Agenda packet — Economic Development Committee, November 1, 2023 (part 1 of 3)

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www.modestogov.com
AGENDA
City of Modesto

ECONOMIC DEVELOPMENT COMMITTEE

COUNCIL WORKSHOP
2001-40 Del Puerto Room
Tenth Street Place, 1010 10th Street
Modesto, California
Wednesday, November 01, 2023 at 4:00 PM
Roll Call: Sue Zwahlen, Chair
Chris Ricci, Vice-Chair
Eric Alvarez, Member
Alternates: Nick Bavaro, Rosa Escutia-Braaton, Jeremiah Williams, David Wright Council has not delegated directive or final approval authority to the Committees.

Committee actions are recommendations to the full City Council, not final decisions on an issue. * Public Comment will only be in-person. Members of the public who wish to address the Committee, by providing public comment, during the meeting must do so in-person in the 2001-40 Del Puerto Room. As an alternative, members of the public may also provide written public comment submitted via email as indicated in the Submitting Comments by Email instructions on this agenda. Zoom will still be available for viewing and Wordly translation. *Members of the public will be allowed to provide public comment through Zoom if a Committee Member is participating remotely pursuant to the provisions of Assembly Bill 2449. *Effective March 1, 2023, if a technical issue arises with Zoom or the phone dial-in option, the Committee meeting will continue unless the meeting is being held pursuant to the provisions of Assembly Bill 2449. Alternative viewing options are listed below, and the meeting is physically open to the public.
“Wordly” can translate into 25+ different languages! To access written translation during the meeting, please scan the QR Code or click this link https://attend.wordly.ai/join/RJDY-6364.
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"Wordly" puede traducir a más de 25 idiomas diferentes! Para acceder a la traducción durante la reunión, por favor escanee el código QR o haga clic en el enlace https://attend.wordly.ai/join/RJDY-6364.

You may observe a livestream of the meeting at http://media.modestogov.com. You may also view or listen to the meeting as indicated below.

THE MEETING CAN BE VIEWED BY ZOOM VIDEO

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

Joining the Committee meeting via Telephone
If you don’t have a smart phone or computer to access the meeting via Zoom, you can listen by phone, by calling 1-877-853-5257 (Toll Free) or 1-888-475-4499 (Toll Free) and enter the Webinar ID 869 4597 0570 Passcode 84326

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

SUBMITTING COMMENTS BY E-MAIL
Written comments may be submitted via email to: [email protected] (include Agenda Item Number in the subject line). All comments will be shared with the Committee - 2 -
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Members and placed in the record but will not be read aloud during the meeting. Written comments must be received two hours before the meeting.

This Agenda is on file in the City Clerk’s Office, Sixth Floor, 10th Street Place, Posting Board at entry of 10th Street Place, and is available on the City’s Web site at www.modestogov.com.

Materials related to an item on this Agenda submitted to the Council after distribution of the agenda packet are available for public inspection in the Clerk’s office during normal business hours. Such documents are also available online, subject to staff’s ability to post the documents before the meeting, at the following website www.modestogov.com/councilmeetings In accordance with the requirements of Title II of the Americans with Disabilities Act (“ADA”) of 1990, the Fair Employment & Housing Act (“FEHA”), the Rehabilitation Act of 1973 (as amended), Government Code section 11135 and other applicable codes, the City of Modesto (“City”) will not discriminate against individuals on the basis of disability in the City’s services, programs, or activities. For more information, please visit the City of Modesto website at https://www.modestogov.com/865/Americans-with-Disabilities-Act-ADA In compliance with the Americans with Disabilities Act, if you need special assistance to participate in this meeting, please contact the City Clerk (209) 577-5396. Notification 48 hours prior to the meeting will enable the City to make reasonable arrangements to ensure accessibility to this meeting
CONSENT ITEMS - ROLL CALL VOTE REQUIRED:

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

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

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

Consent

1. Consider a ten-year Lease Agreement between John A. Paoluccio and Dorene J.

Paoluccio, property owners, and the City of Modesto, to lease approximately 5,325 square feet located at 4701 Quinturn Lane, Modesto (APN 078-013-031) for an amount of $1,681.24 for the 2024 payment, with a cost-of-living increase of three percent (3%) each year for ten years and forwarding to Council for approval. (Funding Source:

Community Facilities District No. 2002-1 NorthPointe)
 Motion recommending a ten-year Lease Agreement between John A. Paoluccio and Dorene J. Paoluccio, property owners, and the City of Modesto, to lease approximately 5,325 square feet located at 4701 Quinturn Lane, Modesto (APN - 3 -
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078-013-031) for an amount of $1,681.24 for the 2024 payment, with a cost-ofliving increase of three percent (3%) each year for ten years and forwarding to Council for approval.

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

2. Consider an Agreement for Material Hauling Services with Sekhon and Son Trucking, Inc. of Modesto, CA and California Materials of Stockton, CA for a total amount not to exceed $2,375,000 over five years and forwarding to Council for approval. (Funding Source: Green Waste, Storm Drain, Surface Transportation, Wastewater and Water Funds)
 Motion recommending the Award of Bid and Agreement for Material Hauling Services to Sekhon and Son Trucking, Inc. of Modesto, CA and California Materials, Inc. of Stockton, CA for a two (2) year agreement with three (3) oneyear extension options, for an annual estimated amount of $475,000 and a total amount not to exceed $2,375,000 over five years and forwarding to Council for approval.

UTILITIES; Manuel Martinez, 209-342-4592, [email protected] Consent

3. Consider an Agreement with Olea Networks, Inc., Bee Cave, TX for Large Commercial Water Meter Health Analytic Software and Technology for a total cost not to exceed $1,500,000 over five years, and forwarding to Council for approval. (Funding Source: Water Fund)
 Motion recommending an Agreement with Olea Networks Inc., Bee Cave, TX, for Large Commercial Water Meter Health Analytic Software and Technology for a two-year Agreement with three one-year extension options, for an annual estimated amount of $340,000 and a total amount not to exceed $1,500,000 over five years and forwarding to Council for approval.

UTILITIES; Manuel Martinez, 209-342-4592, [email protected]

NEW BUSINESS

4. Consider an Ordinance amending Section 11-6.05 “Charges for Metered Water Service,” of Chapter 6, “Collection of Public Utilities Charges,” of Title 11, “Public Utilities,” of the Modesto Municipal Code to establish a Water Rate Surcharge for new water connections located outside of the City’s water service area forwarding to Council for Approval. (Funding Source: Water Enterprise Fund)  Motion recommending an Ordinance amending Section 11-6.05 “Charges for Metered Water Service,” of Chapter 6, “Collection of Public Utilities Charges,” of Title 11, “Public Utilities,” of the Modesto Municipal Code to establish a Water Rate Surcharge for new water connections located outside of the City’s water service area and forwarding to council for approval.

CED; Peter Ibrahim, 209-577-5211, [email protected] - 4 -
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5. Consider the annexation of Assessor Parcel Numbers (APNs) 046-007-048, 046-007- 049, 046-007-050 and 046-007-052 totaling approximately 24.62 acres, to City of Modesto Community Facilities District (CFD) No. 2021-1 (Woodglen) and authorizing the levy of special tax on the Properties located within the annexation map and forwarding a recommendation to Council for approval. (Funding Source: Developer Deposit)
 Motion recommending the annexation of Assessor Parcel Numbers (APNS) 046-007-048, 046-007-049, 046-007-050 and 046-007-052, to City of Modesto Community Facilities District (CFD) No. 2021-1 (Woodglen) and authorizing the levy of special tax on the Properties located within the annexation map and forwarding a recommendation to Council for approval.

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

6. Consider an Agreement for Railroad Crossing Quiet Zone Consulting Services with RailPros of Irvine, CA for a total amount not to exceed $304,949 and forwarding to Council for approval. (Funding Source: American Rescue Plan Act Funds)  Motion recommending the Award of Proposal and Agreement for Professional Services to RailPros of Irvine, CA, for a total amount not to exceed $304,949 and forwarding to Council for approval.

CED; Sean Rando, 209-577-5473, [email protected]

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

COMMITTEE AGENDA REPORT
DATE OF MEETING:

November 1, 2023
Date: September 25, 2023
TO: Economic Development Committee
Sue Zwahlen, Chair
Chris Ricci, Vice-Chair
Eric Alvarez, Member
THROUGH: Joseph P. Lopez, City Manager
FROM: Jessica Hill, Director of Community and Economic Development SUBJECT: Paoluccio Lease Agreement for NorthPointe Storm Basin CONTACT: Peter Ibrahim, Infrastructure Financing Program Supervisor [email protected], 209-577-5211
DESCRIPTION:

Consider a ten-year Lease Agreement between John A. Paoluccio and Dorene J. Paoluccio, property owners, and the City of Modesto, to lease approximately 5,325 square feet located at 4701 Quinturn Lane, Modesto (APN 078-013-031) for an amount of $1,681.24 for the 2024 payment, with a cost-of-living increase of three percent (3%) each year for ten years and forwarding to Council for approval. (Funding Source: Community Facilities District No. 2002-1 NorthPointe)
STRATEGIC PLAN ELEMENT:

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

BACKGROUND:

The City of Modesto owns and operates the NorthPointe Storm Drain Basin, which accommodates stormwater runoff from the Costco Shopping Center on Pelandale Avenue.

The City’s Utilities Department has been maintaining the east basin perimeter to mitigate erosion. The erosion is caused by a combination of rodent burros and irrigation. There have been several basin wall collapses during irrigation season, and staff has recommended a buffer area around the basin that can be controlled and maintained to prevent rodents from entering the basin area.

In February 2014, the City of Modesto entered into a ten-year lease agreement with between John A. Paoluccio and Dorene J. Paoluccio Revocable Trust to help prevent further damage to #1..
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Economic Development Committee, November 1, 2023
Paoluccio Lease Agreement for NorthPointe Storm Basin

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the NorthPointe Storm Basin’s east basin wall, with an annual payment amount of $1,250. The agreement grants the City a lease on a portion of property to provide the required buffer area, approximately 25-feet in width, and 213-feet in length, for a total of 5,325 square feet.

DISCUSSION:

The executed Lease Agreement between the City of Modesto and John A. Paoluccio and Dorene J. Paoluccio Revocable Trust was for an initial 10 years, with the lease expiring on February 28, 2024. The 2014 Lease Agreement anticipated extension of the lease for a maximum of 10 years upon mutual agreement of the parties regarding a new payment amount.

Rather than simply extend the existing lease, a new 10-year lease is being proposed with an option for the City to extend the lease by a maximum of 10 additional years. The City Manager will have the authority to approve the lease extensions.

At the request of the property owners, City staff will be including a cost of living increase of three percent (3%) per annum, through the life of the lease agreement, which can be reviewed in Attachment #2.

FISCAL IMPACT:

The lease agreement’s first payment in 2024 will be $1,681.24, with an annual cost-of-living of three percent (3%) for each annual payment through the lease term in 2034. The 10-year total estimated cost is $19,273.53 and will be funded directly from the NorthPointe Community Facilities District (CFD 2002-1). There is no impact to the General Fund.

RECOMMENDED COMMITTEE ACTION:

Staff Recommendations:

Motion recommending a ten-year Lease Agreement between John A. Paoluccio and Dorene J.

Approved by:

Jessica Hill, Director of Community and
Economic Development
Joseph P. Lopez, City Manager
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Paoluccio Lease Agreement for NorthPointe Storm Basin

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Attachments:

1. Proposed Lease Agreement

2. Paoluccio Annual Lease Payment Schedule

3. Memorandum of Lease
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LEASE AGREEMENT
This Lease Agreement (hereafter the “Lease Agreement”) is entered into as of ____________________, 202__ (hereafter the “Effective Date”) by and BETWEEN JOHN A. PAOLUCCIO AND DORENE J.

PAOLUCCIO, TRUSTEES, JOHN A. PAOLUCCIO AND DORENE J. PAOLUCCIO REVOCABLE TRUST, property owner, (hereafter the “Lessor”), and the CITY OF MODESTO, a charter city and municipal corporation of the State of California (hereafter the “CITY”), the Lessee.

RECITALS
WHEREAS, Lessor is the owner of certain real property situated in the County of Stanislaus, California more particularly described in Exhibit "C" attached hereto and incorporated herein by this reference and having assessor's parcel number 078-013-031 and located on Quinturn Lane, (hereafter the "Property"); and
WHEREAS, a portion of the Property, including the portion of the Property that is subject of this Lease, is currently cultivated with almond trees; and
WHEREAS, CITY owns and operates a storm water collection basin known as the North Pointe Basin that is adjacent to and immediately west of the Property; and WHEREAS, CITY has discovered that the east side of the North Pointe Basin is eroding due to invasion and infestation of rodents from the Property; and WHEREAS, CITY desires to prevent erosion of the North Pointe Basin by preventing and controlling the infestation of rodents; and
WHEREAS, City desires to lease a portion of the Property hereafter defined and described as the Lease Area for the purpose of preventing damage to and stabilizing the east side of the North Pointe Basin by controlling the rodent population in and on the Lease Area; and, WHEREAS, City desires to lease from Lessor and Lessor is willing to lease to City the Lease Area on the terms and conditions set forth herein.

NOW, THEREFORE, the parties hereto mutually agree as follows:

1. Recitals
The Recitals set forth above are true and correct and are part of this Lease Agreement

2. Representations of LESSOR
a. Lessor represents it is the owner of the property described in Exhibit “C” attached hereto and made a part of hereof
b. Lessor has the power and authority to lease the Lease Area to CITY, to execute this Lease and to perform and observe the terms and conditions herein. #1..
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3. Representations of CITY
CITY represents and warrants as follows:
a. CITY has the power and authority to execute this Lease and to perform and observe the terms and conditions herein.

4. Grant of Lease
a. Lessor grants to City a Lease (hereafter the "Lease") for that portion of the Property consisting of approximately 5,325 square feet described in Exhibit "A" and depicted in Exhibit "B" attached hereto and referred to as the Lease Area for CITY's exclusive occupancy and use to take and perform the following actions: CITY may remove all almond trees in and on the Lease Area and use and maintain the land thereof to prevent rodents from invading and/or damaging the North Pointe Basin. City may also construct and maintain an earthen berm to retain Lessor's irrigation water on Lessor's remaining Property and prevent Lessor's irrigation water from entering the Lease Area. b. It is expressly agreed that this Lease is for the exclusive use by CITY and CITY's agents, employees, contractors and assigns.
c. The term of this Lease shall be for a period often (10) years (hereafter referred to as the "Principal Term") commencing on March 1, 2024, and ending on February 28, 2033. d. CITY shall have reasonable access over, across and under the Property to operate, maintain, repair or service the Lease Area and carry out the purpose of this Lease. e. Lessor shall not impair, interfere or restrict CITY's access to or use of the Lease Area. f. City shall not knowingly cause, maintain, or suffer any waste or nuisance in, on or about any portion of the Lease Area, including, without limitation, storage, use or discharge of any substance or material that presents a fire, explosion, or environmental contamination hazard.
g. This Lease is made solely for the benefit of CITY, and except as expressly provided herein, it is not made for the benefit of any person, third party or entity not a party to this Lease Agreement. No person, entity or third party other than the CITY shall have any right to enforce this Lease Agreement other than a permissible third party assignee as set forth below.

5. Lease Non-assignable
This lease is personal to the CITY and shall not be assigned without the consent of CITY, which shall not be unreasonably withheld, conditioned or delayed. Any attempt to assign the Lease in violation of these terms shall automatically void such assignment. No legal title or other interest in the Property other than this Lease is created or vested in CITY by the grant of this Lease. Notwithstanding anything to the contrary set forth above, Lessor shall not require CITY's consent to assign the Lease to an entity that controls, is controlled by or under common control with CITY.
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6. Rent Payment
CITY agrees to pay Lessor as rent for the use and occupancy of the Lease Area an annual rent first annual payment will be One Thousand Six Hundred Eighty One Dollars and Twenty Four Cents ($1,681.24) and increasing each year by three percent (3%) throughout the term of the Lease.

CITY Shall pay the annual rent in advance on or before the first day of March of each lease year, commencing on March 1, 2024 at 12:01 a.m.

7. Principal Term
Unless terminated earlier due to default or revocation, the term of this Lease shall be for a period often (10) years commencing at 12:01 a.m. on the March 1, 2024 and terminating at 12:00 p.m. on February 28, 2033 (the "Principal Term").

8. Renewal, Renewal Term
Unless terminated earlier due to default or revocation and provided that no material default or breach has occurred, CITY shall have an option to renew this Lease for two additional five (5) year terms (the "Renewal term") from the termination of the Principal Term on the same terms, conditions and covenants as herein contained. CITY shall notify Lessor in writing of CITY's intention to exercise the option to renew at least sixty ( 60) days prior to the expiration of the Principal Term of this Lease. The City Manager shall have the authority to execute the options described herein without further approval from the City Manager.

9. RESERVED

10. Termination Due to Default
Upon the failure of CITY to abide by or comply with any of the provisions of this Lease Agreement, Lessor may declare a default and if such breach or default is not cured to the satisfaction of Lessor within thirty (30) days, Lessor may, at its option, immediately terminate the Lease and remove CITY's property from the Lease Area and prevent entry on and use of the Lease Area by CITY, unless the default is of a nature that it cannot be cured within such 15 day period in which case Lessor may only terminate if CITY shall not have commenced curing such default within such 15 day period and be diligently pursuing such cure to completion.

11. City’s Duties Upon Revocation or Termination of Lease On or before the termination of the Lease, CITY shall remove all of CITY's property from the Lease Area and shall return the Lease Area to Lessor in good order and repair to the reasonable satisfaction of Lessor, normal wear and tear excepted.

12. Condition of Property
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The Lease Area is being leased herein to CITY in its existing state and condition, "as is".

Lessor makes no warranty, express or implied, with respect to the condition of the Lease Area or its suitability for intended use.

13. Additions
Except as expressly provided herein, CITY shall not make or cause to be made any alterations, additions or improvements to the Lease Area or the Property or attach any fixtures or equipment, without first obtaining Lessor's written consent.

Except as expressly provided herein, CITY understands and agrees that no improvements to or upon the Lease Area may be made without the prior written consent of Lessor. Any improvements approved by Lessor will be done at the sole cost and expense of CITY. CITY agrees not to knowingly permit any liens to be placed upon the Property or the lease Area by reason of any improvements made thereon.

14. Release
CITY accepts the Lease Area in its "as is" condition. CITY hereby waives any right to recover from Lessor, and forever releases and discharges Lessor from any claims, damages, liabilities, losses, costs and expenses arising from or in any way connected with the use of the Lease Area by CITY.

15. Indemnification
CITY shall defend, indemnify and hold Lessor, its employees, and agents harmless from and against all damages, losses, claims and liabilities ("Claim") arising from any act, omission, negligence or other fault of CITY, CITY's agents, employees, officials and permitted users, or any of them, arising from any accident, injury or damage whatsoever caused to any person or property, occurring in the exercise of, or in any manner related directly or indirectly with the lease granted by this Lease Agreement. The indemnification required under this clause shall include all reasonable costs, expenses, liabilities and reasonable attorney's fees incurred in connection with any such Claim or proceeding or action connected to such Claim.

Notwithstanding the foregoing, Lessor shall have no obligation to indemnify and hold harmless CITY from and against any claims arising as the result of the acts or omissions of CITY, its employees, officials and agents.

16. Damages
CITY shall promptly pay Lessor, on demand, full money compensation for any damage to the Lease Area or the Property, caused by, or in any manner connected directly or indirectly with, the exercise of the Lease or any rights granted by this Lease Agreement. #1..
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17. Venue

18. Venue for any dispute between the parties shall be the state or federal courts located in Stanislaus County, California. Entire Agreement
This Lease Agreement constitutes the entire agreement between Lessor and CITY relating to the Lease. Any prior agreements, promises, negotiations, or representations not expressly set forth in this Lease Agreement are of no force and effect. Any amendment to this agreement shall be in writing and signed by Lessor and CITY.

