be the lowest Bidder if the local Bidder agrees to reduce its Bid to match the Bid or quote of the lowest Bidder in writing within five business days after notification by City Purchasing staff, provided that said local Bidder is deemed to be a responsible Bidder as determined by the Purchasing Manager. To qualify as a local Bidder, the Bidder must have a physical business location within the City of Modesto and a current City of Modesto business license.

K. INDEMNITY: The successful Bidder (the “Contractor”) will be required to hold the City, its agents, officers, employees, and volunteers, harmless from and save, defend and indemnify them against any and all claims, losses, liabilities, judgements or damages from every cause, including but not limited to injury to person or property or wrongful death, including reasonable costs and expenses of defense of any judicial or administrative action, arising directly or indirectly out of any negligent or intentional act or omission of the Contractor, its agents, officers, employees, and volunteers relating to or during the performance of its obligations under this Bid. Contractor’s obligation to defend, indemnify, and hold the city, its agents, officers, and employees harmless under the provisions of this paragraph is not limited to or restricted by any requirement for Contractor to procure and maintain a policy of insurance. With reference to the foregoing, the parties agree that all risk of loss, including but not limited to damages, property losses and defense of third-party suits, arising out of or relation to the operation of City-owned vehicles by Contractor’s employees will be apportioned to Contractor in accordance with the provisions contained in indemnity.
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INVITATION FOR BIDS # 2223-22

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FACILITIES
10 L. PREVAILING WAGE: Bidder’s workers must be paid no less than the prevailing wage rate as published by the State of California Department of Industrial Relations (DIR), and the successful Bidder shall maintain certified payroll. For additional information regarding Prevailing Wages, please contact the DIR at www.DIR.CA.gov or call its Labor Research and Statistics Unit, Prevailing Wage Unit at 415/703-4774. The City standards available at the following web address shall also apply to the performance of the Bid: City Standards Website:
https://www.modestogov.com/ArchiveCenter/ViewFile/Item/1120 M. BIDDER REPRESENTATION: Bidder represents that:
• Bidder has had an opportunity to examine and has examined any and all of the documents, including specifications, any resultant contract and supporting data, and that it has, from the information contained in such documents, specifications, and data, fully acquainted itself with all conditions relevant to the work. • Bidder has made all reasonable investigations essential to a full understanding of the difficulties, which may be encountered in performing the work. • Bidder will complete the proposed provision of Services for the compensation stated in any resultant agreement.
• Bidder assumes full and complete responsibility for all conditions relevant to the proposed provision of Services and all risks in connection therewith. • Bidder represents that it is fully qualified to perform the proposed provision of Services in accordance with the terms of any resultant agreement within the time specified therein.

N. BID PROTEST AND APPEAL PROCEDURES: Bidders wishing to protest or appeal a contract award decision by the City of Modesto must follow the procedures provided in this section. Protests or appeals which are not submitted in accordance with these procedures will not be reviewed.

Definitions
For the purposes of these procedures: "Days" means working days in which City Hall is open for business, excluding holidays and weekends.
"Bid" includes the term "offer" or "proposal" as used in the context of formal, informal, or negotiated procurements.
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FACILITIES
11 "Announced Decision" includes the term “Notice of Intent to Award Letter”. Once the City has issued an Announced Decision, the date noted will begin the time that a Bidder may lodge a protest.

Protest Procedures
• Only a Bidder who has actually submitted a Bid is eligible to submit a protest against the City’s Announced Decision.
• Subcontractors are not eligible to submit bid protests. • A Bidder may not rely on the bid protest submitted by another bidder, but must timely pursue its own protest.
• A written protest to an Announced Decision must be made to the City of Modesto's Director of Finance no later than ten days after the date of the Announced Decision. • The protest shall be delivered or sent by registered mail and received by the City by the deadline, or protest will be automatically rejected. Protestors who choose to be represented by legal counsel are responsible for the associated expenses. • The protest shall be accompanied by a certified or cashier's check in the amount of $300.00, (except for protests of Federally Funded agreements), made payable to the Clerk of the City of Modesto. Protests filed without the requisite fee will be rejected without any additional review.
• The protest filed with the Director of Finance shall:
a. Include the name, address, email address and business telephone number of the protestor;
b. Identify the protest by name, Invitation for Bid (IFB) or Request for Proposal (RFP) number, and IFB/RFP date;
c. The bid protest must contain a complete statement of the basis for the protest and all supporting documentation. The protest must refer to the specific portion or portions of the Contract Documents upon which the protest is based; d. Include all supporting documentation, if any. Documentation submitted after filing deadline will not be reviewed.
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12 • Bid Protests: A Bidder shall follow, in order, the following steps:
a. Protest to Director of Finance: Upon receipt of a complete and timely protest, the Director of Finance shall review all the submitted materials and shall create and retain a written record of the review. The Director of Finance shall respond at least generally to each material issue raised in the protest not later than ten days after receipt of the protest. Notice of the Director of Finance's decision may be given by letter mailed through U.S. Postal Service.

All protests to the Director of Finance shall either be delivered to:

City Clerk’s Office
Attn: Director of Finance
1010 Tenth St. Suite 6600
Modesto CA 95354
Or mailed to:

City Clerk’s Office
Attn: Director of Finance
PO Box 642
Modesto CA 95353
b. Appeal to Deputy City Manager: At the protestor’s discretion, the decision of the Director of Finance may be appealed in writing to the City of Modesto's Deputy City Manager(s) no later than ten days after the date of the Director of Finance’s Decision. The scope of the appeal shall be limited by the issues raised in the initial protest to the Director of Finance. The Deputy City Manager shall not be permitted to review any newly raised issues. The Deputy City Manager shall review the appeal, accompanying supporting documents, if any and the written records of the protest review by the Director of Finance. A written record of the Deputy City Manager's review shall be created and maintained. The Deputy City Manager shall give notice of their decision to the protestor within ten days after receipt of appeal.

Further protest appeals shall either be delivered to:

City Clerk’s Office
Attn: Deputy City Manager
1010 Tenth St. Suite 6600
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13 Modesto CA 95354
Or mailed to:

City Clerk’s Office
Attn: Deputy City Manager
PO Box 642
Modesto CA 95353
d. Appeal to City Council: Any protestor seeking to appeal to the decision of the Deputy City Manager may appeal in writing to the City Council by filing with the City Clerk a written notice of such appeal not later than ten days after the date of the Deputy City Manager's decision. The City Clerk will calendar the protest for Council hearing and give notice of the time and place of the hearing as provided in Modesto Municipal Code Sections 1-4.01 through 1-4.05. The City Council’s decision on the appeal shall be final.

All protest appeals to the City Council shall either be delivered to:

City Clerk’s Office
Attn: City Council
1010 Tenth St. Suite 6600
Modesto CA 95354
Or mailed to:

City Clerk’s Office
Attn: City Council
PO Box 642
Modesto CA 95353
e. Optional Alternative Process for Protests of Procurement Actions Exceeding $250,000: A Bidder protesting procurements exceeding $250,000 shall comply with the procedures contained herein, except that in lieu of appeal to the Deputy City Manager a protestor may request that the protest be heard and decided at an administrative hearing.

A written request for administrative hearing shall be accompanied by a certified or cashier's check in the amount of $1,500, (except for protests of Federally Funded projects); The request for hearing shall include the specific grounds of the appeal. #21..
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14 The City of Modesto shall select and engage an impartial and qualified person to act as hearing officer in the pending protest. The protestor shall have the right to twice reject the selected hearing officer, provided that the City is notified of such rejection within three days of notice to protestor of the name of the hearing officer.

The protest shall be heard not later than twenty days after receipt of protestor's request for hearing and the selection of a hearing officer. Protests not made in a timely manner shall be deemed withdrawn, unless the City and the protestor mutually agree otherwise in writing. The protestor’s failure to accept a hearing officer after the third attempt by City staff to identify an impartial hearing officer shall be deemed a withdrawal of the protest.

The costs of the hearing officer and expenses of the protest shall be borne by the protestor. The sums deposited with the request for hearing shall be credited to the costs of the hearing officer and other hearing expenses. f. Mandatory Alternative Process for Protests of Procurements Obtained with Federal Funds: If the protested procurement involves federal funds, the Deputy City Manager, City Council, or hearing officer shall give notice, accompanying their respective decisions, to the protestor that he or she has the right to appeal to the appropriate federal agency, for which an agency name, contact (where available) and address shall be provided by City staff. Such an appeal shall be filed with the appropriate agency within seven business days of the dispatch or rejection notices to the protestor. Federal agencies may entertain protests alleging that the City has failed to adopt written protest procedures or has failed to follow such procedures. The City Council is the highest authority of the City of Modesto and its decisions are final. A disappointed Bidder for a contract involving expenditures of Federal funds shall have the right to appeal the City Council decision directly to the federal agency as described herein. #21..
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15 BID SUBMITTAL CHECKLIST

BID SUBMITTAL CHECKLIST
The Bidder shall provide a complete Bid in a sealed envelope by the required deadline on the Bid Opening Date. Failure to provide all the required documents may cause the Bid to be considered nonresponsive.

Bidder’s Bid must contain the following applicable elements completed and signed as described morefully herein. The following checklist is provided solely for Bidder’s use in reviewing the completeness of your submission:

COMPLETE BID ELEMENTS 
Bid Form A – IFB Acknowledgement
Bid Form B – Bidder Company Information
Bid Form C - Pricing Schedule
Bid Form D – Bidder Exceptions, Clarifications, Amendments Bid Form E – Bidder Customer References
Bid Form F - Financial Interest Disclosure
Bid Form G – Local Business Preference Declaration
Bid Form H – Bidder Company History Statement
Bid Form I - Addenda Acknowledgement
Bid Form J – Bidder Warranty Statements
Bid Form K – Bidder Experience and Certifications
Bid Form L - Subcontractor List

Bidder’s submission should include all City of Modesto forms. If any form is not applicable, Bidder should write or type “Not Applicable” on it but still include the form in your submission. #21..
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16 BID FORM A - IFB ACKNOWLEDGEMENT
The City is soliciting Bids from qualified firms (each a “Bidder” to fulfill the City’s requirements per the specifications, terms and conditions contained in this Invitation for Bids (“Invitation for Bids” or “IFB”).

This Bid Acknowledgement must be completed, signed by an authorized responsible officer or employee, dated and submitted with the Bid response. Obligations assumed by such signature will include the following:

1. Preparation of Bids: (a) All prices and notations must be printed in ink or typewritten. No erasures permitted. Errors may be crossed out and corrections printed in ink or typewritten adjacent and must be initialed in ink by person signing the Bid. (b) Quote price as specified in Bid. No alterations or changes of any kind shall be permitted to the Bid Form. Responses that do not comply shall be subject to rejection in total.

2. Failure to Submit Bid: If you are not submitting a Bid but want to remain on the mailing list and receive future Bids, complete, sign and return this Bid Acknowledgement and state the reason you are not pricing.

3. Taxes and Freight Charges: (a) Unless otherwise required and specified in the IFB, the prices quoted herein do not include Sales, Use or other taxes. (b) No charge for delivery, drayage, express, parcel post packing, cartage, insurance, license fees, permits, costs of bonds, or for any other purpose, except taxes legally payable by City, will be paid by the City unless expressly included and itemized in the Bid. (c) Amount paid for transportation of property to the City is exempt from Federal Transportation Tax. An exemption certificate is not required where the shipping paper shows the consignee as one (1) of the City; as such papers may be accepted by the carrier as proof of the exempt character of the shipment. (d) Articles sold to the City are exempt from certain Federal excise taxes. The City will furnish an exemption certificate.

4. Award: (a) Unless otherwise specified by the Bidder or the IFB gives notice of an all-or-none award, the City may accept any item or group of items of any Bid. (b) Bids are subject to acceptance by the City at any time within 45 days of opening, unless otherwise specified in the IFB. A Bidder shall not change its bid if accepted within such time. (c) A valid, contract based on the sample agreement attached to the IFB and the submitted bid shall be mailed, or otherwise furnished, to the successful Bidder within the time for acceptance specified, and such contract shall be a binding agreement without further action by either party. The contract shall be interpreted, construed and given effect in all respects according to the laws of the State of California.

5. Patent Indemnity: Bidders who do business with the City shall hold the City, its officers, agents and employees, harmless from liability of any nature or kind, including cost and expenses, for infringement or use of any patent, copyright or other proprietary right, secret process, patented or un- #21..
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17 patented invention, article or appliance furnished or used in connection with the contract or purchase order.

6. Samples: Samples of items, when required, shall be furnished free of expense to the City and if not destroyed by test may upon request (made when the sample is furnished), be returned at the Bidder’s expense.

7. Rights and Remedies of City for Default: (a) In the event any item furnished by the Bidder in the performance of the contract or purchase order should fail to conform to the specifications therefore or to the sample submitted by the Bidder with its Bid, the City may reject the same, and it shall thereupon become the duty of the Bidder to reclaim and remove the same forthwith, without expense to the City, and immediately to replace all such rejected items with others conforming to such specifications or samples; provided that should the Bidder fail, neglect or refuse to do so, the City shall thereupon have the right to purchase in the open market, in lieu thereof, a corresponding quantity of any such items. City may deduct from any moneys due or that may there after come due to Bidder, or send an invoice to the Bidder which shall be paid within thirty (30) days, the difference between the prices named in the contract or purchase order and the actual cost thereof to the City. In the event that the Bidder fails to make prompt delivery as specified for any item, the same conditions as to the rights of the City to purchase in the open market and to reimbursement set forth above shall apply, except when delivery is delayed by fire, strike, freight embargo, or Act of God or the government. (b) Cost of inspection or deliveries or offers for delivery, which do not meet specifications, will be borne by the Bidder. (c) The rights and remedies of the City provided above shall not be exclusive and are in addition to any other rights and remedies provided by law or under the contract.

8. Payment Terms and Methods: Bidder will be able to choose from either of the following payment methods and associated timings:
(a) Option A (Preferred): City of Modesto ePay Payment: This secure payment methodology is preferred by an increasing number of the City’s suppliers. On Net 30 day timing, you will receive a single-use Master Card number with a detailed remittance for each payment. You will process the payment though your POS/Card terminal. The payment remittance will be sent from [email protected] via email and will contain the following information:
• 16-digit credit card number
• Expiration date
• Security code
• Total dollar amount of invoices to be paid
• Invoices reference numbers and corresponding amounts
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18 ePay results in small percentage rebate of 1.0% to the City through the card issuer. That rebate amount will be considered by the City in its evaluation of Bidder’s pricing proposal hereunder.

Information about enrolling in MasterCard ePay program can be obtained from the City’s contact listed on the Cover Page of this IFB.
(b) Option B – Manual Check: On Net 45 Day timing, the City will mail a hardcopy check to Bidder. The payment will be deemed to have been made when the check envelope is mailed via US Postal Service First Class Mail. The timing of the mailing will be at the end of the Net 45 Day period. Additional time should be estimated by the Bidder for the check to be in transit, and to await deposit and clearance by Bidder staff.

9. California Government Code Section 4552: In submitting a Bid to the City, the Bidder offers and agrees that if the Bid is accepted, it will assign to the City all rights, title, and interest in and to all causes of action it may have under Section 4 of the Clayton Act (15 U.S.C. Sec. 15) or under the Cartwright Act (Chapter 2, commencing with Section 16700, of Part 2 of Division 7 of the Business and Professions Code), arising from purchases of Services, materials, or services by the Bidder for sale to the purchasing body pursuant to the Bid. Such assignment shall be made and become effective at the time the purchasing body tender’s final payment to the Bidder.

10. No Guarantee or Warranty: The City makes no guarantee or warranty as to the condition, completeness or safety of any material or equipment that may be traded under a contract or purchase order resulting from this Bid.

11. Two “Inked” Signed Original Bids Document Required: Failure to furnish two “inked” signed original Bid document may result in disqualification. These must be accompanied by one copy and one electronic document recorded onto a USB storage device.

12. Minor Irregularities. The City reserves the right, in its sole discretion, to waive any informalities or minor irregularities in a Bid.

The undersigned acknowledges receipt of the referenced IFB and/or Addenda and offers and agrees to furnish the articles and/or services specified on behalf of the Bidder indicated in Bidder’s Bid Forms A through L, attached hereto and made a part hereof, for the pricing proposed on the Pricing Schedule.

Bidder Company Name:

Bidder Headquarters Address:

City/State/Zip:

Signature/Title/Date:
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19 BID FORM B – BIDDER COMPANY INFORMATION
A. Bidder Company Full
Legal Name
B. Bidder Company
Marketplace (or DBA)
Name
C. Type of Legal Entity: ___ Corporation, registered in ____________________ (State) ___ Limited Liability Company, registered in _________________(State) ___ Partnership, registered in ________________(State)
___ Sole Proprietorship, registered in ____________(State) ___ Other ___________________________________________(Describe) D. Headquarters Address
(Street Address, City,
State, Country, Postal
Code):

E. Website Address: www.___________
F. Contact Person Details: Name:

Title:

Phone (Office):

Phone (Mobile):

Mailing Address (Street Address, City, State, Postal Code):

Fax Number:

Email:

G. Federal Taxpayer
Identification Number
(TIN):

H. Dun & Bradstreet
(DUNS) Number:

I. Names and Titles of
Top Three Bidder
Officers:

J. Years in Business:

K. Bidder Office Address
Closest to City of
Modesto (Street
Address, City, State,
Country, Postal Code):

L. City of Modesto
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20 Business License
Number (note –
provide only if
available now - - but
not required until any
contract begins):

M. State of California
Contractor License
Number and Expiration
Date (if available):

N. State of California
Department of
Industrial Relations
(DIR) Registration
Number and Expiration
Date (if available):
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21 BID FORM C - PRICING SCHEDULE
All labor, materials, equipment, tools, fuel, licenses, bonds, insurance and other expenses necessary for Bidder to perform the required services shall be included in Bid pricing. Bid must be submitted on the below Pricing Schedule provided. No alterations should be made to the pricing schedule. Any exceptions, amendments or adjustments should be noted on Bid Form D – Bidder Exceptions, Clarifications, Amendments.

The payment of Prevailing Wages is required for this project.

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FACILITIES
22 Labor Craft Direct Labor Rate*
Fringe Benefit
Rate**
Labor
Markup
(percent)
Price Per
Service
Industrial Painter (Journeyman) $ /HR $ /HR % $ /HR
$ /HR $ /HR % $ /HR
$ /HR $ /HR % $ /HR
*Direct Labor Rate cannot be less than the minimum state prevailing wage. **Provide a copy of the current Fringe Benefit Statement. During the term of the agreement, ensure the City has a copy of the current, applicable statement on file.

Payment Terms:

Check which of the following payment terms/methodology Bidder accepts (a description of each can be found in Bid Form A – IFB Acknowledgement):
• Choose One:Option A (Preferred): City of Modesto ePay Payment on Net 30 Day Timing: ___ Choose by checking () here. If selected, for bid comparison purposes, Bidder’s pricing will be reduced by the City of Modesto’s average ePay card program rebate percentage; or ePay Email Address: _______________________
• Manual Check Payment Mailed by US Postal Service First Class Mail Only on Net 45 Day Timing:
___ Choose by checking () here.

THE undersigned acknowledges receipt of the referenced IFB and any associated Addenda and offers to furnish the articles and/or services specified, in accordance with the specifications, terms and conditions of this IFB and these Bid documents, for the pricing indicated on the Pricing Schedule.

Bidder Company Name:

Name of Bidder Signatory:

Signature of Bidder Representative:
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23 BID FORM D – BIDDER EXCEPTIONS, CLARIFICATIONS, AMENDMENTS Exceptions to the City of Modesto’s IFB package, sample agreement, and associate specifications are not encouraged and may cause Bidder to be considered not responsible and/or its Bid to be considered not responsive. Therefore, if no exceptions, clarifications or amendments are proposed by Bidder, it is preferred that Bidder so indicate by typing or writing “Not Applicable” in the Description field in the first item row below. Less preferred, Bidder may indicate no exceptions, clarifications or amendments are proposed by leaving this form out of its’ Bid submission.

Nonetheless, Bidder may request Bid clarifications and exceptions below, if any, sign and submit with your Bid response.

Any requested exception, clarification or amendment may not be accepted and may deem the Bidder as non-responsive.

Item # Reference To: Description
Page # Section or
Paragraph #
Bidder Company Name:

Name of Bidder Signatory:

Signature of Bidder Representative:
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24 BID FORM E – BIDDER CUSTOMER REFERENCES
Bidder must provide a list of five current or former customers able to discuss prior experience with similar type of services requested by the City in the above-referenced IFB. Bidder’s references shall have similar volume and requirements to the City of Modesto’s as described in the above-referenced IFB. Bidders failing to provide references may be deemed as non-responsive.

The City may contact some or all of the references provided in order to determine the Bidder’s performance record on services similar to that described in the above-referenced IFB. The City reserves the right to contact references other than those provided in Bidder’s submission and to use the information gained from them in the award process.

Company Name:

Address:

City, State, Zip Code:

Contact Person:

Email Address:

Telephone Number:

Type of Business or
Governmental
Agency:

Date Range of
Service:

Annual Contract Value $
Company Name:

Address:

City, State, Zip Code:

Contact Person:

Email Address:

Telephone Number:

Type of Business or
Governmental
Agency:

Date Range of
Services:

Annual Contract Value $
Company Name:

Address:
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25 City, State, Zip Code
Contact Person:

Email Address:

Telephone Number:

Type of Business or
Governmental
Agency:

Date Range of
Services:

Annual Contract Value $
Company Name:

Address:

City, State, Zip Code
Contact Person:

Email Address:

Telephone Number:

Type of Business or
Governmental
Agency:

Date Range of
Services:

Annual Contract Value $
Company Name:

Address:

City, State, Zip Code
Contact Person:

Email Address:

Telephone Number:

Type of Business or
Governmental
Agency:

Date Range of
Services:

Annual Contract Value $
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26 BID FORM F - FINANCIAL INTEREST DISCLOSURE
Any contract award to result from this IFB process and Bidder’s submission of a Bid therewith will require approval by a majority vote of the City of Modesto’s City Council. In order to have full transparency in any City of Modesto commercial actions, the City Council may not approve an agreement between the City and the Bidder until all person with a direct or indirect financial interest of greater than $2,000 in the Bidder are identified by name.

Bidder must therefore complete this Bid Form F – Financial Interest Disclosure, listing by name all parties that have a material financial interest in the agreement, contract or development right.

PLEASE NOTE, any Council action that requires a Financial Interest Disclosure cannot be considered by the City Council until the required reporting is made. That means that City Council agenda items without the disclosure will be removed from the Council agenda.

Financial Interest Disclosure to City of Modesto
The Bidder shall identify any person with a financial interest in the Bidder by name, below.

For the purposes of this disclosure, a “Financial Interest” shall have the meaning contained in Modesto Municipal Code section 2-10.02.

Persons having an aggregate economic interest in the Bidder less than two thousand dollars ($2,000.00) at all times prior to final Council action of the proposed contract are not required to be listed on the Financial Interest Disclosure.

