May 2023
FHWA-1273 -- Revised July 5, 2022
REQUIRED CONTRACT
PROVISIONS FEDERAL-AID
CONSTRUCTION CONTRACTS
EXHIBIT B
#13..
- 582 -
Local Assistance Procedures Manual Exhibit 12-G
Required Federal-Aid Contract Language
May 2023
I. General
II. Nondiscrimination
III. Non-segregated Facilities
IV. Davis-Bacon and Related Act Provisions
V. Contract Work Hours and Safety Standards Act Provisions VI. Subletting or Assigning the Contract
VII. Safety: Accident Prevention
VIII. False Statements Concerning Highway Projects
IX. Implementation of Clean Air Act and Federal Water
Pollution Control Act
X. Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion
XI. Certification Regarding Use of Contract Funds for Lobbying XII. Use of United States-Flag Vessels:
ATTACHMENTS
A. Employment and Materials Preference for Appalachian
Development Highway System or Appalachian Local Access
Road Contracts (included in Appalachian contracts only) I. GENERAL
1. Form FHWA-1273 must be physically incorporated in each construction contract funded under title 23, United States Code, as required in 23 CFR 633.102(b) (excluding emergency
contracts solely intended for debris removal). The contractor (or subcontractor) must insert this form in each subcontract and further require its inclusion in all lower tier subcontracts (excluding purchase orders, rental agreements and other agreements for supplies or services). 23 CFR633.102(e).
The applicable requirements of Form FHWA-1273 are
incorporated by reference for work done under any purchase order, rental agreement or agreement for other services. The prime contractor shall be responsible for compliance by any subcontractor, lower-tier subcontractor or service provider. 23 CFR 633.102(e).
Form FHWA-1273 must be included in all Federal-aid designbuild contracts, in all subcontracts and in lower tier subcontracts (excluding subcontracts for design services, purchase orders, rental agreements and other agreements for supplies or
services) in accordance with 23 CFR 633.102. The designbuilder shall be responsible for compliance by any subcontractor, lower-tier subcontractor or service provider.
Contracting agencies may reference Form FHWA-1273 in
solicitation-for-bids or request-for-proposals documents, however, the Form FHWA-1273 must be physically incorporated (not referenced) in all contracts, subcontracts and lower-tier subcontracts (excluding purchase orders, rental agreements and other agreements for supplies or services related to a
construction contract). 23 CFR 633.102(b).
2. Subject to the applicability criteria noted in the following sections, these contract provisions shall apply to all work performed on the contract by the contractor's own organization and with the assistance of workers under the contractor's immediate superintendence and to all work performed on the contract by piecework, station work, or by subcontract. 23 CFR 633.102(d).
3. A breach of any of the stipulations contained in these Required Contract Provisions may be sufficient grounds for withholding of progress payments, withholding of final payment, termination of the contract, suspension / debarment or any other action determined to be appropriate by the contracting agency and FHWA.
4. Selection of Labor: During the performance of this contract, the contractor shall not use convict labor for any purpose within the limits of a construction project on a Federal-aid highway unless it is labor performed by convicts who are on parole, supervised release, or probation. 23 U.S.C. 114(b).The term Federal-aid highway does not include roadways functionally classified as local roads or rural minor collectors. 23 U.S.C. 101(a).
II. NONDISCRIMINATION (23 CFR 230.107(a); 23 CFR Part
230, Subpart A, Appendix A; EO 11246)
The provisions of this section related to 23 CFR Part 230, Subpart A, Appendix A are applicable to all Federal-aid construction contracts and to all related construction
subcontracts of $10,000 or more. The provisions of 23 CFR Part 230 are not applicable to material supply, engineering, or architectural service contracts.
In addition, the contractor and all subcontractors must comply with the following policies: Executive Order 11246, 41 CFR Part 60, 29 CFR Parts 1625-1627, 23 U.S.C. 140, Section 504 of the Rehabilitation Act of 1973, as amended (29 U.S.C. 794), Title VI of the Civil Rights Act of 1964, as amended (42 U.S.C. 2000d et seq.), and related regulations including 49 CFR Parts 21, 26, and 27; and 23 CFR Parts 200, 230, and 633.
The contractor and all subcontractors must comply with: the requirements of the Equal Opportunity Clause in 41 CFR 60-
1.4(b) and, for all construction contracts exceeding $10,000, the Standard Federal Equal Employment Opportunity Construction Contract Specifications in 41 CFR 60-4.3.
Note: The U.S. Department of Labor has exclusive authority to determine compliance with Executive Order 11246 and the policies of the Secretary of Labor including 41 CFR Part 60, and 29 CFR Parts 1625-1627. The contracting agency and the
FHWA have the authority and the responsibility to ensure compliance with 23 U.S.C. 140, Section 504 of the Rehabilitation Act of 1973, as amended (29 U.S.C. 794), and Title VI of the Civil Rights Act of 1964, as amended (42 U.S.C. 2000d et seq.), and related regulations including 49 CFR Parts 21, 26, and 27; and 23 CFR Parts 200, 230, and 633.