19. Waiver
Any waiver of any promise, condition or of any breach of any provision of this Lease Agreement must be in writing, and any such waiver shall not be construed to be a waiver of any other breach of any condition or promise or duty under this Lease. No waiver shall be implied from any delay or failure to take action on any breach or default.

20. Approval
Lessor acknowledges, understands and agrees that this Lease Agreement is subject to the approval by the City Council of the City of Modesto and this Lease Agreement shall have no force or effect unless and until such approval by the City Council of the City of Modesto is obtained.

21. Governing Law
This Lease Agreement shall be interpreted under and be governed by the laws of the State of California, with venue in the County of Stanislaus.

22. Notices
All notices permitted or required to be given under this Lease Agreement or which either CITY or Lessee desires to serve upon the other shall be in writing and shall be deemed duly given and effective (a) on actual delivery if delivery is by personal delivery, or (b) five (5) days after delivery in the United States Mail if delivery is by postage prepaid, to respective addresses as set forth below or to any other address as may be designated by a party:

City: By Personal Delivery:

City of Modesto
Attn: Infrastructure Financing Program
Community and Economic Development Department
1010 Tenth Street, 3rd Floor
Modesto, CA 95354
By Mail:

City of Modesto
Attn: Infrastructure Financing Program
Community and Economic Development Department
P.O. Box 642
Modesto, CA 95353
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Lessor: By Mail:

John A. Paoluccio and Dorene J. Paoluccio
P.O. Box 1316
Salida, CA 95368

23. Authority
Each individual executing this lease Agreement on behalf of Lessor represents and warrants that he/she is duly authorized to execute this Lease Agreement on behalf of Lessor.

24. Failure To Vacate
CITY agrees to vacate the Lease Area upon termination of this Lease, and failing to vacate as herein provided, agrees that Lessor, or its authorized agents, may enter upon said Lease Area and remove all of City's property therefrom and store the same at CITY's cost and in such event, CITY waives any and all claims for damages against Lessor, its agents or employees. Nothing herein shall be deemed a waiver of any rights of Lessor to demand and obtain possession of the Lease Area in accordance with the law in the event of a violation on CITY's part of any of the terms or conditions hereof. Nothing herein shall be deemed to convey title to CITY's personality.

25. Relationship of Parties
The relationship of Lessor and CITY, is, and shall be at all times remain solely that of lessor and lessee. CITY neither undertakes nor assumes any responsibility or duty to Lessee or to any third party with respect to the Lease Area except as provided herein. Nothing in this Lease Agreement is intended or shall be interpreted or construed as creating or establishing a relationship of employer and employee, principal and agent, partnership or joint venture between CITY and Lessor. Except as CITY may specify in writing, Lessor shall have no authority to act as agent of CITY or to bind CITY to any obligation.

26. Right of Entry
Lessor and its agents and employees shall have the right to enter upon the Lease Area at all reasonable times to inspect the same, to determine if CITY is performing the covenants of this Lease Agreement.

27. Binding on Successors and Assigns
The terms and conditions of this Lease shall be binding upon and shall inure to the benefit of each of the parties hereto, their heirs, personal representatives, successors and assigns.

28. Amendment
Except as otherwise provided herein, this Lease may only be modified or amended in writing signed by the parties. Any amendment to this Lease shall expressly refer to this Lease.

29. Recording
This Lease or a Memorandum of Lease in the form attached hereto as Exhibit "D" shall be recorded in the Official Records of Stanislaus County, State of California. Upon the expiration or earlier termination of this Lease, CITY agrees to record a quitclaim deed to evidence the termination of CITY's interest in the Property.
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IN WITNESS WHEREOF, the City of Modest, a municipal corporation, has authorized the execution of this Lease 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 has caused this Agreement to be duly executed. #1..
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$1,250 Annually
3% Annually
Year Increase Estimate Year Annual Payment
2015 $ 1,288.53 2024 $ 1,681.24
2016 $ 1,327.19 2025 $ 1,731.68
2017 $ 1,367.00 2026 $ 1,783.63
2018 $ 1,408.01 2027 $ 1,837.14
2019 $ 1,450.25 2028 $ 1,892.25
2020 $ 1,493.76 2029 $ 1,949.02
2021 $ 1,538.57 2030 $ 2,007.49
2022 $ 1,584.73 2031 $ 2,067.71
2023 $ 1,632.27 2032 $ 2,129.74
2033 $ 2,193.64
$ 19,273.53
Exhibit A
Original Lease Amount
Cost of Living Increase
10 Year Payment Total
Paoluccio Annual Lease Payment Schedule
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RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:

City of Modesto
P.O. Box 642
Modesto, CA 95353
Attn: Community and Economic
Development Department

EXEMPT FROM RECORDING FEES PER
GOVERNMENT CODE §§6103, 27383
Space above this line for Recorder’s use.

MEMORANDUM OF LEASE
This Memorandum of Lease is entered into effective on the latest signature date below, by and between John A. Paoluccio and Dorene J. Paoluccio, Trustees, John A. and Dorene June Paoluccio Revocable Trust, having a mailing address of P.O. Box 1316, Salida, CA 95368 (hereafter referred to as "Landlord"), and the City of Modesto, a Charter City and Municipal Corporation of the State of California, having a mailing address of P.O. Box 642, Modesto, CA 95353 (hereinafter referred to as "Tenant").

1. Landlord and Tenant entered into a certain Land Lease Agreement (“Agreement”) on the _________ day of ___________________, 2023, for the purpose of maintain a buffer area for the NorthPointe Storm Basin, a storm water collection basin, and other improvements. All of the foregoing are set forth in the Agreement.

2. The initial lease term will be ten (10) years ("Initial Term") commencing on the Effective Date of written notification by Tenant to Landlord of Tenant's exercise of the Option, with two (2) successive five (5) year options to renew.

3. The portion of the land being leased to Tenant (the "Premises") is described in Exhibit "A" and depicted in Exhibit "B" annexed hereto.

4. This Memorandum of Lease is not intended to amend or modify, and shall not be deemed or construed as amending or modifying, any of the terms, conditions or provisions of the Lease Agreement, all of which are hereby ratified and affirmed. In the event of a conflict between the provisions of this Memorandum of Lease and the provisions of the Lease Agreement, the provisions of the Lease Agreement shall control.

The Lease Agreement shall be binding upon and inure to the benefit of the parties and their respective heirs, successors, and assigns, subject to the provisions of the Lease Agreement.
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IN WITNESS WHEREOF, the parties have executed this Memorandum of Lease as of the day and year written below.

LESSE:

City of Modesto
A Municipal Corporation
By:_________________________
Joseph P. Lopez, City Manager

ATTEST:

By:__________________________
Diane Nayares-Perez, CMC,
City Clerk
________________________
Date
APPROVED AS TO FORM:

By:___________________________
Jose M. Sanchez, City Attorney
LESSOR:

John A. Paoluccio & Dorene J.

Paoluccio Revocable Trust
By:_________________________
John A. Paoluccio, Trustee
_________________________
Date
By:_________________________
Dorene J. Paoluccio, Trustee
_________________________
Date
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CITY OF MODESTO

COMMITTEE AGENDA REPORT
DATE OF MEETING:

November 1, 2023
Date: October 9, 2023
TO: Economic Development Committee
Sue Zwahlen, Chair
Chris Ricci, Vice-Chair
Eric Alvarez, Member
THROUGH: Joseph P. Lopez, City Manager
FROM: William Wong, Director of Utilities
SUBJECT: Material Hauling Services
CONTACT: Manuel Martinez, Acting Water Division Manager, [email protected], 209-342-4592
DESCRIPTION:

Consider an Agreement for Material Hauling Services with Sekhon and Son Trucking, Inc. of Modesto, CA and California Materials of Stockton, CA for a total amount not to exceed $2,375,000 over five years and forwarding to Council for approval. (Funding Source: Green Waste, Storm Drain, Surface Transportation, Wastewater and Water Funds) STRATEGIC PLAN ELEMENT:

The recommended action supports the City’s 2020-2025 Strategic plan Initiatives: Provide safe, efficient, and reliable infrastructure through proactive community investment, maintenance, and sustainability efforts.

BACKGROUND:

The Public Works and Utilities Departments require material hauling services for asphalt, dirt, asphalt grindings, rock, road base material, and concrete. Compost, sewer, storm drain, water, and street construction operations generate large amounts of materials that must be transported to and from the jobsite. This usually requires multiple large tractor-trailer end dumps to haul the material away where it is stockpiled for recycling or reallocation. These services are also needed for the delivery of new materials to the jobsite. City departments do not have the trucks or the staffing to haul large amounts of materials when needed.

Due to the unpredictable nature of the work, it is not always possible for the divisions to know what their immediate need is. Departments assume the highest-need scenarios when estimating annual amounts needed for hauling. The current agreement includes Water, Wastewater, and Storm Drain Divisions from the Utilities Departments, along with Compost, Solid Waste, and Streets Divisions from the Public Works Department.

On July 10, 2018, by Resolution 2018-295, Council approved a two-year agreement with three one-year extension options with Destination Anywhere of Tracy, CA and California Materials #2..
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Economic Development Committee, November 1, 2023
Material Hauling Services

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Inc. of Stockton, CA for an annual cost of $364,500 and a total combined cost not to exceed $1,900,846 over five years. Resolution 2018-295 further authorized the Director of Finance to adjust agreement totals between vendors based on contractor’s availability and departmental needs, ensuring that the total overall cost did not change.

On May 9, 2023, the Director of Finance approved a First Amendment to the Agreement with Destination Anywhere and California Materials extending the previously approved end date by six months to a new end date of January 31, 2024. There was no increase in spending authority, therefore the combined cost through January 31, 2024, remained at a cost not to exceed $1,900,846.

DISCUSSION:

On May 19, 2023, the Purchasing Division issued Invitation for Bids (IFB) No. 2223-24, Material Hauling Services, on the City’s website. Prospective bidders were notified online and via email of the bid opportunity. Fourteen (14) companies chose to download the IFB document.

On June 20, 2023, bids were formally opened by the City Clerk and broadcast via Microsoft Teams Livestream. Three (3) companies chose to respond, one of which was local, and one being non-responsive.

To ensure continued services to the City, contracts may be awarded to more than one contractor to provide backup if the primary contractor is unable to meet the City’s needs. A secondary contractor may be awarded a specific job if the primary contractor is unable to perform the service, unable to complete the specific job within the time frame required by the City, or unable to maintain acceptable quality standards required by the City.

Based on providing responsive and responsible bids, staff recommends the award of bids for the furnishing of material hauling services for the Utilities and Public Works Departments, to the lowest bidder, Sekhon and Son Trucking, Inc. of Modesto, CA, as primary contractor, and the second lowest bidder, California Materials, Inc. of Stockton, CA, as secondary contractor for a two-year agreement with three one-year extension options at the sole discretion of the City.

Staff is requesting to give the Director of Finance the approval to adjust agreement totals between vendors based on availability and department needs, ensuring the overall combined totals between vendors does not exceed $475,000 annually or $2,375,000 over five years.

Modesto Municipal Code Section 8-3.203 generally requires all purchases which meet or exceed $50,000 for material, equipment, or contractual services to follow formal bid procedures.

An award of bid and agreement for material hauling services for the Public Works and Utilities Departments with Sekhon and Son Trucking, Inc. of Modesto, CA and California Materials, Inc. of Stockton, CA conforms to the Modesto Municipal Code because the City complied with the formal bid procedures, and both vendors were the lowest responsive and responsible bidders.

FISCAL IMPACT:

Actual expenditures for the current material hauling services agreements are listed below:

Division CY1 CY2 CY3 CY4 CY5 CY5 Ext Total
Compost $14,356 $20,966 $44,071 $96,657 $64,528 $240,578 Solid Waste $29,126 $3,124 $32,250
Streets $36,412 $49,286 $ 4,880 $100,578
Storm Drains $1,226 $57,954 $31,798 $90,978
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Economic Development Committee, November 1, 2023
Material Hauling Services

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Wastewater $22,398 $22,398
Water $3,391 $21,605 $107,730 $209,892 $63,129 $91,286 $497,033 Total $41,029 $35,961 $238,174 $303,249 $194,708 $170,694 $983,815 With current pricing per IFB No. 2223-24 and accounting for potential Consumer Price Index (CPI) increases over the next five years, staff estimates an annual cost not to exceed $475,000 between both vendors, and not to exceed $2,375,000 over five years. Funds are allocated across the following accounts:

Division Annual Expense Accounting String
PW Compost $ 75,000 4890-56030-53300
PW Streets $ 75,000 1700-53130-53110
UTIL Water Maintenance $ 10,000 4100-45020-53300
UTIL Water Construction $ 60,000 4100-45040-53300
UTIL Water CIP $ 150,000 4180-49998/59999
UTIL Sewer Collections $ 15,000 4210-44211-53100
UTIL Storm Drain $ 60,000 4480-44222-53100
UTIL Wastewater Plant
Operations $ 30,000 4210-44312-53100
Total $ 475,000
RECOMMENDED COMMITTEE ACTION:

Staff Recommendations:

Motion recommending the Award of Bid and Agreement for Material Hauling Services to Sekhon and Son Trucking, Inc. of Modesto, CA and California Materials, Inc. of Stockton, CA for a two (2) year agreement with three (3) one-year extension options, for an annual estimated amount of $475,000 and a total amount not to exceed $2,375,000 over five years and forwarding to Council for approval.

Approved by:

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

1. Agreement – Sekhon & Son Trucking

2. Agreement – California Materials

3. Exhibit B, Bid Submittal – Sekhon & Son

4. Exhibit B, Bid Submittal – California Materials

5. Exhibit C – IFB 2223-24, Material Hauling Services

6. Financial Interest Disclosure – Sekhon & Son

7. Financial Interest Disclosure – California Materials

8. Cost Abstract IFB 2223-24
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1 ANNUAL AGREEMENT - MATERIAL HAULING SERVICES
255467
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 SEKHON & SON TRUCKING, INC. of Stockton, CA, a corporation, hereinafter called CONTRACTOR.

W I T N E S S E T H:

WHEREAS, the Modesto City Council adopted Resolution No. 2023-_____ authorizing the Award of Bid and agreement for the MATERIAL HAULING SERVICES 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 MATERIAL HAULING SERVICES as described in IFB 2223-34 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, 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 of $350,000. The total amount paid by CITY to CONTRACTOR over the full term of the AGREEMENT shall not exceed $1,750,000. 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.

AGREEMENT PRICING

PAYMENT OF PREVAILING WAGES REQUIRED
Description Billable Hourly Rate
Material Hauling Services $116/HR
List diesel price at time of bid submittal $4.75/GALLON List percent of hourly unit rate associated with fuel cost 25% OF FUEL COST Labor Craft Direct Labor Rate Fringe Benefit Rate Labor Markup Price Per Service Driver – Dump Truck $19.00/HOUR $4.37/HOUR 0% $23.37/HOUR

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 #2..
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3 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 “C” 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#: 488102

3. CITY REPRESENTATIVE:

Jeremy Parnell, Water Division Superintendent, (209) 342-4599, [email protected] Purchasing Contact: Melvin Rosal, (209) 577-5420, [email protected] 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: February 1, 2024 through January 31, 2025
Year 2: February 1, 2025 through January 31, 2026
Year 3: February 1, 2026 through January 31, 2027
Year 4: February 1, 2027 through January 31, 2028
Year 5: February 1, 2028 through January 31, 2029
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4 Pricing as set forth in Section 1.e. above shall remain firm for the first two years of the AGREEMENT.

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

5. LIABILITY INSURANCE:

The CONTRACTOR shall provide, at its own expense, and maintain at all times the following insurance with insurance companies licensed in the State of California and shall provide evidence of such insurance to the CITY as may be required by the City Clerk of the CITY. The policies or certificates thereof shall provide that, at least 30 days prior to cancellation or material change in the policy, notices of same shall be given to the Risk Manager of the CITY by registered mail, return receipt requested, for all of the following stated insurance policies.
a. General Liability - insurance with a minimum limit of liability per occurrence of $1,000,000 for bodily injury and property damage. The insurance shall indicate on the certificate of insurance the following coverage and indicate the policy aggregate limit applying to: premises and operations; broad form contractual; independent contractors and subcontractors; products and completed operations; and/or professional liability.
b. Automobile Liability – insurance with a minimum limit of liability per occurrence of $2,000,000 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 #2..
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5 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, officials, employees, and volunteers shall be named as an additional insured on all insurance policies required herein, except Workers' Compensation.

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

For any claims related to this AGREEMENT, the CONTRACTOR’s insurance coverage shall be primary insurance as respects CITY, its agents, officers, officials, employees, and volunteers. Any insurance or self-insurance maintained by CITY, its agents, officers, officials, employees, and 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 30 terms via CITY’s ePay Program. The CITY is exempt from payment of Federal Excise Tax, and all invoices shall be exclusive of such excise tax. #2..
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6 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: 255467
 CITY department/division name and address
 Billing period
 Service hours worked day and week
 Unit price, extended price, sales tax, and total

7. INDEMNITY:

The CONTRACTOR shall hold the CITY, its agents, officials, officers, employees, and volunteers, harmless from and save, defend and indemnify them against any and all claims, losses, liabilities, judgments or damages from every cause, including but not limited to injury to person or property or wrongful death, including reasonable costs and expenses of defense of any judicial or administrative action, arising directly or indirectly out of any negligent or intentional act or omission of CONTRACTOR, or its agents, officials, officers, employees, or volunteers relating to or during the performance of its obligations under this AGREEMENT. CONTRACTOR’s obligation to defend, indemnify, and hold the CITY, its agents, officials, officers, employees, or volunteers 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 #2..
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7 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:
a. Proofs of insurance (approved by CITY Risk Manager); and b. Executed Agreement;
c. Resolution No.2023-_______;
d. CONTRACTOR Bid submittal;
e. IFB No. 2223-34
f. 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 non-performance 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.
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8 Termination by City for Convenience: The City may also terminate this AGREEMENT the Contractor's performance under the Agreement, either in whole or in part, at its own discretion and without cause.

Post-Termination Procedure: Upon receipt of a written notice of termination pursuant to either of the foregoing paragraphs, the CONTRACTOR shall:
a. Cease its work as directed in the notice of termination as of the termination date and see to it that its employees, subcontractors, and agents are notified of such termination and act as specified in the notice of termination;
b. Terminate all orders and subcontracts except as necessary to complete any portion of the SERVICES that are not terminated;
c. If directed in writing by the CITY to do so, assign all right, title and interest in subcontracts and materials in progress to CITY, in which case the CITY will have the right at its discretion to settle, or pay any or all claims arising out of the termination of such, but in no event shall recovery by any CONTRACTOR or subcontractor include lost profits for portions of the SERVICES not completed or undertaken, including materials not delivered;
d. Deliver or otherwise make available to the CITY all data, drawings, specifications, reports, estimates, summaries and such other information and material as may have been accumulated by the CONTRACTOR in performing the SERVICES whether completed or in process; e. Settle outstanding liabilities and claims, subject to the approval of CITY; f. Complete performance of such part of the SERVICES as has not been terminated; g. Take such other actions as may be necessary, or as may be directed by the CITY for the protection and preservation of the SERVICES and/or property related to the SERVICES; h. If CITY so requests, and at CITY's cost, CONTRACTOR shall provide sufficient oral or written status reports to make CITY reasonably aware of the status of CONTRACTOR’s work on the SERVICES.
i. CONTRACTOR understands and agrees that CITY may, in CITY’s sole #2..
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9 discretion, refuse to pay CONTRACTOR for that portion of CONTRACTOR's SERVICES which were performed by CONTRACTOR on the project prior to the termination date and which remain unacceptable and/or not useful to CONTRACTOR as of the termination date.