Notwithstanding the foregoing, a Financial Interest Disclosure is not required for a Bidder meeting the financial criteria for listing on the New York or the Pacific Stock exchanges unless it is reasonably foreseeable that a City Council decision will increase or decrease that entity's gross revenues or expenses by one million dollars ($1,000,000) or more and the requirements of Modesto Municipal Code Section 2-

10.03(h) are satisfied.

It is the legal obligation of all applicants for approval of an agreement or of an application for development rights to verify in writing, under penalty of perjury, that the identity of each person having a material financial interest in the Bidder is true, correct and complete. By signing below, the applicant understands that this information is provided under penalty of perjury, and that intentionally supplying misinformation or deception may result in either invalidation of the agreement or application, or criminal prosecution for misdemeanor violation of the Modesto Municipal Code, or both. Negligent provision of misinformation shall be grounds for invalidation. In accordance with the Modesto Municipal Code, each applicant has a continuing obligation to maintain the truth, accuracy and completeness of the financial interest disclosure information provided below #21..
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27 until after final consideration by the City Council of any matter arising out of or relating to the agreement or application.

Print Names of Persons Having a Financial Interest in Bidder Receiving this Contract:

First Name, Last Name
First Name, Last Name
First Name, Last Name
First Name, Last Name
First Name, Last Name
First Name, Last Name
First Name, Last Name
First Name, Last Name
First Name, Last Name
First Name, Last Name
First Name, Last Name
First Name, Last Name
First Name, Last Name
First Name, Last Name
First Name, Last Name
By signing this document, I agree to the information contained within.

Bidder Company Name:
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28 Name of Bidder Signatory:

Signature of Bidder Representative:
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29 BID FORM G - SUPPORT OF LOCAL VENDORS
Notice Pursuant to Modesto Municipal Code section 8.3-206 - Should the Bidder which submits the lowest responsive Bid (and would otherwise normally qualify to receive the Bid pursuant to Sections 8-3.203 and 8-

3.204 of the Modesto Municipal Code) not be a local business as defined herein, the lowest Bid or quote submitted by a local business that is within five percent (5%) of the lowest Bid or quote, whether or not that Bidder is the second lowest Bidder, may be deemed to be the lowest Bidder if the local Bidder agrees to reduce its Bid to match the Bid of the lowest Bidder in writing within five business days after notification by City Purchasing staff, provided that said local Bidder is deemed to be a responsible Bidder as determined by the Purchasing Manager.

Notwithstanding the foregoing, award to the local Bidder must still be approved by the City Council as would have the typical award.

To qualify as a local Bidder, the Bidder must have a physical business location within the City of Modesto and a current City of Modesto business license.

This document is only required should the Bidder request to be considered for the Support of Local Vendor preference, and meets the criteria noted above.

Check here:

I declare I am a local business per the above criteria
Bidder Company Name:

City of Modesto Address (Street,
City, State, Postal Code:

City of Modesto Business License
Number:
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30 Under penalty of perjury, the undersigned declares that the foregoing information is true and correct:

Print/Type Name:

Title:

Signature:

Date:
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31 BID FORM H - BIDDER COMPANY HISTORY STATEMENT
Bidder shall have been in business for a minimum of three continuous years (immediately prior to the time of the City’s solicitation) providing the services described in this Invitation for Bids (IFB).

The Bidder’s company history overview statement shall be approximately one to three pages in length and inserted below:

Bidder Company Legal Name: Insert Bidder Logo Here (if existent):

Insert Bidder Company History Overview Statement Beginning Here:
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32 BID FORM I - ADDENDA ACKNOWLEDGEMENT
In order to obtain any addenda information, throughout the IFB period, Bidder is responsible for regularly checking the City of Modesto’s Planet Bid website at https://pbsystem.planetbids.com/portal/14999/bo/bosearch for the IFB number listed on the Cover Page and in the header of each subsequent page of this IFB, and in any event, no later than the day prior to Bid opening.. The changes identified in any addenda issued will modify this IFB and specifications. The addenda now become a part of this IFB and Bidder’s resultant Bid.

Signing the Bid on the signature portion thereof, the Bidder is acknowledging that the Bidder has confirmed that it has received all addenda issued for IFB, and has included costs for such in the Bid submitted. Failure to list and acknowledge all addenda numbers may cause Bidder’s Bid to be considered nonresponsive.

Do not attach any of the addenda to this sheet nor include them with the Bid.

If no addenda have been issued against this IFB solicitation, Bidder may write “Not Applicable” and return this Bid Form as part of its submission. Alternatively, Bidder may leave this Bid Form out of its submission.

But if any addenda have been issued by the City of Modesto this document is required to be completed and returned.

The Bid is submitted with respect to the changes to the IFB included in addenda numbers:

List All Addenda Numbers, Separated by Commas
(“,”):

Bidder Company Name:
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33 BID FORM J – BIDDER WARRANTY STATEMENTS
As a material part of its Bid, Bidder shall insert below a written statement detailing any materials and workmanship warranties, term and conditions in conformance with the specifications and requirements set forth in this IFB.

Notwithstanding any other provisions of this IFB, Bidder warrants that the materials, supplies, or other services furnished under any contract or purchase order resulting from its Bid shall be on the most suitable grade and meet or exceed the standards set forth in this IFB. Such warranty shall include the following; performance, workmanship, labor, materials, and Bidder design or engineering contributions. If a defect is discovered in any item of the materials, assemblies, components, supplies or services covered in this Bid, Bidder shall correct at its sole expense, all such defects as are reported within 30 days of City’s final acceptance. Upon expiration of the applicable warranty period, all such liability shall terminate except for fraud or such gross mistakes as amount to fraud, latent defects, or specific failure to comply with the terms or any resultant purchase order.

All materials, parts, labor, assemblies and components shall by subject to the warranty conditions and terms unless specifically exempted in writing by the City of Modesto.

Bidder Company Legal Name: Insert Bidder Logo Here (if existent):

Insert Bidder Warranty Statement Beginning Here:
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34 BID FORM K – BIDDER EXPERIENCE AND CERTIFICATIONS
Bidder shall provide below a summary covering the following:

A. Experience: The Contractor and its employees directly involved in providing inspections, services and repairs shall have a minimum of three years’ experience providing the types of services requested in this IFB:
i. Identify key personnel and their position within your organization. ii. Provide a biographical summary or resume detailing the experience, level of expertise and qualifications of the key individuals providing the types of services requested herein. iii. If you plan to subcontract work, you must also indicate in Bid Form L – Subcontractor List the name and address of each firm and the type of work or tasks the subcontractor will perform. Identify key personnel assigned to the project, their position, qualifications and representative experience. #21..
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35 BID FORM L - SUBCONTRACTOR LIST
Bidder shall list the name and the address of the place of business for each subcontractor who will perform work or labor or render services to the Bidder. In addition, list the type of work the subcontractor will perform, and; (if applicable) its Department of Industrial Relations (DIR) registration number and its California Contractor’s license number:

Name of
Subcontractor
Address Type of Work Contractor
License # (if any)
DIR
Registration #
(if any)
Bidder Company Name:
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36 TECHNICAL SPECIFICATIONS AND REQUIREMENTS

1.1 SCOPE OF WORK:

Introduction:

The Public Works Department, Airport Division seeks to obtain a 2-year contract for painting services. This contract would have the possibility of two 1-year extensions.

Contractor Responsibilities:

City Responsibilities:

The Airport will coordinate with their tenants to cover and/or remove any personal belongings, cars, aircraft etc.

The Airport will provide access to the airfield as well as detailed instruction for path of travel to and from the specific jobsite.

Typical Type of Projects:

Schedule:

Project Completion Criteria:

Additional Terms and Conditions:

Rust treatment must be guaranteed for a minimum of 1 year. If rust returns within this timeframe, the contractor, at their expense, must retreat the rusted areas, prime and paint.

Miscellaneous:

PAINTING SERVICES FOR AIRPORT

FACILITIES
37 1.2 REQUIRED LICENSES:

Prior to beginning any service that shall be furnished under this specification, the Bidder shall secure the appropriate Business/Delivery license from the City of Modesto. Business/Delivery license information may be obtained by calling (209) 577-5389 or emailing [email protected]. The successful Bidder shall maintain a City of Modesto business license for the duration of the agreement.

1.3 CALIFORNIA CONTRACTORS LICENSE: If the Bidder is furnishing any labor or service including installation or maintenance, the Bidder shall be registered as a contractor with the Department of Industrial Relations and possess the appropriate California Contractor's license(s) at the time the Bid is submitted. A contract shall not be awarded to a Bidder that is not registered with the Department and Industrial Relations or does not possess the appropriate Contractor's license(s). The appropriate Contractor's license(s) is that specified in this request, or if not specified, that which is otherwise required by law, and qualifies the Contractor to do business in the State of California. Bidder shall indicate its license(s) number and expiration date on the Pricing Schedule.

1.3.1 LICENSE REQUIREMENT: Bidder(s) shall provide a copy of the required license per the California Code of Regulations Title 16, Division 8, Article 3. Classifications; • C-33 Painting and Decorating Contractor license
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38 SAMPLE AGREEMENT

ANNUAL AGREEMENT

PAINTING SERVICES FOR AIRPROT FACILITIES
This agreement, hereinafter called AGREEMENT, made and entered into in the City of Modesto, State of California, this ____ day of _________, 2023, by and between the City of Modesto, a municipal corporation of the State of California, hereinafter called CITY, and _________________, a ______ _______, hereinafter called CONTRACTOR.

W I T N E S E T H:

WHEREAS, the Modesto City Council adopted Resolution No. 2023-xx authorizing the Award of Bid and agreement for the PAINTING SERVICES FOR AIRPORT FACILITIES to CONTRACTOR, attached hereto as Exhibit “A” and made a part hereof, and WHEREAS, the CONTRACTOR provided a responsive and responsible submittal that best meets the CITY needs, attached hereto as Exhibit “B” and made a part hereof, and WHEREAS, the CITY and CONTRACTOR shall enter into an agreement for the PAINTING SERVICES FOR AIRPORT FACILITIES as described in IFB 2223-22, attached hereto as Exhibit “C” and made a part hereof (hereinafter called IFB).

NOW, THEREFORE, the parties hereto mutually agree as follows:
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39 1. THE WORK:
a) CONTRACTOR shall furnish all labor, materials, equipment, fuel, tools, licenses, bonds and insurance necessary to perform and complete the required work as specified in Exhibit “C”, and in strict accordance with the conditions of the complete AGREEMENT. b) CONTRACTOR shall do and perform the work contemplated hereby in a good workmanlike manner under the direction of and to the satisfaction of the CITY Representative. c) CONTRACTOR shall maintain proper insurance with the CITY for the duration of the AGREEMENT.
d) CONTRACTOR shall maintain a CITY business license for the duration of the AGREEMENT.
e) CONTRACTOR shall furnish said services at the following AGREEMENT rates for an estimated annual amount $_________________. The total amount paid by CITY to CONTRACTOR over the full term of the AGREEMENT shall not exceed $____________. Unless the services provided are for a lump sum or flat fee, fees for work performed by CONTRACTOR on an hourly basis shall not exceed the amounts shown on Bid attached hereto as Exhibit B.
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40 AGREEMENT PRICING
The payment of Prevailing Wages is required for this project.

PRICE TABLE
Item No. Description A Description B Price Per Service
A1 Hanger G Pressure wash , rust treatment, priming
and multiple coats of paint. Paint to all
sides and the roof. Paint color 4k white
$ _______________/Service
A2
Hanger H Pressure wash , rust treatment, priming
and multiple coats of paint. Paint to all
sides and the roof. Paint color 4k white
$ _______________/Service
A3
Hanger I Pressure wash , rust treatment, priming
and multiple coats of paint. Paint to all
sides and the roof. Paint color 4k white
$ _______________/Service
A4
Hanger L Pressure wash , rust treatment, priming
and multiple coats of paint. Paint to all
sides and the roof. Paint color 4k white
$ _______________/Service
A5
Hanger K Pressure wash , rust treatment, priming
and multiple coats of paint. Paint to all
sides and the roof. Paint color 4k white
$ _______________/Service
ePay $-(_______________)
Total Items: $__________________/Total
Labor Craft Direct Labor Rate*
Fringe Benefit
Rate**
Labor
Markup
(percent)
Price Per
Service
$ /HR $ /HR % $ /HR
$ /HR $ /HR % $ /HR
$ /HR $ /HR % $ /HR
*Direct Labor Rate cannot be less than the minimum state prevailing wage. **Provide a copy of the current Fringe Benefit Statement. During the term of the agreement, ensure the City has a copy of the current, applicable statement on file. #21..
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41 2. PREVAILING WAGES:
. In accordance with California Labor Code Section 1771, CONTRACTOR shall pay all workers, and shall ensure its subcontractors pay all of their workers, engaged in performing the services described in Exhibit “C” not less than the general prevailing rate of per diem wages for work of a similar character in the locality in which the services described in Exhibit “C” are to be performed, and not less than the general prevailing rate of per diem wages for holiday and overtime work as provided in the California Labor Code. In accordance with California Labor Code Section 1773.2, the City has obtained the general prevailing wages in the locality in which the services described in Exhibit A are to be performed for each craft or type of work needed to be as published by the State of California Department of Industrial Relations, Division of Labor Statistics and Research, a copy of which is on file in the CITY’s Purchasing Department and shall be made available on request. Contractor must comply with all applicable laws and regulations that apply to wages earned in performance of the services described in Exhibit “C”, including those set forth in Labor Code section 1770 et. seq. and in the IFB.

DIR Project ID#: _________________

3. CITY REPRESENTATIVE:

CITY Representative is:
________________________ ____________________________
The CITY Representative is not authorized to commit the CITY to changes in specifications, requirements, or scope of work, changes in price(s), period of performance or delivery date(s) or method of shipment. Changes of a contractual or business nature shall be effective only by written change to the AGREEMENT, issued by the City of Modesto, Purchasing Division. #21..
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42 4. TERM OF AGREEMENT:

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

Year 1: 2023 through 2024
Year 2: 2024 through 2025
Year 3: 2025 through 2026
Year 4: 2026 through 2027
Year 5: 2027 through 2028
Pricing as set forth in Section 1.e. above shall remain firm for the first two years of the AGREEMENT.

5. LIABILITY INSURANCE:

The CONTRACTOR shall provide, at its own expense, and maintain at all times the following insurance with insurance companies licensed in the State of California and shall provide evidence of such insurance to the CITY as may be required by the City Clerk of the CITY. The policies or certificates thereof shall provide that, at least 30 days prior to cancellation or material change in the policy, notices of same shall be given to the Risk Manager of the CITY by registered mail, return receipt requested, for all of the following stated insurance policies.
a. General Liability - insurance with a minimum limit of liability per occurrence of $1,000,000 for bodily injury and property damage. The insurance shall indicate on the certificate of insurance the following coverage and indicate the policy aggregate limit applying to: premises and operations; broad form contractual; independent contractors and subcontractors; products and completed operations; and/or professional liability. #21..
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43 b. Automobile Liability – insurance with a minimum limit of liability per occurrence of $1,000,000 for bodily injury and property damage and transportation related pollution liability. This insurance shall cover any automobile for bodily injury and property damage.
c. Workers' Compensation - in compliance with the statutes of the State of California, plus employer's liability with a minimum limit of liability of $1,000,000 per accident for bodily injury or disease.

The CITY, its agents, officers, employees, and volunteers shall be named as an additional insured on all insurance policies required herein, except Workers' Compensation.

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

For any claims related to this AGREEMENT, the CONTRACTOR’s insurance coverage shall be primary insurance as respects CITY, its officers, officials, employees, and volunteers. Any insurance or self-insurance #21..
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44 maintained by CITY, its officers, officials, employees, or volunteers shall be excess of the CONTRACTOR’s insurance and shall not contribute with it.

6. PAYMENT:

CONTRACTOR shall invoice CITY not less than once per month based on the cost for services performed and reimbursable costs incurred prior to the invoice date. All invoices shall be paid in full the following payment terms within thirty days after completion and acceptance of the Services by the CITY, and receipt of a properly prepared invoice, CITY will pay CONTRACTOR [TO BE DETERMINED BY IFB RESPONSE IN FINAL AGREEMENT, EITHER “Net 30 terms via CITY’s ePay Program” or “Net 45 Days via manual check”.]. The CITY is exempt from payment of Federal Excise Tax, and all invoices shall be exclusive of such excise tax.

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

7. INDEMNITY: The CONTRACTOR shall hold the CITY, its agents, officials, officers, employees, and volunteers, harmless from and save, defend and indemnify them against any and all claims, losses, liabilities, judgments or damages from every cause, including but not limited to injury to person or property or wrongful death, including reasonable costs and expenses of defense of any judicial or administrative action, arising directly or indirectly out of any negligent or intentional act or omission of CONTRACTOR, or its agents, officials, officers, employees, or volunteers relating to or during the performance of its obligations under this #21..
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45 AGREEMENT. CONTRACTOR’s obligation to defend, indemnify, and hold the CITY, its agents, officials, officers, and employees harmless under the provisions of this paragraph is not limited to or restricted by any requirement in this AGREEMENT for CONTRACTOR to procure and maintain a policy of insurance.

8. VENUE & GOVERNING LAW:

10. COMMENCEMENT AND COMPLETION OF THE WORK:

The work contemplated herein shall be commenced after the agreement administrator receives and has on file:

Proofs of insurance (approved by CITY Risk Manager); and Executed Agreement;
a. Resolution No.2023-_______;
b. CONTRACTOR Bid submittal;
c. IFB No. 2223-22;
d. Contractor’s City of Modesto business license

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

Termination by City for Convenience: The City may also terminate this AGREEMENT the Contractor's performance underthe Agreement, eitherin whole orin part, at its own discretion and without cause.

Post-Termination Procedure
Upon receipt of a written notice of termination pursuant to either of the foregoing paragraphs, the CONTRACTOR shall:
a. Cease its work as directed in the notice of termination as of the termination date and see to it that its employees, subcontractors and agents are notified of such termination and act as specified in the notice of termination; b. Terminate all orders and subcontracts except as necessary to complete any portion of the SERVICES that are not terminated;
c. If directed in writing by the CITY to do so, assign all right, title and interest in subcontracts and materials in progress to CITY, in which case the CITY will have the right at its discretion to settle, or pay any or all claims arising out of the termination of such, but in no event shall recovery by any CONTRACTOR or subcontractor include lost profits for portions of the SERVICES not completed or undertaken, including materials not delivered; d. Deliver or otherwise make available to the CITY all data, drawings, specifications, reports, estimates, summaries and such other information and #21..
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47 material as may have been accumulated by the CONTRACTOR in performing the SERVICES whether completed or in process;
e. Settle outstanding liabilities and claims, subject to the approval of CITY; f. Complete performance of such part of the SERVICES as has not been terminated; g. Take such other actions as may be necessary, or as may be directed by the CITY for the protection and preservation of the SERVICES and/or property related to the SERVICES;
h. If CITY so requests, and at CITY's cost, CONTRACTOR shall provide sufficient oral or written status reports to make CITY reasonably aware of the status of CONTRACTOR’s work on the SERVICES.
i. CONTRACTOR understands and agrees that CITY may, in CITY’s sole discretion, refuse to pay CONTRACTOR for that portion of CONTRACTOR's SERVICES which were performed by CONTRACTOR on the project prior to the termination date and which remain unacceptable and/or not useful to CONTRACTOR as of the termination date.

CITY will pay CONTRACTOR for SERVICES actually completed prior to the receipt of the termination notice or otherwise completed in accordance with the notice of termination. The final payment to the CONTRACTOR after termination for convenience shall be limited to amounts due and owing under the AGREEMENT at time of termination, including the following:
a. The cost of settling and paying valid claims arising out of the termination of the SERVICES such as subcontractor agreements or contracts for materials; b. The AGREEMENT price allocable to the portion of the SERVICES properly performed or goods supplied to the work site by the CONTRACTOR as of the date of termination, as determined in accordance with the notice of termination, reduced by any sums previously paid to the CONTRACTOR for such #21..
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48 SERVICES.

12. COMPLIANCE WITH ALL LAWS:

14. ASSIGNMENT OF RIGHTS: The CONTRACTOR offers and agrees, and will require all subcontractors and suppliers to agree, to assign to the CITY all rights, title, and interest in and to all causes of action it and they may have under Section 4 of the Clayton Act (15 United States code, Section 15) or under the Cartwright Act (Business and Professions Code, Section 16700 et seq.), arising from the acquisition of goods, services, or materials pursuant to this AGREEMENT or any allowed subcontract. The assignment made by CONTRACTOR and all assignments made by subcontractors and suppliers shall be made and become effective #21..
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49 at the time the CITY makes final payment to The CONTRACTOR, without further acknowledgment by the parties (Government Code, Sections 4550-4554).

18. NOTICES:

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

CONTRACTOR: __________________
__________________
__________________
__________________
CITY: City of Modesto
Purchasing Division
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50 P.O. Box 642
Modesto, CA 95353
Each party may change its address for delivery of notice by delivering written notice of such change of address to the other party.

19. SIGNATORY(IES) FOR CONTRACTOR:

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

20. QUANTITIES: No minimum or maximum is guaranteed or implied.

23. NON-DISCRIMINATION:
a. During the performance of this AGREEMENT, CONTRACTOR and any allowed subcontractors shall not unlawfully discriminate against any employee or applicant for employment because of race, color, ancestry, religion, sex, national origin, marital status, age, medical condition (cancer related), physical handicap (including AIDS), sexual orientation, or any other basis prohibited by Federal or California law. Equal employment opportunity extends, but is not limited to recruitment, compensation, benefits, layoff, termination, and all other conditions of employment. The CONTRACTOR and any allowed subcontractors shall ensure that the evaluation and treatment of their employees and applicants for employment are free of such discrimination. #21..
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51 The CONTRACTOR and any allowed subcontractors shall comply with the provisions of the Fair Employment and Housing Act (Government Code, Section 12900 et seq.) and the applicable regulations promulgated thereunder (California Administrative Code, Title 2, and Section 7285.0 et seq.). The applicable regulations of the Fair Employment and Housing Commission implementing Government Code, Section 12900, set forth in Chapter 5 of Division 4 of Title 2 of the California Administrative Code are incorporated into this contract by reference and made a part hereof as if set forth in full. b. The CONTRACTOR and any allowed subcontractors shall give written notice of their obligations under this clause to labor organizations with which they have a collective bargaining or other agreement.
c. The CONTRACTOR shall include the nondiscrimination and compliance provisions of this clause in any allowed subcontracts to perform SERVICES. d. The Contractor shall permit access by representatives of the Department of Fair Employment and Housing and the CITY upon reasonable notice at any time during the normal business hours, but in no case less than 24 hours notice, to such of its books, records, accounts, other sources of information and its facilities as said Department or CITY shall require to ascertain compliance with this AGREEMENT. e. By executing this AGREEMENT, CONTRACTOR certifies that it shall follow and be in compliance with the Americans with Disabilities Act of 1990, the applicable administrative requirements promulgated in response thereto, and any other applicable Federal laws and regulations relating to handicap discrimination and participation, and will continue to do so for at least the duration of the AGREEMENT and any extensions thereof.
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52 24. CONTRACTOR LICENSES & PERMITS: CONTRACTOR warrants and represents that it possesses and shall maintain all licenses, and shall secure and maintain all necessary permits, necessary to perform the SERVICES.