The following provision is adopted from 23 CFR Part 230, Subpart A, Appendix A, with appropriate revisions to conform to the U.S. Department of Labor (US DOL) and FHWA
requirements.
#13..
- 583 -
Local Assistance Procedures Manual Exhibit 12-G
Required Federal-Aid Contract Language
May 2023
1. Equal Employment Opportunity: Equal Employment
Opportunity (EEO) requirements not to discriminate and to take affirmative action to assure equal opportunity as set forth under laws, executive orders, rules, regulations (see 28 CFR Part 35, 29 CFR Part 1630, 29 CFR Parts 1625-1627, 41 CFR Part 60 and 49 CFR Part 27) and orders of the Secretary of Labor as modified by the provisions prescribed herein, and imposed pursuant to 23 U.S.C. 140, shall constitute the EEO and specific affirmative action standards for the contractor's project activities under this contract.
The provisions of the Americans with Disabilities Act of 1990 (42 U.S.C. 12101 et seq.) set forth under 28 CFR Part 35 and 29 CFR Part 1630 are incorporated by reference in this contract. In the execution of this contract, the contractor agrees to comply with the following minimum specific requirement activities of EEO:
a. The contractor will work with the contracting agency and the Federal Government to ensure that it has made every good faith effort to provide equal opportunity with respect to all of its terms and conditions of employment and in their review of activities under the contract. 23 CFR 230.409 (g)(4) & (5).
b. The contractor will accept as its operating policy the following statement:
"It is the policy of this Company to assure that applicants are employed, and that employees are treated during employment, without regard to their race, religion, sex, sexual orientation, gender identity, color, national origin, age or disability. Such action shall include: employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship, preapprenticeship, and/or on-the-job training."
2. EEO Officer: The contractor will designate and make known to the contracting officers an EEO Officer who will have the responsibility for and must be capable of effectively administering and promoting an active EEO program and who must be assigned adequate authority and responsibility to do so.
3. Dissemination of Policy: All members of the contractor's staff who are authorized to hire, supervise, promote, and discharge employees, or who recommend such action or are substantially involved in such action, will be made fully cognizant of and will implement the contractor's EEO policy and contractual
responsibilities to provide EEO in each grade and classification of employment. To ensure that the above agreement will be met, the following actions will be taken as a minimum:
a. Periodic meetings of supervisory and personnel office employees will be conducted before the start of work and then not less often than once every six months, at which time the contractor's EEO policy and its implementation will be reviewed and explained.
The meetings will be conducted by the EEO Officer or other knowledgeable company official.
b. All new supervisory or personnel office employees will be given a thorough indoctrination by the EEO Officer, covering all major aspects of the contractor's EEO obligations within thirty days following their reporting for duty with the contractor. c. All personnel who are engaged in direct recruitment for the project will be instructed by the EEO Officer in the contractor's procedures for locating and hiring minorities and women. d. Notices and posters setting forth the contractor's EEO policy will be placed in areas readily accessible to employees, applicants for employment and potential employees.
e. The contractor's EEO policy and the procedures to implement such policy will be brought to the attention of employees by means of meetings, employee handbooks, or other appropriate means.
4. Recruitment: When advertising for employees, the contractor will include in all advertisements for employees the notation: "An Equal Opportunity Employer." All such advertisements will be placed in publications having a large circulation among minorities and women in the area from which the project work force would normally be derived.
a. The contractor will, unless precluded by a valid bargaining agreement, conduct systematic and direct recruitment through public and private employee referral sources likely to yield qualified minorities and women. To meet this requirement, the contractor will identify sources of potential minority group employees and establish with such identified sources procedures whereby minority and women applicants may be referred to the contractor for employment consideration.
b. In the event the contractor has a valid bargaining agreement providing for exclusive hiring hall referrals, the contractor is expected to observe the provisions of that agreement to the extent that the system meets the contractor's compliance with EEO contract provisions. Where implementation of such an agreement has the effect of discriminating against minorities or women, or obligates the contractor to do the same, such implementation violates Federal nondiscrimination provisions.
c. The contractor will encourage its present employees to refer minorities and women as applicants for employment. Information and procedures with regard to referring such applicants will be discussed with employees.
5. Personnel Actions: Wages, working conditions, and employee benefits shall be established and administered, and personnel actions of every type, including hiring, upgrading, promotion, transfer, demotion, layoff, and termination, shall be taken without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, age or disability. The following procedures shall be followed:
a. The contractor will conduct periodic inspections of project sites to ensure that working conditions and employee facilities do not indicate discriminatory treatment of project site personnel. b. The contractor will periodically evaluate the spread of wages paid within each classification to determine any evidence of discriminatory wage practices.
c. The contractor will periodically review selected personnel actions in depth to determine whether there is evidence of discrimination.