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

12. COMPLIANCE WITH ALL LAWS:

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

13. FAILURE TO PERFORM SATISFACTORY WORK:

It is agreed and understood that if the CONTRACTOR fails to perform the SERVICES as specified herein, CITY's representative may:
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
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10 c. Recommend termination of AGREEMENT between said the CONTRACTOR and the City of Modesto.

Unless otherwise negotiated, billing adjustments for this incomplete or uncorrected work shall be permanent retention of 100% of the estimated monthly cost for the SERVICES not corrected or completed.

14. ASSIGNMENT OF RIGHTS:

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

15. CITY PROCESS/PROCEDURE APPROVALS:

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

18. NOTICES:

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

CONTRACTOR: Sekhon & Son Trucking, Inc.
4109 Imagine Ct
Modesto, CA 95356
CITY: City of Modesto
Purchasing Division
P.O. Box 642
Modesto, CA 95353
Each party may change its address for delivery of notice by delivering written notice of such change of address to the other party.

19. SIGNATORY(IES) FOR CONTRACTOR:

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

20. QUANTITIES:

No minimum or maximum is guaranteed or implied.
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12 21. FUNDING:

All annual extensions are based upon continuous funding for that purpose by the City Council.

Failure to fund any annual extension shall result in an immediate termination of the AGREEMENT without redress.

22. OTHER GOVERNMENT/PUBLICLY FUNDED AGENCIES:

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

23. NON-DISCRIMINATION:
a. During the performance of this AGREEMENT, CONTRACTOR and any allowed subcontractors shall not unlawfully discriminate against any employee or applicant for employment because of race, color, ancestry, religion, sex, national origin, marital status, age, medical condition (cancer related), physical handicap (including AIDS), sexual orientation, or any other basis prohibited by Federal or California law. Equal employment opportunity extends, but is not limited to recruitment, compensation, benefits, layoff, termination, and all other conditions of employment. The CONTRACTOR and any allowed subcontractors shall ensure that the evaluation and treatment of their employees and applicants for employment are free of such discrimination.

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

24. CONTRACTOR LICENSES & PERMITS:

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

25. RECORDS:

All final versions of reports, data, maps, models, charts, studies, surveys, photographs, memoranda, plans, studies, specifications, records, files, or any other documents or materials, in electronic or any other form, that CONTRACTOR prepares or obtains pursuant to this Agreement and that relate to the matters covered hereunder shall be the property of the CITY. CONTRACTOR hereby agrees to deliver those documents to the CITY upon termination of the AGREEMENT, and the CITY may use, reuse, or otherwise dispose of the documents without CONTRACTOR’s permission. It is understood and agreed that the documents and other #2..
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14 materials, including but not limited to those described above, prepared pursuant to this AGREEMENT are prepared specifically for the City and are not necessarily suitable for any future or other use.

26. FACILITIES AND EQUIPMENT:

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

27. INDEPENDENT CONTRACTOR; NOT AGENT:

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

28. DRUG FREE WORKPLACE:

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

29. ASSIGNMENT:

Neither this AGREEMENT nor any SERVICES hereunder shall be subcontracted or assigned by CONTRACTOR without the prior written consent of the CITY in each and every instance. #2..
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15 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, 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:

W I T N E S S E T H:

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, 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 of $125,000. The total amount paid by CITY to CONTRACTOR over the full term of the AGREEMENT shall not exceed $625,000. 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.

AGREEMENT PRICING

PAYMENT OF PREVAILING WAGES REQUIRED
Description Billable Hourly Rate
Material Hauling Services $160/HR
List diesel price at time of bid submittal $4.75/GALLON List percent of hourly unit rate associated with fuel cost 27% OF FUEL COST Labor Craft Direct Labor Rate Fringe Benefit Rate Labor Markup Price Per Service Driver – Dump Truck $37.90/HOUR $31.87/HOUR 18% $82.33/HOUR

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 #2..
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3 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 “C” 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#: 488102

3. CITY REPRESENTATIVE:

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: February 1, 2024 through January 31, 2025
Year 2: February 1, 2025 through January 31, 2026
Year 3: February 1, 2026 through January 31, 2027
Year 4: February 1, 2027 through January 31, 2028
Year 5: February 1, 2028 through January 31, 2029
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4 Pricing as set forth in Section 1.e. above shall remain firm for the first two years of the AGREEMENT.

5. LIABILITY INSURANCE:

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 #2..
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5 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, officials, employees, and volunteers shall be named as an additional insured on all insurance policies required herein, except Workers' Compensation.

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 30 terms via CITY’s ePay Program. The CITY is exempt from payment of Federal Excise Tax, and all invoices shall be exclusive of such excise tax. #2..
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6 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: 255479
 CITY department/division name and address
 Billing period
 Service hours worked day and week
 Unit price, extended price, sales tax, and total

7. INDEMNITY:

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 #2..
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7 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:

10. COMMENCEMENT AND COMPLETION OF THE WORK:

11. TERMINATION OF SERVICES:

Failure to correct any non-performance shall allow the non-breaching party to terminate this AGREEMENT for cause.
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8 Termination by City for Convenience: The City may also terminate this AGREEMENT the Contractor's performance under the Agreement, either in whole or in part, at its own discretion and without cause.

Post-Termination Procedure: Upon receipt of a written notice of termination pursuant to either of the foregoing paragraphs, the CONTRACTOR shall:
a. Cease its work as directed in the notice of termination as of the termination date and see to it that its employees, subcontractors, and agents are notified of such termination and act as specified in the notice of termination;
b. Terminate all orders and subcontracts except as necessary to complete any portion of the SERVICES that are not terminated;
c. If directed in writing by the CITY to do so, assign all right, title and interest in subcontracts and materials in progress to CITY, in which case the CITY will have the right at its discretion to settle, or pay any or all claims arising out of the termination of such, but in no event shall recovery by any CONTRACTOR or subcontractor include lost profits for portions of the SERVICES not completed or undertaken, including materials not delivered;
d. Deliver or otherwise make available to the CITY all data, drawings, specifications, reports, estimates, summaries and such other information and material as may have been accumulated by the CONTRACTOR in performing the SERVICES whether completed or in process; e. Settle outstanding liabilities and claims, subject to the approval of CITY; f. Complete performance of such part of the SERVICES as has not been terminated; g. Take such other actions as may be necessary, or as may be directed by the CITY for the protection and preservation of the SERVICES and/or property related to the SERVICES; h. If CITY so requests, and at CITY's cost, CONTRACTOR shall provide sufficient oral or written status reports to make CITY reasonably aware of the status of CONTRACTOR’s work on the SERVICES.
i. CONTRACTOR understands and agrees that CITY may, in CITY’s sole #2..
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9 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.

12. COMPLIANCE WITH ALL LAWS:

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
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10 c. Recommend termination of AGREEMENT between said the CONTRACTOR and the City of Modesto.

14. ASSIGNMENT OF RIGHTS:

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:

17. CONTRACTOR'S RESPONSIBILITY FOR DAMAGES:
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11 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:

CONTRACTOR: California Materials Inc
3736 S. HWY 99
Stockton, CA 95215
CITY: City of Modesto
Purchasing Division
P.O. Box 642
Modesto, CA 95353
Each party may change its address for delivery of notice by delivering written notice of such change of address to the other party.

19. SIGNATORY(IES) FOR CONTRACTOR:

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

20. QUANTITIES:

No minimum or maximum is guaranteed or implied.
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12 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:

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. #2..
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13 b. The CONTRACTOR and any allowed subcontractors shall give written notice of their obligations under this clause to labor organizations with which they have a collective bargaining or other agreement.
c. The CONTRACTOR shall include the nondiscrimination and compliance provisions of this clause in any allowed subcontracts to perform SERVICES. d. The Contractor shall permit access by representatives of the Department of Fair Employment and Housing and the CITY upon reasonable notice at any time during the normal business hours, but in no case less than 24 hours’ notice, to such of its books, records, accounts, other sources of information and its facilities as said Department or CITY shall require to ascertain compliance with this AGREEMENT. e. By executing this AGREEMENT, CONTRACTOR certifies that it shall follow and be in compliance with the Americans with Disabilities Act of 1990, the applicable administrative requirements promulgated in response thereto, and any other applicable Federal laws and regulations relating to handicap discrimination and participation and will continue to do so for at least the duration of the AGREEMENT and any extensions thereof.

24. CONTRACTOR LICENSES & PERMITS:

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

25. RECORDS:

All final versions of reports, data, maps, models, charts, studies, surveys, photographs, memoranda, plans, studies, specifications, records, files, or any other documents or materials, in electronic or any other form, that CONTRACTOR prepares or obtains pursuant to this Agreement and that relate to the matters covered hereunder shall be the property of the CITY. CONTRACTOR hereby agrees to deliver those documents to the CITY upon termination of the AGREEMENT, and the CITY may use, reuse, or otherwise dispose of the documents without CONTRACTOR’s permission. It is understood and agreed that the documents and other #2..
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14 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:

27. INDEPENDENT CONTRACTOR; NOT AGENT:

28. 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. #2..
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15 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:

34. PARTIAL INVALIDITY:

If any provision in this AGREEMENT is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions shall nevertheless continue in full force without being impaired or invalidated in any way.
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16 IN WITNESS WHEREOF, the CITY OF MODESTO, a municipal corporation, has authorized the execution of this Agreement 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. #2..
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1 INVITATION FOR BIDS (“IFB”) NO. 2223-34
FOR

MATERIAL HAULING SERVICES

THE PAYMENT OF PREVAILING WAGES IS REQUIRED
BID OPENING: June 20, 2023 at 11:00 A.M.

CITY OF MODESTO CONTACT: MICHELLE TAPEY, SENIOR BUYER
E-MAIL ADDRESS: [email protected]
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INVITATION FOR BIDS # 2223-34

MATERIAL HAULING SERVICES
2 Table of Contents PAGE
NOTICE TO BIDDERS ............................................................................................................................. 3 CALENDAR OF EVENTS ........................................................................................................................ 5 CONTACT.................................................................................................................................................. 5 PRECEDENCE........................................................................................................................................... 5 VIRTUAL BID OPENING......................................................................................................................... 6 GENERAL BID REQUIREMENTS .......................................................................................................... 7 A. BID SUBMITTAL ....................................................................................................................... 7 E. CITY ACCEPTANCE/REJECTION OF IRREGULAR BIDS:.................................................. 7 F. COMPLETE BID DOCUMENT:.................................................................................................... 7 G. COMPLIANCE/NON-COMPLIANCE:...................................................................................... 8 K. PREVAILING WAGE:................................................................................................................ 9 M. BID PROTEST AND APPEAL PROCEDURES:..................................................................... 10 BID SUBMITTAL CHECKLIST......................................................................................................... 15 BID FORM A - IFB ACKNOWLEDGEMENT .................................................................................. 16 BID FORM B – BIDDER COMPANY INFORMATION................................................................... 19 BID FORM C - PRICING SCHEDULE .............................................................................................. 21 BID FORM D – BIDDER EXCEPTIONS, CLARIFICATIONS, AMENDMENTS.......................... 23 BID FORM E – BIDDER CUSTOMER REFERENCES.................................................................... 24 BID FORM F - FINANCIAL INTEREST DISCLOSURE.................................................................. 26 BID FORM G – SUPPORT OF LOCAL VENDORS.......................................................................... 28 BID FORM H - BIDDER COMPANY HISTORY STATEMENT..................................................... 29 BID FORM I - ADDENDA ACKNOWLEDGEMENT ...................................................................... 30 BID FORM J – BIDDER WARRANTY STATEMENTS................................................................... 31 BID FORM K – BIDDER EXPERIENCE AND CERTIFICATIONS................................................ 32 BID FORM L - SUBCONTRACTOR LIST........................................................................................ 33 TECHNICAL SPECIFICATIONS AND REQUIREMENTS.............................................................. 34 SAMPLE ANNUAL AGREEMENT - SERVICES............................................................................. 39 #2..
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INVITATION FOR BIDS # 2223-34

MATERIAL HAULING SERVICES
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 MATERIAL HAULING SERVICES equipment, materials, supplies and/or related services (the “Services”) for the City of Modesto, Utilities Department, Water and Wastewater Divisions, Public Works Department, Compost and Streets Divisions.

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, June 20, 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. #2..
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INVITATION FOR BIDS # 2223-34

MATERIAL HAULING SERVICES
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 # 2223-34
BID OPENING DATE: JUNE 20, 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. #2..
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INVITATION FOR BIDS # 2223-34

MATERIAL HAULING SERVICES
5 CALENDAR OF EVENTS
Event Date
IFB Issued May 19, 2023
Written Questions Due via Email May 26, 2023
Addendum Issued (if required) June 02, 2023 (approximate date) Bid Due Date & Time PRIOR 11:00 A.M. on Tuesday, June 20, 2023 Agreement Award Approximately July, 2023

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 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. #2..
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MATERIAL HAULING SERVICES
6 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, June 20, 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 may be observed live by using URL link containing the Number and Title of the Bid on the cover page, provided below. By submitting your Bid for the above-stated 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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MATERIAL HAULING SERVICES
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 TWO “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
• Bid Form F - Financial Interest Disclosure
• Bid Form G – Support of Local Vendors
• Bid Form H – Bidder Company History Statement
• Bid Form I - Addenda Acknowledgement Page (if applicable) #2..
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INVITATION FOR BIDS # 2223-34

MATERIAL HAULING SERVICES
8 • 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:
• 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 #2..
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MATERIAL HAULING SERVICES
9 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.

I. 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.

J. 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.

K. 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:
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10 L. 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.

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

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

Protest Procedures
• Only a Bidder who has actually submitted a Bid is eligible to submit a protest against the City’s Announced Decision.
• Subcontractors are not eligible to submit bid protests. #2..
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11 • A Bidder may not rely on the bid protest submitted by another bidder but must timely pursue its own protest.
• A written protest to an Announced Decision must be made to the City of Modesto's Director of Finance no later than ten days after the date of the Announced Decision. • The protest shall be delivered or sent by registered mail and received by the City by the deadline, or protest will be automatically rejected. Protestors who choose to be represented by legal counsel are responsible for the associated expenses. • The protest shall be accompanied by a certified or cashier's check in the amount of $300.00, (except for protests of Federally Funded agreements), made payable to the Clerk of the City of Modesto. Protests filed without the requisite fee will be rejected without any additional review.
• The protest filed with the Director of Finance shall:
a. Include the name, address, email address and business telephone number of the protestor;
b. Identify the protest by name, Invitation for Bid (IFB) or Request for Proposal (RFP) number, and IFB/RFP date;
c. The bid protest must contain a complete statement of the basis for the protest and all supporting documentation. The protest must refer to the specific portion or portions of the Contract Documents upon which the protest is based; d. Include all supporting documentation, if any. Documentation submitted after filing deadline will not be reviewed.
• Bid Protests: A Bidder shall follow, in order, the following steps:
a. Protest to Director of Finance: Upon receipt of a complete and timely protest, the Director of Finance shall review all the submitted materials and shall create and retain a written record of the review. The Director of Finance shall respond at least generally to each material issue raised in the protest not later than ten days after receipt of the protest. Notice of the Director of Finance's decision may be given by letter mailed through U.S. Postal Service.

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

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

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

Further protest appeals shall either be delivered to:

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

City Clerk’s Office
Attn: Deputy City Manager
PO Box 642
Modesto CA 95353
d. Appeal to City Council: Any protestor seeking to appeal to the decision of the Deputy City Manager may appeal in writing to the City Council by filing with the City Clerk a written notice of such appeal not later than ten days after the date of the Deputy City Manager's decision. The City Clerk will calendar the protest for 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.
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13 All protest appeals to the City Council shall either be delivered to:

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

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

A written request for administrative hearing shall be accompanied by a certified or cashier's check in the amount of $1,500, (except for protests of Federally Funded projects); The request for hearing shall include the specific grounds of the appeal.

The City of Modesto shall select and engage an impartial and qualified person to act as hearing officer in the pending protest. The protestor shall have the right to twice reject the selected hearing officer, provided that the City is notified of such rejection within three days of notice to protestor of the name of the hearing officer.

The protest shall be heard not later than twenty days after receipt of protestor's request for hearing and the selection of a hearing officer. Protests not made in a timely manner shall be deemed withdrawn unless the City and the protestor mutually agree otherwise in writing. The protestor’s failure to accept a hearing 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. #2..
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14 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. #2..
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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 – Support of Local Vendors
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 (preferred). #2..
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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. Due to the nature of the work, the bid may be awarded to a Primary and Secondary bidder (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- #2..
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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
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. #2..
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18 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 Requested: 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
Business License
Number (note –
provide only if
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20 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.

PAYMENT OF PREVAILING WAGES REQUIRED
Description Billable Hourly Rate
Material Hauling Services $_______________________________________/Hr FOR INFORMATIONAL/COSTING PURPOSES:

List diesel price at time of bid submittal $___________________________________/Gallon List percent of hourly unit rate associated with fuel cost ______________________________/% of fuel cost Labor Craft Direct Labor Rate*
Fringe Benefit
Rate**
Labor
Markup
(percent) Price Per Service
Driver – Dump Truck $ /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.

Provide a labor markup percent (%) to be applied to all labor in executing work authorized by this agreement. #2..
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22 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 offersto 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:

City, State, Zip Code
Contact Person:

Email Address:
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25 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 until after final consideration by the City Council of any matter arising out of or relating to the agreement or application.
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27 Print Names of Persons Having a Financial Interest in Bidder Receiving this Agreement:

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

Bidder Company Name:

Name of Bidder Signatory:

Signature of Bidder Representative:
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28 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:

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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INVITATION FOR BIDS # 2223-34

MATERIAL HAULING SERVICES
29 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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INVITATION FOR BIDS # 2223-34

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

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

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

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

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

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

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

Bidder Company Name:
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INVITATION FOR BIDS # 2223-34

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

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

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

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

Insert Bidder Warranty Statement Beginning Here:
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INVITATION FOR BIDS # 2223-34

MATERIAL HAULING SERVICES
32 BID FORM K – BIDDER EXPERIENCE AND CERTIFICATIONS
Bidder shall provide below a summary covering the following:

A. Experience: The Contractor and its employees directly involved in providing inspections, services and repairs shall have a minimum of three years’ experience providing the types of services requested in this IFB:
i. Identify key personnel and their position within your organization. ii. Provide a biographical summary or resume detailing the experience, level of expertise and qualifications of the key individuals providing the types of services requested herein. iii. If you plan to subcontract work, you must also indicate in Bid Form L – Subcontractor List the name and address of each firm and the type of work or tasks the subcontractor will perform. Identify key personnel assigned to the project, their position, qualifications, and representative experience.

B. Certifications: Bidder shall provide copies of all relevant certifications held for both company and any individuals required to perform the services requested herein. #2..
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INVITATION FOR BIDS # 2223-34

MATERIAL HAULING SERVICES
33 BID FORM L - SUBCONTRACTOR LIST
Bidder shall list the name and the address of the place of business for each subcontractor who will perform work or labor or render services to the Bidder. In addition, list the type of work the subcontractor will perform, and; (if applicable) its Department of Industrial Relations (DIR) registration number and its California Contractor’s license number:

Name of
Subcontractor
Address Type of Work Contractor
License # (if any)
DIR
Registration #
(if any)
Bidder Company Name:
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INVITATION FOR BIDS # 2223-34

MATERIAL HAULING SERVICES
34 TECHNICAL SPECIFICATIONS AND REQUIREMENTS
SCOPE OF WORK:

The City of Modesto, Utilities Department, Water and Wastewater Divisions, Public Works Department, Compost and Streets Divisions, seek a qualified contractor(s) to provide material hauling services. The successful bidder shall furnish all labor, equipment, fuel, licenses, permits and insurance necessary to perform the work covered by these specifications on an as needed basis.