27. INDEPENDENT CONTRACTOR; NOT AGENT. At all times during the term of this AGREEMENT, CONTRACTOR shall be an independent contractor and shall not be an employee of CITY. CITY shall have the right to control CONTRACTOR only insofar as the results of CONTRACTOR’s services rendered pursuant to this AGREEMENT. Except as City may specify in writing, CONTRACTOR shall have no authority, express or implied, to act on behalf of CITY in any capacity whatsoever as an agent. CONTRACTOR shall have no authority, express or implied, pursuant to this AGREEMENT to bind City to any obligation whatsoever. #21..
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53 28. DRUG FREE WORKPLACE: CONTRACTOR certifies that it is following and in compliance with Sections 8350 - 8355 of Chapter 5.5 of the Government Code, Drug Free Workplace Act whereby each person or organization awarded a contract/purchase order or grant for the procurement of any property or service from any state agency (city) shall certify to the contracting or granting agency that it will provide a drug free workplace.

29. ASSIGNMENT:

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

30. WAIVER:

31. HEADINGS NOT CONTROLLING:

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

32. MISCELLANEOUS:

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

33. ENTIRE AGREEMENT:

This Agreement and its exhibits contain the entire understanding between CONTRACTOR and CITY. Additional or new terms contained in this AGREEMENT which vary from CONTRACTOR’S bid are controlling and are deemed accepted by CONTRACTOR by performance of any SERVICES or other commencement of performance hereunder. The terms and conditions of the IFB, attached hereto as Exhibit C, are incorporated herein. In the event of a conflict between the IFB and this AGREEMENT, this AGREEMENT shall control. All previous bids, offers and communications relative to this Agreement, whether oral or written, are hereby superseded except to the extent that they have been incorporated into this #21..
- 1045 -
54 Agreement. No future waiver or exception to any of the terms, conditions, and provisions of this AGREEMENT shall be considered valid unless specifically agreed to in writing by the parties.

34. PARTIAL INVALIDITY:

IN WITNESS WHEREOF, the CITY OF MODESTO, a municipal corporation, has authorized the execution of this Agreement in duplicate by its City Manager and attested by its City Clerk under authority of Resolution No. 2023-_______, adopted by the Council of the City of Modesto on the _____________ day of _____________________, 2023 and _____________________has caused this Agreement to be duly executed.

CITY OF MODESTO, CONTRACTOR
A municipal corporation
By: __________________________ By: _________________________________ JOSEPH P. LOPEZ, (Signature)
City Manager
By: _________________________________
(Name & Title)
ATTEST: Date: _______________________________
By: __________________________

DIANE NAYARES-PEREZ, CMC,
City Clerk

(SEAL)

APPROVED AS TO FORM:
#21..
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55 By: ____________________________
JOSE M. SANCHEZ,
City Attorney
By: ____________________________
JOE F. RODRIQUEZ,
Risk Manager
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CITY OF MODESTO

COUNCIL AGENDA REPORT
DATE OF MEETING:

September 12, 2023
Date: August 15, 2023
TO: Mayor and City Council
THROUGH: Joseph P. Lopez, City Manager
FROM: William Wong, Director of Utilities
SUBJECT: Award Empire Yosemite Boulevard Water Main Crossings Strengthen & Replace Project
CONTACT: Edgar Vargas, Acting Senior Civil Engineer, [email protected], 209-577-5424
DESCRIPTION:

Consider accepting the Plans and Specifications for the Empire Yosemite Boulevard Water Main Crossings Strengthen & Replace Project; and Awarding a Construction Contract to DSS Company dba Knife River Construction, of Stockton, CA, in a total amount not to exceed $1,260,475. (Funding Source: Water Fund)
STRATEGIC PLAN ELEMENT:

The recommended action supports the 2020-2025 City of Modesto Strategic Plan Initiatives, Goal D: Provide safe, efficient, and reliable infrastructure through proactive community investment, maintenance, and sustainability efforts.

BACKGROUND:

The existing water main crossings serving the Empire Yosemite Boulevard area are aging and the undersized steel mains are in need of upsizing. The Empire Yosemite Boulevard Water Main Crossings Strengthen and Replace Project will provide approximately 1,400 linear feet of water main improvements along Yosemite Boulevard (SR-132) in the Empire Community in Stanislaus County. This includes replacing existing 6-inch steel mains with new, 12-inch and 8- inch Polyvinyl Chloride (PVC) water mains to meet current City Standard Specifications.

Various valves and fire hydrants will be replaced and existing Yosemite Boulevard water main crossings will be upsized. The result of this work will be improved system reliability by increasing water pressure for the residents, as well as increased fire flows.

DISCUSSION:

The project was advertised for bids on June 1, 2023. Bids were publicly opened on June 27, 2023, pursuant to City Charter Section 1307 and DSS Company dba Knife River Construction, of Stockton, CA, was the responsible bidder with the lowest responsive bid. #22..
- 1078 -
City Council, September 12, 2023
Award Empire Yosemite Boulevard Water Main Crossings
Strengthen & Replace Project

Page 2 of 3 ends

Bid Analysis:

Number of bids received 3
Number of bids within 10% of engineer’s estimate 1
Number of bids above the engineer’s estimate 3
Number of bids below the engineer’s estimate 0
Percent low bid is above the engineer’s estimate 9.88%
DSS Company dba Knife River Construction, of Stockton, CA, was 9.88% above the engineer’s estimate. The next lowest bid was 29.29% above the engineer’s estimate. One of the three bids was within 10% of the engineer’s estimate and all bids were above the engineer’s estimate.

The highest bid was 30.83% above the engineer’s estimate. Bidder competition and participation was evident as the City received three bids.

Modesto Municipal Code Section 8-3.203 generally requires all purchases, which meet or exceed $50,000 for material, equipment or contractual services to be formally bid. The award of Contract for the construction of the Empire Yosemite Boulevard Water Main Crossings Strengthen & Replace Project to DSS Company dba Knife River Construction, of Stockton, CA, conforms to the Modesto Municipal Code, 8-3.203.

The City’s “Change Order Approval Policy” enacted by Council Resolution No. 1994-443 on July 19, 1994, and revised on July 9, 2019 by Council Resolution No. 2019-326, established a contract change order authority of 8% for Construction Contracts of this dollar value. However, after reviewing the plans and specifications, and given the nature of rehabilitation projects where unforeseen utilities or buried structures, and other unaccounted for issues may arise, it is likely that this project could exceed the Director’s Authority of 8% ($87,686) of the Construction Contract amount of $1,096,065. Therefore, Staff is requesting that the Director’s Authority to issue change orders be increased to 15% ($164,410) of the Construction Contract amount.

While the contingency policy is utilized for each Construction Contract awarded by the City, it is not written into each contract, nor is it a guaranteed amount included in the final compensation to the contractor. Prior to bidding a project, Staff works diligently to ensure that all projects and bid packages contain well-defined scopes of work and that all projects stay within budget.

FISCAL IMPACT:

The total estimated cost for the construction phase of this project is $1,463,925. Expenses associated with this effort are housed in the following Capital Improvement Program Project:
101458 – Empire Yosemite WM Crossings
ANTICIPATED CONSTRUCTION EXPENDITURES:

Construction Contract – DSS Company dba Knife River Construction $1,096,065 Construction Contingency (15%) $164,410
Construction Administration – City Staff (10%) $109,607 Design Support During Construction – City Staff (4%) $43,843 City Construction Forces $50,000
TOTAL ANTICIPATED CONSTRUCTION EXPENDITURES: $1,463,925 #22..
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City Council, September 12, 2023
Award Empire Yosemite Boulevard Water Main Crossings
Strengthen & Replace Project

Page 3 of 3 ends

To fund this phase of the Empire Yosemite Boulevard Water Main Crossings Strengthen & Replace Project, a budget adjustment in the amount of $544,613 from Water Fund Reserves will be necessary.

COMMITTEE RECOMMENDATION:

This item was considered by the Economic Development Committee at the August 7, 2023 meeting where it was recommended that it be forwarded to Council.

CEQA/NEPA REQUIREMENTS:

Environmental review has been provided through a Categorical Exemption under CEQA Section 15301 Class 1(b)(c); 15303 (d).

RECOMMENDED COUNCIL ACTION:

Staff Recommendations:

Resolution approving Plans and Specifications for the Empire Yosemite Boulevard Water Main Crossings Strengthen & Replace Project, accepting the bid, and approving a Construction Contract with DSS Company dba Knife River Construction, of Stockton, CA, in the amount of $1,096,065, plus $164,410 in contingency (if needed), for a total amount not to exceed $1,260,475 and authorizing the City Manager, or his designee, to execute the contract.

Resolution authorizing an increase in the Director’s Authority to issue Change Orders for the Empire Yosemite Boulevard Water Main Crossings Strengthen & Replace Project from 8% ($87,686) to 15% ($164,410) of the Construction Contract amount of $1,096,065 with DSS Company dba Knife River Construction, of Stockton, CA.

Resolution amending the Fiscal Year 2023-24 Capital Improvement Program Budget in the amount of $544,613 to be transferred into the Project from Water Fund Reserves in order to fund the Empire Yosemite Boulevard Water Main Crossings Strengthen & Replace Project and authorizing the City Manager, or his designee, to implement the provisions of the resolution.

Approved by:

William Wong, Director of Utilities
Joseph P. Lopez, City Manager
Attachments:

1. Resolutions (3)

2. Construction Contract with DSS Company dba Knife River Construction and Financial Interest Disclosure Form

3. Bid Results
#22..
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1 2023-

MODESTO CITY COUNCIL
RESOLUTION NO. 2023-XXX

RESOLUTION APPROVING PLANS AND SPECIFICATIONS FOR THE

EMPIRE YOSEMITE BOULEVARD WATER MAIN CROSSINGS

STRENGTHEN & REPLACE PROJECT, ACCEPTING THE BID, AND

APPROVING A CONSTRUCTION CONTRACT WITH DSS COMPANY DBA

KNIFE RIVER CONSTRUCTION, OF STOCKTON, CA, IN THE AMOUNT OF $1,096,065, PLUS $164,410 IN CONTINGENCY (IF NEEDED), FOR A TOTAL AMOUNT NOT TO EXCEED $1,260,475 AND AUTHORIZING THE CITY

MANAGER, OR HIS DESIGNEE, TO EXECUTE THE CONTRACT
WHEREAS, the existing water main crossings serving the Empire Yosemite Boulevard area are aging, undersized steel mains that need upsizing, and WHEREAS, the Empire Yosemite Boulevard Water Main Crossings Strengthen & Replace Project will provide approximately 1,400 linear feet of water main improvements along Yosemite Boulevard (SR-132) in the Empire Community in Stanislaus County, and
WHEREAS, the result of this work will improve system reliability by increasing water pressure for the residents, as well as increased fire flows, and WHEREAS, the project was advertised for bids on June 1, 2023, and WHEREAS, bids were publicly opened on June 27, 2023, pursuant to City Charter Section 1307, and
WHEREAS, three bids were received and DSS Company dba Knife River Construction, of Stockton, CA, was the responsible bidder with the lowest responsive bid, and
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2 2023-
WHEREAS, Modesto Municipal Code Section 8-3.203 generally requires all purchases, which meet or exceed $50,000 for material, equipment or contractual services to be formally bid, and
WHEREAS, the award of Contract for the construction of the Empire Yosemite Boulevard Water Main Crossings Strengthen & Replace Project to DSS Company dba Knife River Construction, of Stockton, CA, conforms to the Modesto Municipal Code, 8-

3.203, and
WHEREAS, Staff recommends awarding the Contract to DSS Company dba Knife River Construction, of Stockton, CA.

NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Modesto that it hereby approves the plans and specifications for the Empire Yosemite Boulevard Water Main Crossings Strengthen & Replace Project; accepting the bid, and awarding a Construction Contract to DSS Company dba Knife River Construction, of Stockton, CA, for a total of $1,096,065 plus $164,410 in contingency (if needed) for a total amount not to exceed $1,260,475.

BE IT FURTHER RESOLVED that the City Manager, or his designee, is hereby authorized to execute the Contract, in a form approved by the City Attorney. #22..
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3 2023-
The foregoing resolution was introduced at a regular meeting of the Council of the City of Modesto held on the 12th day of September 2023, by Councilmember ?, who moved its adoption, which motion being duly seconded by Councilmember ?, was upon roll call carried and the resolution adopted by the following vote:

AYES: Councilmembers:

NOES: Councilmembers:

ABSENT: Councilmembers:

ATTEST:

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

BY: _______________________________________
JOSE M. SANCHEZ, City Attorney
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1 2023-

MODESTO CITY COUNCIL
RESOLUTION NO. 2023-XXX
RESOLUTION AUTHORIZING AN INCREASE IN THE DIRECTOR’S

AUTHORITY TO ISSUE CHANGE ORDERS FOR THE EMPIRE YOSEMITE

BOULEVARD WATER MAIN CROSSINGS STRENGTHEN & REPLACE
PROJECT FROM 8% ($87,686) TO 15% ($164,410) OF THE CONSTRUCTION CONTRACT AMOUNT OF $1,096,065 WITH DSS COMPANY DBA KNIFE

RIVER CONSTRUCTION, OF STOCKTON, CA
WHEREAS, the City’s “Change Order Approval Policy”, enacted by Council Resolution No. 1994-443 on July 19, 1994, and updated by Resolution No. 2019-326 on July 9, 2019, established a contract change order budget of 8% for Construction Contracts of this dollar value, and
WHEREAS, given the nature of rehabilitation projects where unforeseen utilities or buried structures, and other unaccounted for issues may arise, it is likely that this project could exceed the Director’s Authority of 8% ($87,686) of the Contract amount of $1,096,065, and
WHEREAS, Staff is requesting an increase in the Director’s Authority to issue change orders to 15% ($164,410).

NOW, THEREFORE BE IT RESOLVED by the Council of the City of Modesto that it hereby authorizes an increase of the Director of Engineering Services authority to issue change orders for the Empire Yosemite Boulevard Water Main Crossings Strength & Replace Project from 8% ($87,686) to 15% ($164,410) of the Construction Contract price of $1,096,065 with DSS Company dba Knife River Construction, of Stockton, CA. #22..
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2 2023-
The foregoing resolution was introduced at a regular meeting of the Council of the City of Modesto held on the 12th day of September, 2023, by Councilmember ?, who moved its adoption, which motion being duly seconded by Councilmember ?, was upon roll call carried and the resolution adopted by the following vote:

AYES: Councilmembers:

NOES: Councilmembers:

ABSENT: Councilmembers:

ATTEST:

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

BY: ____________________________________
JOSE M. SANCHEZ, City Attorney
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1 2023-

MODESTO CITY COUNCIL
RESOLUTION NO. 2023-XXX
RESOLUTION AMENDING THE FISCAL YEAR 2023-24 CAPITAL
IMPROVEMENT PROGRAM BUDGET IN THE AMOUNT OF $544,613 TO BE

TRANSFERRED INTO THE PROJECT FROM WATER FUND RESERVES IN

ORDER TO FUND THE EMPIRE YOSEMITE BOULEVARD WATER MAIN

CROSSINGS STRENGTHEN & REPLACE PROJECT AND AUTHORIZING

THE CITY MANAGER, OR HIS DESIGNEE, TO IMPLEMENT THE

PROVISIONS OF THE RESOLUTION
WHEREAS, certain budgetary transactions are necessary in the amount of $544,613, in order to fund the Empire Yosemite Boulevard Water Main Crossings Strengthen & Replace Project, and
WHEREAS, the Fiscal Year 2023-24 Capital Improvement Program budget must be amended.

NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Modesto that it hereby approves the amendment of the Fiscal Year 2023-24 Capital Improvement Program Budget in the amount of $544,613.

BE IT FURTHER RESOLVED that the City Manager, or his designee, is hereby authorized to implement the provisions of this resolution. #22..
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2 2023-
The foregoing resolution was introduced at a regular meeting of the Council of the City of Modesto held on the 12th day of September 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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Strengthen & Replace
Bid Tabulation Wednesday, June 28, 2023
Project Title: Empire Yosemite Blvd Water Main Crossing Strengthen & Replace
Project ID #: 2023-12
Vault ID #: 08-D-01033
Account #: 101458
Bid Opening: 6/27/2023 at 11:00 AM
Basis of Award: By Base Bid Designer: Edgar Vargas
Design Manager: Edgar Vargas
Project Description: This project will provide approximately 1,400 LF of water main improvements along Yosemite Blvd. (SR-132) in the Empire Community in Stanislaus County.

Item # Item Description Units Quantity Unit Price Extension Apparent Low Bidder
DSS Company dba Knife River Construction
(209) 948-0302 P.O. Box 6099, Stockton, CA 95206
Base Bid
1 Mobilization/Demobilization LS 1 $62,000.00 $62,000.00 2 Potholing LS 1 $20,500.00 $20,500.00
3 Traffic Control/Handling, Signage, and LS 1 $75,450.00 $75,450.00 Permitting
4 Stanislaus County Encroachment Permit LS 1 $5,062.50 $5,062.50 5 COZEEP (Construction Zone Enhanced LS 1 $39,000.00 $39,000.00 Enforcement Program)
6 Water Pollution Control Plan (WPCP) LS 1 $39,250.00 $39,250.00 7 Shoring, Bracing, and Sheeting LS 1 $8,600.00 $8,600.00 8 Sawcut Existing Pavement LS 1 $14,500.00 $14,500.00
9 Remove Existing Pavement LS 1 $4,600.00 $4,600.00
10 Abandonment of Water Lines, Valves, and LS 1 $27,000.00 $27,000.00 Services
11 6-inch DR18 PVC Pipe (C900) LF 167 $266.00 $44,422.00 12 8-inch DR18 PVC Pipe (C900) LF 275 $216.00 $59,400.00 13 12-inch DR18 PVC Pipe (C900) LF 1060 $188.00 $199,280.00 14 6-inch Gate Valve EA 9 $2,700.00 $24,300.00
15 8-inch Gate Valve EA 4 $2,950.00 $11,800.00
16 12-inch Butterfly Valve EA 13 $5,600.00 $72,800.00
17 Fire Hydrant Assembly EA 7 $7,100.00 $49,700.00
18 Remove, Dispose, and Abandon Existing EA 2 $2,450.00 $4,900.00 Fire Hydrant Assembly
19 1-inch Water Service, including meter box EA 3 $1,500.00 $4,500.00 20 Pneumatic Boring of Water Service LF 180 $50.00 $9,000.00 Connections
21 Remove and Reconstruct Concrete Sidewalk SF 25 $136.00 $3,400.00 22 Hot Mix Asphalt TON 1240 $193.00 $239,320.00
23 Replace Traffic Loops LS 1 $13,800.00 $13,800.00
24 Restore Traffic Striping, Markings, and LS 1 $28,000.00 $28,000.00 Signage
25 Class II Aggregate Base CY 270 $59.00 $15,930.00
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Strengthen & Replace
26 Paint Curbs Red at Fire Hydrants EA 7 $210.00 $1,470.00 27 Remove and Reconstruct Concrete Curb LF 15 $192.00 $2,880.00 28 Bollards EA 8 $1,900.00 $15,200.00
Total: $1,096,064.50
Percent From Engineer's Estimate: 9.88%
D. A. Wood Construction Inc.
(209) 491-4970 963 Shepard Court, Turlock, CA 95361
Base Bid
1 Mobilization/Demobilization LS 1 $52,000.00 $52,000.00 2 Potholing LS 1 $14,000.00 $14,000.00
3 Traffic Control/Handling, Signage, and LS 1 $66,800.00 $66,800.00 Permitting
4 Stanislaus County Encroachment Permit LS 1 $5,062.50 $5,062.50 5 COZEEP (Construction Zone Enhanced LS 1 $42,510.00 $42,510.00 Enforcement Program)
6 Water Pollution Control Plan (WPCP) LS 1 $5,820.00 $5,820.00 7 Shoring, Bracing, and Sheeting LS 1 $9,400.00 $9,400.00 8 Sawcut Existing Pavement LS 1 $11,720.00 $11,720.00
9 Remove Existing Pavement LS 1 $152,500.00 $152,500.00 10 Abandonment of Water Lines, Valves, and LS 1 $25,840.00 $25,840.00 Services
11 6-inch DR18 PVC Pipe (C900) LF 167 $205.00 $34,235.00 12 8-inch DR18 PVC Pipe (C900) LF 275 $230.00 $63,250.00 13 12-inch DR18 PVC Pipe (C900) LF 1060 $250.00 $265,000.00 14 6-inch Gate Valve EA 9 $3,430.00 $30,870.00
15 8-inch Gate Valve EA 4 $3,800.00 $15,200.00
16 12-inch Butterfly Valve EA 13 $4,490.00 $58,370.00
17 Fire Hydrant Assembly EA 7 $7,760.00 $54,320.00
18 Remove, Dispose, and Abandon Existing EA 2 $700.00 $1,400.00 Fire Hydrant Assembly
19 1-inch Water Service, including meter box EA 3 $1,995.00 $5,985.00 20 Pneumatic Boring of Water Service LF 180 $60.00 $10,800.00 Connections
21 Remove and Reconstruct Concrete Sidewalk SF 25 $102.00 $2,550.00 22 Hot Mix Asphalt TON 1240 $218.00 $270,320.00
23 Replace Traffic Loops LS 1 $18,410.00 $18,410.00
24 Restore Traffic Striping, Markings, and LS 1 $32,870.00 $32,870.00 Signage
25 Class II Aggregate Base CY 270 $99.50 $26,865.00
26 Paint Curbs Red at Fire Hydrants EA 7 $60.00 $420.00 27 Remove and Reconstruct Concrete Curb LF 15 $197.00 $2,955.00 28 Bollards EA 8 $1,280.00 $10,240.00
Total: $1,289,712.50
Percent From Engineer's Estimate: 29.29%
Rolfe Construction Inc.
(209) 358-5548 3573 Southern Pacific Avenue, Atwater, CA 95301 Base Bid
1 Mobilization/Demobilization LS 1 $55,380.00 $55,380.00 2 Potholing LS 1 $28,860.00 $28,860.00
3 Traffic Control/Handling, Signage, and LS 1 $159,900.00 $159,900.00 #22..
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Strengthen & Replace
Permitting
4 Stanislaus County Encroachment Permit LS 1 $5,062.50 $5,062.50 5 COZEEP (Construction Zone Enhanced LS 1 $130,000.00 $130,000.00 Enforcement Program)
6 Water Pollution Control Plan (WPCP) LS 1 $12,532.00 $12,532.00 7 Shoring, Bracing, and Sheeting LS 1 $20,488.00 $20,488.00 8 Sawcut Existing Pavement LS 1 $22,360.00 $22,360.00
9 Remove Existing Pavement LS 1 $15,106.00 $15,106.00
10 Abandonment of Water Lines, Valves, and LS 1 $40,820.00 $40,820.00 Services
11 6-inch DR18 PVC Pipe (C900) LF 167 $144.00 $24,048.00 12 8-inch DR18 PVC Pipe (C900) LF 275 $145.00 $39,875.00 13 12-inch DR18 PVC Pipe (C900) LF 1060 $131.00 $138,860.00 14 6-inch Gate Valve EA 9 $2,188.00 $19,692.00
15 8-inch Gate Valve EA 4 $3,024.00 $12,096.00
16 12-inch Butterfly Valve EA 13 $3,976.00 $51,688.00
17 Fire Hydrant Assembly EA 7 $9,513.00 $66,591.00
18 Remove, Dispose, and Abandon Existing EA 2 $4,927.00 $9,854.00 Fire Hydrant Assembly
19 1-inch Water Service, including meter box EA 3 $7,859.00 $23,577.00 20 Pneumatic Boring of Water Service LF 180 $108.00 $19,440.00 Connections
21 Remove and Reconstruct Concrete Sidewalk SF 25 $515.00 $12,875.00 22 Hot Mix Asphalt TON 1240 $190.00 $235,600.00
23 Replace Traffic Loops LS 1 $69,251.00 $69,251.00
24 Restore Traffic Striping, Markings, and LS 1 $12,837.00 $12,837.00 Signage
25 Class II Aggregate Base CY 270 $153.00 $41,310.00
26 Paint Curbs Red at Fire Hydrants EA 7 $279.00 $1,953.00 27 Remove and Reconstruct Concrete Curb LF 15 $1,049.00 $15,735.00 28 Bollards EA 8 $2,411.50 $19,292.00
Total: $1,305,082.50
Percent From Engineer's Estimate: 30.83%
Engineer's Estimate
Base Bid
1 Mobilization/Demobilization LS 1 $20,000.00 $20,000.00 2 Potholing LS 1 $5,000.00 $5,000.00
3 Traffic Control/Handling, Signage, and LS 1 $25,000.00 $25,000.00 Permitting
4 Stanislaus County Encroachment Permit LS 1 $5,062.50 $5,062.50 5 COZEEP (Construction Zone Enhanced LS 1 $20,000.00 $20,000.00 Enforcement Program)
6 Water Pollution Control Plan (WPCP) LS 1 $5,000.00 $5,000.00 7 Shoring, Bracing, and Sheeting LS 1 $10,000.00 $10,000.00 8 Sawcut Existing Pavement LS 1 $11,500.00 $11,500.00
9 Remove Existing Pavement LS 1 $38,800.00 $38,800.00
10 Abandonment of Water Lines, Valves, and LS 1 $15,000.00 $15,000.00 Services
11 6-inch DR18 PVC Pipe (C900) LF 167 $140.00 $23,380.00 12 8-inch DR18 PVC Pipe (C900) LF 275 $130.00 $35,750.00 13 12-inch DR18 PVC Pipe (C900) LF 1060 $185.00 $196,100.00 14 6-inch Gate Valve EA 9 $2,400.00 $21,600.00
15 8-inch Gate Valve EA 4 $2,950.00 $11,800.00
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Strengthen & Replace
16 12-inch Butterfly Valve EA 13 $4,500.00 $58,500.00
17 Fire Hydrant Assembly EA 7 $8,000.00 $56,000.00
18 Remove, Dispose, and Abandon Existing EA 2 $500.00 $1,000.00 Fire Hydrant Assembly
19 1-inch Water Service, including meter box EA 3 $3,000.00 $9,000.00 20 Pneumatic Boring of Water Service LF 180 $55.00 $9,900.00 Connections
21 Remove and Reconstruct Concrete Sidewalk SF 25 $100.00 $2,500.00 22 Hot Mix Asphalt TON 1240 $300.00 $372,000.00
23 Replace Traffic Loops LS 1 $4,999.50 $4,999.50
24 Restore Traffic Striping, Markings, and LS 1 $15,000.00 $15,000.00 Signage
25 Class II Aggregate Base CY 270 $75.00 $20,250.00
26 Paint Curbs Red at Fire Hydrants EA 7 $250.00 $1,750.00 27 Remove and Reconstruct Concrete Curb LF 15 $70.00 $1,050.00 28 Bollards EA 8 $200.00 $1,600.00
Total: $997,542.00
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CITY OF MODESTO