Where evidence is found, the contractor will promptly take corrective action. If the review indicates that the discrimination may extend beyond the actions reviewed, such corrective action shall include all affected persons.
d. The contractor will promptly investigate all complaints of alleged discrimination made to the contractor in connection with its obligations under this contract, will attempt to resolve such complaints, and will take appropriate corrective action within a reasonable time. If the investigation indicates that the discrimination may affect persons other than the complainant, such corrective action shall include such other persons. Upon completion of each investigation, the contractor will inform every complainant of all of their avenues of appeal.
#13..
- 584 -
Local Assistance Procedures Manual Exhibit 12-G
Required Federal-Aid Contract Language
May 2023
6. Training and Promotion:
a. The contractor will assist in locating, qualifying, and increasing the skills of minorities and women who are applicants for employment or current employees. Such efforts should be aimed at developing full journey level status employees in the type of trade or job classification involved.
b. Consistent with the contractor's work force requirements and as permissible under Federal and State regulations, the contractor shall make full use of training programs (i.e., apprenticeship and on-thejob training programs for the geographical area of contract performance). In the event a special provision for training is provided under this contract, this subparagraph will be superseded as indicated in the special provision. The contracting agency may reserve training positions for persons who receive welfare assistance in accordance with 23 U.S.C. 140(a).
c. The contractor will advise employees and applicants for employment of available training programs and entrance
requirements for each.
d. The contractor will periodically review the training and promotion potential of employees who are minorities and women and will encourage eligible employees to apply for such training and promotion.
7. Unions: If the contractor relies in whole or in part upon unions as a source of employees, the contractor will use good faith efforts to obtain the cooperation of such unions to increase opportunities for minorities and women. 23 CFR 230.409. Actions by the contractor, either directly or through a contractor's association acting as agent, will include the procedures set forth below:
a. The contractor will use good faith efforts to develop, in cooperation with the unions, joint training programs aimed toward qualifying more minorities and women for membership in the unions and increasing the skills of minorities and women so that they may qualify for higher paying employment.
b. The contractor will use good faith efforts to incorporate an EEO clause into each union agreement to the end that such union will be contractually bound to refer applicants without regard to their race, color, religion, sex, sexual orientation, gender identity, national origin, age, or disability.
c. The contractor is to obtain information as to the referral practices and policies of the labor union except that to the extent such information is within the exclusive possession of the labor union and such labor union refuses to furnish such information to the contractor, the contractor shall so certify to the contracting agency and shall set forth what efforts have been made to obtain such information.
d. In the event the union is unable to provide the contractor with a reasonable flow of referrals within the time limit set forth in the collective bargaining agreement, the contractor will, through independent recruitment efforts, fill the employment vacancies without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, age, or disability; making full efforts to obtain qualified and/or qualifiable minorities and women. The failure of a union to provide sufficient referrals (even though it is obligated to provide exclusive referrals under the terms of a collective bargaining agreement) does not relieve the contractor from the requirements of this paragraph. In the event the union referral practice prevents the contractor from meeting the obligations pursuant to Executive Order 11246, as amended, and these special provisions, such contractor shall immediately notify the contracting agency.
8. Reasonable Accommodation for Applicants / Employees with Disabilities: The contractor must be familiar with the requirements for and comply with the Americans with Disabilities Act and all rules and regulations established thereunder. Employers must provide reasonable accommodation in all employment activities unless to do so would cause an undue hardship.
9. Selection of Subcontractors, Procurement of Materials and Leasing of Equipment: The contractor shall not discriminate on the grounds of race, color, religion, sex, sexual orientation, gender identity, national origin, age, or disability in the selection and retention of subcontractors, including procurement of materials and leases of equipment. The contractor shall take all necessary and reasonable steps to ensure nondiscrimination in the administration of this contract. a. The contractor shall notify all potential subcontractors, suppliers, and lessors of their EEO obligations under this contract.
b. The contractor will use good faith efforts to ensure subcontractor compliance with their EEO obligations.
10. Assurance Required:
a. The requirements of 49 CFR Part 26 and the State DOT’s FHWA-approved Disadvantaged Business Enterprise (DBE) program are incorporated by reference.
b. The contractor, subrecipient or subcontractor shall not discriminate on the basis of race, color, national origin, or sex in the performance of this contract. The contractor shall carry out applicable requirements of 49 CFR part 26 in the award and administration of DOT-assisted contracts. Failure by the contractor to carry out these requirements is a material breach of this contract, which may result in the termination of this contract or such other remedy as the recipient deems appropriate, which may include, but is not limited to:
(1) Withholding monthly progress payments;
(2) Assessing sanctions;
(3) Liquidated damages; and/or
(4) Disqualifying the contractor from future bidding as nonresponsible. c. The Title VI and nondiscrimination provisions of U.S. DOT Order 1050.2A at Appendixes A and E are incorporated by reference. 49 CFR Part 21.