Materials hauled consist of asphalt, dirt, asphalt grindings, rock, road base material and concrete. Materials shall be picked up and/or hauled to various locations in and around the City of Modesto and Stanislaus County. All drivers and equipment must be trained and equipped on hauling asphalt paving. The City crew leader will determine if the driver and transfer trucks are compatible with the City’s paving machine.

All material haulers shall be responsible for turning in material tags and a daily trip sheet, to City Staff showing starting time, time and location of each load or unload, stop time and total hours charged to City. Tags shall be signed for by a City liaison immediately after the successful drop off of materials.

1.1 TECHNICAL SPECIFICATIONS:

A. Estimated amount of materials hauled is approximately 60,000 tons per year.

B. Contractor shall respond to all calls for material hauling service as requested by City staff. Contractor shall respond with four (4) to twenty (20) transfer trucks, end dump truck material haulers, bottom dump trucks and/or superdump trucks within fourteen (14) hours of receipt of call, load at various job sites and hauled to designated site. City crews will assist in loading and unloading materials. Typical hours of operation are Monday – Friday 6 AM – 4:30 PM.

C. It shall be the responsibility of the material hauler to safely load and unload materials at designated pickup and dumpsites.

D. The City reserves the right to designate locations to dump materials.

E. City staff reserves the right to inspect spoils once loaded onto the truck.

F. Contractor shall be responsible for providing the appropriate equipment and human resources needed to haul materials in accordance with all City, County, State of California, and Federal Government regulations.

G. Contractor shall be responsible for training drivers and ensuring drivers possess a valid California commercial driver’s license. All drivers’ actions shall comply with rules of the road for City, County and State of California.

H. Contractor shall be responsible for hauling materials in accordance with established City, County, State and Federal Regulations.
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INVITATION FOR BIDS # 2223-34

MATERIAL HAULING SERVICES
35 I. Contractor shall provide daily truck logs, showing the starting time, location and time of each load and unload. Any deduction for lunch break shall be included on the truck log. The log shall show actual hourly time charged to the City.

J. Contractor shall be responsible for all traffic control outside the controlled work zone per City, County, State, and Federal guidelines.

K. Contractor shall be responsible for any cleanup caused by trucks or drivers.

L. When grinding, Contractor shall not start charging for truck time until the truck is on the job site.

Trucks will be allowed thirty (30) minutes to return to their office.

M. When paving, Contractor shall start charging for truck time from the asphalt plant. At the end of the day, truck shall be allowed time to return to the plant.

N. Drivers shall maintain a Driver Mileage Trip Sheet (DMTS), which include the starting and ending (per trip or daily) mileage. The City reserves the right to verify mileage to confirm mileage accuracy as shown on the DMTS. Driver shall take the most direct, or time and fuel efficient route possible, abiding in compliance with City, County, State of California, and Federal Government regulations.

1.2 PREVAILING WAGES:

The payment of prevailing wages is required under this contract and all provisions of Section 7.04 of the General Provisions contained within the City standards shall apply.

1.3 CITY REPRESENTATIVE:

Work under any resulting contract shall be performed under the general technical guidance and direction of the City "City Representative". The City Representative is not authorized to commit the City to changes in specifications, requirements, or scope of work, changes in price(s), period of performance or delivery date(s) or method of shipment. Changes of a contractual or business nature shall be effected only by written change to the contract, issued by the City of Modesto, Purchasing Division.

1.4 CALIFORNIA LABOR CODE SECTION 1771.1 (a)
1771.1. (a) A contractor or subcontractor shall not be qualified to bid on, be listed in a bid proposal, subject to the requirements of Section 4104 of the Public Contract Code, or engage in the performance of any 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.

Workers must be paid no less than the prevailing wage rate as published by the DIR, and Contractor shall maintain certified payroll. For additional information regarding Prevailing Wages, please contact the DIR at www.dir.ca.gov, or call the DIR, Labor Research and Statistics Unit, Prevailing Wage Unit at (415)-703-4774. #2..
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INVITATION FOR BIDS # 2223-34

MATERIAL HAULING SERVICES
36 1.5 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.

The successful bidder shall maintain a City of Modesto business license for the duration of the contract.

1.6 INSURANCE:

A. 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.

B. General Liability - insurance with a minimum limit of liability per occurrence of $2,000,000 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.

C. Automobile Liability – insurance with a minimum limit of liability per occurrence of $2,000,000 for bodily injury and property damage. This insurance shall cover any automobile for bodily injury and property damage.

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, it 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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INVITATION FOR BIDS # 2223-34

MATERIAL HAULING SERVICES
37 The CONTRACTOR'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.

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

CONTRACTOR shall either require any subcontractor to procure and to maintain during the term of the subcontract all insurance in the amounts specified above, or shall insure the activities of subcontractors in the policy specified above. The limits of liability required may vary, depending on the type of permit or contract.

The successful bidder shall maintain proper insurance with the City for the duration of the contract.

1.7 CONTRACTOR’S RESPONSIBILITY FOR WORK:

Until the formal acceptance of the work by the City Representative, the Contractor shall be responsible for and have care, custody, and control of the work and of the parts, materials and equipment to be used therein, including parts, materials and equipment delivered to the work site. The Contractor shall bear full risk of loss, injury or damage to any part of the work and parts, material or equipment by action of the elements, or from any other cause, whether arising from the execution or non-execution of the work. The Contractor shall rebuild, repair, restore and make whole, all loss or damage to any portion of the work, parts or materials, before final acceptance, and shall bear the expense thereof, except for such loss or damage caused by the acts of the City, State, or Federal Government, or by an act of God as defined in Section 4150 of the California Government Code.

Suspension of work for any cause whatsoever shall not relieve the Contractor of his/her responsibility for the work or parts and materials as specified on the work request.

The Contractor shall be responsible for and remedy all defects arising from faulty, improper or inferior workmanship, or parts and materials discovered in any part of the work, during one year after the completion and acceptance of the work.

The Contractor shall be responsible for any damage his/her activities cause to adjacent public or private property. The Contractor shall take all measures necessary to protect the surrounding area from debris or other damage resultant from the project activities.

1.8 CHARACTER OF WORKERS:

If any person employed by the Contractor fails or refuses to carry out the direction of the City Representative or appears to be incompetent or acts in a disorderly or improper manner, that person shall be discharged immediately from the job on the request of the City Representative or Purchasing Manager, and such person shall not again work on any City job.

1.9 LABOR FORCE AND SUPERVISION:

The Contractor shall provide sufficient labor at all times to carry out the work properly and shall ensure that competent workers who are skilled in the type of work required are employed. The Contractor shall ensure that #2..
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INVITATION FOR BIDS # 2223-34

MATERIAL HAULING SERVICES
38 supervision is provided at all times while any work under this contract is being performed. If, in the judgment of the City, any person is incompetent or disorderly, Contractor shall promptly remove such person from the work for the duration of the contract.

1.10 DELAY BY THE CITY:

Any act or omission of any kind by the City of Modesto, its officers, agents or employees, which causes the Contractor delay in the completion of the work shall be grounds for extension of time on the part of the Contractor to complete the work, but shall give the Contractor no damages for such delay.

1.11 ADDITIONAL AND EMERGENCY PROTECTION:

Whenever, in the opinion of the City Representative, the Contractor has not taken sufficient precautions for the safety of the public, or property and structures adjacent to the work site, the City Representative may provide suitable protection with or without first notifying the Contractor. The cost and expense of such protection provided by the City shall be borne by the Contractor. The City shall deduct the cost of such protection from any monies due or to become due to the Contractor.
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39 SAMPLE AGREEMENT

SAMPLE ANNUAL AGREEMENT - SERVICES
This agreement, hereinafter called AGREEMENT, made and entered into in the City of Modesto, State of California, this ____ day of ____________________ , 2023, by and between the City of Modesto, a municipal corporation of the State of California, hereinafter called CITY, and _________________, a ______ _______, hereinafter called CONTRACTOR.

W I T N E S E T H:

WHEREAS, the Modesto City Council adopted Resolution No. 2023-xx authorizing the Award of Bid and agreement for the MATERIAL HAULING SERVICES 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 MATERIAL HAULING SERVICES as described in IFB 2223-34 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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40 1. THE WORK:
a) CONTRACTOR shall furnish all labor, materials, equipment, fuel, tools, licenses, and insurance necessary to perform and complete the required work as specified in Exhibit “C”, and in strict accordance with the conditions of the complete AGREEMENT. b) CONTRACTOR shall do and perform the work contemplated hereby in a good workmanlike manner under the direction of and to the satisfaction of the CITY Representative. c) CONTRACTOR shall maintain proper insurance with the CITY for the duration of the AGREEMENT.
d) CONTRACTOR shall maintain a CITY business license for the duration of the AGREEMENT.
e) CONTRACTOR shall furnish said services at the following AGREEMENT rates for an estimated annual amount $_________________. The total amount paid by CITY to CONTRACTOR over the full term of the AGREEMENT shall not exceed $____________. Unless the services provided are for a lump sum or flat fee, fees for work performed by CONTRACTOR on an hourly basis shall not exceed the amounts shown on Bid attached hereto as Exhibit B.

AGREEMENT PRICING

PAYMENT OF PREVAILING WAGES REQUIRED
Description Billable Hourly Rate
Material Hauling Services $_______________________________________/Hr List diesel price at time of bid submittal $___________________________________/Gallon List percent of hourly unit rate associated with fuel cost ______________________________/% of fuel cost #2..
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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:

NAME, TITLE, (209) XXX-XXXX , EMAIL
Purchasing Contact:

NAME, TITLE, (209) XXX-XXXX , EMAIL
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:
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42 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. b. Automobile Liability – insurance with a minimum limit of liability per occurrence of $2,000,000 #2..
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43 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.

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.
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44 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 #2..
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45 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;
c. IFB No. 2223-34
d. Contractor’s City of Modesto business license
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46 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'sperformance underthe Agreement, eitherinwholeorinpart, at itsown 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 materialsin progress to CITY, in which case the CITY will have the right at its discretion to settle, or pay any or all claims arising out of the termination of such, but in no event shall recovery by any CONTRACTOR or subcontractor include lost profits for portions of the SERVICES not completed or undertaken, including materials not delivered; #2..
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47 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 SERVICESwhethercompleted orin 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 AGREEMENTat 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 #2..
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48 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:

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.

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 #2..
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49 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:

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

19. SIGNATORY(IES) FOR CONTRACTOR:

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

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

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

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

23. NON-DISCRIMINATION:
a. During the performance of this AGREEMENT, CONTRACTOR and any allowed subcontractors shall not unlawfully discriminate against any employee or applicant for 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 #2..
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51 the evaluation and treatment of their employees and applicants for employment are free of such discrimination.

The CONTRACTOR and any allowed subcontractors shall comply with the provisions of the Fair Employment and Housing Act (Government Code, Section 12900 et seq.) and the applicable regulations promulgated thereunder (California Administrative Code, Title 2, and Section 7285.0 et seq.). The applicable regulations of the Fair Employment and Housing Commission implementing Government Code, Section 12900, set forth in Chapter 5 of Division 4 of Title 2 of the California Administrative Code are incorporated into this contract by reference and made a part hereof as if set forth in full. b. The CONTRACTOR and any allowed subcontractors shall give written notice of their obligations under this clause to labor organizations with which they have a collective bargaining or other agreement.
c. The CONTRACTOR shall include the nondiscrimination and compliance provisions of this clause in any allowed subcontracts to perform SERVICES. d. The Contractor shall permit access by representatives of the Department of Fair Employment and Housing and the CITY upon reasonable notice at any time during the normal business hours, but in no case less than 24 hours’ notice, to such of its books, records, accounts, other sources of information and its facilities as said Department or CITY shall require to ascertain compliance with this AGREEMENT. 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, #2..
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52 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.

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. #2..
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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 #2..
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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:

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

DIANE NAYARES-PEREZ, CMC,
City Clerk

(SEAL)

APPROVED AS TO FORM:

By: ____________________________
JOSE M. SANCHEZ,
City Attorney
By: ____________________________
JOE F. RODRIQUEZ,
Risk Manager
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ITEM # ITEM/DESCRIPTION QTY UNIT OF

ISSUE UN PRC EXTENSION UN PRC EXTENSION UN PRC EXTENSION 1 MATERIAL HAULING SERVICES 1 HOUR $116.00 $116.00 $154.94 $154.94 $160.00 $160.00 2 DRIVER - DUMP 1 HOUR $23.37 $23.37 $75.00 $75.00 $82.33 $82.33

PITTSBURG, CA
GOLDEN TRUCKING***

STOCKTON, CA

CITY OF MODESTO
PO BOX 642 MODESTO CA 95353
IFB NO. 2223-34 MATERIAL HAULING SERVICES

MODESTO, CA

SEKHON & SON TRUCKING CALIFORNIA MATERIALS
***Golden Trucking was deemed non-responsive, as they did not respond to multiple requests for information. #2..
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CITY OF MODESTO

COMMITTEE AGENDA REPORT
DATE OF MEETING:

November 1, 2023
Date: October 11, 2023
TO: Economic Development Committee
Sue Zwahlen, Chair
Chris Ricci, Vice-Chair
Eric Alvarez, Member
THROUGH: Joseph P. Lopez, City Manager
FROM: William Wong, Director of Utilities
SUBJECT: Olea Edge Large Water Meter Health Analytics
CONTACT: Manuel Martinez, Acting Water Division Manager, [email protected], 209-342-4592
DESCRIPTION:

Consider an agreement with Olea Networks, Inc., Bee Cave, TX for Large Commercial Water Meter Health Analytic Software and Technology for a total cost not to exceed $1,500,000 over five years, and forwarding to Council for approval. (Funding Source: Water Fund) STRATEGIC PLAN ELEMENT:

BACKGROUND:

The City must comply with the State Water Resources Control Board Water Code, Section 10608.34, which requires the State Water Board to develop water loss performance standards for urban retail water suppliers. Executive Order B-37-16, making water conservation a way of life, directs the State Water Board and Department of Water Resources to minimize water waste through system leaks.

Beginning in 2017, SB 555 requires the City of Modesto to submit a validated water loss report for the previous year. These audits estimate distribution system losses due to leaks, bursts, billing or meter inaccuracies and theft using the system’s total water supply and actual consumption volumes.

In 2022, the Water Division engaged Olea Networks, Inc. (“Olea”) to conduct a pilot deployment of Meter Health Analytics (MHA) on twenty-five (25) large meters throughout the City. Olea’s Smart Water Revenue System is a patented, proprietary equipment and software system #3..
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Economic Development Committee, November 1, 2023
Olea Water Meter Health Analytics

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available only from Olea. Patents include a retrofit device and method for retrofitting flow meters, analysis of pipe systems with sensor devices, and portable wireless mesh devices with improved antenna systems. Their system utilizes a unique and proprietary sensor array, Artificial Intelligence (AI) and Machine Learning (ML) video/optical analytics, computing hardware, and battery management systems to identify water meter performance and maintenance needs, so that water utilities can quickly prioritize repairs based on economic return. City staff determined that a pilot project should be able to demonstrate whether Olea’s system would be of economic value to the City if expanded out to a broader range of large water meters.

Throughout the pilot it was found that of the twenty-five meters being monitored, fourteen large meters were identified and diagnosed with performance issues and prioritized for repair by City staff. One sample meter from the pilot project revealed that 86% of water flowing through the meter was not being recognized. The pilot project summary included an annual water loss reduction of 20,528 Centum Cubic Feet (CCF: 100 cubic feet) and projected recovered revenues of $159,503, based on combined annual water and wastewater rates.

DISCUSSION:

This technology has been demonstrated to have a significant positive impact on water loss reduction, water conservation, billing accuracy and revenue, reducing customer disputes, improving maintenance processes and response times, and asset and knowledge management.

Olea Networks will provide a detailed analysis of installed meters from site surveys, deployment of devices, data collection and detailed results related to specific failure modes.

To implement new technology and services to identify and repair the sources of water loss within our distribution network, the Water Division would like to expand the pilot program to monitor the Meter Health Analytics (MHA) of 200 large, commercial, and industrial water meters, pressure reducing valves and shut-off valves. This was presented to the Technology Steering and Alignment Committee (TSAC) on May 25, 2023, and a motion was made to submit to Council for approval. A Bid Waiver application was also submitted explaining the Sole Source nature of the equipment and services provided by Olea, and it was approved by the Purchasing Manager and Director of Finance to move forward to Council.

Modesto Municipal Code Section 8-3.203 generally requires all purchases, which meet or exceed $50,000 for material, equipment, or contractual services to follow formal bid procedures.

However, MMC Section 8-3.204 (b) provides that a purchase may be exempted from the City’s formal bidding requirement where the Purchasing Agency’s requirements can be met solely by a single article or process. Additionally, MMC 8-3.204(d) provides that a purchase may also be exempted where the Purchasing Manager, in her discretion, determines that a process other than the formal bid procedure set forth in Section 8-3.203 will result in a procurement for the City at the lowest possible cost commensurate with the desired quality. Olea Networks is the original equipment manufacturer and sole proprietor of the Smart Water Revenue System and all related components, software, and processes. In addition, even if other manufacturers could provide equivalent equipment, using a single manufacturer creates operational and administrative efficiencies. Therefore, this purchase qualifies for exemption from the formal bidding procedures.

FISCAL IMPACT:

The anticipated cost of $1,500,000 will be funded by the current Utilities Department, Water Division Non-Capital Improvement Project #101480, Olea Smart Water Revenue System. #3..
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Economic Development Committee, November 1, 2023
Olea Water Meter Health Analytics

Page 3 of 3 ends

ANTICIPATED AGREEMENT EXPENDITURES
ALX-MHA100 Annual Subscription – Qty 200 x $1,200 $ 240,000 ALX-MHA100 Initial Installation – Qty 200 x $250 $ 50,000 ALX-Asset Survey – Qty 200 x $250 $ 50,000
Annual Subscription Renewal (Year 2-5) - $240,000 x 4 contract years $ 960,000 Hardware Removal and Reinstallation (for the purpose of meter repairs) $ 200,000 Total based on 200 units $1,500,000
The proposed Agreement is projected to have a gross revenue recovery of $1,743,707 over five years, for a net recovery of $243,707.

RECOMMENDED COMMITTEE ACTION:

Staff Recommendation:

Motion recommending an Agreement with Olea Networks Inc., Bee Cave, TX, for Large Commercial Water Meter Health Analytic Software and Technology for a two-year Agreement with three one-year extension options, for an annual estimated amount of $340,000 and a total amount not to exceed $1,500,000 over five years and forwarding to Council for approval.

Approved by:

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

1. Agreement 255935 – Olea Edge Analytics

2. Exhibit B – Olea Edge Large Meter Analytics Proposal, Scope and Terms

3. Financial Interest Disclosure - Olea

4. Fully Executed Bid Waiver and Sole Source Letter - Olea #3..
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1 ANNUAL AGREEMENT NO. 255935

FOR METER HEALTH ANALYTICS

OLEA EDGE ANALYTICS
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 Olea Networks, Inc. DBA Olea Edge Analytics hereinafter called CONTRACTOR.

W I T N E S S E T H:

WHEREAS, the Modesto City Council adopted Resolution No. 2023- ______ authorizing the Award of Bid and agreement for the Meter Health Analytics SERVICES 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 NOW, THEREFORE, the parties hereto mutually agree as follows:

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 “B”, and in strict #3..
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2 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 initial amount of $340,000 for YEAR 1 and estimated annual amount of $290,000. The total amount paid by CITY to CONTRACTOR over the full term of the AGREEMENT shall not exceed $1,500,000. 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.