COUNCIL AGENDA REPORT
DATE OF MEETING:

September 12, 2023
Date: August 10, 2023
TO: Mayor and City Council
THROUGH: Joseph P. Lopez, City Manager
FROM: William Wong, Director of Utilities
SUBJECT: Fourth Amendment to Agreement with Brown and Caldwell Design and Construction Services for Replacement Well 226 (71) CONTACT: David A. Felix, Associate Engineer, [email protected], 209-577-5488 DESCRIPTION:

Consider approving a Fourth Amendment to the Agreement with Brown and Caldwell, of Rancho Cordova, CA, for Design and Construction Services for Replacement Well 226 (71) in the amount of $54,863 for a revised Agreement total not to exceed $554,224. (Funding Source:

Water Fund)
STRATEGIC PLAN ELEMENT:

The recommended action supports the 2020-2025 City’s Strategic Plan Initiatives, Goal D:

Provide safe, efficient, and reliable infrastructure through proactive community investment, maintenance, and sustainability efforts.

BACKGROUND:

Replacement Well 226 Subsurface Improvement Project proposes to drill a 1,500 gallon-perminute well on a City of Modesto owned parcel at 2501 Brenner Way, Modesto, CA, in Stanislaus County. It will replace existing Well 226 that was permanently decommissioned in accordance with State procedures in October 2016.

City water supply Well 226, located at the northwest corner of Conant Avenue and Brenner Way, was taken offline in 2006 due to elevated arsenic and nitrate concentrations. Well 226 was originally drilled in 1954, and strategically located near the Highway Village neighborhood.

On April 7, 2009, by Resolution No. 2009-149, Council approved a short-list of hydrogeologists to be used on an as-needed rotational basis. In accordance with Administrative Directive 3.1, Selection Procedures for Professional Consultants who Provide Architectural and Engineering Services for Capital Projects, Brown and Caldwell (B&C) was selected as the most qualified firm to provide design services for well remediation at Well 226.

On November 24, 2009, by Resolution No. 2009-554, Council approved an agreement with B&C for Design Services for Well Remediation at Well 226. The proposed design included a new well on the existing site, drilling to a deeper level and constructing to current well standards. #23..
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City Council, September 12, 2023
Fourth Amendment to Agreement with Brown and Caldwell
Design and Construction Services for Replacement Well 226 (71)

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In 2011, plans and specifications for removal and replacement of Well 226 were prepared, but the project was deferred due to the downturn of the economy. The agreement with B&C was subsequently closed.

On June 28, 2016, by Resolution No. 2016-270, Council approved the specifications for destruction of certain water wells, and awarded a contract to Howk Systems of Modesto, CA; Well 226 was destroyed as part of this work.

On February 7, 2017, by Resolution No. 2017-42, Council approved an agreement with B&C to provide design, bid and engineering during construction services for the Replacement Well 226 Subsurface Improvement Project.

On August 2, 2017, by Resolution No. 2017-303, Council approved an amendment to the agreement with B&C to provide design, bid and engineering during construction services for the Replacement Well 226 Subsurface Improvement Project.

On October 2, 2018, by Resolution No. 2018-431, Council approved a resolution rejecting all bids for the Replacement Well 226 Subsurface Improvement Project with the intention to readvertise the project at a future date.

On October 22, 2018, by Resolution No. 2018-508, Council approved a second agreement with B&C to provide design and construction services for the Replacement Well 226 Subsurface Improvement Project.

During the final design of Well 226 Subsurface Improvements, Staff was informed by the Department of Water Resources that new well numbers would be required for replacement wells. As a result, the Replacement Well 226 Subsurface Improvement Project was renamed Well 71 (Replacing Well 226) Project.

On January 22, 2019, by Resolution No. 2019-26, Council approved the plans and specifications for the Well 71 (Replacing Well 226) Project, accepted the bid and awarded a Construction Contract to Road Runner Drilling & Pump Company, Inc., of Woodland, CA, for the subsurface improvements of Well 71. Construction of the subsurface improvements was completed on July 19, 2019.

On August 5, 2020, by Resolution No. 2020-324, Council accepted the Well 71 (Replacing Well 226) Project as complete.

On January 12, 2021, by Resolution No. 2021-14, Council awarded a Construction Contract to Conco-West, Inc for the construction of the surface improvements for Well 71.

DISCUSSION:

On August 2, 2017, by Resolution No. 2017-303, Council approved a First Amendment to the Agreement for Design and Construction Services for Replacement Well 226 (71) with B&C.

The first amendment expanded the scope of services to include a new pump house, upgrades to the Motor Control Center, electrical panels, well equipping design, additional project management, and additional Engineering Services During Construction (ESDC). #23..
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Fourth Amendment to Agreement with Brown and Caldwell
Design and Construction Services for Replacement Well 226 (71)

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On November 13, 2018, by Resolution No. 2018-508, Council approved a Second Amendment to the Agreement for Design and Construction Services for Replacement Well 226 (71) with B&C.

The second amendment to the scope of services was requested by the Utilities Water Services Division, to meet NSF/ANSI Standard 61 (NSF-61) requirements. Additional changes were also requested for the pump house and site facilities, which included an additional room to house a new tablet chlorinator, additional underground piping, and surface finishing. The Consultant’s Project Management and additional minor ESDC tasks associated with the additional above ground design work were increased to match the new level of effort. Furthermore, supplementary design submittals were required in order for City Staff to properly review plans and specifications at the 60% and 90% stages.

Construction began in April 2021 for Well 71 Surface Improvements. B&C, as outlined in the overall agreement, provided Engineering Services During Construction. To account for the increased engineering and construction management activities, a third amendment to the existing Agreement was needed.

On October 5, 2021, by Resolution No. 2021-399, Council approved a Third Amendment to the Agreement for Design and Construction Services for Replacement Well 226 (71) with B&C.

Third amendment tasks included the following:
o Project Management & Contract Administration
o Construction Management
 Schedule Review
 Site Coordination
 Construction Team Communication
 Start-Up & Commissioning
o Engineering Support & Construction Contract
 Meetings
 Submittal Review
 Construction Requests for Information (RFI)
 Dispute Resolution
During construction, the Utilities Water Services Division requested changes to the pump house electrical layout and eyewash station; These changes resulted in the following additional work:
o Design Changes to the Motor Control Center
o Additional Harmonics Analysis for Variable Frequency Drive o Additional Intrusion and Flow Switches for Emergency Eyewash and Shower These changes require additional design, coordination, and construction oversight from B&C, resulting in the need for a Fourth Amendment to the Agreement. #23..
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Fourth Amendment to Agreement with Brown and Caldwell
Design and Construction Services for Replacement Well 226 (71)

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In accordance with Modesto Municipal Code 8-3.204(a) Exceptions to Formal Bidding Requirements, the fourth amendment to the agreement is for professional services and, therefore, exempt from the bid requirement.

FISCAL IMPACT:

Expenses associated with the fourth amendment to the B&C consultant services agreement will be housed in the following Capital Improvement Program project:
101084 – Replacement Well 226 Surface
Brown and Caldwell Agreement
Original Agreement $175,197
First Amendment $90,322
Second Amendment $86,413
Third Amendment $147,429
Fourth Amendment $54,863
Total $554,224
COMMITTEE RECOMMENDATION:

This project was presented to the Economic Development Committee at the November 6, 2019, Meeting as part of a report on upcoming Capital Improvement Construction Projects. The Committee approved the list of projects and recommended Staff to present the award of the project to Council upon successful bidding.

CEQA/NEPA REQUIREMENTS:

A CEQA Section 15302 Class 2(c) Statement of Exemption is on file with the Stanislaus County Recorder’s Office. The exemption covers the construction or replacement of utility systems or facilities with negligible or no expansion of service capacity.

RECOMMENDED COUNCIL ACTION:

Staff Recommendations:

Resolution approving a Fourth Amendment to the Agreement with Brown and Caldwell, of Rancho Cordova, CA, for Design and Construction Services for Replacement Well 226 (71) in the amount of $54,863 for an Agreement total not to exceed $554,224 and authorizing the City Manager, or his designee, to execute the Amendment.

Approved by:

William Wong, Director of Utilities
Joseph P. Lopez, City Manager
Attachments:

1. Resolution
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Fourth Amendment to Agreement with Brown and Caldwell
Design and Construction Services for Replacement Well 226 (71)

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2. Brown & Caldwell – Agreement

3. Brown & Caldwell – First Amendment

4. Brown & Caldwell – Second Amendment

5. Brown & Caldwell – Third Amendment

6. Brown & Caldwell – Fourth Amendment & Exhibit
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MODESTO CITY COUNCIL
RESOLUTION NO. 2023-XX

RESOLUTION APPROVING A FOURTH AMENDMENT TO THE AGREEMENT

WITH BROWN AND CALDWELL, OF RANCHO CORDOVA, CA, FOR DESIGN AND CONSTRUCTION SERVICES FOR REPLACEMENT WELL 226 (71) IN THE AMOUNT OF $54,863 FOR AN AGREEMENT TOTAL NOT TO EXCEED $554,224

AND AUTHORIZING THE CITY MANAGER, OR HIS DESIGNEE, TO EXECUTE

THE AMENDMENT
WHEREAS, the Replacement Well 226 Project proposes to drill a 1,500 gallon-perminute well on a City of Modesto owned parcel located at 2501 Brenner Way, Modesto, CA, in Stanislaus County, and
WHEREAS, this well will replace existing Well 226 that was permanently decommissioned in accordance with State procedures in October 2016, and WHEREAS, on February 7, 2017, by Resolution No. 2017-42, Council approved an Agreement with Brown & Caldwell (B&C) to provide design, bid and engineering during construction services for the Replacement Well 226 Project in the amount of $175,197, and WHEREAS, on August 2, 2017, by Resolution No. 2017-303, Council approved a First Amendment to the Agreement with B&C to provide design, bid and engineering during construction services for the Replacement Well 226 Project in the amount of $90,322, and WHEREAS, on November 13, 2018, by Resolution No. 2018-508, Council approved a Second Amendment to the Agreement with B&C to provide design, bid and engineering during construction services for the Replacement Well 226 Project in the amount of $86,413, and #23..
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WHEREAS, on October 15, 2021, by Resolution No. 2021-399, Council approved a Third Amendment to the Agreement with B&C to provide design, bid and engineering during construction services for the Replacement Well 226 Project in the amount of $147,429, and WHEREAS, a Fourth Amendment to the Agreement with Brown & Caldwell, Inc., in the amount of $54,863, is necessary to allow for design and construction support services through the completion of the construction of the project.

NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Modesto that it hereby approves a Fourth Amendment to the Agreement with Brown & Caldwell, Inc., of Rancho Cordova, CA, for Design and Construction Services for Replacement Well 226 (71) in the amount of $54,863, for a revised total amount not to exceed $554,224.

BE IT FURTHER RESOLVED that the City Manager, or his designee, is hereby authorized to execute the amendment, in a form approved by the City Attorney. #23..
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The foregoing resolution was introduced at a regular meeting of the Council of the City of Modesto held on the 12th day of September 2023, by Councilmember ?, who moved its adoption, which motion being duly seconded by Councilmember ?, was upon roll call carried and the resolution adopted by the following vote:

AYES: Councilmembers:

NOES: Councilmembers:

ABSENT: Councilmembers:

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

BY: ______________________________
JOSE M. SANCHEZ, City Attorney
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FOURTH AMENDMENT TO AGREEMENT FOR
DESIGN AND CONSTRUCTION SERVICES FOR REPLACEMENT WELL 226 This Fourth Amendment to the Agreement for Consultant Services is made with reference to the contractual agreement between the CITY OF MODESTO (“City”) and BROWN AND CALDWELL, a California corporation (“Consultant”), entered into by the parties on the 7th day of February, 2017, hereinafter referred to as “Original Agreement”.

This Fourth Amendment to the Original Agreement for Consultant Services is made with regard to the following recitals:

A. The Original Agreement between City and Consultant was approved via Council Resolution No. 2017-42.

B. On August 2, 2017, the First Amendment to the Original Agreement was approved via Council Resolution No. 2017-303, identifying various additional tasks and increasing the Original Agreement’s contract price by NINETY THOUSAND THREE HUNDRED TWENTY-TWO AND OO/100 DOLLARS ($90,322).

C. On November 13, 2018, the Second Amendment to the Original Agreement was approved via Council Resolution No. 2018-508, identifying various additional tasks and increasing the Original Agreement’s contract price by EIGHTY-SIX THOUSAND FOUR HUNDRED THIRTEEN AND 00/100 DOLLARS ($86,413).

D. On October 5, 2021, the Third Amendment to the Original Agreement was approved via Council Resolution No. 2021-399, identifying various additional tasks and increasing the Original Agreement’s contract price by ONE HUNDRED FORTY-SEVEN THOUSAND FOUR HUNDRED TWENTY-NINE AND 00/100 DOLLARS ($147,429).

E. On or about January 25, 2023, Consultant submitted to the City a budget augmentation for further, additional tasks requested by the City for the completion of work #23..
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related to the Design & Construction Services for Replacement Well 226 Project. Said document is attached hereto as Exhibit “4” and incorporated herein by this reference. Exhibit “4” identifies additional tasks to be performed by Consultant and Consultant’s additional costs for such tasks for a total of FIFTY-FOUR THOUSAND EIGHT HUNDRED SIXTYTHREE AND 00/100 DOLLARS ($54,863).

F. Paragraph no. 9 “AMENDMENTS” of the Original Agreement acknowledges the parties understand it may become desirable or necessary for City or Consultant to modify the scope of services provided for under the Agreement and any such modification must be in writing signed by both parties.

G. The parties to this Fourth Amendment understand and agree that it is necessary to further modify paragraph no. 1 entitled “SCOPE OF SERVICES” of the Original Agreement.

H. The parties to this Fourth Amendment understand and agree it is necessary to modify paragraph no. 3 entitled “COMPENSATION” of the Original Agreement.

I. The parties to this Fourth Amendment further understand and agree the Original Agreement is modified solely by the modifications contained in the First, Second and Third Amendments to Agreement and to this Fourth Amendment and in no other way whatsoever.

NOW, THEREFORE, in consideration of this Fourth Amendment to Agreement, and the mutual promises, covenants, and stipulations contained herein, the parties agree as follows:

1. The parties agree that each of the recitals set out above is factually true and correct.
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2. Paragraph no. 1 entitled “SCOPE OF SERVICES” of the Original Agreement shall be deleted and the parties agree to and hereby do substitute the following in its place:

SCOPE OF SERVICES.

Consultant shall undertake and complete the preparation of the scope of work as set forth and described in the documents attached to the (a) Original Agreement and referred to herein as Exhibit “A” or “Project”; (b) First Amendment to Agreement and referred to herein as Exhibit “1”; (c) Second Amendment to Agreement and referred to herein as Exhibit “2” (d) Third Amendment to Agreement and referred to herein as Exhibit “3” and (e) Fourth Amendment to Agreement and referred to herein as Exhibit “4”.

The Consultant shall perform the services as described in the aforementioned Exhibit “A”, Exhibit “1”, Exhibit “2”, Exhibit “3”, and Exhibit “4” in a manner compatible with the standards of its profession and shall produce a fully complete project as described in Exhibit “A”, Exhibit “1”, Exhibit “2”, Exhibit “3” and Exhibit “4” that is acceptable to the City. The aforementioned Exhibit “A”, Exhibit “1”, Exhibit “2”, Exhibit “3” and Exhibit “4” are incorporated herein by this reference.

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

COMPENSATION.
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Consultant agrees to perform the work on a time and materials basis not to exceed FIVE HUNDRED FIFTY-FOUR THOUSAND
TWO HUNDRED TWENTY-FOUR AND 00/100 DOLLARS
($554,224) (maximum compensation) for performing all services and furnishing all staffing and materials called for in Exhibits “A” and “B” to the Original Agreement, Exhibit “1” attached to the First Amendment to Agreement, Exhibit “2” attached to the Second Amendment to the Agreement, Exhibit “3” attached to the Third Amendment to the Agreement and this Fourth Amendment to the agreement, as well as for performance by Consultant of all duties and obligations under the Original Agreement, the First Amendment to Agreement, the Second Amendment to Agreement, the Third Amendment to Agreement and to this Fourth Amendment to the Agreement.

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

Professional services received by the City under the Original Agreement, the First Amendment to Agreement, the Second Amendment to Agreement, the Third Amendment to Agreement and to this Fourth Amendment to the Agreement shall be paid for on a “time and materials” basis with a “not to exceed” amount, as called for in Exhibits “A” and “B” of the Original Agreement, Exhibit “1” of the First Amendment to Agreement, Exhibit “2” of the Second Amendment to Agreement, Exhibit “3” of the Third Amendment to Agreement and Exhibit “4” to this Fourth Amendment to the Agreement. Consultant shall prepare and City agrees #23..
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to pay Consultant on time and materials for monthly billings, which include detailed tasks, hours worked, and billable rates for work completed. The local agency shall reimburse the CONSULTANT for actual costs (additional reimbursable expenses including, labor costs, employee benefits, overhead, sub-consultant travel expenses and other direct costs) incurred by the CONSULTANT in performance of the work called for in Exhibits “A” and “B” of the Original Agreement, Exhibit “1” of the First Amendment to Agreement, Exhibit “2” of the Second Amendment to Agreement, Exhibit “3” of the Third Amendment to Agreement and Exhibit “4” to this Fourth Amendment to the Agreement on the monthly billings, which include detailed receipts for actual costs paid by CONSULTANT in the interest of the Project.

4. Except as herein amended or modified, the provisions of the Original Agreement, First Amendment to Agreement, Second Amendment to Agreement and Third Amendment to Agreement are expressly reaffirmed and remain in full force and effect to the extent they are not in conflict with this Fourth Amendment.

IN WITNESS WHEREOF, the City of Modesto, a municipal corporation, has authorized the execution of this Fourth Amendment to Agreement for Consultant Services by its City Manager and attestation by its City Clerk under authority of Resolution No. 2023-________, adopted by the Council of the City of Modesto on the _________ day of _______________, 2023, and BROWN AND CALDWELL has caused this Fourth Amendment to Agreement to be duly executed.
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1590 Drew Avenue, Suite 210
Davis, CA 95618
T: 530.747.0650
F: 530.297.7148
c:\users\eokamura\projectwise\brown & caldwell\150369 - modesto well 226 design\00-pm\contracts\amendments\amendment 4\150369 amend 4-20230124.docx
January 25, 2023
Mr. David Felix, PE 150369
City of Modesto
Utilities Department
1010 Tenth Street, #2100
Modesto, CA 95354
Subject: Well 71 Replacement Amendment 4 – Additional Engineering Services During Construction
Dear Mr. Felix:

Brown and Caldwell (BC) is pleased to provide this contract amendment for additional engineering services during construction and construction management/construction inspection services for the Well 71 project. Scope of work and fee for the requested tasks are provided in the following sections.