11. Records and Reports: The contractor shall keep such records as necessary to document compliance with the EEO requirements.
Such records shall be retained for a period of three years following the date of the final payment to the contractor for all contract work and shall be available at reasonable times and places for inspection by authorized representatives of the contracting agency and the FHWA.
a. The records kept by the contractor shall document the following:
(1) The number and work hours of minority and non-minority group members and women employed in each work
classification on the project;
(2) The progress and efforts being made in cooperation with unions, when applicable, to increase employment opportunities for minorities and women; and
(3) The progress and efforts being made in locating, hiring, training, qualifying, and upgrading minorities and women. #13..
- 585 -
Local Assistance Procedures Manual Exhibit 12-G
Required Federal-Aid Contract Language
May 2023
b. The contractors and subcontractors will submit an annual report to the contracting agency each July for the duration of the project indicating the number of minority, women, and non-minority group employees currently engaged in each work classification required by the contract work. This information is to be reported on Form FHWA-1391. The staffing data should represent the project work force on board in all or any part of the last payroll period preceding the end of July. If on-the-job training is being required by special provision, the contractor will be required to collect and report training data. The employment data should reflect the work force on board during all or any part of the last payroll period preceding the end of July.
III. NONSEGREGATED FACILITIES
This provision is applicable to all Federal-aid construction contracts and to all related construction subcontracts of more than $10,000. 41 CFR 60-1.5.
As prescribed by 41 CFR 60-1.8, the contractor must ensure that facilities provided for employees are provided in such a manner that segregation on the basis of race, color, religion, sex, sexual orientation, gender identity, or national origin cannot result. The contractor may neither require such segregated use by written or oral policies nor tolerate such use by employee custom. The contractor's obligation extends further to ensure that its employees are not assigned to perform their services at any location under the contractor's control where the facilities are segregated. The term "facilities" includes waiting rooms, work areas, restaurants and other eating areas, time clocks, restrooms, washrooms, locker rooms and other storage or dressing areas, parking lots, drinking fountains, recreation or entertainment areas, transportation, and housing provided for employees. The contractor shall provide separate or single-user restrooms and necessary dressing or sleeping areas to assure privacy between sexes.
IV. DAVIS-BACON AND RELATED ACT PROVISIONS
This section is applicable to all Federal-aid construction projects exceeding $2,000 and to all related subcontracts and lower-tier subcontracts (regardless of subcontract size), in accordance with 29 CFR 5.5. The requirements apply to all projects located within the right-of-way of a roadway that is functionally classified as Federalaid highway. 23 U.S.C. 113. This excludes roadways functionally classified as local roads or rural minor collectors, which are exempt. 23 U.S.C. 101. Where applicable law requires that projects be treated as a project on a Federal-aid highway, the provisions of this subpart will apply regardless of the location of the project. Examples include: Surface Transportation Block Grant Program projects funded under 23 U.S.C. 133 [excluding recreational trails projects], the Nationally Significant Freight and Highway Projects funded under 23 U.S.C. 117, and National Highway Freight Program projects funded under 23 U.S.C. 167.
The following provisions are from the U.S. Department of Labor regulations in 29 CFR 5.5 “Contract provisions and related matters” with minor revisions to conform to the FHWA-1273 format and FHWA program requirements.
1. Minimum wages (29 CFR 5.5)
a. All laborers and mechanics employed or working upon the site of the work, will be paid unconditionally and not less often than once a week, and without subsequent deduction or rebate on any account (except such payroll deductions as are permitted by regulations issued by the Secretary of Labor under the Copeland Act (29 CFR part 3)), the full amount of wages and bona fide fringe benefits (or cash equivalents thereof) due at time of payment computed at rates not less than those contained in the wage determination of the Secretary of Labor which is attached hereto and made a part hereof, regardless of any contractual relationship which may be alleged to exist between the contractor and such laborers and mechanics.