AGREEMENT PRICING
ALX-MHA100 Annual Subscription – Qty 200 x $1,200 $ 240,000 ALX-MHA100 Initial Installation – Qty 200 x $250 $ 50,000 ALX-Asset Survey – Qty 200 x $250 $ 50,000
Annual Subscription Renewal (Year 2-5) - $240,000 x 4 contract years $ 960,000 Hardware Removal and Reinstallation (for the purpose of meter repairs estimate at 125 units per year)
$ 200,000
Total based on 200 units $1,500,000

2. CITY REPRESENTATIVE:

CITY Representative: Tony Benns, Utilities Plant Operations Supervisor, (209) 342-4599, [email protected]
Purchasing Division Contact: Melvin Rosal, Buyer, (209) 577-5420, [email protected] 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 #3..
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3 shipment. Changes of a contractual or business nature shall be effective only by written change to the AGREEMENT, issued by the City of Modesto, Purchasing Division.

3. TERM OF AGREEMENT:

The term of the AGREEMENT shall be for a period of two (2) years, with three (3) one-year extension options at the sole discretion of CITY, for a total of up to five years.

Year 1: November 15, 2023 through November 14, 2024
Year 2: November 15, 2024 through November 14, 2025
Year 3: November 15, 2025 through November 14, 2026
Year 4: November 15, 2026 through November 14, 2027
Year 5: November 15, 2027 through November 14, 2028
Pricing as set forth in Section 1.e. above shall remain firm for the first two years of the AGREEMENT.

4. LIABILITY INSURANCE:

The CONTRACTOR shall provide, at its own expense, and maintain at all times the following insurance with insurance companies licensed in the State of California and shall provide evidence of such insurance to the CITY as may be required by the City Clerk of the CITY. The policies or certificates thereof shall provide that, at least 30 days prior to cancellation or material change in the policy, notices of same shall be given to the Risk Manager of the CITY 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 #3..
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4 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, officers, officials, employees, agents, 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 officers, officials, employees, agents, and volunteers for losses arising from work performed by CONTRACTOR for the CITY.

The CONTRACTOR’s insurance policy(ices) shall include a provision that the coverage is primary as respects the CITY; shall include no special limitations to coverage provided to additional insured; and, shall be placed with insurer(s) with acceptable Best's rating of A:VII or with approval of the CITY’s Risk Manager.
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5 For any claims related to this AGREEMENT, the CONTRACTOR’s insurance coverage shall be primary insurance as respects CITY, its officers, officials, employees, agents, and volunteers. Any insurance or self-insurance maintained by CITY, its officers, officials, employees, agents, and volunteers, shall be excess of the CONTRACTOR’s insurance and shall not contribute with it.

5. PAYMENT:

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

6. INDEMNITY:

The CONTRACTOR shall hold the CITY, officers, officials, employees, agents, 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 officers, officials, #3..
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6 employees, agents, and volunteers relating to or during the performance of its obligations under this AGREEMENT. CONTRACTOR’s obligation to defend, indemnify, and hold the CITY, its officers, officials, employees, agents, and volunteers harmless under the provisions of this paragraph is not limited to or restricted by any requirement in this AGREEMENT for CONTRACTOR to procure and maintain a policy of insurance.

7. VENUE & GOVERNING LAW:

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

8. ATTORNEYS’ FEES:

9. COMMENCEMENT AND COMPLETION OF THE WORK:

The work contemplated herein shall be commenced as immediately 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. Contractor’s City of Modesto business license

10. TERMINATION OF SERVICES:
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7 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 under the Agreement, either in whole or in part, at its own discretion and without cause.

Post-Termination Procedure
Upon receipt of a written notice of termination pursuant to either of the foregoing paragraphs, the CONTRACTOR shall:
a. Cease its work as directed in the notice of termination as of the termination date and see to it that its employees, subcontractors and agents are notified of such termination and act as specified in the notice of termination;
b. Terminate all orders and subcontracts except as necessary to complete any portion of the SERVICES that are not terminated;
c. If directed in writing by the CITY to do so, assign all right, title and interest in subcontracts and materials in progress to CITY, in which case the CITY will have the right at its discretion to settle, or pay any or all claims arising out of the termination of such, but in no event shall recovery by any CONTRACTOR or subcontractor include lost profits for portions of the SERVICES not completed or undertaken, including materials not delivered; d. Deliver or otherwise make available to the CITY all data, drawings, specifications, reports, estimates, summaries and such other information and material as may have been accumulated by the CONTRACTOR in performing the SERVICES whether completed or in process; e. Settle outstanding liabilities and claims, subject to the approval of CITY; #3..
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8 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.

11. COMPLIANCE WITH ALL LAWS:

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

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

13. ASSIGNMENT OF RIGHTS:

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

14. CITY PROCESS/PROCEDURE APPROVALS:

CITY approval of any process or procedure shall not relieve CONTRACTOR of its responsibility to furnish the required SERVICES meeting all specifications contained herein. #3..
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10 15. CONTRACTOR'S RESPONSIBILITY FOR DAMAGES:

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

16. NOTICES:

CONTRACTOR: Olea Networks Inc. DBA Olea Edge Analytics
Attn: Chief Financial Officer
12912 Hill Country Blvd, Suite F245
Austin, TX 78738
CITY: City of Modesto
Purchasing Division
P.O. Box 642
Modesto, CA 95353
Each party may change its address for delivery of notice by delivering written notice of such change of address to the other party.

17. SIGNATORY(IES) FOR CONTRACTOR:

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

18. QUANTITIES:

No minimum or maximum is guaranteed or implied.

19. FUNDING:
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11 All annual extensions are based upon continuous funding for that purpose by the City Council.

Failure to fund any annual extension shall result in an immediate termination of the AGREEMENT without redress.

20. OTHER GOVERNMENT/PUBLICLY FUNDED AGENCIES:

21. NON-DISCRIMINATION:
a. During the performance of this AGREEMENT, CONTRACTOR and any allowed subcontractors shall not unlawfully discriminate against any employee or applicant for employment because of race, color, ancestry, religion, sex, national origin, marital status, age, 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.
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12 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.

22. CONTRACTOR LICENSES & PERMITS:

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

23. RECORDS:

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

24. FACILITIES AND EQUIPMENT:

Except as set forth herein, CONTRACTOR shall, at its sole cost and expense, provide all #3..
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13 facilities and equipment that may be necessary to perform the services required by this AGREEMENT. CITY shall make available to CONTRACTOR only the facilities and equipment listed in EXHIBIT “B”, and only under the terms and conditions set forth herein.

25. INDEPENDENT CONTRACTOR; NOT AGENT:

26. DRUG FREE WORKPLACE:

27. ASSIGNMENT:

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

28. WAIVER:

29. HEADINGS NOT CONTROLLING:

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

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

31. ENTIRE AGREEMENT:

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

32. PARTIAL INVALIDITY:

PROPOSAL FOR
Olea Edge Analytics Solutions & Services
Date: February 1, 2023
From: Olea Networks Inc. DBA Olea Edge Analytics
To: City of Modesto, CA

PROPOSAL
This Proposal agreement (“Proposal”) is between Olea Networks, Inc. DBA Olea Edge Analytics (“Olea”) and City of Modesto (“Client”) for the services defined by mutually agreed upon Scope of Services (“Services”). Any modification to our installation and service procedures will not remove functionality without the written consent of both parties. The above Services are detailed in the attached Scope of Services and are incorporated herein by reference. This Proposal is valid for 30 days from above date.

PURPOSE
Implement Olea Technology and services used to identify water loss by continuously monitoring water meters, leaks in pipes, pressure reducing valves, valves, and other assets.

Olea Technology has been demonstrated to have a significant positive Impact on:
● Water Loss Reduction
● Water Conservation,
● Billing Accuracy & Revenue,
● Reducing Customer Disputes,
● Improving Maintenance Processes & Response Time,
● Improving Asset & Knowledge Management,
● and Operational Transparency.

BACKGROUND
The City of Modesto has a desire to implement new technology & services to expand, improve and augment the ongoing water loss management program beyond traditional approaches. The City of Modesto has an extensive water distribution network and desires to understand and alleviate actual sources and causes of water loss within their network.

These sources and causes of water loss can be identified by deploying a network of sensors across the distribution system including:
● Large commercial & industrial water meters
● Pressure Reducing Valves
● Shut-off valves
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● Fire hydrants
● Back Flow Prevention Devices
● Vaults & Enclosures
● Other assets & locations within the water distribution system.

Olea deploys state of the art edge computing technology with advanced analytics, artificial intelligence, and machine learning to help utilities manage their distribution system and eliminate water loss. The edge computing network supports a wide variety of sensors Including:
● Optical
● Vibration
● Magnetic
● Pressure
● Temperature
● Acoustic
● Other sensor utilizing the latest technology
Olea's business model provides turnkey implementation of advanced sensor networks to utilities to ensure utilities are always using the latest and best in class technology.

Technology is evolving on a yearly and even a monthly basis making traditional capital acquisition of technology with a life expectancy of 10 or more years no longer a viable approach to effectively serve the need of the community a utility serves.

Olea has developed unique and proprietary approaches to monitor certain assets within the utility distribution system. These approaches are patented and unique to Olea due to our ability to deploy advanced edge computers in unpowered and adverse environments. An example of a unique approach to water loss management is our ALX solution focused on commercial and industrial water meter accuracy.

Commercial and industrial meters serve utilities largest customers and short-term meter failures can have a significant adverse impact on understanding sources of water loss and on utility revenue.

Olea ALX Technology is a complete solution to identify broken, worn, and missized large water meters (sizes ranging from 1-inch to 10-inch by various manufacturers). Olea ALX Technology is not a replacement for a water meter or Advanced Metering Infrastructure (AMI)/Advanced Metering Reading (AMR) enabled meters. Rather, it is a sophisticated yet simple to use hardware, software, and service solution implemented in addition to the existing large water meters and associated AMI/AMR devices.

Olea ALX Technology is an example of the exceptional value utilities receive working with Olea to digitize their water distribution network. Olea is committed to bringing the latest and most effective solutions to utilities with a focus on eliminating all water loss.

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TERMS OF PAYMENT
Each month, Olea will invoice Client for the Asset Survey, Initial Installation, and Annual Subscription for the Services completed in the prior month. Subscription renewals will be billed annually on the contract date. Payment terms are Net 30 from date of invoice.

TERM OF CONTRACT
The term of the project will be one year from the date of issuance of the Notice-To-Proceed.

The project may be renewed for terms of not less than one year by mutual agreement of both parties in writing.

PROPRIETARY TECHNOLOGY AND SECURITY
Olea Technology is a patent protected one-of-a-kind solution available only from Olea and qualifies for sole source procurement practices. Olea Technology is protected by multiple patents including but not limited to:
● Retrofit Device and Method of Retrofitting Flow Meter (Patent US 2017/0234709 A1) approved March 21, 2019
● Portable Wireless Mesh Device with improved Antenna Systems (Patent US 2015/0072628) issued June 6, 2017
● System and Method for Data Management Structure Using Auditable Delta Records in a Distributed Environment (Patent US 2017/0163733) published June 8, 2017 The combination of this patented technology, combined with Olea’s proprietary software systems result in Olea Technology offering many unique features not available from any other supplier including but not limited to:
● Turnkey installation, which is easily scaled, requires no communication infrastructure investment or utility resources;
● Retrofits onto any brand and model, single or compound mechanical water meter; ● Unique and proprietary passive sensor array that does not interfere with water meter operation, does not require water service interruption to customers, and does not interfere with current billing process or practices;
● Unique and proprietary analytics to monitors and identify error conditions, including but not limited to, the following: 1) stuck register, encoder reporting error, register failures; 2) cross-over valve stuck or incomplete seating; 3) register magnetic decouple from the unitized measuring element (UME); 4) UME element wear and/or mechanical failure; 5) presence of backflow; 6) premature cross-over opening, 7) stuck or non-operable cross over; 8) by-pass monitoring; 9) pressure monitoring; and 10) right-sizing determination;
● Unique and proprietary analytics determining & recommending specific corrective action for condition(s) listed above;
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● Unique and proprietary dashboard and presentation layers including but not limited to: a portfolio dashboard presenting prioritized corrective actions; an asset dashboard presenting detailed information on assets, usage and alerts; and a condition dashboards presenting detailed data and analysis results related to specific failure modes. Dashboards will reference 1) meter customer, 2) City of Modesto service area, 3) service point ID, 4) service address, and 5) non-revenue water recovery volume estimate (centum cubic feet/month; ● Unique and proprietary AI and ML video/optical analytics capability combined with sub-second data sampling of multiple hall-effect and acoustic sensors; ● Unique, proprietary, and patented device and data security strategies including but not limited to dedicated nested Internet Protocol Security tunneling, Trusted Platform Module (TPM), and patent protected block-chain ledgering delivering an upgradeable and expandable edge computing infrastructure with best-in-class security and data integrity;
● Unique and proprietary edge computing hardware which is AI/ML capable, upgradable, expandable (more sensors, more data), ruggedized, power efficient, self-monitoring and waterproof. Olea’s edge computing hardware enables the processing of complex and customizable AI and ML analytics in unpowered and adverse environments; and
● Unique and proprietary battery management system manages and maintains the health of edge computer hardware and batteries.

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TERMS AND SCHEDULE
Olea Terms and Conditions and Scope of Services, each attached hereto, are incorporated by reference into this Proposal.

The authorized signatories for the parties acknowledge and accept this Proposal as of the date first set forth above.

OLEA NETWORKS, INC. CITY OF MODESTO
By:______________________________ By:____________________________ Title:_____________________________ Title:___________________________ Date:_____________________________ Date:___________________________ Olea: Olea Edge Analytics
Legal Entity: Olea Networks Inc. DBA Olea Edge Analytics Mailing Address: 12912 Hill Country Blvd., Suite F245, Austin, TX 78738 Physical Address: 12912 Hill Country Blvd., Suite F245, Austin, TX 78738 Contact Name: Brett Baldwin
Title Vice President of Sales
Phone Number: +1(844) 653-2638
Email Address: [email protected]
Client: City of Modesto
Address: 1010 10th St., Modesto, CA 95354
Contact Name: Jeremy Parnell
Title
Phone Number:

Water Superintendent
(209) 342-4599
Email Address: [email protected]
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SCOPE OF SERVICES
By Olea Edge Analytics
For City of Modesto, CA
This Scope of Services is for the following:
● ALX - Meter Health Analytics on 200 Water Meters

PROJECT MANAGEMENT SERVICES
PM1) Project Schedule and Work Plan for Utility Review and Approval PM2) Safety and Communication Plan for Utility Review and Approval PM3) Project Management Video Kick-Off Call
PM4) Project Management Monthly Video Call with Project Updates PM5) Project Tracking of critical events and corrective actions

PROJECT SERVICES
P1) Management Briefing Sheet with FAQs and project goals P2) Site Survey Reports for each asset Location. Reports include:
● Pictures of existing asset and location conditions
● Assessment of safety protocol for installation activities P3) Olea sensor and edge computer Installation and Service ● Initial sensor and edge computer installation on each asset ● Training for Client to remove the sensors (in case of emergency or asset repairs) ● Training for Client to Reinstall sensors packages post repair ● Coordinate with City of Modesto to log hardware installation into IPS system P4) Olea System Monitoring & Communication
● Access and training to the Utility Dashboard
● Initial Finding Reports for each asset
● Repair Confirmation, validating the repairs were completed as intended not less than 30 days after sensors have been reinstalled
● Monitoring of assets, sensors, and edge computers
P5 Removal & Reinstallation of Hardware
● Removal of Olea Hardware for the purposes of Meter Repair - $150.00 per occurrence.
● Re-Installation of Olea Hardware post meter repair - $250.00 per occurrence. ● Unless otherwise directed by Client, Olea will re-Install hardware on meter 14 days after hardware removal.

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METER SELECTION
MS1) Client will provide Olea with a list of assets per the project scope defined above.

EQUIPMENT DELIVERABLES
E1) 200 – MHA 100 Edge Computing Units with cell-based communication and antenna E2) 200 – MHA 100 Sensor Packages
E3) 200 – MHA 100 Power Supply – as determined by site visit Please note Olea's solutions are delivered as a service and as such all equipment delivered remains in the ownership of Olea Edge Analytics and may be upgraded or replaced as necessary to maintain or improve the service.

LIMITATIONS OF USE
LU1) Olea reserves the right to not Install Olea technology, at Olea's sole discretion, on assets or locations which are not safe or do not offer the ability for successful Installation and operation of Olea technology.

PROJECT BUDGET
Please note unit price remains the same for any project of 100 units or more.

Item Qty Unit Price Total Price
ALX - MHA100 Annual Subscription 200 $1200 $240,000
ALX - MHA100 Initial Installation 200 $250 $50,000
ALX - Asset Survey 200 $250 $50,000
Total $340,000
Renewal Schedule
Year 1 Year 2 Year 3 Year 4 Year 5
$340,000 $240,000 $240,000 $240,000 $240,000
*Based on 200 unit agreement
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OLEA TERMS AND CONDITIONS
These Terms and Conditions are effective on the date set forth on the Quote (“Effective Date”) and with the Client set forth on the Proposal (“Client”) and OLEA NETWORKS, INC. hereinafter referred to as the "Olea" (collectively referred to as the “parties”).

WITNESSETH:

In consideration of the mutual covenants set forth herein, the parties agree as follows:

Olea shall provide Olea technology and services (“Olea Technology”) based upon the Proposal, these Terms and Conditions and the Scope of Services (“Agreement”). In the event of conflicts between the documents, the following order of precedence shall apply: i) Proposal; ii) Scope of Services; and iii) Terms and Conditions.

No representations, arrangements, understandings, or agreements relating to the subject matter exist amongst the parties except as expressed in this Agreement.

1.0 SCOPE OF SERVICES
The scope of services to be performed shall be as set forth in the Scope of Services, as specifically set forth in Exhibit A (“Services”).

2.0 TERMS AND CONDITIONS
This Agreement is subject to the following Terms and Conditions:

2.1 Term: The term of this Agreement shall cover the period set forth in the Proposal (‘Term”).

2.2 Equipment: The Services shall include use of equipment provided by Olea during the Term (“Equipment”), as specifically set forth in Exhibit A. Title to equipment set forth in the SOW (“Equipment”) shall remain with Olea at all times. Olea will arrange for setup, installation, and start-up testing of the Equipment to ensure that it complies with the operating with Olea’s operating standards. Client agrees: (i) to maintain and operate the Equipment only in accordance with published documentation, and (ii) not to make any alterations or modifications to the Equipment. At the end of the Term, Client shall return the Equipment to Olea or at Olea’s expense or allow Agreement or to reasonable access to remove the Equipment.
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2.3 Use of Software: During the Term of this Agreement, Olea grants to Client a limited, non-exclusive, non-transferable, non-assignable right to use the installed and web-based applications provided by Olea and intended for use with the Services (“Software”) solely with Services during the Term. Client agrees that it will not: (i) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Services; (ii) attempt to reverse compile, disassemble, reverse engineer, or otherwise reduce to human-perceivable form all or any part of the Services; (iii) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit the Services, or otherwise make the Software available to any third Party (e.g., as a service bureau); (iv) use the Software for any purpose other than their intended purpose; or (v) circumvent or disable any security or other technological features or measures of the Software.

2.4 IP Ownership: Olea retains all of its right, title and interest in the Services, Software and all modifications and derivative works made, including all intellectual property rights therein. To the extent Client acquires any right, title or interest in such intellectual property rights, Client agrees to and does hereby assign to Olea or its designee, all rights, title, and interest (including all IP rights) in and to such intellectual property.