Scope of Work
A detailed description of the additional effort is described in the following sections. Task numbering in the below sections follows task numbering in invoices. Tasks not included below are not affected by this amendment.

Task 4 – Additional Engineering Services During Construction Additional tasks performed by BC include additional submittal reviews; preparation of additional RFI responses; and revising the project design (drawings and specifications) to address electrical design comments provided by the City of Modesto (City) early in the construction period.

BC reviewed and responded to more submittals and RFIs that were budgeted for in the original proposal and amendments. The number of budgeted submittal reviews and RFI responses and the actual number of submittals and RFIs processed during the course of the project are summarized in Table 1.

Table 1. Summary of ESDC Scope
Description
Current
Approved Scope a Actual Difference
Submittal Review 60 134 74
RFI Response 15 25 10
a Includes ESDC scope included in the original proposal and Amendments 1-3.

EXHIBIT 4
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Well 71 Replacement Amendment 4 – Additional ESDC
City of Modesto
January 25, 2023

Page 2 ends

Early in the construction of Well 71, after signed and sealed construction documents had been prepared, the City provided comments to BC on the project’s electrical design from the City’s electrical department. BC updated the drawings and specifications to address the City’s comments and attended meetings to discuss the design revisions with the City and contractor.

Assumptions

1. Costs requested for this task is based on actual effort to perform the activities listed in this task.

Task 5 – Additional Project Management
This task additional project management effort to manage resources to address late electrical comments described in Task 4, perform electrical inspections and factory acceptance test described in Task 6, and due to the extension of the construction schedule described in Task 6.

Assumptions

1. Costs requested for this task are based on actual effort to perform the activities listed in this task.

Task 6 – Additional Construction Management & Inspection Services The construction period was extended by a total of 106 days through various construction change orders. The granted time extensions are summarized in Table 2.

Additionally, at the City’s request, BC’s electrical engineers provided inspections during the construction of the Well 71 facility and attended a factory acceptance test of electrical panels. Additional budget requested in this task is for construction management/construction inspection services provided during the construction time extension and for out-of-scope electrical inspections requested by the City.

Table 2. Summary of Construction Period Time Extensions Description a Time Extension, days

10.1 – Time Impact Analysis 63
CMU Block Delay 43
TOTAL 106
a Change orders that did not result in a time extension are not included.

Assumptions

1. Costs requested for this task are based on actual effort to perform the activities listed in this task.

EXHIBIT 4
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Well 71 Replacement Amendment 4 – Additional ESDC
City of Modesto
January 25, 2023

Page 3 ends

Schedule
The Well 71 facility is substantially complete. BC has received project redlines and is currently preparing record drawings. The project is assumed to be complete March 31, 2023.

Cost
Compensation for services described above is $54,863, increasing the total project budget from $499,361 to $554,224. A summary of the amendment costs in relation to the total project costs is presented in Table 3. A detailed amendment cost summary is attached, Exhibit A, Amendment Budget.

Table 3. Summary of Amendment 4 Cost by Task
Description
Current Approved
Budget a
Budget Increase in
this Amendment
Total Revised
Budget
1 - Revise Well Drilling Design $17,410 $0 $17,410
2 - Well Equipping Design $203,100 $0 $203,100
3 - Bid Period Services $14,185 $0 $14,185
4 - ESDC $77,237 $40,125 $117,362
6 - Project Management $40,000 $4,392 $44,392
7- Construction Management & Inspection Services $147,429 $10,346 $157,775 TOTAL $499,361 $54,863 $554,224
a Includes Amendments 1, 2, and 3 budget.

Terms and Conditions
Work on this amendment, described in this letter, will be performed per the terms and conditions of the City of Modesto and Brown and Caldwell “Agreement for Design and Construction Services for Replacement Well 226” dated February 7, 2017.

Very truly yours,
Brown and Caldwell
Michael Harrison, PE Michael Wademan, PE
Director Project Manager
MW:eo
Exhibit:

1. Exhibit A: Amendment Budget
EXHIBIT 4
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Modesto, City of (CA) -- Modesto Well 226 Design
Wademan,
Michael C
Okamura,
Esther Elaine L
Worster,
Kenneth W
Lambert,
Tait R
Schock,
Dawn M
Romero,
Sara B
Williams,
Barry N
Pace,
Hugh W
Blumenshine,
Rodney B
Bullock,
Larry L
Crawford,
David
Gomez,
Brandon R
Harrison,
Michael J
Villalpando,
Carlos
Gagne,
Daniel
Russu,
Mikhail
Casey,
Colin M
Stubblefield,
Kimberly D
Walters,
Stephen T
Durazo,
Elizabeth R
Terrazas,
Richard W
Kivett,
Jeffrey R
DeHart,
James A
Other Travel
Supplies
Task Task Description PM PA
Total Labor
Hours
Total Labor
Effort APC Total ODCs
Total Expense
Cost
Total Expense
Effort Total Effort
$283.79 $132.97 $290.05 $188.08 $145.34 $103.35 $229.80 $274.44 $144.98 $154.59 $323.51 $147.67 $290.63 $273.58 $271.55 $144.02 $236.55 $142.52 $277.81 $286.11 $302.39 $345.54 $281.39 001 Revise Well Drilling Design 7 0 32 20 12 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 71 16,716 566 121 0 121 121 694 17,410 Leave Blank and Protected
002 Well Equipping Design 306 0 63 110 42 1 8 45 54 44 12 58 15 21 17 59 0 1 0 0 0 0 0 854 196,266 6,834 00 0 0 6,834 203,100 Leave Blank and Protected
003 Bid Period Services 21 0 14 12 8 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 55 13,508 442 224 0 224 224 677 14,185 Leave Blank and Protected
004 ESDC 144 0 59 30 16 0 0 40 0 40 0 8 0 0 4 16 80 0 0 0 0 0 16 453 111,090 3,623 2,523 0 2,523 2,523 6,272 117,362 005 Am4 - Add'l ESDC 40 0 0 0 8 0 0 40 0 40 0 8 0 0 4 16 0 0 0 0 0 0 16 172 38,749 1376 0 0 0 0 1,376 40,125 Leave Blank and Protected
006 Project Management 129 2 0 0 0 2 0 0 0 0 0 0 1 0 0 0 0 37 0 0 1 0 0 172 43,015 1,377 0 0 0 0 1,377 44,392 003 Amendment 4 12 2 0 0 0 0 0 0 0 0 0 0 1 0 0 0 0 0 0 0 1 0 0 16 4,264 128 0 0 0 0 128 4,392 Leave Blank and Protected
007 Construction Management & Inspection Services 0 20 0 0 0 8 0 0 0 0 0 0 4 0 0 0 0 0 509 4 2 2 16 565 153,044 4,521 0 200 200 200 4,731 157,775 001 Amendment 4 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 20 0 0 0 16 36 10,058 288 0 0 0 0 288 10,346 Leave Blank and ProtectedLeave Blank and ProtectedGRAND TOTAL 607 22 169 172 78 11 8 85 54 84 12 66 20 21 21 75 80 38 509 4 3 2 32 2,171 533,640 17,365 2,867 200 3,067 3,067 20,585 554,225 Hours and Dollars are rounded to nearest whole number. To display decimals, change the format of the cells.

EXHIBIT A
Amendment Budget
EXHIBIT 4 #23..
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CITY OF MODESTO

COUNCIL AGENDA REPORT
DATE OF MEETING:

September 12, 2023
Date: August 16, 2023
TO: Mayor and City Council
THROUGH: Joseph P. Lopez, City Manager
FROM: William Wong, Director of Utilities
SUBJECT: First Amendment with Envirogen for the Grayson Nitrate Treatment System Replacement
CONTACT: Jeff Daniels, Water Division Manager, [email protected], 209-342-4585 DESCRIPTION:

Consider approving a First Amendment to the Agreement with Envirogen Technologies, Inc., Rancho Cucamonga, CA, for the Grayson Nitrate Treatment System Replacement to increase the Agreement amount by $133,960 to a revised amount not to exceed $1,794,308. (Funding Source: Water Fund)
STRATEGIC PLAN ELEMENT:

The recommended action supports the 2020-2025 City of Modesto Strategic Plan Initiatives, Goal D: Provide safe efficient, and reliable infrastructure through proactive community investment, maintenance, and sustainability efforts.

BACKGROUND:

The Grayson Community Water System has over 277 water service connections serving approximately 875 residents. The City of Modesto provides water service through Well #274 and Well #295 which both have high nitrate levels. In August 2002, the California Department of Public Health issued a Compliance Order directing the City to have a reliable treatment system in place by April 2003. Basin Water, Inc. was awarded a contract to install an ion exchange treatment process to reduce the nitrate levels. Basin Water, Inc. was later purchased by Envirogen Technologies, Inc. (Envirogen) for nitrate treatment services and they have been providing operational support and critical parts for the on-site existing ion exchange equipment for the last eighteen years.

On October 11, 2016, by Resolution 2016-412, Council authorized an Equipment Lease to Purchase Agreement with Envirogen for the equipment used at Well #274 and Well #295.

The two wells within the Grayson community Water System continue to have high nitrate levels.

The equipment previously leased under the Envirogen Lease and now owned by the City of Modesto reduces nitrate levels by using an ion exchange treatment process. #24..
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City Council, September 12, 2023
First Amendment with Envirogen for Grayson Nitrate Treatment System

Page 2 of 3 ends

In 2022, The State of California’s Division of Drinking Water informed City staff that the existing nitrate removal system in place since 2003 is at the end of its useful life, and the State’s review of the City’s past inspection reports, water quality monitoring data and system performance records, require the City to replace the existing system with a similar approved and tested treatment system. The Envirogen system has already been approved and vetted by the State as a treatment system that removes nitrates. Due to the acute nature of nitrate contamination that is known to cause health issues, it is not recommended to utilize a new technology that may or may not be approved by the State.

A new treatment system is required for Grayson residents to continue having access to water that meets state water quality requirements. The proposed replacement system is an updated design that provides the same level of treatment at the existing site where the units are located.

Additionally, this system utilizes Envirogen’s most current control system that will provide better support for integration and monitoring operations.

On June 13, 2023, by Resolution 2023-280, Council authorized an agreement with Envirogen Technologies, Inc. for a Dual MinX Regenerable Ion Exchange Treatment System for a total amount of $1,660,348.

DISCUSSION:

The payment schedule provided in the Envirogen proposal did not include sales tax and must be added to the agreement total. Staff is recommending an amendment to the approved agreement with Envirogen Technologies, Inc. to increase the agreement amount by $133,960 for sales tax on the Dual MinX Regenerable Ion Exchange Treatment System.

FISCAL IMPACT:

Funding for the construction, contingency, administration, City staff design support, and equipment acquisition are budgeted in the current FY 2023-24 Capital Improvement Program in the following account:

Project 101484 – Grayson Nitrate System Replacement
As part of this item, a budget adjustment from the Water Fund has been added to increase Project #101484 in the amount of $133,960 to fully fund the anticipated agreement expenditures.

ANTICIPATED PROJECT EXPENDITURES:

Equipment and Consulting Services Agreement –
Envirogen Technologies, Inc.
$1,509,407
Amendment – (Sales Tax 8.875%) $ 133,960
Additional Services as needed (Contingency) – Envirogen (10%) $ 150,941 Administration/Engineering/Construction Force – City Staff $ 125,000 Total Project costs not to exceed: $1,919,308
COMMITTEE RECOMMENDATION:

Due to the time constraints of this agreement and the urgent nature of the services needed, this item was not presented to a Council Committee
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City Council, September 12, 2023
First Amendment with Envirogen for Grayson Nitrate Treatment System

Page 3 of 3 ends

RECOMMENDED COUNCIL ACTION:

Staff Recommendations:

Resolution approving a First Amendment to the Agreement with Envirogen Technologies, Inc., Rancho Cucamonga, CA. for the Grayson Nitrate Treatment System Replacement to increase the Agreement amount by $133,960 for a revised amount not to exceed $1,794,308 and authorizing the City Manager, or his designee, to execute the Amendment.

Resolution amending the Fiscal Year 2023-24 Capital Improvement Project Multi-Year Budget in the amount of $133,960, for a new total of $1,919,308, to be transferred into the Project from Water Reserves and authorizing the City Manager, or his Designee, to implement the provisions of this Resolution.

Approved by:

William Wong, Director of Utilities
Joseph P. Lopez, City Manager
Attachments:

1. Resolution – Approve First Amendment with Envirogen Technologies for Treatment System

2. Resolution – Amend CIP Budget for Envirogen Treatment System

3. First Amendment to Envirogen Purchase Agreement

4. Agreement with Envirogen Technologies for Treatment System

5. Proposal #24304 – Envirogen Ion Exchange System
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1 2023-06-13

MODESTO CITY COUNCIL
RESOLUTION NO. 2023-

RESOLUTION APPROVING A FIRST AMENDMENT TO THE AGREEMENT WITH ENVIROGEN TECHNOLOGIES, INC., RANCHO CUCAMONGA, CA,

FOR THE GRAYSON NITRATE TREATMENT SYSTEM REPLACEMENT TO INCREASE THE AGREEMENT AMOUNT BY $133,960 FOR A REVISED AMOUNT NOT TO EXCEED $1,794,308 AND AUTHORIZING THE CITY

MANAGER, OR HIS DESIGNEE, TO EXECUTE THE AMENDMENT
WHEREAS, the City of Modesto provides water service to the Grayson Community Water System, which has over 277 water service connections serving approximately 875 residents, and
WHEREAS, the water is provided by two wells, Well #274 and Well #295, which both have high nitrate levels, and
WHEREAS, in August 2002, the California Department of Public Health issued a Compliance Order directing the City to have a reliable treatment system in place by April 2003. Basin Water, Inc. was awarded a contract to install an ion exchange treatment process to reduce the nitrate levels, and
WHEREAS, Basin Water, Inc. was later purchased by Envirogen Technologies, Inc. (Envirogen) for nitrate treatment services and they have been providing operational support and critical parts for the on-site existing ion exchange, equipment for the last eighteen years, and
WHEREAS, on October 11, 2016, by Resolution 2016-412, Council authorized an Equipment Lease to Purchase Agreement with Envirogen for the equipment used at Well #274 and Well #295, and
WHEREAS, the two wells within the Grayson Community Water System continue to have high nitrate levels., and the equipment previously leased under the Envirogen Lease #24..
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2 2023-06-13
and now owned by the City of Modesto reduces nitrate levels by using an ion exchange treatment process, and
WHEREAS, in April 2022, the State’s Division of Drinking Water informed City Staff that the existing nitrate removal system in place since 2003 is at the end of its useful life, and the State’s review of the City’s past inspection reports, water quality monitoring data and system performance records, require the City to replace the existing system with a similar approved and tested treatment system, and
WHEREAS, the Envirogen System has already been approved and vetted by the State as a treatment system that removes nitrates, and due to the acute nature of nitrate contamination that is known to cause health issues, it is not recommended to utilize a new technology that may or may not be approved by the State, and WHEREAS, keeping the system in place will not only enable the City of Modesto to maintain its current permit with the State, but also ensure compliance with the drinking water quality standards it has previously maintained, and WHEREAS, on June 13, 2023, by Resolution 2023-280, Council authorized an agreement with Envirogen Technologies, Inc. for a Dual MinX Regenerable Ion Exchange Treatment System for a total amount of $1,660,348, and
WHEREAS, the payment schedule provided in the Envirogen proposal did not include sales tax and must be added to the agreement total, and WHEREAS, City staff is recommending an amendment to the approved agreement with Envirogen Technologies, Inc. to increase the agreement amount by $133,960 for sales tax on the Dual MinX Regenerable Ion Exchange Treatment System. #24..
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3 2023-06-13
NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Modesto that it hereby approves a First Amendment to the Agreement with Envirogen Technologies, Inc., Rancho Cucamonga, CA, for the Grayson Nitrate Treatment System Replacement to increase to the agreement amount by $133,960 for a revised amount not to exceed $1,794,308.

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

The foregoing resolution was introduced at a regular meeting of the Council of the City of Modesto held on the 12th day of September, 2023, by Councilmember ?, who moved its adoption, which motion being duly seconded by Councilmember ?, was upon roll call carried and the resolution adopted by the following vote:

AYES: Councilmembers:

NOES: Councilmembers:

ABSENT: Councilmembers:

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

BY: ____________________________________
JOSE M. SANCHEZ, City Attorney
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1 2023-06-13

MODESTO CITY COUNCIL
RESOLUTION NO. 2023-
RESOLUTION AMENDING THE FISCAL YEAR 2023-24 CAPITAL

IMPROVEMENT PROJECT MULTI-YEAR BUDGET IN THE AMOUNT OF
$133,960 FOR A NEW TOTAL OF $1,919,308, TO BE TRANSFERRED INTO THE

PROJECT FROM WATER RESERVES AND AUTHORIZING THE CITY

MANAGER, OR HIS DESIGNEE, TO IMPLEMENT THE PROVISIONS OF THIS

RESOLUTION
WHEREAS, certain budgetary transactions are necessary in the amount of $133,960, in order to fully fund the Grayson Nitrate System Replacement Project, and WHEREAS, the Fiscal Year 2023/24 Multi-Year Program Budget must be amended.

NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Modesto that it hereby approves the amendment of the Fiscal Year 2023/24 Multi-Year Program Budget in the amount of $133,960.

BE IT FURTHER RESOLVED that the City Manager, or his designee, is hereby authorized to implement the provisions of this resolution. #24..
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2 2023-06-13
The foregoing resolution was introduced at a regular meeting of the Council of the City of Modesto held on the 12th of September 2023, by Councilmember ?, who moved its adoption, which motion being duly seconded by Councilmember ?, was upon roll call carried and the resolution adopted by the following vote:

AYES: Councilmembers:

NOES: Councilmembers:

ABSENT: Councilmembers:

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

BY: ____________________________________
JOSE M. SANCHEZ, City Attorney
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1 FIRST AMENDMENT TO THE PURCHASE AGREEMENT WITH ENVIROGEN TECHNOLOGIES, INC., RANCHO CUCAMONGA, CA
This FIRST AMENDMENT to the PURCHASE AGREEMENT, made and entered into in the City of Modesto, State of California, this _____ day of _____________, 2023, by and between the City of Modesto, a municipal corporation of the State of California, hereinafter called CITY, and ENVIROGEN TECHNOLOGIES, INC., RANCHO CUCAMONGA, CA, hereinafter referred to as CONTRACTOR.

This FIRST AMENDMENT to the PURCHASE AGREEMENT is made with reference to the following recitals:

A. A PURCHASE AGREEMENT, hereinafter referred to as AGREEMENT, was entered into by and between CITY and CONTRACTOR on the 13th day of June, 2023 to provide a Dual MinX Regenerable Ion Exchange Treatment System for a total amount of $1,660,348.

B. CITY and CONTRACTOR desire to amend the AGREEMENT by increasing the total amount by $133,960.00, for a new total amount not to exceed $1,794,308.00 through the end of the agreement.

C. CITY and CONTRACTOR now desire to memorialize the change to the terms of the AGREEMENT with this FIRST AMENDMENT.

NOW, THEREFORE, the parties hereto mutually agree to the following:

1. Section 3, “COMPENSATION” shall be amended to increase the total not to exceed amount by $133,960.00 to $1,794,308.00.

2. Except as modified and amended by this FIRST AMENDMENT to the PURCHASE AGREEMENT, all other provisions of the AGREEMENT shall remain unchanged and in full force and effect.
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2 IN WITNESS WHEREOF, the CITY OF MODESTO, a Municipal Corporation, has authorized the execution of this First Amendment to the Purchase Agreement in duplicate by its Purchasing Manager and attested by its City Clerk under authority of Resolution No. , adopted by the Council of the City of Modesto on the ___ day of ___________, 2023, and Envirogen Technologies, Inc. has caused this First Amendment to the Purchase Agreement to be duly executed. #24..
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STANDARD AGREEMENT

FOR EQUIPMENT AND CONSULTANT SERVICES
THIS AGREEMENT made and entered into in the City of Modesto, State of California, this day of _________________ , 2023, (“Effective Date”) by and between the CITY OF MODESTO, a municipal corporation of the State of California, hereinafter referred to as "City", and Envirogen Technologies, Inc. , a Delaware corporation, hereinafter referred to as "Vendor." For purposes of this Agreement, the capitalized term “Parties” shall be a collective reference to both City and Vendor. The capitalized term “Party” may refer to either City or Vendor interchangeably as appropriate.

This Agreement is made with regard to the following recitals:

A. The City has determined that an Envirogen Dual MinX Treatment System for the Grayson Community, for which the City provides potable water service, should be prepared for the City to purchase, and continue to provide quality water service for the Grayson Community.

B. Vendor represents that it is qualified, willing, and able to provide the services to design, manufacture and supply a packaged ion exchange system with the Dual MinX Treatment System contained in a shipping container.

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

1. SCOPE OF EQUIPMENT AND SERVICES.

Vendor shall undertake and complete the preparation of the scope of work as set forth and described in the documents attached hereto entitled “ENVIROGEN DUAL MinX ION EXCHANGE NITRATE TREATMENT SYSTEM, Envirogen Proposal #24304 Rev #24..
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4” and referred to as Exhibit "A" or "project". The Vendor shall perform the services as described in Exhibit "A" in a manner compatible with the standards of its profession and shall produce a fully complete project that is acceptable to City.

2. TERM OF AGREEMENT.

This Agreement is effective as of the date first written above and will continue in effect until City's acceptance of and payment for all equipment and services authorized by City and performed by Vendor, unless terminated earlier in accordance with the provisions of the termination clause in this Agreement.

Vendor shall undertake and complete the preparation of the scope of work as set forth and described in the documents commonly referred to as “project” attached hereto as Exhibit "A" and made a part hereof. City hereby gives Vendor notice to proceed with the preparation of the project in the manner described in Exhibit "A", as of the Effective Date of this agreement. Vendor shall diligently proceed with the preparation of the project and agrees to complete said preparation within the estimated time period set forth in Exhibit "A".

3. COMPENSATION.

Vendor agrees to accept a sum not to exceed ONE MILLION FIVE HUNDRED NINE THOUSAND FOUR HUNDRED SEVEN AND 00/100 DOLLARS ($1,509,407) (maximum compensation) as full remuneration for providing and performing all equipment and services for Modesto in accordance with Exhibit "A" attached hereto and for performance by Vendor of all of its duties and obligations under this Agreement, except those additional services may be compensated as described below.