Contributions made or costs reasonably anticipated for bona fide fringe benefits under section 1(b)(2) of the Davis-Bacon Act on behalf of laborers or mechanics are considered wages paid to such laborers or mechanics, subject to the provisions of paragraph 1.d. of this section; also, regular contributions made or costs incurred for more than a weekly period (but not less often than quarterly) under plans, funds, or programs which cover the particular weekly period, are deemed to be constructively made or incurred during such weekly period. Such laborers and mechanics shall be paid the appropriate wage rate and fringe benefits on the wage determination for the classification of work actually performed, without regard to skill, except as provided in 29 CFR 5.5(a)(4). Laborers or mechanics performing work in more than one classification may be
compensated at the rate specified for each classification for the time actually worked therein: Provided, That the employer's payroll records accurately set forth the time spent in each classification in which work is performed. The wage determination (including any additional classification and wage rates conformed under paragraph
1.b. of this section) and the Davis-Bacon poster (WH–1321) shall be posted at all times by the contractor and its subcontractors at the site of the work in a prominent and accessible place where it can be easily seen by the workers.
b. (1) The contracting officer shall require that any class of laborers or mechanics, including helpers, which is not listed in the wage determination and which is to be employed under the contract shall be classified in conformance with the wage determination. The contracting officer shall approve an additional classification and wage rate and fringe benefits therefore only when the following criteria have been met:
(i) The work to be performed by the classification requested is not performed by a classification in the wage determination; and
(ii) The classification is utilized in the area by the construction industry; and
(iii) The proposed wage rate, including any bona fide fringe benefits, bears a reasonable relationship to the wage rates contained in the wage determination.
(2) If the contractor and the laborers and mechanics to be employed in the classification (if known), or their
representatives, and the contracting officer agree on the classification and wage rate (including the amount designated for fringe benefits where appropriate), a report of the action taken shall be sent by the contracting officer to the Administrator of the Wage and Hour Division, U.S. Department of Labor, Washington, DC 20210. The Administrator, or an authorized representative, will approve, modify, or disapprove every additional classification action within 30 days of receipt and so advise the contracting officer or will notify the contracting officer within the 30-day period that additional time is necessary. #13..
- 586 -
Local Assistance Procedures Manual Exhibit 12-G
Required Federal-Aid Contract Language
May 2023
(3) In the event the contractor, the laborers or mechanics to be employed in the classification or their representatives, and the contracting officer do not agree on the proposed classification and wage rate (including the amount
designated for fringe benefits, where appropriate), the contracting officer shall refer the questions, including the views of all interested parties and the recommendation of the contracting officer, to the Administrator for determination.
The Administrator, or an authorized representative, will issue a determination within 30 days of receipt and so advise the contracting officer or will notify the contracting officer within the 30-day period that additional time is necessary.
(4) The wage rate (including fringe benefits where
appropriate) determined pursuant to paragraphs 1.b.(2) or
1.b.(3) of this section, shall be paid to all workers performing work in the classification under this contract from the first day on which work is performed in the classification.
c. Whenever the minimum wage rate prescribed in the contract for a class of laborers or mechanics includes a fringe benefit which is not expressed as an hourly rate, the contractor shall either pay the benefit as stated in the wage determination or shall pay another bona fide fringe benefit or an hourly cash equivalent thereof. d. If the contractor does not make payments to a trustee or other third person, the contractor may consider as part of the wages of any laborer or mechanic the amount of any costs reasonably anticipated in providing bona fide fringe benefits under a plan or program, Provided, That the Secretary of Labor has found, upon the written request of the contractor, that the applicable standards of the Davis-Bacon Act have been met. The Secretary of Labor may require the contractor to set aside in a separate account assets for the meeting of obligations under the plan or program.
2. Withholding (29 CFR 5.5)
The contracting agency shall upon its own action or upon written request of an authorized representative of the Department of Labor, withhold or cause to be withheld from the contractor under this contract, or any other Federal contract with the same prime contractor, or any other federally-assisted contract subject to DavisBacon prevailing wage requirements, which is held by the same prime contractor, so much of the accrued payments or advances as may be considered necessary to pay laborers and mechanics, including apprentices, trainees, and helpers, employed by the contractor or any subcontractor the full amount of wages required by the contract. In the event of failure to pay any laborer or mechanic, including any apprentice, trainee, or helper, employed or working on the site of the work, all or part of the wages required by the contract, the contracting agency may, after written notice to the contractor, take such action as may be necessary to cause the suspension of any further payment, advance, or guarantee of funds until such violations have ceased.
3. Payrolls and basic records (29 CFR 5.5)
a. Payrolls and basic records relating thereto shall be maintained by the contractor during the course of the work and preserved for a period of three years thereafter for all laborers and mechanics working at the site of the work. Such records shall contain the name, address, and social security number of each such worker, his or her correct classification, hourly rates of wages paid (including rates of contributions or costs anticipated for bona fide fringe benefits or cash equivalents thereof of the types described in section 1(b)(2)(B) of the Davis-Bacon Act), daily and weekly number of hours worked, deductions made and actual wages paid. Whenever the Secretary of Labor has found under 29 CFR 5.5(a)(1)(iv) that the wages of any laborer or mechanic include the amount of any costs reasonably anticipated in providing benefits under a plan or program described in section 1(b)(2)(B) of the Davis-Bacon Act, the contractor shall maintain records which show that the commitment to provide such benefits is enforceable, that the plan or program is financially responsible, and that the plan or program has been communicated in writing to the laborers or mechanics affected, and records which show the costs anticipated or the actual cost incurred in providing such benefits. Contractors employing apprentices or trainees under approved programs shall maintain written evidence of the registration of apprenticeship programs and certification of trainee programs, the registration of the apprentices and trainees, and the ratios and wage rates prescribed in the applicable programs.