2.5 Insurance: Unless otherwise specified in writing by Client, Olea shall maintain, for so long as this Agreement is in effect, the following types and amounts of insurance coverage: (a) with respect to any Agreement covering work or Services performed for Client, regardless of location: Commercial General Liability insurance with a limit of liability that is not less than $1,000,000 combined single limit; $2,000,000 in aggregate and (b) with respect to any Agreement covering work or Services performed on property owned or leased by Client, or on property otherwise operated by or on behalf of Client: (i) Workers’ Compensation insurance which satisfies applicable statutory requirements; (ii) Professional Liability insurance with a limit of liability that is not less than $1,000,000 and in aggregate per claim; (iii) Cyber E/O of $5,000,000 per claim and in aggregate; and (iv) Automobile Liability insurance with a limit of liability that is not less than $1,000,000 combined single limit.

Olea hereby covenants and agrees as follows: (a) each such insurance policy shall be underwritten by a responsible and solvent insurance company that is acceptable to Client; (b) the insurance coverages specified above shall constitute minimum requirements; and (c) upon request by Client, Olea shall promptly furnish Client with copies and/or certificates of insurance evidencing the insurance coverage specified above. Nothing contained herein shall be deemed to constitute a waiver of Client’s sovereign immunity under law.

2.6 General Warranty and Limitation of Liability: Olea hereby represents and warrants to Client that Equipment and/or Services supplied hereunder shall: (A) conform to the requirements of the Agreement, including Exhibit A; (B) meet or exceed standard industry practices and procedures; (C) be manufactured, produced, furnished and/or performed in accordance with Applicable Law (as Olea Terms and Conditions (091422a)
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defined below); (D) be free from defects in design, workmanship and materials; (E) be delivered and conveyed to Client free and clear of any liens, claims or encumbrances of any nature whatsoever; and (F) to the best of Olea’s knowledge, the Equipment furnished under this Agreement will not infringe upon any United States patent, copyright, trademark, trade secret, or other intellectual property rights. Olea shall have no warranty obligations for Services or Equipment when due to: i) improper use or use not in compliance with published documentation or instructions provided by Olea; ii) negligent or improper maintenance or Equipment; ii) failure to maintain equipment interoperating or required for use with the Services or Equipment, including without limitation, pipes and valves. Olea, at its own cost and expense, has obtained, or will obtain, prior to the delivery of any Equipment or performance of any Services, hereunder, all approvals required by Applicable Law in connection with the transactions contemplated hereby, and Olea will furnish Client, upon request, with copies or other satisfactory evidence of all such approvals. As employed herein, the term “Applicable Law” shall mean all federal, state, and local laws, rules, regulations, orders, codes, ordinances, and regulations applicable to the transactions contemplated by the Agreement and to the Equipment and/or Services supplied hereunder. Except as specifically set forth in this Agreement, the Parties disclaim all other warranties, express or implied. In addition, neither Party shall be liable to the other party for any lost profits, revenues or indirect, special, incidental, consequential, cover or punitive damages, whether in tort or contract, or for amounts greater than fees paid to Olea during the term of this Agreement.

2.7 Indemnification: Olea shall defend, indemnify and hold harmless Client and Client’s members, officers and employees from and against any and all claims, losses, liabilities, damages and expenses (including reasonable attorneys’ fees and costs) (collectively, the “Losses”) arising out of or in connection with:
(1) any material breach of the representations, warranties, agreements and covenants of Olea contained in the Agreement ; (2) any injuries to persons or property caused by any grossly negligent or wrongful act or omission of the Olea or its subcontractors, vendors, employees, or other authorized representatives; (4) any claims filed against Client by a subcontractor or employee of Olea; or (5) any claims or suits for infringement of United States or foreign patents, copyrights, trademarks, trade secrets, or other intellectual property rights or claims of unfair competition arising out of or resulting from Client’s purchase, use, and/or possession of any Equipment and/or Services furnished under the Agreement.

2.8 Default and Termination: Each of the following events shall constitute a default for purpose of this Agreement (each of which shall entitle the non-breaching Party to terminate for default in accordance with this Section):
(a) any bankruptcy proceeding by or against either Party or the appointment of a trustee for the benefit of creditors; or (e) a breach by either Party or failure and failure to cure such breach within 30 days following written notice by the non-breaching Party. In the event of termination for default, Client shall not be liable to Olea for payment of any amount beyond the value of any Olea Terms and Conditions (091422a)
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conforming Equipment and Services shipped or received and accepted by Client.

3.0 COMPENSATION
Total compensation for the Services shall be set forth in the Scope of Services.

4.0 GENERAL

4.1 Confidentiality
A. Olea Confidentiality
Olea acknowledges and understands that its employees may have access to proprietary, business information, or other confidential information belonging to Client. Therefore, except as required by law, Olea agrees that its employees will not:

1. Access or attempt to access data that is unrelated to their job duties or authorizations as related to this Agreement.

2. Access or attempt to access information beyond their stated authorization.

3. Disclose to any other person or allow any other person access to any information related to Client or any of its facilities or any other user of this Agreement that is proprietary or confidential. Disclosure of information includes, but is not limited to, verbal discussions, FAX transmissions, electronic mail messages, voice mail communication, written documentation, “loaning” computer access codes and/or another transmission or sharing of data.

Olea understands that Client, or others may suffer irreparable harm by disclosure of proprietary or confidential information and that Client may seek legal remedies available to it should such disclosure occur. Further, Olea understands that violations of this provision may result in termination of the Agreement.

Olea understands that information and data obtained during the performance of this agreement shall be considered confidential, during and following the Term of this Agreement, and will not be divulged without the Client’s written consent and then only in strict accordance with prevailing laws. Olea shall hold all information provided by Client as proprietary and confidential and shall make no unauthorized reproduction or distribution of such material.

Notwithstanding the foregoing, Olea shall be permitted to use Client data in an anonymized and deidentified format to improve the Services.

B. Client Confidentiality
In addition, Client understands that certain information provided by Olea during the performance of this Agreement may also contain confidential or Olea Terms and Conditions (091422a)
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proprietary information. Client shall hold all information provided by Olea as proprietary and confidential and shall make no unauthorized reproduction or distribution of such material, subject in all instances to the applicable state freedom of information act.

4.2 Force Majeure
A party is not liable for failure to perform the party's obligations if such failure is as a result of Acts of God (including fire, flood, earthquake, storm, hurricane or other natural disaster), war, invasion, act of foreign enemies, hostilities (regardless of whether war is declared), civil war, rebellion, revolution, insurrection, military or usurped power or confiscation, terrorist activities, nationalization, government sanction, blockage, embargo, strikes at national level or industrial disputes at a national level, or strike or industrial disputes by labor not employed by the affected party, its subcontractors or its suppliers and which affect an essential portion of the contracted for works but excluding any industrial dispute which is specific to the performance of the works or this contract, interruption or failure of electricity or telephone service.

If a party asserts Force Majeure as an excuse for failure to perform the party's obligation, that party must promptly notify the other party giving full particulars of the event of force majeure and the reasons for the event of force majeure preventing that party from, or delaying that party in performing its obligations under this contract and that party must use its reasonable efforts to mitigate the effect of the event of force majeure upon its or their performance of the contract and to fulfill its or their obligations under the contract.

4.3 Authorization to do Business: Olea represents that: (a) it is authorized to transact business in the state where Client resides; and (b) it shall not allow its existence to lapse or its certificate of authority or registration to transact business in such state, to be revoked or canceled at any time during the term of this Agreement.

4.4 Waiver: Any waiver by a Party of any breach by the other Party of any term or condition of the Agreement shall not constitute a waiver of any subsequent breach of the same or any other term or condition hereof. The rights and remedies of Client set forth herein are not exclusive but are in addition to all other rights and remedies of Client under applicable law.

4.5 Survival: Sections 2.4 through 2.9, Sections 3 and 4 shall survive any expiration or termination of this Agreement for any reason.

4.6 Governing Law; Venue; Waiver of Jury Trial: The Agreement (and the transactions contemplated hereby) shall be governed in all respects, whether as to validity, construction, capacity, performance or otherwise by the laws of the state where Client resides, without reference to conflict of laws principles.

Olea Terms and Conditions (091422a)
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Any action or proceeding arising out of or related to the Agreement shall be brought only in the courts of competent jurisdiction in the state where Client resides. The parties hereby consent to such venue and to the jurisdiction of such courts over such proceeding and themselves. The parties waive any right to a jury trial in connection with any such litigation.

4.7 No Assignment, Substitutions or Modifications: Olea shall not assign or subcontract any right or obligation under the Agreement without Client’s prior written consent. No substitution, change, modification, or deviation from the terms of the Agreement shall be made without prior written authorization from Client.

4.8 Entire Agreement: The Agreement, together with all exhibits and attachments hereto, constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior proposals, understandings, and agreements, whether oral or written between the parties with respect to the subject matter hereof.
---End of Agreement---
Olea Terms and Conditions (091422a)
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1 SOLE SOURCE # 2324-07 Meter Health Analytic
Software - Olea Networks, Inc.

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.

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.

10.03(h) are satisfied.

It is the legal obligation of all applicants for approval of an agreement or of an application for development rights to verify in writing, under penalty of perjury, that the identity of each person having a material financial interest in the Bidder is true, correct and complete. By signing below, the applicant understands that this information is provided under penalty of perjury, and that intentionally supplying misinformation or deception may result in either invalidation of the agreement or application, or criminal prosecution for misdemeanor violation of the Modesto Municipal Code, or both. Negligent provision of misinformation shall be grounds for invalidation. In accordance with the Modesto Municipal Code, each applicant has a continuing obligation to maintain the truth, accuracy and completeness of the financial interest disclosure information provided below until after final consideration by the City Council of any matter arising out of or relating to the agreement or application.
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2 SOLE SOURCE # 2324-07 Meter Health Analytic
Software - Olea Networks, Inc.

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

Bidder Company Name:

Name of Bidder Signatory:

Signature of Bidder Representative:

D&S Pearce Family Partnership
Pearce Family Trust Dated December 30, 1999
Dave Preische
Brian (Connor) White
Shanti Family Trust LLC
Stefan Grefen
Astrid Jaehde
Andrew Kodis
Pete Selda
Insight Venture Partners
Ananda OM LLC
Michael Schwabe
Laizhong Luo
Mercury Fund
CONTINUED on page 3
David Mackie
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Print Names of Persons Having a Financial Interest in Bidder Receiving this Agreement (continued):

First Name, Last Name AnantaFO Foundation LLC
First Name, Last Name Race Point Capital Fund II LLC
First Name, Last Name Paul Whipple
First Name, Last Name Tom Metz
First Name, Last Name Ganapathi Living Trust Dated May 20, 2013 First Name, Last Name
David and Naomi Parker Living Revocable Trust Dated
August 5, 1994
First Name, Last Name Braidedtrio, LLC
First Name, Last Name
The R. David Hoover Revocable Trust as amended and
restated
First Name, Last Name Renewal4 Limited Partnership
First Name, Last Name Renewal4 US Limited Partnership
First Name, Last Name Jimmy Treybig
First Name, Last Name Wesley Kemp
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CITY OF MODESTO

COMMITTEE AGENDA REPORT
DATE OF MEETING:

November 1, 2023
Date: August 18, 2023
TO: Economic Development Committee
Sue Zwahlen, Chair
Chris Ricci, Vice-Chair
Eric Alvarez, Member
THROUGH: Joseph P. Lopez, City Manager
FROM: Jessica Hill, Director of Community and Economic Development SUBJECT: Ordinance Amending MMC Section 11-6.05 establishing Surcharge for Water Outside Services Agreements
CONTACT: Peter Ibrahim, Infrastructure Financing Program Supervisor [email protected], 209-577-5211
DESCRIPTION:

Consider an Ordinance amending Section 11-6.05 “Charges for Metered Water Service,” of Chapter 6, “Collection of Public Utilities Charges,” of Title 11, “Public Utilities,” of the Modesto Municipal Code to establish a Water Rate Surcharge for new water connections located outside of the City’s water service area forwarding to Council for Approval. (Funding Source: Water Enterprise Fund)
STRATEGIC PLAN ELEMENT:

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

Provide Safe, Efficient, and Reliable Infrastructure through proactive community investment, maintenance and sustainability efforts.

BACKGROUND:

On June 5, 2012, the City Council approved final adoption of Ordinance No. 3566-C.S. and 3567-C.S. amending City of Modesto Municipal Code Section 11-1.05. Both amendments included language requiring City Council approval for all extensions of water services into unincorporated areas, upon the recommendation of the Director responsible for utility system planning and subsequent City Manager approval.

On November 25, 2014, by Resolution Nos. 2014-472 and 473, Council approved amending City Council Policy 5.001 and 5.002. On December 9, 2014, the Council approved adoption of Ordinance No. 3611-C.S. amending City of Modesto Municipal Code Section 11-1.05. Both amendments included language allowing the City Manager, upon the recommendation of the Director responsible for utility system planning, to approve standard agreements of service for #4..
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Economic Development Committee, November 1, 2023
Ordinance Amending MMC Section 11-6.05 establishing Surcharge for Water Outside Services Agreements

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extension of water services into certain unincorporated areas located within the former Del Este Water Service Area without City Council approval.

DISCUSSION:

The Community and Economic Development Department has been approached concerning potential Outside Service Agreements on a number of proposed development projects in which parcels are outside of both the Modesto City Limits and Sphere of Influence, but adjacent to the City’s contiguous water system.

Cities can opt to establish a water or sewer surcharge for customers who are outside the City’s service area. Typically, this surcharge is put into place to recover the higher costs associated with delivering service outside the City’s service area. The provisions for a surcharge would be included in the required Outside Service Agreement.

The Modesto Code of Ordinances, Section 11.1-05, anticipates greater connection fees for territory outside the City, but there is no similar language for the ongoing charge for service.

However, an ordinance could amend Section 11-1.06 to specify that territory outside the City that connects to the City’s system after adoption of the Ordinance (or some other specified date) will be subject to the surcharge rate.

The City has a policy in place, City Council Policy No. 5.001, that addresses the extension of water service into unincorporated areas. However, the policy doesn’t include any language regarding charges or rates, so there is no need to update that policy.

Since property owners would be voluntarily agreeing to pay these fees as a condition of receiving service the City has no obligation to provide, there is no need to go through the Proposition 218 process or hold any public hearings.

In order for the City of Modesto to proceed with a surcharge for customers who are outside the City’s service area, the City Council would have to proceed with adoption of an ordinance authorizing the surcharge. If the ordinance is adopted, the Outside Service Agreement will also be updated so that property owners establishing new connections outside of the City’s service area acknowledge and voluntarily agree to pay the increased rate.

Staff researched three cities that apply such a surcharge for customers who are outside of City Limits, please refer to the table below for further information.

City Policy
Ceres, California
 Water service for anyone outside the city limits or in “county” area pay 1.5x the rates
 City Ordinance 2019-1054
Galt, California
 25% additional monthly fee for users outside city limits  Galt does not have it as part of their ordinance but is charged on their fee schedule under their “Special Fees”
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Economic Development Committee, November 1, 2023
Ordinance Amending MMC Section 11-6.05 establishing Surcharge for Water Outside Services Agreements

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Lodi, California
 The city will not normally serve water outside the city limits. In those cases where it is authorized by the city council, the rate shall be one hundred fifty percent of the rate for service inside the city limits
 Lodi Municipal Code 13.08.020
Staff is recommending to proceed with an ordinance for Outside Services Agreements using a hybrid approach that applies a surcharge of 25% of the rate for service and service connection within the City’s Sphere of Influence, a surcharge of 50% of the rate for service and service connection outside of the City’s Sphere of Influence. County islands in the City’s unincorporated areas would not be subject to surcharge.

A comprehensive breakdown of current rates for both monthly flat and metered water service, as well as the purposed surcharged rate for service (25% and 50% of the rate) is included as Attachment 2.

FISCAL IMPACT:

Revenue from the surcharge will be deposited into the Water Enterprise Fund to offset the cost of providing water service outside the City’s service area.

RECOMMENDED COMMITTEE ACTION:

Staff Recommendations:

Motion recommending an Ordinance amending Section 11-6.05 “Charges for Metered Water Service,” of Chapter 6, “Collection of Public Utilities Charges,” of Title 11, “Public Utilities,” of the Modesto Municipal Code to establish a Water Rate Surcharge for new water connections located outside of the City’s water service area and forwarding to council for approval.

Approved by:

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

1. Surcharge Ordinance

2. Tables of Surcharges

3. Sphere of Influence Map
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ORDINANCE NO. _______
ORDINANCE AMENDING SECTION 11-6.05 “CHARGES FOR METERED WATER SERVICE,” OF CHAPTER 6, “COLLECTION OF PUBLIC UTILITIES CHARGES,” OF TITLE 11, “PUBLIC UTILITIES,” OF THE MODESTO

MUNICIPAL CODE TO ESTABLISH A WATER RATE SURCHARGE FOR NEW WATER CONNECTIONS LOCATED OUTSIDE OF THE CITY’S WATER

SERVICE AREA
WHEREAS, the City of Modesto provides retail water services to parcels located within the City’s boundaries and certain other areas; and WHEREAS, owners of property located outside of the City’s water service area occasionally request connection to the City’s water system; and WHEREAS, City Council Policy No. 5001 addresses the extension of water service into unincorporated areas; and
WHEREAS, the cost for the City of providing water service in incorporated areas is higher than other areas due to the need to transport the water a further distance, as well as the need to acquire and treat a greater volume of water to accommodate the increased demand; and
WHEREAS, the City Council desires to establish a higher rate for water service for new water connections located outside of the City’s boundaries; and WHEREAS, the City desires to impose a 25% rate surcharge for areas within the City’s Sphere of Influence, and a 50% rate surcharge for all other properties; and WHEREAS, property owners in unincorporated areas have no obligation to connect to the City’s water system, and will voluntarily choose to connect subject to the surcharge water rate;
WHEREAS, the City Council desires to adopt the proposed ordinance.

NOW, THEREFORE, the Council of the City of Modesto does ordain as #4..
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follows:

SECTION 1. AMENDMENT OF CODE. Section 11-6.05, “Charges for Metered Water Service,” of Chapter 6, “Collection of Public Utilizes Charges,” of Title 11, “Public Utilities,” of the Modesto Municipal Code is hereby amended to read as follows (with additions underlined and deletions in strikethrough):
“11-6.05 - Charges for Metered Water Service.

Charges for water delivered through a meter shall be paid to the City in accordance with rates and charges as established by the Council from time to time by resolution and on file in the office of the City Clerk and the Public Works Director. Charges for water delivered to a parcel located outside of the boundaries of the City, but otherwise within the City’s Sphere of Influence, shall be 125% of the otherwise applicable rate. Charges for water delivered to a parcel located outside of the boundaries of the City, and not located within the City’s Sphere of Influence shall be 150% of the otherwise applicable rate. The increased water rates for parcels located outside the City shall apply to parcels that connect to the City’s water system after January 1, 2024. The increased water rates for parcels located outside the City shall not apply to parcels located within County islands or for which the City has an obligation to provide water service. Charges for metered service will be due and payable upon presentation of the bill, and no advance or partial payments of such charges will be accepted by the City without consent of the Finance Director.

SECTION 2. SEVERABILITY
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If any provision of this Ordinance or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of this Ordinance which can be given effect without the invalid provision or application, and to this end the provisions of this Ordinance are severable. This City Council declares that it would have adopted this ordinance irrespective of the invalidity of any particular portion thereof and intends that the invalid portions should be severed and the balance of the Ordinance be enforced.

SECTION 3. CALIFORNIA ENVIRONMENTAL QUALITY ACT.

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

SECTION 4. EFFECTIVE DATE
This Ordinance shall go into effect and be in full force and operation from and after thirty (30) days after its final passage and adoption.