The Compensation shall be paid in the manner and at the times set forth in Exhibit “A” attached hereto, upon the submission of an invoice by Vendor to City. #24..
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Additional services may be authorized by the City Manager in an amount up to, but not to exceed ten percent (10%) of the agreed maximum compensation, or ONE HUNDRED FIFTY THOUSAND NINE HUNDRED FORTY-ONE AND 00/100 DOLLARS ($150,941). In the event that additional services are deemed necessary, the Consultant shall provide a written request to the City Manager indicating the reason for additional work, scope and cost of such work. The City Manager shall provide a written response to the request, either approving or denying the additional expenditure. If additional services are requested and approved, they will be billed at the hourly rates set forth in Exhibit “B” and may not exceed the amount requested and approved in writing by the City Manager. In that event, the new total compensation shall not exceed ONE MILLION SIX HUNDRED SIXTY THOUSAND THREE HUNDRED FORTY-EIGHT AND 00/100 DOLLARS ($1,660,348). If additional services in excess of this amount are deemed necessary by City Staff, an amendment to this Agreement will be required and must be approved by the City Council prior to commencing the work, as provided in Paragraph 9 of this agreement.

4. OBLIGATIONS OF VENDOR.

Throughout the term of this Agreement, Vendor shall possess, or secure all licenses, permits, qualifications and approvals legally required to conduct business. Vendor warrants that it has all of the necessary professional capabilities and experience, as well as all tools, instrumentalities, facilities, and other resources necessary to provide the City with the services contemplated by this Agreement.

6. OWNERSHIP OF DOCUMENTS/TITLE TO DATA.

Ownership of Documents
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All reports, drawings, designs, graphics, working papers and other incidental work or materials furnished hereunder shall become and remain the property of the City, and may be used by City as it may require without any additional cost to City. No reports shall be used by the Vendor for purposes other than this contract without the express prior written consent of City.

Title to Data
If, as a part of the agreement Vendor is required to produce data such as, but not limited to, drawings, plans, specifications, calculations, models, flow diagrams, visual aids and other related materials, the originals of all such data generated under this agreement will be delivered to City upon the completion or termination of services under the contract.

All materials, documents, data, or information obtained from the City data files or any City medium furnished to Vendor in the performance of this Agreement will at all times remain the property of the City. Such data or information may not be used or copied for direct or indirect use by Vendor after termination of this Agreement without written consent of the City.

7. NEWS AND INFORMATION RELEASE.

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

8. INTEREST OF CONTRACTOR.

Vendor warrants that it presently has no interest and shall not acquire any interest, direct or indirect, which would conflict in any manner or degree with the performance of #24..
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services required to be performed under this Agreement. Vendor warrants that, in performance of this Agreement, Vendor shall not employ any person having any such interest. Vendor agrees to file a Statement of Economic Interests with the City Clerk at the start and end of this contract if so required at the option of City.

9. AMENDMENTS.

Both parties to this Agreement understand that it may become desirable or necessary during the execution of this Agreement, for City or Vendor to modify the scope of services provided for under this Agreement. Any material extension or change in the scope of work shall be discussed with City and the change and cost shall be memorialized in a written amendment to the original contract prior to the performance of the additional work.

Until a change order is so executed, City will not be responsible to pay any charges Vendor may incur in performing such additional services, and Vendor shall not be required to perform any such additional services.

10. INDEPENDENT CONTRACTOR.

All acts of Vendor, its agents, officers, and employees and all others acting on behalf of Vendor relating to the performance of this Agreement, shall be performed as independent contractors and not as agents, officers, or employees of City. Vendor, by virtue of this Agreement, has no authority to bind or incur any obligation on behalf of City. Vendor has no authority or responsibility to exercise any rights or power vested in the City. No agent, officer, or employee of the City is to be considered an employee of Vendor. It is understood by both Vendor and City that this Agreement shall not under any circumstances be construed or considered to create an employer-employee relationship or a joint venture. #24..
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Vendor, its agents, officers, and employees are and, at all times during the terms of this Agreement, shall represent and conduct themselves as independent contractors and not as employees of City.

Vendor shall determine the method, details, and means of performing the work and services to be provided by Vendor under this Agreement. Vendor shall be responsible to City only for the requirements and results specified in this Agreement, and, except as expressly provided in this Agreement, shall not be subjected to City's control with respect to the physical action or activities of the Vendor in fulfillment of this Agreement. Vendor has control over the manner and means of performing the services under this Agreement. Vendor is permitted to provide services to others during the same period service is provided to City under this Agreement. If necessary, Vendor has the responsibility for employing other persons or firms to assist Vendor in fulfilling the terms and obligations under this Agreement.

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

It is understood and agreed that as an independent contractor and not an employee of City neither the Vendor or Vendor's assigned personnel shall have any entitlement as a City employee, right to act on behalf of the City in any capacity whatsoever as an agent, or to bind the City to any obligation whatsoever.
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It is further understood and agreed that Vendor must issue W-2 forms or other forms as required by law for income and employment tax purposes for all of Vendor's personnel.

11. ASSIGNMENT.

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

13. NOTICES.

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

FOR VENDOR: Name: Envirogen Technologies, Inc.

Address: 2627 Chestnut Ridge Road, Suite 200
Kingwood, TX 77339
Attention: Todd S. Webster, Ph D., P.E.

Phone: (877) 312-1385
Email: [email protected]
FOR CITY: Name: City of Modesto
Address: P.O. Box 642
Modesto, CA 95353
Attention: Jeff Daniels, Water Division Manager
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Phone: (209) 342-4585
Email: [email protected]

14. INSURANCE REQUIREMENTS.

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

In the event the certificates of insurance required hereunder do not provide for notice of cancellation to the certificate holder and/or additional insureds, the Vendor shall provide, as an express condition precedent to payment hereunder, an endorsement from their insurers providing that the additional insureds identified herein shall be provided 30 days notice of the cancellation on the policies of insurance required hereunder (10 days notice if the policies are cancelled for non-payment of premium). In addition, the named insured on all such policies shall provide to the additional insureds identified herein any notices of cancellation of said insurance policies within 5 business days of receipt of such notice. The Vendor shall, as a further express condition precedent to payment for work performed, affirm under penalty of perjury that the required insurance on the project remains in place and said insurance has not been cancelled.
(a) Worker's Compensation - in compliance with the statutes of the State of California, plus employer's liability with a minimum limit of liability of $1,000,000. #24..
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(b) General Liability insurance with a minimum limit of liability per occurrence of $1,000,000 for bodily injury and property damage. If Commercial General Liability Insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit. This insurance shall indicate on the certificate of insurance the following coverages and indicate the policy aggregate limit applying to: premises and operations; broad form contractual; independent consultants and subcontractors; products and completed operations as applicable.
(c) Automobile Liability insurance with a minimum limit of liability per occurrence of $1,000,000 for bodily injury and property damage. This insurance shall cover any automobile for bodily injury and property damage.
(d) Professional Liability insurance with a minimum limit of $1,000,000 per claim and policy aggregate. If coverage is on a claims made basis it shall be maintained for at least three (3) years following completion of the work.

If at any time any of said policies shall be unsatisfactory to the City, as to form or substance, or if a company issuing such policy shall be unsatisfactory to the City, the Vendor shall promptly obtain a new policy, submit the same to the Risk Manager for approval and submit a certificate thereof as hereinabove provided. Upon failure of the Vendor to furnish, deliver or maintain such insurance and certificates as above provided, this Agreement, at the election of the City, may be forthwith declared suspended or terminated. Failure of the Vendor to obtain and/or maintain any required insurance shall not relieve the Vendor from any liability under this Agreement, nor shall the insurance requirements be construed to conflict with or otherwise limit the obligations of the Vendor concerning indemnification. The City, its agents, #24..
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officers, employees, and volunteers shall be named as an additional insured on all insurance policies required herein, except Workers' Compensation and Professional Liability. The Workers' Compensation insurer shall agree to waive all rights of subrogation against the City, its agents, officers, employees, and volunteers for losses arising from work performed by Vendor for the City. The Vendor's insurance policy(ies) shall include a provision that the coverage is primary as respects the City; shall include no special limitations to coverage provided to additional insured; and, shall be placed with insurer(s) with acceptable Best's rating of A:VII or with approval of the Risk Manager. The Vendor must deliver certificates evidencing existence of the insurance listed above to the City prior to the time the contract is signed.

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

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

15. TERMINATION OF AGREEMENT.

Termination by City for Default of Vendor
Should Vendor default in the performance of this Agreement or materially breach any of its provisions, at its option, City may terminate this Agreement by giving written #24..
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notification to Vendor. The termination date shall be the effective date of the notice. For the purposes of this section, material breach of this Agreement shall include, but not be limited to, any of the following: failure to perform required services or duties, willful destruction of City's property by Vendor, dishonesty, or theft.

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

Post-Termination Procedure
Upon receipt of a written notice of termination pursuant to either of the foregoing paragraphs, the Vendor shall:
a. Cease its work as directed in the notice of termination as of the termination date and see to it that its employees, subconsultants and agents are notified of such termination and act as specified in the notice of termination;
b. Terminate all orders and Subcontractors except as necessary to complete any portion of the Work that is not terminated; c. If directed in writing by the City to do so, assign all right, #24..
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title and interest in subcontracts and materials in progress to City, in which case the City will have the right at its discretion to settle, or pay any or all claims arising out of the termination of such subconsultants, but in no event shall recovery by any Vendor or subconsultant include lost profits for portions of the Work not completed or undertaken, including materials not delivered; d. Deliver or otherwise make available to the City all data, drawings, specifications, reports, estimates, summaries and such other information and material as may have been accumulated by the Vendor in performing the Work whether completed or in process; e. Settle outstanding liabilities and claims, subject to the approval of City;
f. Complete performance of such part of the Work as has not been terminated;
g. Take such other actions as may be necessary, or as may be directed by the City for the protection and preservation of the Work and/or property related to the Work;
h. If City so requests, and at City's cost, Vendor shall provide sufficient oral or written status reports to make City reasonably aware of the status of Vendor's work on the project.

City will pay Vendor an amount based on the percentage of work completed in accordance with the notice of termination. The final payment to the Vendor after #24..
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termination for convenience shall be limited to amounts due and owing under the Agreement at time of termination, including the following:
a. The cost of settling and paying valid claims arising out of the termination of the Work such as subconsultant agreements or contracts for materials;
b. The Agreement price allocable to the portion of the Work properly performed or goods supplied to the work site by the Vendor as of the date of termination, as determined in accordance with the notice of termination, reduced by any sums previously paid to the Vendor.
c. Upon such a termination for convenience, City shall pay Vendor (i) for all Products and services delivered prior to the date of termination, and (ii) any and all Costs incurred by Envirogen prior the date of Termination incurred by Vendor in the engineering, design, production, acquisition, transportation or otherwise for any Product or service as yet undelivered and (iii) all reasonable Costs associated with the demobilization of Vendor following the termination.

Authorization to Terminate Agreement
Termination of the Agreement may be invoked by the City Manager, or his/her designee, subject to the right of the Vendor to appeal the City Manager, or his/her designee’s, decision to the City Council. The Vendor shall appeal by notifying the City Clerk in writing within ten (10) calendar days of receipt of written notification from City of termination #24..
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of the Agreement. In the event that termination of this Agreement is upheld by the City Council, any cessation of payment of delay claims, extended claims, Eichleay claims, or any other claims for delay shall be retroactive to the date of termination selected by the City Manager, or his/her designee.

17. INDEMNITY.
a. Each Party hereby agrees to defend, indemnify and hold the other Party and their respective partners, affiliates and subsidiaries, and their respective directors, officers, partners, members, employees and agents (collectively “Indemnified Parties”), harmless from and against any and all claims, liabilities, suits, proceedings, judgments, orders, fines, penalties, damages, losses, Costs and expenses (including, without limitation, costs of defense, settlement and reasonable attorneys’ fees and expenses) (all of the foregoing herein collectively called “Liabilities”), arising out of (i) the Indemnifying Party’s negligence or willful misconduct; and, (ii) failure of the Indemnifying Party or any of its employees or agents to observe or comply with any of the Indemnifying Party’s duties or obligations under this Agreement, including, without limiting the generality of the foregoing, any failure to observe or comply with any applicable laws, ordinances, codes, orders, rules or regulations; violation or breach of any provision of this Agreement including, but not limited to, any warranty for which a remedy is not specified. The foregoing obligations of indemnity will include, but not be limited to, any and all Liabilities for or relating to (i) injury to or death of any person (including, without limitation, employees or agents of the Parties), (ii) damage to or loss or destruction of any property (including, without limitation, property of the Parties, or their respective employees or agents), and (iii) any spill, release or leak of any hazardous substance or waste or any contamination of, injury or damage to or adverse effect on the environment. The Indemnifying Party shall be liable, however, only for #24..
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that percentage of total Liabilities that corresponds to the indemnifying Party’s percentage of total negligence or fault as compared to that of the indemnified Party. b. Neither Party shall have any liability to the other Party for any indirect, incidental, aggravated, exemplary, punitive, or consequential damages incurred by the other Party, whether brought on an action for breach of contract, breach of warranty, tort, strict liability, or otherwise and irrespective of whether caused or allegedly caused by either Party’s negligence or willful misconduct and none shall be awarded by any tribunal against a Party hereto in favor of a Party hereto; provided, however, that the limitations on liability contained in this Section 17 shall not apply to damages which are part of a third party claim for which a Party is claiming an indemnity obligation under this agreement from the other Party and the Party entitled to indemnity protection under this agreement is seeking an indemnity or other relief against the payment of such damages from the Party required to provide such indemnity or other relief. Anything in the Agreement notwithstanding, any liability of a Party shall not exceed $1,000,000.

18. DISPUTE RESOLUTION.

All claims, controversies, or disputes arising out of, or relating to the formation of this Agreement, or the breach, termination execution, enforcement, interpretation, or validity of this Agreement, including the determination of the scope or applicability of this contract provision shall be determined by binding arbitration in Modesto, California by one arbitrator, except as otherwise specified in this Agreement. The American Arbitration Association shall administer the arbitration under its Arbitration Rules then in effect, subject to the modifications of those rules contained in this paragraph. This agreement to arbitrate shall be specifically enforceable under the prevailing law of any court having jurisdiction, and the award #24..
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rendered by the arbitrator may be entered in any court having jurisdiction. The appropriate venue for any arbitration or court proceeding relating to or arising out of this provision shall be in Stanislaus County, California.

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

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

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

Whether or not City and Vendor may be engaged in interstate commerce, any controversy or dispute mentioned above shall be determined by, and the parties shall be bound by, the substantive law of the State of California, and not the Federal Arbitration Act at 9 USC Section 1 et seq.
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The arbitrator may grant any remedy or relief deemed by the arbitrator just and equitable under the circumstances, whether or not such relief could be awarded in a court of law. The arbitrator shall be empowered to award monetary sanctions against a party for failure of cooperation in the arbitration. The arbitrator shall, in written award, allocate all the costs of the arbitration, including the fees of the arbitrator and the reasonable attorney fees of the prevailing party, against the party who did not prevail. The prevailing party shall be the party in whose favor the majority of the central issues in the case are resolved.

Notwithstanding anything in this provision to the contrary, the arbitrator shall have no power to award punitive damages or other damages not measured by the party’s actual damages (excluding litigation costs and fees) against any party. This limitation of the arbitrator’s powers under this Agreement shall not operate as an exclusion of the issue of punitive damages from this Agreement to Arbitrate sufficient to vest jurisdiction in a court with respect to that issue.

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

19. ENTIRE AGREEMENT.

This Agreement and its exhibits contain the entire understanding between Vendor and City. Additional or new terms contained in this Agreement which vary from Vendor's proposal are controlling and are deemed accepted by Vendor by shipment of any article or other commencement of performance hereunder. All previous proposals, offers and communications relative to this Agreement, whether oral or written, are hereby superseded except to the extent that they have been incorporated into this Agreement. No future waiver of #24..
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or exception to any of the terms, conditions, and provisions of this Agreement shall be considered valid unless specifically agreed to in writing by all the parties.

20. PARTIAL INVALIDITY.

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

21. WAIVER.

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

22. AUDIT.

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

23. GOVERNING LAW.

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

24. HEADINGS NOT CONTROLLING.

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

25. COMPLIANCE WITH LAWS.
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Vendor shall insure compliance with all safety and hourly requirements for employees, in accordance with federal, state, and county safety and health regulations and laws. Vendor shall fully comply with all applicable federal, state, and local laws, ordinances, regulations and permits.

26. CITY BUSINESS LICENSE.

Vendor will have a City of Modesto business license.

27. SUPPLEMENTAL PROVISIONS.

The text of Sections 1-7 and 9 Confidential Information of Exhibit A, Appendix A are hereby incorporated by this reference into the agreement. #24..
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IN WITNESS WHEREOF, the City of Modesto, a municipal corporation, has authorized the execution of this Agreement in duplicate by its City Manager and attestation by its City Clerk under authority of Resolution No. 2023- , adopted by the Council of the City of Modesto on the day of _________________ , 2023, and Envirogen Technologies, Inc. has caused this agreement to be duly executed in duplicate as of the Effective Date. #24..
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Finlays Extracts and Ingredients, USA, Inc. Resin Adsorption and IPA Stripping and Recovery Equipment Wildfox III
A Lifecycle Performance Company
ENVIROGEN DUAL MinX ION EXCHANGE

NITRATE TREATMENT SYSTEM

PREPARED FOR CITY OF MODESTO

3/7/2023
Envirogen Proposal # 24304 Rev 5
877-312-8950
2627 Chestnut Ridge Rd, Suite 200
Kingwood, TX 77339
www.envirogen.com
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Proposal 24304 City of Modesto
Envirogen Proposal i

PROPRIETARY & CONFIDENTIAL

LICENSING AND CONFIDENTIALITY STATEMENT
ALL INFORMATION CONTAINED IN THIS DOCUMENT IS THE PROPERTY OF ENVIROGEN TECHNOLOGIES, INC. ("ENVIROGEN") AND ITS AFFILIATES. THE DESIGN CONCEPTS AND INFORMATION CONTAINED HEREIN ARE THE PROPERTY OF ENVIROGEN AND ARE SUBMITTED IN CONFIDENCE. THEY ARE NOT TRANSFERABLE AND MUST BE USED ONLY FOR THE USE AND PROJECT FOR WHICH THE DOCUMENT IS EXPRESSLY SUBMITTED. THEY MUST NOT BE

DISCLOSED, REPRODUCED, LOANED, OR USED IN ANY OTHER MANNER WITHOUT THE EXPRESS WRITTEN CONSENT OF ENVIROGEN. ENVIROGEN ASSUMES NO RESPONSIBILITY OR LIABILITY FOR THE USE OF THIS DOCUMENT OR THE

DESIGN CONCEPTS AND INFORMATION CONTAINED HEREIN FOR ANOTHER PROJECT OR IN A MANNER THAT DOES NOT RELATE TO THE ORIGINALLY INTENDED USE OF THIS DOCUMENT. IN NO EVENT SHALL THIS DOCUMENT OR THE

DESIGN CONCEPTS AND INFORMATION CONTAINED HEREIN BE USED IN ANY MANNER DETRIMENTAL TO THE INTERESTS OF ENVIROGEN. THE RIGHTS AND OBLIGATIONS OF ENVIROGEN AND ITS CUSTOMER ARE FURTHER LIMITED IN THE AGREEMENT BETWEEN THEM FOR THIS PROJECT. ALL PATENT AND OTHER RIGHTS ARE RESERVED.

ACCEPTANCE OF THE DELIVERY OF THIS DOCUMENT CONSTITUTES AGREEMENT TO THESE TERMS AND CONDITIONS.

Revisions Log
Revision General Notes:

Proposal
Revision Date Notes/Comments Issued
by
Approved
by
1 7/7/2022 Final Issue TW KS
2 7/28/2022 Revised for SIR-100 Resin TW/MD KS
3 8/11/2022 Revised to Add Container/Resin Removal TW KS 4 1/12/2023 Updated Scope and Pricing TW KS
5 3/6/2023 Updated Scope and Pricing TW KS
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Proposal 24304 City of Modesto
March 7, 2023 Page 1
Envirogen Technologies Confidential – Trade Secret and Proprietary Information

TABLE OF CONTENTS

1.0 PROJECT SUMMARY AND APPROACH ...................................................................................... 2

1.1 INTRODUCTION..................................................................................................................... 2

1.2 PROPOSED APPROACH AND NEEDS...................................................................................... 2

2.0 TECHNICAL OVERVIEW.............................................................................................................. 3

2.1 PACKAGED ION EXCHANGE SYSTEM..................................................................................... 3

3.0 DESIGN, SCOPE AND MANAGEMENT ....................................................................................... 4

3.1 ION EXCHANGE SYSTEM EQUIPMENT................................................................................... 4

3.2 PROJECT ENGINEERING DELIVERABLES................................................................................. 6

3.3 QUALITY ASSURANCE ............................................................................................................ 6

3.4 OPERATING AND MAINTENANCE MANUAL.......................................................................... 6

3.5 EQUIPMENT NOTES & CLARIFICATION ................................................................................. 6

3.6 DISPOSAL OF CONTAINER AND RESIN................................................................................... 8

3.7 FIELD AND TECHNICAL SERVICES .......................................................................................... 8

3.8 CLIENT-FURNISHED ITEMS .................................................................................................... 9

4.0 PRICING................................................................................................................................... 10

4.1 ION EXCHANGE SYSTEM EQUIPMENT................................................................................. 10

4.2 COMMERCIAL CONSIDERATIONS........................................................................................ 10

4.3 ESCALATION CONCERNS & CLAUSE .................................................................................... 12

5.0 SCHEDULE ............................................................................................................................... 13 #24..
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Proposal 24304 City of Modesto
March 7, 2023 Page 2
Envirogen Technologies Confidential – Trade Secret and Proprietary Information

1.0 PROJECT SUMMARY AND APPROACH

1.1 INTRODUCTION
Envirogen Technologies, Inc. (Envirogen) has prepared this firm-fixed pricing proposal for the design and supply of a pair of MinX Ion Exchange system for the City of Modesto’s Grayson Wells (City, Wells 274 & 295). This proposal represents a modern-day replacement for the existing pair of Envirogen SimPACK™ Ion Exchange system currently used to treat the Grayson Wells.

1.2 PROPOSED APPROACH AND NEEDS
Limited feed water quality data was provided by City staff on February 1, 2022 for Wells 274 & 295. Currently, the City has two existing SimPACK treatment systems at the site. The systems were originally supplied by Envirogen in the 2004 timeframe and are nearing the end of their useful life.

The proposed new systems involve our current, updated design that provides the same level of treatment as the existing units. Additionally, these systems utilize our most current control system that will provide better support for integration and monitoring operations.

Envirogen has selected the proposed system based on the provided water quality parameters shown in Tables 1a and 1b.