b. (1) The contractor shall submit weekly for each week in which any contract work is performed a copy of all payrolls to the contracting agency. The payrolls submitted shall set out accurately and completely all of the information required to be maintained under 29 CFR 5.5(a)(3)(i), except that full social security numbers and home addresses shall not be included on weekly transmittals. Instead the payrolls shall only need to include an individually identifying number for each employee (e.g., the last four digits of the employee's social security number). The required weekly payroll information may be submitted in any form desired. Optional Form WH–347 is
available for this purpose from the Wage and Hour Division Web site. The prime contractor is responsible for the submission of copies of payrolls by all subcontractors. Contractors and subcontractors shall maintain the full social security number and current address of each covered worker, and shall provide them upon request to the contracting agency for transmission to the State DOT, the FHWA or the Wage and Hour Division of the Department of Labor for purposes of an investigation or audit of compliance with prevailing wage requirements. It is not a violation of this section for a prime contractor to require a subcontractor to provide addresses and social security numbers to the prime contractor for its own records, without weekly submission to the contracting agency.
(2) Each payroll submitted shall be accompanied by a
“Statement of Compliance,” signed by the contractor or
subcontractor or his or her agent who pays or supervises the payment of the persons employed under the contract and shall certify the following:
(i) That the payroll for the payroll period contains the information required to be provided under 29 CFR
5.5(a)(3)(ii), the appropriate information is being maintained under 29 CFR 5.5(a)(3)(i), and that such information is correct and complete;
(ii) That each laborer or mechanic (including each helper, apprentice, and trainee) employed on the contract during the payroll period has been paid the full weekly wages earned, without rebate, either directly or indirectly, and that no deductions have been made either directly or indirectly from the full wages earned, other than permissible deductions as set forth in 29 CFR part 3;
#13..
- 587 -
Local Assistance Procedures Manual Exhibit 12-G
Required Federal-Aid Contract Language
May 2023
(iii) That each laborer or mechanic has been paid not less than the applicable wage rates and fringe benefits or cash equivalents for the classification of work performed, as specified in the applicable wage determination incorporated into the contract.
(3) The weekly submission of a properly executed certification set forth on the reverse side of Optional Form WH–347 shall satisfy the requirement for submission of the “Statement of Compliance” required by paragraph 3.b.(2) of this section. (4) The falsification of any of the above certifications may subject the contractor or subcontractor to civil or criminal prosecution under 18 U.S.C. 1001 and 31 U.S.C. 231.
c. The contractor or subcontractor shall make the records required under paragraph 3.a. of this section available for inspection, copying, or transcription by authorized representatives of the contracting agency, the State DOT, the FHWA, or the Department of Labor, and shall permit such representatives to interview employees during working hours on the job. If the contractor or subcontractor fails to submit the required records or to make them available, the FHWA may, after written notice to the contractor, the contracting agency or the State DOT, take such action as may be necessary to cause the suspension of any further payment, advance, or guarantee of funds. Furthermore, failure to submit the required records upon request or to make such records available may be grounds for debarment action pursuant to 29 CFR 5.12.
4. Apprentices and trainees (29 CFR 5.5)
a. Apprentices (programs of the USDOL).
Apprentices will be permitted to work at less than the predetermined rate for the work they performed when they are employed pursuant to and individually registered in a bona fide apprenticeship program registered with the U.S. Department of Labor, Employment and Training Administration, Office of Apprenticeship Training, Employer and Labor Services, or with a State Apprenticeship Agency recognized by the Office, or if a person is employed in his or her first 90 days of probationary employment as an apprentice in such an apprenticeship program, who is not individually registered in the program, but who has been certified by the Office of Apprenticeship Training, Employer and Labor Services or a State Apprenticeship Agency (where appropriate) to be eligible for probationary employment as an apprentice.
The allowable ratio of apprentices to journeymen on the job site in any craft classification shall not be greater than the ratio permitted to the contractor as to the entire work force under the registered program. Any worker listed on a payroll at an apprentice wage rate, who is not registered or otherwise employed as stated above, shall be paid not less than the applicable wage rate on the wage determination for the classification of work actually performed. In addition, any apprentice performing work on the job site in excess of the ratio permitted under the registered program shall be paid not less than the applicable wage rate on the wage determination for the work actually performed. Where a contractor is performing construction on a project in a locality other than that in which its program is registered, the ratios and wage rates (expressed in percentages of the journeyman's hourly rate) specified in the contractor's or subcontractor's registered program shall be observed.