SECTION 5. PUBLICATION
At least two (2) days prior to its final adoption, copies of this Ordinance shall be posted in at least three (3) prominent and distinct locations in the City; and a notice shall be published once in The Modesto Bee, the official newspaper of the City of Modesto, setting forth the title of this ordinance, the date of its introduction and the places where this Ordinance is posted.
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The foregoing Ordinance was introduced at a regular meeting of the Council of the City of Modesto held on the __ day of _______, 2023, by Councilmember _____, who moved its introduction and passage to print which motion being duly seconded by Councilmember ______, was upon roll call carried and ordered printed and published by the following vote:

BY: ________________________________
JOSE M. SANCHEZ, City Attorney
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FINAL ADOPTION CLAUSE
The foregoing ordinance, having been published as required by the Charter of the City of Modesto, and coming on for final consideration at the regular meeting of the Council of the City of Modesto held on the ____ day of _______, 2023, _____________ moved its final adoption, which motion being duly seconded by Councilmember ____________, was upon roll call carried and the ordinance adopted by the following vote:

AYES: Councilmembers: Name, Name, Name, Name, Name, Name, Mayor Name
NOES: Councilmembers: None
ABSENT: Councilmembers: None
APPROVED:_________________________
SUE ZWAHLEN, Mayor
ATTEST: _____________________________
DIANE NAYARES-PEREZ, City Clerk
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Rate Rate
monthly +
25%
monthly +
50%
Sphere of
Influence
Outside of
Sphere
0 through 5,000 Square Foot Lot $57.23 $71.54 $85.85
5,001 through 7,000 Square Foot Lot $65.51 $81.89 $98.27 7,001 through 11,000 Square Foot Lot $81.87 $102.34 $122.81 11,001 through 17,000 Square Foot Lot $106.30 $132.88 $159.45 Over 17,000 Square Foot Lot $118.63 $148.29 $177.95
Rate Rate
monthly +
25%
monthly +
50%
Sphere of
Influence
Outside of
Sphere
5/8 through 3/4 Inch Meter $25.44 $31.80 $38.16
1 Inch Meter $36.83 $46.04 $55.25
1 1/2 Inch Meter $65.32 $81.65 $97.98
2 Inch Meter $99.50 $124.38 $149.25
3 Inch Meter $207.73 $259.66 $311.60
4 Inch Meter $367.24 $459.05 $550.86
6 Inch Meter $748.90 $936.13 $1,123.35
8 Inch Meter $1,375.53 $1,719.41 $2,063.30
10 Inch Meter $2,173.05 $2,716.31 $3,259.58
12 Inch Meter $2,856.63 $3,570.79 $4,284.95
Rate Rate
monthly +
25%
monthly +
50%
Sphere of
Influence
Outside of
Sphere
5/8 Inch Service $2,202 $2,752.50 $3,303
1 Inch Service $3,671 $4,588.75 $5,507
1 ½ Inch Service $7,341 $9,176.25 $11,012
2 Inch Service $11,746 $14,682.50 $17,619
3 Inch Service $25,695 $32,118.75 $38,543
4 Inch Service $46,250 $57,812.50 $69,375
6 Inch Service $95,437 $119,296.25 $143,156
8 Inch Service $176,191 $220,238.75 $264,287
10 Inch Service $278,970 $348,712.50 $418,455
12 Inch Service $367,065 $458,831.25 $550,598

EXHIBIT A
Single Family Flat Water Rates (per lot size) Monthly
Rate
Metered Water Rates (per meter size) Monthly
Rate
Water Connection Charges Monthly
Rate
Exhibit A
1 #4..
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Rate Rate
monthly +
25%
monthly +
50%
Sphere of
Influence
Outside of
Sphere
1 Inch Service $1,108 $1,385 $1,662
1 ½ Inch Service $1,754 $2,193 $2,631
2 Inch Service $1,772 $2,215 $2,658
4 Inch Service $2,937 $3,671 $4,406
6 Inch Service $3,009 $3,761 $4,514
8 Inch Service $3,717 $4,646 $5,576
10 Inch Service At Cost At Cost +
25 %
At Cost +
50 %
Rate Rate
25% 50%
Sphere of
Influence
Outside of
Sphere
1 Inch Meter/New Service - pedestrian lid $275 $343.75 $412.50 1 Inch Meter/New Service - traffic lid $314 $392.50 $471.00 1 Inch Meter/Retrofit Service - pedestrian lid $520 $650.00 $780.00 1 Inch Meter/Retrofit Service - traffic lid $600 $750.00 $900.00 1 ½ Inch Meter with pedestrian lid $484 $605.00 $726.00 1 ½ Inch Meter with traffic lid $545 $681.25 $817.50
2 Inch Meter with pedestrian lid $699 $873.75 $1,048.50 2 Inch Meter with traffic lid $707 $883.75 $1,060.50
4 Inch Meter $1,820 $2,275.00 $2,730.00
6 Inch Meter $3,684 $4,605.00 $5,526.00
8 Inch Meter $4,147 $5,183.75 $6,220.50
10 Inch Meter or larger At Cost - -
Rate Rate
monthly +
25%
monthly +
50%
Sphere of
Influence
Outside of
Sphere
Residential – single-family or mobile home on lot $2,643 $3,303.75 $3,964.50 Residential - multi-family or additional units or mobile home on lot $2,151 $2,688.75 $3,226.50 Commercial/Industrial per gallon per day of Flow $9.44 $11.80 $14.16 Commercial/Industrial per pound of BOD per day $232.66 $290.83 $348.99 Commercial/Industrial per pound of TSS per day $900.59 $1,125.74 $1,350.89 Water Meter Fee Rate
Wastewater Capacity Fee Monthly
Rate
Water Installation Service Monthly
Rate
Exhibit A
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Rate Rate
monthly +
25%
monthly +
50%
Sphere of
Influence
Outside of
Sphere
Monthly Account Charge (Cost per Account) $5.04 $6.30 $7.56 Rate Rate
monthly +
25%
monthly +
50%
Sphere of
Influence
Outside of
Sphere
Single Family Residential, Mobile Home on a lot $39.65 $49.56 $59.48 Multiple Family (2-4 Dwelling Unity), one additional Dwelling Unity or Mobile home on a lot $30.13 $37.66 $45.20
Apartments (5 or more Dwelling Unity), Mobile Home Space in a Mobile Home Park $26.88 $33.60 $40.32
Rate Rate
monthly +
25%
monthly +
50%
Sphere of
Influence
Outside of
Sphere
Group 1-BOD + TSS is 400 mg/l or less $3.98 $4.98 $5.97 Group 2- BOD + TSS is 401 mg/l to 900 mg/l $5.23 $6.54 $7.85 Group 3- BOD + TSS os 901 mg/l to 1,400 mg/l $6.51 $8.14 $9.77 Group 4- BOD + TSS is 1,401 mg/l or more $8.06 $10.08 $12.09 Rate Rate
monthly +
25%
monthly +
50%
Sphere of
Influence
Outside of
Sphere
Flow Charges ($/Million gallons) $3,870.65 $4,838.31 $5,805.98 BOD Charge ($/1,000 lbs) $288.55 $360.69 $432.83
TSS Charge ($/1,000 lbs) $538.00 $672.50 $807.00
Monthly Costs Per Account Rate
Residential Rates per Dwelling Unit Rate
Commerical Quantity Charge (Cost per 100 cubic feet) Rate Industrial Charges (Additive Components Rate
Exhibit A
3 #4..
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Rate Rate
monthly +
25%
monthly +
50%
Sphere of
Influence
Outside of
Sphere
Flow charge per 1,000 gallons $77.13 $96.41 $115.70
Rate Rate
monthly +
25%
monthly +
50%
Sphere of
Influence
Outside of
Sphere
Flow Charges ($/Million gallons) $2,923.65 $3,654.56 $4,385.48 BOD Charge ($/1,000 lbs) $19.49 $24.36 $29.24
TSS Charge ($/1,000 lbs) $38.40 $48.00 $57.60
Septage Quantity Charge Rate
CanSeg Line Charges (Additive Components) Rate
Exhibit A
4 #4..
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BANGS AVE

CLARATINA AVE

MC HENRY AVE

OAKDALE RD
H ST

E WHITMORE AVE

YOSEMITE BLV
S 9TH ST

MITCHELL RD
L ST

MAZE BLV

E BRIGGSMORE AVE

S CARPENTER RD

EL VISTA AVE
N
CA
RPE
N
TE
R
RD
D ST

W HATCH RD

E HATCH RD
W

BRIGGSMORE AVE

PELANDALE AVE

SCENIC DR

CLAUS RD
Roselle Ave
Sutter Ave
Dale Rd
Prescott Rd
Finch Rd
Lakewood Ave
La Loma Ave
Tuolumne Bl v
S
7th St
Tully Rd
Floyd Ave
5th St
W Rumble Rd
Kansas Ave
14th St Crows Landing Rd
Coffee Rd
E Rumble Rd
W Whitmore Ave
W Orangeburg Ave
Morgan Rd
College Ave
Paradise Rd
N 9th St
E Orangeburg Ave
Blue Gum Ave
Standiford Ave Sylvan Ave Sisk Rd

KIERNAN AVE
Beck with
Rd
Terminal Ave
Morse Rd
Mariposa Rd
Garner Rd
City of Modesto
City Limits with Sphere of Influence
0 0.5 1 2
Miles Date: 7/24/2023
Legend
City Limits

MODESTO
CERES

RIVERBANK

HUGHSON
COUNTY
Sphere of Influence

MODESTO
CERES

RIVERBANK

HUGHSON
K:\Working\CED\SphereofInfluence\Sphere-City.mxd
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CITY OF MODESTO

COMMITTEE AGENDA REPORT
DATE OF MEETING:

November 1, 2023
Date: September 18, 2023
TO: Economic Development Committee
Sue Zwahlen, Chair
Chris Ricci, Vice-Chair
Eric Alvarez, Member
THROUGH: Joseph P. Lopez, City Manager
FROM: Jessica Hill, Director of Community and Economic Development SUBJECT: Annexation #1 to City of Modesto Community Facilities District No. 2021-1 (Woodglen)
CONTACT: Peter Ibrahim, Infrastructure Financing Program Supervisor [email protected], 209-577-5211
DESCRIPTION:

Consider the annexation of Assessor Parcel Numbers (APNs) 046-007-048, 046-007-049, 046- 007-050 and 046-007-052 totaling approximately 24.62 acres, to City of Modesto Community Facilities District (CFD) No. 2021-1 (Woodglen) and authorizing the levy of special tax on the Properties located within the annexation map and forwarding a recommendation to Council for approval. (Funding Source: Developer Deposit)
STRATEGIC PLAN ELEMENT:

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

BACKGROUND:

In 1982, the Mello-Roos Community Facilities Act of 1982 (Act) was adopted by the State of California as a method for financing infrastructure improvements and services associated with new developments. The Act allows infrastructure improvements and services to be funded through a special tax paid by property owners.

The Woodglen Specific Plan Area approved in July 2013, and annexed to the City of Modesto in January 2014, encompasses approximately 80 acres, and is bounded by Pelandale Avenue on the south, Carver Road on the west, Bangs Avenue on the north, and Tully Road on the east.

On June 3, 2019, the Planning Commission approved the Woodglen Tentative Subdivision Map to facilitate 367 single-family residential lots, two open space/storm basin lots, one park lot, and ten landscape lots.
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Economic Development Committee, November 1, 2023
Annexation #1 to Community Facilities District No. 2021-1

Page 2 of 3 ends

On June 1, 2021, by Resolution No. 2021-196, the City Council declared the intention to establish CFD No. 2021-1 and to authorize the levy of a special tax. The formation map was recorded on June 10, 2021. On July 6, 2021, by Resolution No. 2021-268, the City Council approved the formation of Modesto Community Facilities District No. 2021-1 (Woodglen). The initial formation boundary of CFD 2021-1 (Woodglen) consisted of approximately 41.25 acres.

DISCUSSION:

In July 2023, The Fitzpatrick Company filed a completed application package requesting that the parcel be annexed into CFD No. 2021-1 (Woodglen).

Annexation #1 will consist of APNs 046-007-048, 046-007-049, 046-007-050 and 046-007-052, totaling approximately 24.62 acres. These parcels are within the future annexation area as demonstrated in the initial formation boundary map. The Fitzpatrick Company and Modesto Roselle, LLC are the owners. The proposed annexation map is provided as Attachment 1.

The facilities and services to be provided by CFD No. 2021-1, encompass transportation and traffic improvements, maintenance for landscaped lots, tree pruning, masonry wall maintenance, neighborhood park maintenance, storm drain basin maintenance and the entire list is set forth in Attachment 2.

Prior to the December 5, 2023 City Council meeting, the project proponents will have submitted the appropriate executed forms, Request and Unanimous Approval for Annexation and Landowner-Voter Ballot, to the City for the annexation to proceed. The Landowner-Voter Ballot indicates the Owners have voted in favor of authorizing the levy of the special tax on the Properties. The Request for Unanimous Approval for Annexation form requests the City execute and record a notice of special tax lien, pertaining to the Properties, and record it within the official records of the County Recorder.

The Rate and Method of Apportionment (RMA) that identifies the maximum special tax rates for the parcel types within CFD No. 2021-1, as well as a description of how the special taxes are calculated and collected, is attached as Attachment 3.

The annual special tax is only levied on a parcel after a building permit has been issued for that property. The maximum special tax rates for CFD No. 2021-1 are as follows:

Maximum Special Taxes
Developed Property
Special Tax Category
Maximum Annual
Maintenance Special Tax
Fiscal Year 2023-24
Maximum One-Time
Facilities Special Tax
Fiscal Year 2023-24
Single Family Property $1,062.88 per Residential Unit $1,171.78 per Residential Unit Other Property $11,497.68 per Acre $12,675.38 per Acre
In any Fiscal Year, the annual Escalation Factor will be the greater of either, the percentage increase, if any, in the construction cost index for the San Francisco region for the prior twelve #5..
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Economic Development Committee, November 1, 2023
Annexation #1 to Community Facilities District No. 2021-1

Page 3 of 3 ends

(12) month period as published in the Engineering News Record or other comparable source if the Engineering News Record is discontinued or otherwise not available, or four percent (4.0%).

FISCAL IMPACT:

Annexation expenses are paid of funds deposited by the developer. There is no impact to the General Fund.

RECOMMENDED COMMITTEE ACTION:

Staff Recommendations:

Motion recommending the annexation of Assessor Parcel Numbers (APNS) 046-007-048, 046- 007-049, 046-007-050 and 046-007-052, to City of Modesto Community Facilities District (CFD) No. 2021-1 (Woodglen) and authorizing the levy of special tax on the Properties located within the annexation map and forwarding a recommendation to Council for approval.

Approved by:

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

1. Proposed Boundary Map for Annexation #1

2. Authorized Facilities and Services

3. Rate and Method of Apportionment
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VICINITY MAP NO SCALE SITE SHEET 1 OF 1 LEGEND: FILED IN THE OFFICE OF THE CITY CLERK OF THE CITY OF MODESTO SHOWING THIS ________ DAY OF _________________________ , 2023. DIANE NAYARES-PEREZ, CITY CLERK, CITY OF MODESTO BY: __________________________________ __________________________________ PRINT NAME I HEREBY CERTIFY THAT THIS MAP SHOWING THE PROPOSED BOUNDARIES OF ANNEXATION NO. 1 TO CITY OF MODESTO COMMUNITY FACILITIES DISTRICT NO. 2021-1 (WOODGLEN), CITY OF MODESTO, COUNTY OF STANISLAUS, STATE OF CALIFORNIA, WAS APPROVED BY THE CITY COUNCIL OF THE CITY OF MODESTO AT A REGULAR MEETING THEREOF, HELD ON THE _____ DAY OF ______________________, 2023, BY ITS RESOLUTION NO. 2023- __________________. DIANE NAYARES-PEREZ, CITY CLERK , CITY OF MODESTO BY: ______________________________ ______________________________ PRINT NAME FILED THIS ________ DAY OF _______________________, 2023, AT THE HOUR OF ___________ O'CLOCK _______.M. IN BOOK ___________ OF MAPS OF ASSESSMENT AND COMMUNITY FACILITIES DISTRICTS AT PAGE(S)___________ IN THE OFFICE OF THE COUNTY RECORDER OF THE COUNTY OF STANISLAUS, STATE OF CALIFORNIA. DONNA LINDER, COUNTY RECORDER OF THE COUNTY OF STANISLAUS, STATE OF CALIFORNIA BY: ______________________________ ______________________________ PRINT NAME ANNEXATION MAP NO. 1 OF COMMUNITY FACILITIES DISTRICT NO. 2021-1 (WOODGLEN) CITY OF MODESTO, COUNTY OF STANISLAUS, STATE OF CALIFORNIA PROPOSED ANNEXATION NO. 1, COMMUNITY FACILITIES DISTRICT NO. 2021-1 (WOODGLEN) BANGS AVENUE CARVER ROAD BERLINGO AVENUE DRIVE 41.257 ACRES PELANDALE TULLY ROAD APN: 046-007-048 CITY CLERK'S STATEMENTS COUNTY RECORDER'S STATEMENT EXISTING COMMUNITY FACILITIES DISTRICT NO. 2021-1 (WOODGLEN) 1" = 200' GRAPHIC SCALE AREA OF ANNEXATION NO. 1: 24.63 ACRES ± 1431.7'± 1159'± 76.6'±
1151'± 1444.2'± 49'± 1291'± 51'± APN: 046-007-051 APN: 046-007-049 APN: 046-007-052 APN: 046-007-050 530'± 504'± 280'±
193'±
243'± 430'± 115'± THIS ANNEXATION MAP NO. 1 AMENDS THE ORIGINAL BOUNDARY MAP ENTITLED “PROPOSED BOUNDARIES OF CITY OF MODESTO COMMUNITY FACILITIES DISTRICT NO. 2021-1 (WOODGLEN), CITY OF MODESTO, COUNTY OF STANISLAUS, STATE OF CALIFORNIA,” PRIOR RECORDED ON JUNE 10, 2021 IN BOOK 6 OF MAPS OF ASSESSMENT AND COMMUNITY FACILITIES DISTRICTS, AT PAGE 23 IN THE OFFICE OF THE COUNTY RECORDER OF THE COUNTY OF STANISLAUS, STATE OF CALIFORNIA. CITY CLERK'S STATEMENTS CONTINUED #5.. - 248 -
City of Modesto
Community Facilities District No. 2021-1
(Woodglen)

DESCRIPTION OF AUTHORIZED FACILITIES AND SERVICES
The types of Facilities and Services proposed to be financed by Community Facilities District No. 2021-1 (CFD) are as follows:

Authorized Facilities
The CFD shall be authorized to finance all or any part of the costs of acquisition, construction, and improvement of the following facilities (the “Facilities):
• Roundabout at the intersection of Bangs Avenue and Carver Road • Traffic signal, left-turn pockets, and other intersection improvements The Facilities shall include all hard and soft costs associated with the improvements, including the costs of acquisition of land and rights-of-way, the costs of design, engineering and planning, the costs of environmental or traffic studies, surveys or other reports, costs related to landscaping and irrigation, soils testing, permits, plan check, and inspection fees, insurance, legal and related overhead costs, coordination and supervision and any other costs or appurtenances related to any of the foregoing. The CFD may also fund, and the special taxes may also be used to directly pay for, the purchase, construction, expansion, improvement or rehabilitation of any of the Facilities, and to reimburse the City or any third parties for advances made to purchase, construct, expand, improve or rehabilitate any of the Facilities.

Authorized Services
The services to be funded in whole or in part by the CFD include all direct and incidental costs related to providing the maintenance of public infrastructure within the area of the CFD, the future annexation area, and areas adjacent to or in the vicinity of such areas. More specifically, the services shall include, but not be limited to: maintenance, repair and replacement of parkways, tree pruning, landscaped medians, masonry walls, neighborhood pocket park, storm drainage basin facilities, including but not limited to, catch basins, manholes, underground infiltration trenches and pipes, landscaped bio-swale lots and medians, storm water treatment devices and filters, shrubs, vines, ground cover, and irrigation systems.