Table 1a – Influent and Target Effluent Flow/Concentrations Per Train Analyte Units Influent Range Effluent Target
Flow Rate gpm 300 300
Nitrate (as N) mg/L ≤16 ≤8
Table 1b - Influent Water Modeling Assumptions1
Analyte Units Influent Range
Sulfate mg/L ≤300
Chloride mg/L ≤343
Bicarbonate (as HCO3) mg/L ≤268
Hardness (as CaCO3) mg/L ≤748
pH SU 7.8-8.0
1 A full-water evaluation with metal (i.e., chromium, arsenic, iron, manganese) and total dissolved solids (TDS) analysis is warranted.
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Proposal 24304 City of Modesto
March 7, 2023 Page 3
Envirogen Technologies Confidential – Trade Secret and Proprietary Information

2.0 TECHNICAL OVERVIEW

2.1 PACKAGED ION EXCHANGE SYSTEM
Envirogen’s MinX ion exchange system allows for continuous on-demand treatment with the use of regenerable ion exchange resins. Our automated system controls the flow of water for treatment, as well as regeneration and rinse cycles for exhausted bed vessels, to maintain a set number of beds for treatment of the target contaminant.

The major components of the system include:
• Pre-filtration
• Ion Exchange (IX) treatment vessels inside an engineered, equipment shelter container • Regeneration system controlled and monitored by a programmable logic controller (PLC) utilizing Envirogen MinX control logic.

The process begins with raw water being sent from the wellfield to the client provided backpressure and flow splitting assembly. Raw water then enters into the container and through a flow meter and modulating flow control valve that will maintain optimum treatment flow. Raw water then flows to the pre-filtration unit where suspended solids greater than 5 microns are removed using standard bag-type filters. The prefiltration unit removes any large amount of Total Suspended Solids (TSS) and eliminates the need to backwash the IX vessels.

After being filtered, the water is then sent to Envirogen’s MinX IX system where the nitrate is removed using proven IX technology. Envirogen uses a multi-bed design operated in a staggered mode process. The staggered bed is Envirogen’s N+1 method which means that while the active beds are providing treatment, one vessel is in standby or being regenerated. This design provides the system treatment redundancy that is required by regulators, while producing a consistent effluent water quality that meets the target water quality requirements. During the treatment process, nitrate levels are monitored using an on-line nitrate analyzer that can measure the systems effluent, and if desired alternate between the effluent and influent.

Treatment occurs as the nitrates in the raw water are exchanged for chlorides on the IX resin.

Once a vessel is exhausted, it is automatically removed from service and a regeneration of that vessel’s resin
bed is controlled by the MinX PLC controller. The
system’s resin beds are regenerated using brine reclaim and concentrated brine (NaCl) in a counter-current
flow process. Once the regeneration process is
complete, the vessel isrinsed using the treated effluent water. The rinse water is partially recovered and used
as make-up water for the brine tank and partially to the brine recovery tank. The remaining rinse water, along
with the brine waste, is sent to waste. All steps in the MinX regeneration process are designed to minimize waste generation. The actual daily volume of waste will be determined based on the final process set points and treatment system utilization. #24..
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Proposal 24304 City of Modesto
March 7, 2023 Page 4
Envirogen Technologies Confidential – Trade Secret and Proprietary Information The MinX system is controlled and monitored using a PLC controller accessed via a human machine interface (HMI) panel located inside the system container. The PLC monitors all key performance criteria, including nitrate levels, and provides all system notifications and alarms.

In the event of a process issue or equipment failure, the PLC triggers an alarm, which can trigger a well(s) shutdown, ensuring that water quality is always maintained. The PLC is also capable of being remotely monitored and can be tied into the customer’s SCADA system if desired. This system allows for minimal operator interaction for general operational conditions.

3.0 DESIGN, SCOPE AND MANAGEMENT
Envirogen’s proposed scope of supply is outlined below.

3.1 ION EXCHANGE SYSTEM EQUIPMENT
Envirogen will design, manufacture, and supply a packaged Ion Exchange system with one MinX system in one shipping container. Table 2 below summarizes the major equipment included in Envirogen’s proposed scope of supply.
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Proposal 24304 City of Modesto
March 7, 2023 Page 5
Envirogen Technologies Confidential – Trade Secret and Proprietary Information Table 2 - Major Equipment List
Description of Item Qty Description
(or equal)
Pre-Filter Skid Assembly
Flange Common Inlet/Outlet Manifold, 304 Stainless Steel Ten (10)- #2 bag filter housing, each with
304 Stainless Steel Construction
Swing Bolt Quick Release Covers with Vent port
Isolation and Drain Valves
Epoxy Coated Steel Skid Frame
1 Rosedale or
Equal
MinX Ion Exchange System
40’-0” Modified shipping container as Equipment Shelter Two (2) trains of MinX Ion Exchange Systems Each Consisting of o 4- ø48” X 72” FRP IX vessels
o Motor operated Valve for Flow, Regen and Rinse Control o Internal Piping & Manifolds – Sch80 PVC
o 240 ft3 of Nitrate Selective Resin (SIR 100) (Certified NSF-61) o Main System PLC based Control Panel
 NEMA 4 Wall Mount Enclosure
 10” Color Touch Screen HMI
 Battery UPS for PLC, HMI and Comms
 Ethernet connection for remote communications
Online Nitrate Sensor and Analyzer
Miscellaneous, Instruments and transmitters for process measurement and control.
1 Envirogen
Brine Recovery Tank Assembly
Nominal 1400 gallon
5’ 1” ø x 11’-9” HDXLPE Tank, SG 1.35
Natural Translucent Color
PVC Tank Fittings and Vent
Seismic restraint/Hold assembly
Level Transmitter
2 Envirogen,
Polyprocessing
Replacement Tank for Brine Storage
15 ton Briner Tank
Aprox 6’-0” ø x 12’-0” Side Wall HDPE Tank
Color Black
PVC Tank Fittings and Vent Connection

*Note: This is item shall be an in-kind replacement tank. No other ancillaries such as salt fill tube, dust bag, level sensor, etc. are included.
2 Brinemaker or
Equal
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3.2 PROJECT ENGINEERING DELIVERABLES
The engineering deliverables for the system will include the documents:
• Process Flow Diagrams
• Piping and Instrumentation Diagrams
• Detailed Process Description
• General Arrangement Drawings
• General Process Piping Layouts
• Schematic Wiring Diagrams

3.3 QUALITY ASSURANCE
Envirogen will have oversight of various subcontracted services. Responsibilities will be to ensure the quality of the work and that the required schedules are maintained. The following subcontracted services will be managed:
• Receipt inspection of manufactured of components
• Shop assembly of system
• Equipment inspections (prior to delivery)

3.4 OPERATING AND MAINTENANCE MANUAL
Equipment manuals, as well as data and specifications, will be compiled into an O&M Manual.

One (1) electronic PDF copy of the final O&M Manual will be provided in no later than 120 working days after process startup. The O&M Manual will include the sections:
• Table of Contents
• Operating and Maintenance instructions
• Copies of Equipment Layout Drawings with record comments • Detailed process description
• Copy of the “Bill of Material”
• Copies of component equipment O&M manuals supplied by the manufacturer. • Recommended Operator Log Sheet

3.5 EQUIPMENT NOTES & CLARIFICATION

1. Due to market conditions and global supply chain issues, any noted component manufacture is subject to change based on availability and schedule. Should an alternate component be required, it will be presented to the Buyer before the change.

2. All material in contact with the water shall be food grade or NSF 61 compliant.

3. All commodity items (valves, motor-driven equipment, instruments, equipment skids, etc.) will be manufacturer’s standard or as stated in catalog cuts.

4. All equipment proposed is rated for use in non-hazardous areas.

5. All motors will have Total Enclosed Fan Cooled (TEFC) housing. #24..
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6. All items located inside the MinX Equipment Shelter will be piped and wired together for ease of installation at site. Connections to external wiring or piping as well as any penetration into the enclosure, shall be done by installing contractors.

7. The Supplied Uninterruptable Power Supply (UPS) is design to provide power to just the PLC, HMI and network communication. It does not supply power to outputs external instruments or valves.

8. The Pad for the installation of the treatment unit should be flat and level. Shimming of the container may be required to ensure the container frame sits proper and square so doors opening and close properly.

9. Motor selection will be by the equipment manufacturer based on the performance requirements of the equipment. For pumps, motors will be sized for end of curve horsepower rating.

10. PLC, HMI and I/O modules will be Allen Bradley Compact Logix Series. Ethernet communication will be AB TCP/IP protocol.

11. Any radiological contaminants, metals, organics, and oxyanions that are removed by the IX unit and ultimately released into the brine waste are assumed to be disposable into the waste brine tanks and are the responsibility of others.

12. The proposed unit is a modern-day equivalent of the existing SimPACK. Although the physical configuration of the unit is different, the unit will have the same general process and functionality as the existing unit.

13. The proposed system will consist of two independent trains housed inside one equipment enclosure to provide the same redundancy the current system provides.

14. The scope includes only a replacement tank for the briners. Any existing ancillary equipment such as the salt fill tube, dust bag and duct, drain valves, level senor, anchors, or ladders shall be carefully removed for reuse on the new tanks by the installer. The installer is also responsible for any repair or modification, if needed, to mate the ancillaries to the new tank.

15. Replacement tanks are expected to be of the same size and shape as the existing tanks. No new seismic calculation or certification are included this scope.

16. No waste tanks are included in this scope. It is assumed the existing waste tanks are in good condition and can be reused with the new MinX System.

17. No Brine Pumps and Brine Filters are included in this scope. It is assumed the existing brine pump and filters are in good condition and can be reused with the new MinX System. #24..
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3.6 DISPOSAL OF CONTAINER AND RESIN
Envirogen will coordinate the removal of the spent resin from the existing vessels for disposal, as well as the existing container and its contents from the site.

Disposal of the resin will consist of removal of the by an Envirogen technician at site. Prior to removal the resin will be tested to confirm it non-hazardous and suitable for disposal. Then, the resin will be removed and placed in dewatering supersacks. The super sacks will be pickedup at the site and moved to the disposal facility.

Disposal of the container will consist of haul away of the container from site and disposal.

Envirogen shall arrange for container for pickup by roll-off service and moved to a facility for disposal.

Clarification for Disposal Services:
• Resin removal is contingent that resin is non-hazardous, and the receiving facility accepts the material. The City must support and allow removal resin must within 10 days of testing. If process is delayed or material is deemed hazardous or unacceptable, a change order will be required.
• All electrical, plumbing, or mechanical connections to the existing container will be disconnected by the City of Modesto.
• The City of Modesto shall position the container to allow removal by roll-truck from site driveway. This shall include lifting or movement of the container on site or removal of fence/gate if required.
• Any permits required for the removal of the container will be the responsibility of the City of Modesto.
• All water inside the unit, used to sluice out resin, can be disposed of on site, to waste tank or drain. No hauling of water is included.

3.7 FIELD AND TECHNICAL SERVICES
This proposal includes the following for Technical Support for assistance during installation, review of installation, and start-up. All services to be provided during normal business hours Monday thru Friday between 7am and 3pm.

Envirogen has included time for One (1) Technician for up to:
• Two (2) trips up to Five (5) days each for a total of up to ten (10) days onsite.

The trips to involve the activities:
• Removal of existing Resin for disposal
• Mechanical installation check‐out
• Supervision of System disinfection (by others)
• Supervision of initial loading of media (by others)
• Start-up support assistance
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Envirogen Technologies Confidential – Trade Secret and Proprietary Information • Operator training, 1 session 4 hours
Any additional services or time, if requested by the Owner or contractor, shall be invoiced based on Envirogen’s published or prevailing rates. Expenses associated with any additional Envirogen labor including travel, will be invoiced at Cost plus 15%.

3.8 CLIENT-FURNISHED ITEMS

1. Coordination of information that may impact Envirogen’s ability to fulfill its obligations as set forth in in this Proposal and attachments.

2. All required permits including any construction or environmental permits.

3. Access to site for visits and walk-downs, including, if required, any site-specific safety training, orientations, or escorts while on site.

4. Any Demolition, Decommissioning, or Refurbishment work required to ready the site for new equipment, unless specifically noted in this proposal.

5. Unloading of Envirogen-supplied Equipment. This shall include any blocking or cribbing for stored materials at the site before being set.

6. On-site space for storage and equipment staging.

7. Site security fencing, lighting, safety, and fire prevention equipment (eyewash, showers, fire extinguishers, etc.).

8. Appropriate office facilities, space to work and restroom facilities for Envirogen or subcontractors during on-site activities.

9. Design and construct a concrete foundation for the supplied equipment to meet API standards and tolerances.

10. Design, supply, and install all field piping, wiring, pipe supports, stairs, catwalks, containment areas, sumps, and drains for the equipment area.

11. Installation of the Envirogen supplied components or other free issued materials for field assembly. Including loading of media

12. Design, supply, and Installation of interconnecting piping and electrical to complete connections to and from the individual equipment limits.

13. Supply and connection of electrical power feed, single phase 230 volt and single phase 120- volt systems as required.

14. Designated area for equipment installation

15. Supply and addition of Salt to Briner or other chemicals for start-up and post start-up operations.

16. Piping insulation or freeze protection, or personnel protection where required.

17. All required lubricants, including the first fill of all equipment covered in this Proposal.

18. Supply and disposal of clean water for on-site hydro and functional testing.

19. Installation contractor to supply labor for electrical and mechanical punch list items discovered during dry &wet shakedown or performance testing.

20. Connection and integration to Plant SCADA or RTU system.

21. Performance testing equipment rental and any analytical services (onsite or Third Party).

22. Labor, chemical and service to disinfector per local requirements upon checkout of system and prior to loading of media

23. Prepare, submit and obtain necessary permitting of system prior to performance testing. #24..
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24. Provide flow-to-waste capability and disposal of water, chemical and other waste produced during start-up, testing and demonstration of the treatment system.

25. Provide all necessary well pump controls for staging, sequencing, blending controls and interface with MinX unit.

26. Provide necessary piping, valves and equipment to limit feed pressure to less than 150 psi and to protect the MinX unit from damage as the result of over-pressurization, surge and water hammer.

27. Provide necessary equipment to maintain a minimum of 35 psi backpressure on the discharge side of the MinX unit.

28. Characterize waste profile of generated brine.

29. Provide influent feed water flow meter to the IX treatment unit.

30. Ongoing service agreement for cellular modem connection with client chosen provider.

31. Flood Abatement measures.

32. Anything not explicitly detailed in our offer.

4.0 PRICING

4.1 ION EXCHANGE SYSTEM EQUIPMENT
The pricing for the Scope of Work and Equipment provided in Section 3.0 is:

Dual MinX Ion Exchange System and Removal of Existing Resin/Container.... $1,509,407.00

4.2 COMMERCIAL CONSIDERATIONS
• This proposal is valid for 30 days from date of proposal. • Any associated sales taxes, fees, permits, etc., shall be the responsibility of the client. • Payment Milestones provided as shown in Table 3.
• Payments are NET 30 from the date of invoice issuance. • Shipping is Delivered-at-Place (DAP) Modesto, CA.
• Envirogen Standard Terms and Conditions (ETIGC #2121118, Appendix A) must be part of any issued purchase order.
• Due to volatility with supply chain all pricing and lead times are subject to change.

Once under contract, cost of equipment will be subject to general escalation clause requirements as noted in Section 4.3.
• This Proposal/Offer and its appendices must be attached to or incorporated by reference in any purchase order.
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Envirogen Technologies Confidential – Trade Secret and Proprietary Information Table 3 – Payment Milestones
Milestone # Event
Percent of
Contract Value
1 Upon Execution of Purchase Order or Contract 15%
2 Upon Submittal of the Project-Specific Drawings
Submittals will occur in stages and will be invoiced as 1) Process Submittal – 10%
2) Mechanical Submittal – 10%
3) Electrical Submittal – 10%
One invoice will be submitted as each submittal occurs. 30%
3 Upon the Issuance of Major Equipment Purchase Orders
This milestone shall be invoiced upon presentation of unpriced copies of Envirogen’s Purchase orders for major Components (Container, Vessels, Controls Panels and Resin).

Multiple invoices potentially issued for this milestone. 30%
4 Upon the Notification to Ship Equipment
This milestone shall be invoiced Upon the earlier of (i) Shipment of the Equipment or (ii) 30 calendar days following the date buyer is notified the equipment is ready to ship.

This invoice may be prorated based on the equipment shipped or available to ship.
20%
5 Upon Commissioning of System1
This milestone shall be invoiced upon the earlier of (i) successful commissioning/start-up of the system, or (ii) 60 calendar days following the installation of the equipment, or (iii) 120 calendar days following the date that Envirogen provides notice that the major equipment was ready to ship. 5%
1 Successful commissioning of the MinX system is defined as full design flow through the system and attainment of full treatment as expected by the system. Full flow for the base system is 300 gpm/train (or whatever can be supplied from the site extraction process if less than 300 gpm/train is attainable), and full treatment is defined as reducing the treated water across the MinX system itself to the effluent contaminant concentration levels provided in Table 1a at the supplied flow rate. This level of treatment is contingent on the specific influent contaminant concentrations being less than or equal to the values shown in Tables 1a/b of this proposal. In the event the feed water provided to the treatment system is outside of these flow and contaminant specifications during the commissioning period, the start-up will be deemed successful, with the treatment considered satisfied. #24..
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4.3 ESCALATION CONCERNS & CLAUSE
Due to the current market volatility, at any time before client release for fabrication, the price of materials significantly increases, through no fault of Envirogen, the price (for the Ion Exchange System) shall be equitably adjusted by an amount reasonable and necessary to cover such increase. As used herein, a significant price increase shall mean any increase in price equal to or exceeding 3% experienced by Envirogen from the date of this proposal.

Escalation of Envirogen's price shall apply in the event of an increase in prices of metals, metal products, PVC products and Fiberglass Reinforced products as measured by the following indices:

1. Index: PPI Commodity data for Metals and metal products-Hot rolled steel bars, plates, and structural shapes, not seasonally adjusted.

Issuer: Bureau of Labor Statistics / United States Department of Labor.

Series ID: WPU101704
http://data.bls.gov/timeseries/wpu101704

2. Index: PPI Commodity data for Plastics Material and Resins Manufacturing, not seasonally adjusted.

Issuer: Bureau of Labor Statistics / United States Department of Labor.

Series ID: PCU
https://data.bls.gov/timeseries/PCU325211325211
Envirogen’s price shall be adjusted upward, if there is an increase in price equal to or exceeding 3% and the increase shall be measured using the formula and indices from the base date of this proposal. The increase shall be calculated as:
((PO Value *.85*%Metals) * (Metals IndexPO-Metals IndexProp)/Metals IndexProp) + ((PO Value * .85* %Plastic) * (Plastics IndexPO-Plastics IndexProp)/Plastics IndexProp)))+ PO value Where:
• Metals Indexpo is the Metals index value for the month of release of purchase orders to suppliers.
• Metals IndexProp is the Metals index value for the month of this proposal. • % Metals is equal to 12%
• Plastics Indexpo is the Plastics index value for the month of release of purchase orders to suppliers.
• Plastics IndexProp is the Plastics index value for the month of this proposal. • % Plastic is equal to 17%
No upward adjustment shall apply to supplies or services that are required to be delivered or performed before the effective date of the adjustment, unless Envirogen’s failure to deliver or perform according to the delivery schedule results from causes beyond Envirogen’s control and without its fault or negligence, within the meaning of the Default clause. #24..
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Envirogen Technologies Confidential – Trade Secret and Proprietary Information The aggregate of the increases to the contract price made under this clause shall not exceed 10 percent of the original price.

5.0 SCHEDULE
Envirogen will engineer and submit required drawings as shown in Table 4 below.

Table 4- Estimated Schedule
Task Milestone Estimated Dates
Submittal of Engineering Drawing 6 weeks After Receipt of Order Client Review Period 2 Weeks (10 days) After Submittal
Notice of “Ready” to Ship 24-40 Weeks after Submittal Approval Completion of Site Testing / Commissioning 1 Week
While drawings are issued for approval, they are intended for informational purposes only.

All drawings will remain the property of Envirogen and may not be used by others for fabrication.

Submittal documentation shall be provided electronically in PDF including the operations and maintenance documentation.

Any request by Client to either accelerate or delay a deliverable date described above for any reason other than an event of force majeure, shall require a mutually acceptable change order pursuant to Section 12.5 of Envirogen’s General Conditions attached as Appendix A. Such change order shall include the new schedule of deliverable due date(s) and any price adjustment occasioned by the change in schedule.
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APPENDIX A

GENERAL CONDITIONS FOR THE SALE OF PRODUCTS AND SERVICES BY ENVIROGEN TECHNOLOGIES, INC. (ETIGC #221118)
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GENERAL CONDITIONS FOR THE SALE
OF PRODUCTS AND SERVICES BY ENVIROGEN TECHNOLOGIES, INC.

ETIGC #221118
The following General Conditions are and shall be an integral part of any Order to which these terms and conditions are attached and/or referenced. In no event shall any term or condition attached to or made part of any purchase order or other contract document issued by Purchaser, or any shipping document or other document associated with the services or Products described in the Order to which these General Conditions apply have any controlling effect whatsoever unless specifically adopted in writing by an authorized representative of both Envirogen Technologies, Inc. (“Envirogen”) and Purchaser.

1. Definitions. Throughout these General Conditions or any Order or other document to which they apply, the following words and phrases, when printed with the initial letter capitalized (unless shown below without capitalization), shall have the meanings ascribed to them below, unless the context requires otherwise:
“Cost” shall mean all expenses incurred by Envirogen for materials, supplies, energy, regulatory permitting, labor, outside contractors and professionals, transportation, supervision, excise, sales and similar taxes. For all purchases of materials, supplies and services, “Costs” shall include an additional ten percent (10%) of the direct expense to reimburse Envirogen for purchasing and accounting activities. Labor charges for Envirogen’s personnel will be at rates shown in any Order or attachment, exhibit or schedule incorporated therein. In the absence of any such specification of rate(s), labor charges for Envirogen’s personnel will be at the individual’s hourly wage rate (or equivalent) plus forty percent (40%) for employee and group benefits and employee taxes. “Purchaser” shall mean the person or entity purchasing Products or services from Envirogen. “Day” or “day” shall mean a calendar day unless otherwise indicated. “Party” or “Parties” shall mean either Envirogen or Purchaser or both. “Products” shall mean products, equipment, parts, goods, media or materials meeting the description or specifications set forth in the Order.
“Order” shall mean any purchase order, work order, change order, letter agreement or similar contract document issued by Purchaser and accepted in writing by Envirogen or issued by Envirogen and accepted in writing by Purchaser which either references or attaches these General Conditions and/or all attachments, amendments or any ancillary documents to any such contract document.
“Owner” shall mean the ultimate end user of the Product or service where the end user if not the Purchaser. Normally this would occur where the Purchaser is a prime contractor and Envirogen is a subcontractor.
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Envirogen Technologies Confidential – Trade Secret and Proprietary Information In addition to the definitions set forth above, embedded within these General Conditions or any Order, there may be additional defined terms which are designated as such in a parenthetical and highlighted with quotation marks.