Every apprentice must be paid at not less than the rate specified in the registered program for the apprentice's level of progress, expressed as a percentage of the journeymen hourly rate specified in the applicable wage determination. Apprentices shall be paid fringe benefits in accordance with the provisions of the apprenticeship program. If the apprenticeship program does not specify fringe benefits, apprentices must be paid the full amount of fringe benefits listed on the wage determination for the applicable classification. If the Administrator determines that a different practice prevails for the applicable apprentice classification, fringes shall be paid in accordance with that determination.
In the event the Office of Apprenticeship Training, Employer and Labor Services, or a State Apprenticeship Agency recognized by the Office, withdraws approval of an apprenticeship program, the contractor will no longer be permitted to utilize apprentices at less than the applicable predetermined rate for the work performed until an acceptable program is approved.
b. Trainees (programs of the USDOL).
Except as provided in 29 CFR 5.16, trainees will not be permitted to work at less than the predetermined rate for the work performed unless they are employed pursuant to and individually registered in a program which has received prior approval, evidenced by formal certification by the U.S. Department of Labor, Employment and Training Administration.
The ratio of trainees to journeymen on the job site shall not be greater than permitted under the plan approved by the Employment and Training Administration.
Every trainee must be paid at not less than the rate specified in the approved program for the trainee's level of progress, expressed as a percentage of the journeyman hourly rate specified in the applicable wage determination. Trainees shall be paid fringe benefits in accordance with the provisions of the trainee program. If the trainee program does not mention fringe benefits, trainees shall be paid the full amount of fringe benefits listed on the wage determination unless the Administrator of the Wage and Hour Division determines that there is an apprenticeship program associated with the
corresponding journeyman wage rate on the wage determination which provides for less than full fringe benefits for apprentices. Any employee listed on the payroll at a trainee rate who is not registered and participating in a training plan approved by the Employment and Training Administration shall be paid not less than the applicable wage rate on the wage determination for the classification of work actually performed. In addition, any trainee performing work on the job site in excess of the ratio permitted under the registered program shall be paid not less than the applicable wage rate on the wage determination for the work actually performed.
In the event the Employment and Training Administration withdraws approval of a training program, the contractor will no longer be permitted to utilize trainees at less than the applicable predetermined rate for the work performed until an acceptable program is approved. c. Equal employment opportunity. The utilization of apprentices, trainees and journeymen under this part shall be in conformity with the equal employment opportunity requirements of Executive Order 11246, as amended, and 29 CFR part 30.
#13..
- 588 -
Local Assistance Procedures Manual Exhibit 12-G
Required Federal-Aid Contract Language
May 2023
d. Apprentices and Trainees (programs of the U.S. DOT).
Apprentices and trainees working under apprenticeship and skill training programs which have been certified by the Secretary of Transportation as promoting EEO in connection with Federal-aid highway construction programs are not subject to the requirements of paragraph 4 of this Section IV. 23 CFR 230.111(e)(2). The straight time hourly wage rates for apprentices and trainees under such programs will be established by the particular programs. The ratio of apprentices and trainees to journeymen shall not be greater than permitted by the terms of the particular program.
5. Compliance with Copeland Act requirements. The contractor shall comply with the requirements of 29 CFR part 3, which are incorporated by reference in this contract as provided in 29 CFR 5.5.
6. Subcontracts. The contractor or subcontractor shall insert Form FHWA-1273 in any subcontracts and also require the
subcontractors to include Form FHWA-1273 in any lower tier subcontracts. The prime contractor shall be responsible for the compliance by any subcontractor or lower tier subcontractor with all the contract clauses in 29 CFR 5.5.
7. Contract termination: debarment. A breach of the contract clauses in 29 CFR 5.5 may be grounds for termination of the contract, and for debarment as a contractor and a subcontractor as provided in 29 CFR 5.12.
8. Compliance with Davis-Bacon and Related Act
requirements. All rulings and interpretations of the Davis-Bacon and Related Acts contained in 29 CFR parts 1, 3, and 5 are herein incorporated by reference in this contract as provided in 29 CFR 5.5.
9. Disputes concerning labor standards. As provided in 29 CFR
5.5, disputes arising out of the labor standards provisions of this contract shall not be subject to the general disputes clause of this contract. Such disputes shall be resolved in accordance with the procedures of the Department of Labor set forth in 29 CFR parts 5, 6, and 7. Disputes within the meaning of this clause include disputes between the contractor (or any of its subcontractors) and the contracting agency, the U.S. Department of Labor, or the employees or their representatives.