The services to be provided include, but are not limited to, litter and debris removal, pruning, staking, fertilizing, plant replacement and restoration, fire and weed control, erosion control, trimming of vegetation, and storm drain system maintenance. Authorized services shall also include the following: (i) related reserves for the replacement of plants and materials, #5..
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B-2
DOCSOC/1376657v2/024586-0011
replacement of storm water treatment filters and other storm drainage facilities, and (ii) a sinking fund for services that could not otherwise be funded in a given fiscal year.

The services to be financed by the CFD are in addition to those provided in the territory of the CFD before the date of creation of the CFD and will not supplant services already available within that territory when the CFD was created.

Administrative Expenses
The administrative expenses to be funded by the CFD include the direct and indirect expenses incurred by the City in carrying out its duties with respect to the CFD including, but not limited to, the levy and collection of special taxes, fees and expenses of attorneys, any fees of the County of Stanislaus related to the CFD or the collection of special taxes, an allocable share of the salaries of the City staff related thereto, and expenses incurred by the City in undertaking action to foreclose on properties for which the payment of special taxes is delinquent, and all other costs and expenses of the City in any way related to the CFD. #5..
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Woodglen CFD No. 2021-1 1 May 6, 2021

CITY OF MODESTO
COMMUNITY FACILITIES DISTRICT NO. 2021-1
(WOODGLEN)

RATE AND METHOD OF APPORTIONMENT OF SPECIAL TAXES
Special Taxes applicable to each Assessor’s Parcel in the City of Modesto Community Facilities District No. 2021-1 (Woodglen) shall be levied and collected according to the tax liability determined by the Administrator through the application of the appropriate amount or rate for Taxable Property, as described below. All of the property in the CFD, unless exempted by law or by the provisions of Section G below, shall be taxed for the purposes, to the extent, and in the manner herein provided, including property subsequently annexed to the CFD unless a separate Rate and Method of Apportionment is adopted for the annexation area.

A. DEFINITIONS
The terms hereinafter set forth have the following meanings:
“Accessory Unit” means a second residential unit of limited size (e.g., granny cottage, second unit) that shares a Parcel with an SFD Unit.
“Acre” or “Acreage” means the land area of an Assessor’s Parcel as shown on an Assessor’s Parcel Map, or if the land area is not shown on an Assessor’s Parcel Map, the land area shown on the applicable Final Map or other parcel map recorded at the County Recorder’s Office. “Act” means the Mello-Roos Community Facilities Act of 1982, as amended, being Chapter 2.5 (commencing with Section 53311), Part 1, Division 2, of Title 5 of the Government Code of the State of California.
“Administrative Expenses” means any or all of the following: expenses incurred by the City in carrying out its duties with respect to the CFD, including, but not limited to, levying and collecting Special Taxes; the fees and expenses of legal counsel; charges levied by the County Auditor’s Office, Tax Collector’s Office, and/or Treasurer’s Office; costs related to annexing property into the CFD; costs related to property owner inquiries regarding the Special Taxes; and all other costs and expenses of the City in any way related to the establishment or administration of the CFD.
“Administrator” means the person or firm designated by the City to administer the Special Taxes according to this RMA.
“Annual Maintenance Special Tax” means a Special Tax levied in any Fiscal Year to pay the Annual Maintenance Special Tax Requirement, as defined below. “Annual Maintenance Special Tax Requirement” means the amount of revenue needed in any Fiscal Year to pay for: (i) Authorized Services, (ii) establishment of reserves, (iii) Administrative #5..
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Woodglen CFD No. 2021-1 2 May 6, 2021
Expenses, and (iv) amounts needed to cure any delinquencies in the payment of Special Taxes which have occurred in prior Fiscal Years.
“Assessor’s Parcel” or “Parcel” means a lot or parcel shown on an Assessor’s Parcel Map with an assigned Assessor’s Parcel Number.
“Assessor’s Parcel Map” means an official map of the County Assessor designating Parcels by Assessor’s Parcel Number.
“Assessor’s Parcel Number” means a unique number assigned to an Assessor’s Parcel by the County Assessor for purposes of identifying a property. “Authorized Services” means the public services authorized to be funded by the CFD as set forth in the documents adopted by the City Council when the CFD was formed. “Building Permit” means a permit that allows for vertical construction of a building or buildings, which shall not include a separate permit issued for construction of the foundation thereof.
“Certificate of Occupancy” means the first certificate, including any temporary certificate of occupancy, issued by the City to confirm that a building or a portion of a building has met all of the building codes and can be occupied for residential or non-residential use. “CFD” means the City of Modesto Community Facilities District No. 2021-1 (Woodglen). “CFD Formation” means the date on which the Resolution of Formation to form the CFD was adopted by the City Council.
“City” means the City of Modesto.
“City Council” means the City Council of the City of Modesto. “County” means the County of Stanislaus.
“Developed Property” means, in any Fiscal Year, all Parcels of Taxable Property that are not Taxable Owners Association Property or Taxable Public Property for which a Building Permit was issued prior to June 30 of the preceding Fiscal Year. “Development Class” means, individually, Developed Property, Taxable Owners Association Property, and Taxable Public Property.
“Escalation Factor” means, in any Fiscal Year, the greater of (i) the percentage increase, if any, in the construction cost index for the San Francisco region for the prior twelve (12) month period as published in the Engineering News Record or other comparable source if the Engineering News Record is discontinued or otherwise not available, or (ii) four percent (4.0%). #5..
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Woodglen CFD No. 2021-1 3 May 6, 2021
“Final Map” means a final map approved by the City pursuant to the Subdivision Map Act (California Government Code Section 66410, et seq.) that creates individual lots on which a building permit can be issued for construction of Residential Units without further subdivision of the lots.
“Fiscal Year” means the period starting July 1 and ending on the following June 30. “Maximum Annual Maintenance Special Tax” means the greatest amount of Annual Maintenance Special Tax that can be levied on an Assessor’s Parcel in any Fiscal Year determined in accordance with Sections C and D.
“Maximum One-Time Facilities Special Tax” means the greatest amount of One-Time Facilities Special Tax that can be levied on an Assessor’s Parcel in any Fiscal Year determined in accordance with Sections C and D below.
“Maximum Special Taxes” means, collectively, the Maximum One-Time Facilities Special Tax and the Maximum Annual Maintenance Special Tax.
“One-Time Facilities Special Tax” means a Special Tax, levied and collected in full by the City prior to issuance of a Certificate of Occupancy on Taxable Property. Notwithstanding the foregoing, if the City determines that a building on a Parcel of Taxable Property has been occupied and no Certificate of Occupancy was issued for such building, the One-Time Facilities Special Tax for the Parcel shall be immediately due and payable. “Other Property” means, in any Fiscal Year, all Parcels of Developed Property within the CFD that are not Single Family Property, as defined herein. “Owners Association” means a homeowners association or property owners association that provides services to, and collects assessments, fees, dues, or charges from, property within the CFD.
“Owners Association Property” means any property within the boundaries of the CFD that is owned in fee or through easement by the Owners Association, not including any such property that is located directly under a residential structure. “Proportionately” means, for each Development Class, that the ratio of the actual Special Tax levied in any Fiscal Year to the Maximum Special Tax authorized to be levied in that Fiscal Year is equal for all parcels assigned to the Development Class. “Public Property” means, in any Fiscal Year: (i) all Parcels within the boundaries of the CFD that are owned by or irrevocably offered for dedication to the federal government, the State of California, the City or any other public agency; provided, however, that any property leased by a public agency to a private entity and subject to taxation under Section 53340.1 of the Act (as such section may be amended or replaced) shall be taxed and classified in accordance with its use; or (ii) all Parcels within the boundaries of the CFD that are encumbered by an unmanned utility easement making impractical its utilization for other than the purpose set forth in the easement.
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Woodglen CFD No. 2021-1 4 May 6, 2021
“Residential Unit” means an SFD Unit, or an individual attached residential unit within a duplex, triplex, fourplex, townhome, or condominium structure. An Accessory Dwelling Unit that shares a Parcel with an SFD Unit shall not be considered a separate Residential Unit for purposes of this RMA.
“RMA” means this Rate and Method of Apportionment of Special Tax. “SFD Unit” means a residential dwelling unit that does not share a common wall with another residential dwelling unit.
“Single Family Property” means, in any Fiscal Year, all Parcels of Taxable Property for which a Building Permit was issued for: (i) construction of an SFD Unit, or (ii) construction of a residential structure consisting of two or more Residential Units that share common walls, have separate Assessor’s Parcel numbers assigned to them (except for a duplex unit, which may share an Assessor’s Parcel with another duplex unit), and may be purchased by individual homebuyers (which shall still be the case even if the Residential Units are purchased and subsequently offered for rent by the owners of the Residential Units), including such residential structures that meet the statutory definition of a condominium contained in Civil Code Section 1351. “Special Taxes” means, collectively, the One-Time Facilities Special Tax and the Annual Maintenance Special Tax.
“Special Tax Category” means one of the categories of land uses for which a Special Tax amount is set forth in Table 1 of Section C below.
“Taxable Owners Association Property” means, in any Fiscal Year, any Parcel of Owners Association Property that satisfies both of the following conditions: (i) based on reference to the Tentative Map, the Parcel was not anticipated to be Owners Association Property, as determined by the Administrator; and (ii) if the Parcel were to be exempt from the Annual Maintenance Special Tax because it is Owners Association Property, the City has determined that there would be a reduction in Annual Maintenance Special Tax revenues that would create a deficit in funding for Authorized Services.
“Taxable Property” means all of the Parcels within the boundaries of the CFD that are not exempt from the Special Tax pursuant to law or Section G below. “Taxable Public Property” means, in any Fiscal Year, any Parcel of Public Property that satisfies both of the following conditions: (i) based on reference to the Tentative Map, the Parcel was not anticipated to be Public Property, as determined by the Administrator; and (ii) if the Parcel were to be exempt from the Annual Maintenance Special Tax because it is Public Property, the City has determined that there would be a reduction in Annual Maintenance Special Tax revenues that would create a deficit in funding for Authorized Services. “Tentative Map” means the Woodglen Tentative Subdivision Map approved by the City Council pursuant to Resolution 2013-261, including any adjustments or amendments thereto. #5..
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Woodglen CFD No. 2021-1 5 May 6, 2021
“Undeveloped Property” means, in any Fiscal Year, all Parcels of Taxable Property that are not Developed Property, Taxable Owners Association Property, or Taxable Public Property, as defined herein.
“Welfare Exemption Property” means, in any Fiscal Year, any Parcels in the CFD that have received a welfare exemption under subdivision (g) of Section 214 of the Revenue and Taxation Code and for which such welfare exemption is still in place.

B. DATA FOR ADMINISTRATION OF THE SPECIAL TAXES
Each Fiscal Year, the Administrator shall: (i) assign each Parcel of Taxable Property to the appropriate Development Class; (ii) for Developed Property, categorize each Parcel as Single Family Property or Other Property; (iii) for Other Property, determine the Acreage of each Parcel; and (iv) determine the Annual Maintenance Special Tax Requirement for the Fiscal Year.

In any Fiscal Year, if it is determined that: (i) a parcel map for property in the CFD was recorded after January 1 of the prior Fiscal Year (or any other date after which the Assessor will not incorporate the newly-created Parcels into the then current tax roll), (ii) because of the date the parcel map was recorded, the Assessor does not yet recognize the new Parcels created by the parcel map, and (iii) one or more of the newly-created Parcels is in a different Development Class than other Parcels created by the subdivision, the Administrator shall calculate the Annual Maintenance Special Taxes for the property affected by recordation of the parcel map by determining the Special Taxes that apply separately to the property within each Development Class, then applying the sum of the individual Annual Maintenance Special Taxes to the Parcel that was subdivided by recordation of the parcel map.

C. MAXIMUM SPECIAL TAXES

1. Developed Property
The Maximum Special Taxes for a Parcel of Developed Property can be determined by reference to Table 1 below.

Table 1
Maximum Special Taxes
Developed Property
Special Tax Category
Maximum Annual
Maintenance Special Tax
Fiscal Year 2021-22 *
Maximum One-Time
Special Tax
Fiscal Year 2021-22 *
Single Family Property $898 per Residential Unit $990 per Residential Unit Other Property $9,714 per Acre $10,709 per Acre
* Special Taxes shown in Table 1 are subject to the annual adjustments described in Section D below. #5..
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Woodglen CFD No. 2021-1 6 May 6, 2021

2. Taxable Owners Association Property and Taxable Public Property The Maximum Annual Maintenance Special Tax for Taxable Owners Association Property and Taxable Public Property is $9,714 per Acre for Fiscal Year 2021-22, which amount shall increase on July 1, 2022, and each July 1 thereafter by the Escalation Factor. No One-Time Facilities Special Tax shall be levied on Taxable Owners Association Property or Taxable Public Property.

3. Undeveloped Property
No Special Taxes shall be levied in any Fiscal Year on Parcels of Undeveloped Property.

D. CHANGES TO THE MAXIMUM SPECIAL TAXES

1. Escalation of Special Taxes
1a. One-Time Facilities Special Tax
Beginning July 1, 2022 and each July 1 thereafter, the Maximum One-Time Facilities Special Taxes identified in Table 1 above shall be adjusted by the greater of (i) the percentage increase, if any, in the construction cost index for the San Francisco region for the prior twelve (12) month period as published in the Engineering News Record or other comparable source if the Engineering News Record is discontinued or otherwise not available, or (ii) four percent (4.0%).
1b. Annual Maintenance Special Tax
Beginning July 1, 2022 and each July 1 thereafter, the Maximum Annual Maintenance Special Taxes identified in Table 1, and the Maximum Annual Maintenance Special Tax assigned to each Parcel in the CFD, shall be adjusted by the greater of (i) the percentage increase, if any, in the construction cost index for the San Francisco region for the prior twelve (12) month period as published in the Engineering News Record or other comparable source if the Engineering News Record is discontinued or otherwise not available, or (ii) four percent (4.0%).

2. Conversion of a Parcel of Public Property to Private Use If, in any Fiscal Year, a Parcel of Public Property is converted to private use, the Parcel shall be subject to the levy of Special Taxes. The Administrator shall determine the applicable Maximum Special Taxes for each such Parcel.

2. Expiration or Cancellation of Welfare Exemptions
If, in any Fiscal Year, a Parcel that had in prior Fiscal Years been categorized as Welfare Exemption Property no longer has a welfare exemption in place, the Parcel shall be subject to the levy of Special Taxes. The Administrator shall determine the applicable Maximum Special Taxes for each such Parcel.
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Woodglen CFD No. 2021-1 7 May 6, 2021
E. METHOD OF LEVY OF SPECIAL TAXES

1. One-Time Facilities Special Tax
The Maximum One-Time Facilities Special Tax determined pursuant to Sections C and D above shall be levied on all Taxable Property in the CFD and shall be collected as set forth in Section F below.

2. Annual Maintenance Special Tax
Each Fiscal Year, the Administrator shall determine the Annual Maintenance Special Tax Requirement to be collected in that Fiscal Year. The Annual Maintenance Special Tax shall then be levied according to the following steps:

Step 1: The Annual Maintenance Special Tax shall be levied Proportionately on each Parcel of Developed Property up to 100% of the Maximum Annual Maintenance Special Tax for each Parcel of Developed Property until the amount levied is equal to the Annual Maintenance Special Tax Requirement.

Step 2: If additional revenue is needed after Step 1, the Annual Maintenance Special Tax shall be levied Proportionately on each Parcel of Taxable Owners Association Property, up to 100% of the Maximum Annual Maintenance Special Tax for each Parcel of Taxable Owners Association Property until the amount levied is equal to the Annual Maintenance Special Tax Requirement.

Step 3: If additional revenue is needed after Step 2, the Annual Maintenance Special Tax shall be levied Proportionately on each Parcel of Taxable Public Property, up to 100% of the Maximum Annual Maintenance Special Tax for each Parcel of Taxable Public Property until the amount levied is equal to the Annual Maintenance Special Tax Requirement.

F. MANNER OF COLLECTION OF SPECIAL TAXES
The Maximum One-Time Facilities Special Tax shall be collected prior to issuance of a Certificate of Occupancy for any residential or non-residential structure within the CFD and shall be immediately delinquent if not so paid. Notwithstanding the foregoing, if the City determines that a building on a Parcel of Taxable Property has been occupied and no Certificate of Occupancy was issued for such building, the One-Time Facilities Special Tax for the Parcel shall be immediately due and payable to the City.

The Annual Maintenance Special Tax shall be collected in the same manner and at the same time as ordinary ad valorem property taxes, provided, however, that the City may directly bill, collect at a different time or in a different manner, and/or collect delinquent Annual Maintenance Special Taxes through foreclosure or other available methods. The Annual Maintenance Special Tax shall be levied and collected unless and until the City determines that the Annual #5..
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Woodglen CFD No. 2021-1 8 May 6, 2021
Maintenance Special Tax no longer needs to be levied to pay Authorized Services and all Administrative Expenses have been reimbursed.

G. EXEMPTIONS
Notwithstanding any other provision of this RMA, no Special Taxes shall be levied in any Fiscal Year on the following:
(1) Public Property, except Taxable Public Property.
(2) Owners Association Property, except Taxable Owners Association Property. (3) Welfare Exemption Property
(4) Parcels owned by a public utility for an unmanned facility. (5) Parcels subject to an easement that precludes any other use on the Parcel.

H. INTERPRETATION OF SPECIAL TAX FORMULA
The City reserves the right to make minor administrative and technical changes to this RMA that do not materially affect the rate and method of apportioning Special Taxes. In addition, the interpretation and application of any section of this document shall be left to the City’s discretion. Interpretations may be made by the City by resolution of the City Council for purposes of clarifying any vagueness or ambiguity in this RMA. #5..
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CITY OF MODESTO

COMMITTEE AGENDA REPORT
DATE OF MEETING:

November 1, 2023
Date: October 27, 2023
TO: Economic Development Committee
Sue Zwahlen, Chair
Chris Ricci, Vice-Chair
Eric Alvarez, Member
THROUGH: Joseph P. Lopez, City Manager
FROM: Jessica Hill, Director of Community and Economic Development SUBJECT: Agreement with RailPros for Railroad Quiet Zone Consulting Services CONTACT: Sean Rando, Business Analyst
[email protected], 209-577-5473
DESCRIPTION:

Consider an Agreement for Railroad Crossing Quiet Zone Consulting Services with RailPros of Irvine, CA for a total amount not to exceed $304,949 and forwarding to Council for approval. (Funding Source: American Rescue Plan Act Funds)
STRATEGIC PLAN ELEMENT:

The recommended action supports the City’s 2020-2025 Strategic Plan Initiatives: Make downtown Modesto a regional destination.

BACKGROUND:

In 2005, the Federal Railroad Administration (FRA) issued 49 CFR Parts 222 and 229, the Final Rule on Use of Locomotive Horns at Highway-Rail Grade Crossings (Final Rule). The purpose of the rule is to mandate a federal requirement for the sounding of locomotive horns at all public highway-rail grade crossings. In accordance with the Final Rule, locomotive horn sounding is not required if each public highway-rail grade crossing is equipped with Supplemental Safety Measures (SSMs) within the proposed quiet zone. SSMs are safety measures that have been determined by the FRA to adequately compensate for the lack of a locomotive horn.

The establishment of a quiet zone does not result in total elimination of all train horn noise. The Final Rule allows for the locomotive engineer to sound the locomotive horn to provide a warning to vehicle operators, animals, pedestrians, trespassers, or crews on other trains in an emergency situation if, in the locomotive engineer’s sole judgment, such action is appropriate to prevent imminent injury, death or property damage. In addition, nothing in the rule prohibits the use of the locomotive horn in the following situations:
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Economic Development Committee, November 1, 2023
Agreement with RailPros for Railroad Quiet Zone Consulting Services

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Economic Development CommitteeNovember 1, 2023

Economic Development Committee
November 1, 2023