2. Cooperation of Purchaser. To assist Envirogen in providing Products and/or performing services, Purchaser shall (i) provide Envirogen with all relevant material, data, and information in its possession pertaining to the specific project or activity, (ii) consult with Envirogen when requested, (iii) permit Envirogen reasonable access to relevant Purchaser or Owner controlled sites, (iv) ensure reasonable cooperation of Purchaser’s employees and the Owner, and (v) unless a longer period is provided for in the Order, return all drawings or other documents submitted by Envirogen to Purchaser for review, comment and/or approval within a commercially reasonable time following submission not to exceed ten (10) business days. Any failure to return documents within the time prescribed shall be considered a waiver by Purchaser of its right to review and approve or comment on the documents.

3. Price, Costs and Payments.

3.1 Unless otherwise stated therein, the price(s) and charges for Products and/or services specified in any Order are exclusive of any sales, use, value added, excise, gross receipts, business and occupation or similar present or future taxes imposed by any governmental entity on the sale, delivery, use or other handling of the Product or service or in connection with any transactions contemplated by the Order to which these General Conditions apply. If any such taxes are incurred by Envirogen, Purchaser shall reimburse Envirogen the amount of such taxes.

3.2 Whenever rates or prices in any Order include transportation or when transportation is charged separately by Envirogen, such rates, prices or charges shall be exclusive of (i) material increases in the cost of transportation occasioned by significant increases in the costs of fuel or weather, road or access conditions which could not have been reasonably anticipated in advances of pricing the cost of transportation or (ii) any extraordinary or excess demurrage charges incurred by Envirogen from third party carriers which arise from delays or demurrage at the delivery point. Demurrage will be charged to Purchaser except to the extent such demurrage primarily results from the negligence or other fault on the part of Envirogen or its carrier.

3.3 Unless otherwise specifically indicated in the Order, all prices (or other values) in the Order are stated in U.S. dollars and all payments are to be made in U.S. dollars.

3.4 Invoices may be provided to Purchaser, at the option of Envirogen, by mail, delivery service, electronic mail or fax and payments by Purchaser shall, at the election of Envirogen, be made by mail, overnight delivery service or electronic funds transfer. Purchaser shall provide Envirogen with contact information for delivery of invoices. Invoices shall be due and payable within thirty (30) days of receipt by Purchaser of the invoice. TIME IS OF THE ESSENCE for payment of all fees and charges. Interest on delinquent payments shall accrue until paid at the greater rate of (i) twelve percent (12%) per annum or (ii) the prime interest rate as quoted by the Wall Street Journal plus 500 basis points (adjusted on the first day of each calendar quarter.) In the event that the interest rate described above exceeds the maximum interest rate chargeable under law for such transactions, such maximum legal rate shall apply.

3.5 Should any portion of an Envirogen invoice be disputed by Purchaser, Purchaser will pay the #24..
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Envirogen Technologies Confidential – Trade Secret and Proprietary Information undisputed portion and within the payment period prescribed above shall provide Envirogen with written notice of the disputed portion of the invoice and the reasons for the dispute. In no event shall Purchaser withhold payment of any undisputed portion of a Envirogen invoice based on the set-off of a Purchaser claim against Envirogen or as a back-charge for monies claimed to be owed Purchaser by Envirogen. At the request of Purchaser, Envirogen shall provide Purchaser with a written partial release of statutory liens utilizing Envirogen’s standard form which shall be conditioned on actual receipt of payment of a particular invoice.

3.6 Envirogen may, from time to time, establish such credit terms as it shall, in the sole judgment of Envirogen, deem reasonably necessary, including, but not limited to, credit limits.

3.7 In the event that Envirogen should incur Costs, including, but not limited to, attorney’s fees and collection agency fees, to collect overdue invoices and accounts, Purchaser shall reimburse Envirogen for all such reasonable Costs whether or not litigation has been initiated to collect the overdue account.

3.8 When fees or charges are based in whole or in part on a reimbursement by Purchaser of Envirogen’s actual costs, with or without a mark-up, such costs shall be determined at the time of invoicing whether or not the cost has already been paid by Envirogen or has, as of that time, accrued as an expense for purposes of accounting. Any future rebate or credit to Envirogen which may be associated either directly or indirectly with the cost or expense, shall not give rise to a similar rebate or credit from Envirogen to Purchaser.

4. Delivery and Risk of Loss.

4.1 Except as otherwise set forth in the Order, delivery of Product shall be DAP work/installation site (Incoterms 2010).

4.2 Except as otherwise set forth in the Order, Purchaser agrees to take delivery of Product upon notice from Envirogen that the Product is ready for delivery. If for any reason Purchaser is either unable or unwilling to accept delivery, Purchaser shall be responsible to pay or reimburse Envirogen for all additional Costs incurred for storage, insurance and/or transportation.

4.3 Title to and risk of loss with respect to Products shall pass from Envirogen to Purchaser at the time the Product is delivered to Purchaser. Product shall be deemed to be delivered when the Product has been loaded to Purchaser’s carrier or if delivered by Envirogen to Purchaser’s or Owner’s work site, upon arrival at the work site. (See Section 4.1) Offloading from the Envirogen carrier is the responsibility of Purchaser. Damages to the Product incurred during offloading shall be the responsibility of Purchaser. To qualify for a credit, any shortage or damages (other than those incurred after delivery DAP) to the Product shall be reported in writing to Envirogen by Purchaser within five (5) business days of the date of delivery of the Product.

5. Force Majeure. If Envirogen is rendered unable to perform its obligations under the Order by an event beyond the reasonable control of Envirogen, Envirogen shall not be liable to Purchaser for failure or delay in such performance to the extent that the failure or delay is due to such force majeure event. Force majeure events shall include, but shall not be limited to, war (whether declared or undeclared), fire, flood, lightning, earthquake, hurricane, storm or any other act of God; strikes, lockouts or other labor difficulties; civil disturbances, riots, sabotage, accident not involving fault on the part of Envirogen or explosion; inability to secure necessary fuel, power, #24..
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Envirogen Technologies Confidential – Trade Secret and Proprietary Information equipment, transportation or raw materials and/or any other reason beyond the reasonable control of Envirogen.

6. Supervening Event. ‘Supervening Event’ is defined as an event or circumstance beyond Envirogen’s control that could not reasonably have been provided against before entering into the Purchase Order, which, having arisen, could not reasonably have been avoided or overcome, and which is not substantially attributable to the fault of Purchaser. A Supervening Event may include, but is not limited to exceptional events or circumstances of the following kind:
6A. Civil commotion, civil disobedience or dissent, riot, theft, vandalism or civil commotion or any declared State of Emergency, third-party protest
6B. Blockade or embargo, industrial action, or other labor-related disputes, strike, or lockout by persons other than Envirogen's personnel and other employees of Envirogen and Envirogen’s subcontractors;
6C. Munitions of war, explosive materials, ionizing radiation, or contamination by radioactivity, except as may be attributable to the Envirogen's use of such munitions, explosives, radiation, or radioactivity;
6D. Commercial impracticability, irreparable disruption of the economy or solvency of the agreement that is no fault of Envirogen;
6E. Governmental acts or omissions, changes in laws or regulations, failure of any utility supplier or governmental authority;
6F. Epidemic, pandemic, mandatory quarantine as declared by local governmental authority; 6G. Generalized lack of availability of materials or critical components or equipment within the local market;
This offer is predicated on the Parties acknowledging that the war in Ukraine and the COVID-19 pandemic are currently causing global disruption. While neither party is aware of any current cause that would prevent or delay Envirogen in its contract performance, it is understood that both Parties acknowledge that a Supervening Event could arise because of future impacts of these events.

Envirogen is neither responsible nor liable for any failure, hindrance, or delay in performing any obligation due to any ‘supervening or exceptional event’ beyond its reasonable control. If such an event occurs, Envirogen will work collaboratively with the Purchaser and take reasonable steps to meet contractual obligations and other associated provisions or find alternative solutions acceptable to the relevant counterparties. If Envirogen is prevented from performing any of his obligations under the Purchase Order due to a supervening event and suffers delay and/or incurs cost because of such event, in that case, Envirogen shall be entitled to an extension of time for any such delay (if completion is or will be delayed) and additional compensation associated with the event, which will be collaboratively and transparently agreed with Purchaser as soon as such an event materializes

7. Warranties. The following warranties are in addition to any other warranties specifically set forth in the Order:
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7.1 Products. Envirogen warrants to Purchaser that (i) Envirogen will have title to all Products delivered to Purchaser, free and clear of all liens, encumbrances and security interests, and (ii) that all Product will conform at the time of delivery to the written mechanical product description and/or specifications set forth or otherwise referenced in the Order. In the event of a failure by Envirogen to materially meet the terms of the warranty set forth in this Subsection 7.1, Envirogen, at its own expense, shall remove the defective, non-conforming product and replace it with a like quantity of conforming Product meeting the description or specifications.

7.2 Equipment, Parts and Goods. Except as otherwise provided for in the Order, Envirogen warrants as follows:

A. Equipment and systems which are the subject of the Order shall, when constructed, installed, used, maintained and operated in strict compliance with the plans, specifications and instructions of Envirogen, meet the performance criteria specifically set forth in the Order during the performance testing period described therein.

B. At the time of delivery, equipment and parts will be free from any and all material defects which would reasonably interfere with their use by Purchaser. In the event such defect is reported to Envirogen within twelve (12) months from date of installation of the equipment or part or within fourteen (14) months following delivery by Envirogen, whichever comes first, Envirogen will repair or replace the defective component without charge.

7.3 Services. Envirogen warrants as follows:

A. In providing services under the Order, Envirogen will comply with all federal, state and local laws.

B. The services to be provided by Envirogen shall be performed utilizing the same generally accepted standards of due diligence, skill, reasonable care and safety ordinarily employed by service providers similarly situated in the same geographic region and at the same time.

C. All Envirogen personnel engaged in providing the services pursuant to the Order (i) shall be appropriately supervised by qualified persons in Envirogen’s employ, (ii) shall be appropriately skilled to perform the work to which they are assigned, and (iii) shall have met appropriate licensing and certification requirements of the state in which the service are to be provided.

7.4 Media and Resins. Unless otherwise set forth in the Order, Envirogen warrants that media supplied by Envirogen meets or exceeds Envirogen’s specifications for the media and manufacturer’s specifications for the media at the time of shipment.

7.5 Patents. Envirogen warrants that neither its Products nor its services shall infringe upon any patent(s) or copyright(s), or misappropriate or misuse trade secret(s) or other confidential information unless such Product or service is provided in compliance with Purchaser provided specifications. In the event of a default under this patent and intellectual property warranty, upon notice of the default by Purchaser, Envirogen shall obtain on behalf of Purchaser such releases, licenses or other appropriate authorizations as shall be necessary to prevent the infringement.

7.6 ENVIROGEN MAKES NO WARRANTY, EXPRESSED OR IMPLIED, PURSUANT TO THESE

GENERAL CONDITIONS, THE ORDER OR OTHERWISE OTHER THAN AS IS SPECIFICALLY SET FORTH IN THIS WARRANTIES PARAGRAPH AND THE ORDER AND NONE SHALL BE IMPLIED. THE #24..
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Envirogen Technologies Confidential – Trade Secret and Proprietary Information

WARRANTIES AND ANY REMEDIES SET FORTH IN THIS WARRANTIES PARAGRAPH AND/OR THE ORDER ARE EXCLUSIVE. THE WARRANTIES ARE GIVEN AND ACCEPTED BY PURCHASER IN LIEU

OF ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESSED OR IMPLIED, INCLUDING

WITHOUT LIMITATION ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A

PARTICULAR PURPOSE, ALL SUCH WARRANTIES BEING HEREBY EXPRESSLY DISCLAIMED BY ENVIROGEN AND WAIVED BY PURCHASER. ANY REMEDIES PROVIDED FOR IN THIS

WARRANTIES PARAGRAPH AND OR THE ORDER ARE IN LIEU OF ALL OTHER REMEDIES AT LAW OR IN EQUITY FOR BREACH OF A WARRANTY.

7.7 Purchaser may assign Envirogen’s warranty obligations to the Owner without the consent of Envirogen and shall provide Envirogen with written notice of such an assignment.

8. Indemnification.

8.1 Each Party hereby agrees to defend, indemnify and hold the other Party and their respective partners, affiliates and subsidiaries, and their respective directors, officers, partners, members, employees and agents (collectively “Indemnified Parties”), harmless from and against any and all claims, liabilities, suits, proceedings, judgments, orders, fines, penalties, damages, losses, Costs and expenses (including, without limitation, costs of defense, settlement and reasonable attorneys’ fees and expenses) (all of the foregoing herein collectively called “Liabilities”), arising out of (i) the indemnifying Party’s negligence or willful misconduct; and, (ii) failure of the indemnifying Party or any of its employees or agents to observe or comply with any of the indemnifying Party’s duties or obligations under these General Conditions or the Order, including, without limiting the generality of the foregoing, any failure to observe or comply with any applicable laws, ordinances, codes, orders, rules or regulations; violation or breach of any provision in these General Conditions or the Order including, but not limited to, any warranty for which a remedy is not specified. The foregoing obligations of indemnity will include, but not be limited to, any and all Liabilities for or relating to (i) injury to or death of any person (including, without limitation, employees or agents of the Parties), (ii) damage to or loss or destruction of any property (including, without limitation, property of the Parties, or their respective employees or agents), and (iii) any spill, release or leak of any hazardous substance or waste or any contamination of, injury or damage to or adverse effect on the environment. The indemnifying Party shall be liable, however, only for that percentage of total Liabilities that corresponds to the indemnifying Party’s percentage of total negligence or fault as compared to that of the indemnified Party.

8.2 Neither Party shall have any liability to the other Party for any indirect, incidental, aggravated, exemplary, punitive, or consequential damages incurred by the other Party, whether brought on an action for breach of contract, breach of warranty, tort, strict liability, or otherwise and irrespective of whether caused or allegedly caused by either Party’s negligence or willful misconduct and none shall be awarded by any tribunal against a Party hereto in favor of a Party hereto; provided, however, that the limitations on liability contained in this Section 7.2 shall not apply to damages which are part of a third party claim for which a Party is claiming an indemnity obligation under this agreement from the other Party and the Party entitled to indemnity protection under this agreement is seeking an indemnity or other relief against the payment of such damages from the Party required to provide such indemnity or other relief. Anything in the #24..
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Envirogen Technologies Confidential – Trade Secret and Proprietary Information Order or these General Conditions notwithstanding, any liability of Envirogen under the Order shall not exceed in the cumulative aggregate, the lesser of the total fee or charges invoiced under the Order or $1,000,000.

9. Confidential Information.

9.1 Purchaser agrees that all information related to Envirogen’s systems, services, Products, methods, procedures, techniques, and equipment (“Confidential Information”) is and shall remain Envirogen’s exclusive proprietary and confidential information, know-how and property.

Purchaser agrees to use Confidential Information solely for the purposes set forth in the Order.

Purchaser agrees to keep Confidential Information confidential in accordance with the provisions of Section 8.2, and Purchaser shall not disclose, use or exploit for its benefit or the benefit of any third party Confidential Information other than in furtherance of the purpose of the Order.

Purchaser shall not reverse engineer, disassemble, chemically or biologically analyze or decompile any Product or other tangible objects which embody Envirogen’s Confidential Information.

9.2 Disclosure of Confidential Information may be in tangible form, by electronic media, by visual display or inspection or it may be provided orally. Confidential Information need not be marked “confidential”, “secret” or the like. Purchaser shall not use or disclose Confidential Information for any purpose other than as specified in the Order. Purchaser will use at least the same degree of care to avoid disclosure or unauthorized use of Confidential Information as Purchaser uses with respect to its own confidential information, but in no event less than a reasonable standard of care. Purchaser shall require in writing that the Owner agree to be contractually bound to Envirogen by the provisions of this Section 7.2. Envirogen may seek injunctive relief to enforce its rights under this Section without any requirement of proving irreparable injury. Confidential Information does not include the following: (a) information which prior to receipt by Purchaser was either generally available to the public or in Purchaser `s possession free of any restrictions on its use or disclosure from a source other than Envirogen; or (b) information which after the receipt thereof by the Purchaser either becomes available to the public through no fault of Purchaser or is acquired by Purchaser from a third party who has the legal right to transfer the information to Purchaser; or (c) information required to be disclosed by Purchaser pursuant to law but only after reasonable notice of the requirement of disclosure is provided to Envirogen.

10. Termination for Convenience. If the Order provides that the Purchaser may terminate the Order for its convenience and without cause, such termination shall be accomplished by written notice from the Purchaser to Envirogen. Upon such a termination for convenience, Purchaser shall pay Envirogen (i) for all Products and services delivered prior to the date of termination, and (ii) any and all Costs incurred by Envirogen prior the date of Termination incurred by Envirogen in the engineering, design, production, acquisition, transportation or otherwise for any Product or service as yet undelivered plus a mark-up of 25% and (iii) all reasonable Costs associated with the demobilization of Envirogen following the termination.

11. Insurance. If the services and/or the delivery of the Products require Envirogen or its contractors or carriers to enter on to any property owned or occupied by Purchaser, then Envirogen shall procure and maintain the following insurance coverages:
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Envirogen Technologies Confidential – Trade Secret and Proprietary Information Coverage Policy Limits
Workers’ Compensation Statutory
Employer’s Liability Insurance $1,000,000 per accident or disease Commercial General Liability $1,000,000 per occurrence and including contractual liability; and $1,000,000 in the
aggregate
Automobile Liability Policy $1,000,000 per occurrence (including owned, non-owned, and hired vehicles) non-owned, and
hired vehicles)
All such policies shall name Purchaser and Owner as an additional insured as respects liability arising from work or operations performed by or on behalf of Envirogen (excluding the workers’ compensation policy). Envirogen shall promptly furnish Purchaser with certificates of insurance evidencing the required insurance coverage.

12. Miscellaneous Provisions.

12.1 For all purposes of the Order, Envirogen is and shall remain an independent contractor.

There are no intended third party beneficiaries to these General Conditions or the Order and nothing in this Contract will entitle any person other than Envirogen or Purchaser to any claim, cause of action, remedy or right of any kind under the Order.

12.2 Purchaser agrees that during the term of the Order and for a period of twelve (12) months thereafter, Purchaser will not, directly or indirectly, solicit, request or otherwise induce any Envirogen employee or personnel to terminate his or her employment with Envirogen if such employee has been materially engaged in providing Product or services to Purchaser under the Order. Nothing herein shall be construed to prohibit the hiring of Envirogen employees who have responded without any direct inducement by Purchaser to publically available employment advertisements by Purchaser.

12.3 Those provisions of these General Conditions or the Order which by their nature are intended to survive the termination, cancellation, completion or expiration of these general conditions or the Order to which they apply shall continue as valid and enforceable obligations of the Parties, notwithstanding any such termination, cancellation, completion or expiration. Such provisions include, but are not limited to, provisions concerning warranties, indemnifications and confidentiality.

12.4 The validity, interpretation and performance of these General Conditions shall be governed exclusively in accordance with and by the laws of the State of Texas, save and except those Texas laws governing choice of laws which would result in the choice of a law or laws of another jurisdiction.
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Envirogen Technologies Confidential – Trade Secret and Proprietary Information

12.5 In the event of any dispute between the parties arising under these General Conditions or the Order, the parties agree that (i) the civil courts in and for the County of Montgomery, State of Texas, shall have exclusive jurisdiction and venue to determine such dispute(s) and each party hereby waives any objection to such jurisdiction and venue in any such court and any claim that such forum is an inconvenient forum and (ii) the prevailing Party shall be awarded its costs of suit, including reasonable attorney's fees.

12.6 The Order and these General Conditions set forth the entire agreement of the Parties regarding the services and Products described in the Order and supersede all prior discussions and agreements of the Parties, whether written or verbal other than prior confidentiality or nondisclosure agreements between Purchaser and Envirogen. The Order and these General Conditions may not be modified, amended, rescinded, canceled or waived in whole or in part by amendment or change order, except by written instrument, signed by both Parties, which makes specific reference to the Order and which specifies that the Order or these General Conditions are being amended, modified or otherwise altered. All change orders shall make specific reference to the Order and shall be signed by both Parties. All change orders shall indicate any modifications or amendment to the pricing or delivery schedule resulting from the change in scope. Any request by Purchaser to either accelerate or delay a deliverable date described in the Order for any reason shall require a mutually acceptable change order pursuant to this Section.

Such change order shall include the new schedule of deliverable due date(s) and any price adjustment occasioned by the change in schedule.

12.7 Any waiver by either Party of any provision or condition of the Order or these General Conditions shall not be construed or deemed to be a waiver of any other provision or condition of the Order or these General Conditions, nor a waiver of any subsequent breach of the same provision or condition.

12.8 If any section, subsection, paragraph, clause or sentence of the Order or these General Conditions shall be adjudged illegal, invalid or unenforceable, such event shall not affect the legality, validity or enforceability of the remaining portions of the Order and these General Conditions as a whole or any portion thereof.

12.9 The covenants and agreements contained herein shall be binding on and inure to the benefit of the Parties hereto and their respective successors and assigns.

12.10 The Order (or any amendment) may be executed in two or more identical counterparts, each of which shall be deemed to be an original and all of which taken together shall be deemed to constitute the Order when a duly authorized representative of each Party has signed a counterpart. Photographic, facsimiled and scanned copies of such executed counterparts may be used in lieu of the originals for any purpose. #24..
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CITY OF MODESTO

COUNCIL AGENDA REPORT
DATE OF MEETING:

September 12, 2023
Date: August 18, 2023
TO: Mayor and City Council
THROUGH: Joseph P. Lopez, City Manager
FROM: William Wong, Director of Utilities
SUBJECT: Landscaping Agreement for Water Sites
CONTACT: Jeff Daniels, Water Division Manager, [email protected], 209-342-4585 DESCRIPTION:

Consider approving an Agreement with All Season Lawn Landscaping for Landscape Maintenance Services at Water Wells and Tank Sites, for a total amount not to exceed $450,000 over five years. (Funding Source: Water Fund)
STRATEGIC PLAN ELEMENT:

BACKGROUND:

The City of Modesto Utilities Department, Water Division, requires landscape maintenance services for twenty-one (21) City water well sites, nine (9) water tank sites, and one (1) Corporation Yard.

On June 26, 2018, by Resolution 2018-263, Council approved an agreement with All Season Lawn Landscaping (“All Season”) for lawn maintenance and landscaping services at twenty-six existing sites, plus three pending sites and the Northeast Corporation Yard at Litt Road. The estimated annual spending was $38,327 in the first year, with increases in subsequent years due to adding new sites, for a total not to exceed $310,871 over five years.

On April 2, 2019, by Resolution 2019-135, Council approved a First Amendment to the purchasing agreement with All Season, adding new sites and increasing the total to a new amount not to exceed $357,671.

On February 28, 2023, the Purchasing Division issued Invitation For Bids (“IFB”) No.2223-23 for lawn maintenance services for water wells and tanks on the City’s website under commodity codes for landscape architecture, grounds maintenance, mowing, edging plant trimming, tree trimming and pruning services. Prospective bidders were notified online of the bid opportunity, #25..
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City Council, September 12, 2023
Landscaping Agreement for Water Sites

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Modesto City CouncilSeptember 12, 2023

Modesto City Council
September 12, 2023