10. Certification of eligibility (29 CFR 5.5)
a. By entering into this contract, the contractor certifies that neither it (nor he or she) nor any person or firm who has an interest in the contractor's firm is a person or firm ineligible to be awarded Government contracts by virtue of section 3(a) of the Davis-Bacon Act or 29 CFR 5.12(a)(1).
b. No part of this contract shall be subcontracted to any person or firm ineligible for award of a Government contract by virtue of section 3(a) of the Davis-Bacon Act or 29 CFR 5.12(a)(1). c. The penalty for making false statements is prescribed in the U.S. Criminal Code, 18 U.S.C. 1001.
V. CONTRACT WORK HOURS AND SAFETY STANDARDS ACT
Pursuant to 29 CFR 5.5(b), the following clauses apply to any Federal-aid construction contract in an amount in excess of $100,000 and subject to the overtime provisions of the Contract Work Hours and Safety Standards Act. These clauses shall be inserted in addition to the clauses required by 29 CFR 5.5(a) or 29 CFR 4.6. As used in this paragraph, the terms laborers and mechanics include watchmen and guards.
1. Overtime requirements. No contractor or subcontractor contracting for any part of the contract work which may require or involve the employment of laborers or mechanics shall require or permit any such laborer or mechanic in any workweek in which he or she is employed on such work to work in excess of forty hours in such workweek unless such laborer or mechanic receives compensation at a rate not less than one and one-half times the basic rate of pay for all hours worked in excess of forty hours in such workweek. 29 CFR 5.5.
2. Violation; liability for unpaid wages; liquidated damages. In the event of any violation of the clause set forth in paragraph 1 of this section, the contractor and any subcontractor responsible therefor shall be liable for the unpaid wages. In addition, such contractor and subcontractor shall be liable to the United States (in the case of work done under contract for the District of Columbia or a territory, to such District or to such territory), for liquidated damages. Such liquidated damages shall be computed with respect to each individual laborer or mechanic, including watchmen and guards, employed in violation of the clause set forth in paragraph 1 of this section, in the sum currently provided in 29 CFR 5.5(b)(2)* for each calendar day on which such individual was required or permitted to work in excess of the standard workweek of forty hours without payment of the overtime wages required by the clause set forth in paragraph 1 of this section. 29 CFR
5.5. * $27 as of January 23, 2019 (See 84 FR 213-01, 218) as may be adjusted annually by the Department of Labor; pursuant to the Federal Civil Penalties Inflation Adjustment Act of 1990).
3. Withholding for unpaid wages and liquidated damages. The FHWA or the contacting agency shall upon its own action or upon written request of an authorized representative of the Department of Labor withhold or cause to be withheld, from any moneys payable on account of work performed by the contractor or subcontractor under any such contract or any other Federal contract with the same prime contractor, or any other federally-assisted contract subject to the Contract Work Hours and Safety Standards Act, which is held by the same prime contractor, such sums as may be determined to be necessary to satisfy any liabilities of such contractor or subcontractor for unpaid wages and liquidated damages as provided in the clause set forth in paragraph 2 of this section. 29 CFR 5.5.
4. Subcontracts. The contractor or subcontractor shall insert in any subcontracts the clauses set forth in paragraphs 1 through 4 of this section and also a clause requiring the subcontractors to include these clauses in any lower tier subcontracts. The prime contractor shall be responsible for compliance by any subcontractor or lower tier subcontractor with the clauses set forth in paragraphs 1 through 4 of this section. 29 CFR 5.5.
#13..
- 589 -
Local Assistance Procedures Manual Exhibit 12-G
Required Federal-Aid Contract Language
May 2023
VI. SUBLETTING OR ASSIGNING THE CONTRACT
This provision is applicable to all Federal-aid construction contracts on the National Highway System pursuant to 23 CFR 635.116.
1. The contractor shall perform with its own organization contract work amounting to not less than 30 percent (or a greater percentage if specified elsewhere in the contract) of the total original contract price, excluding any specialty items designated by the contracting agency. Specialty items may be performed by subcontract and the amount of any such specialty items performed may be deducted from the total original contract price before computing the amount of work required to be performed by the contractor's own organization (23 CFR 635.116).
a. The term “perform work with its own organization” in paragraph 1 of Section VI refers to workers employed or leased by the prime contractor, and equipment owned or rented by the prime contractor, with or without operators. Such term does not include employees or equipment of a subcontractor or lower tier subcontractor, agents of the prime contractor, or any other assignees. The term may include payments for the costs of hiring leased employees from an employee leasing firm meeting all relevant Federal and State regulatory requirements. Leased employees may only be included in this term if the prime contractor meets all of the following conditions:
(based on longstanding interpretation)
(1) the prime contractor maintains control over the supervision of the day-to-day activities of the leased employees;
(2) the prime contractor remains responsible for the quality of the work of the leased employees;
(3) the prime contractor retains all power to accept or exclude individual employees from work on the project; and
(4) the prime contractor remains ultimately responsible for the payment of predetermined minimum wages, the submission of payrolls, statements of compliance and all other Federal regulatory requirements.
b. "Specialty Items" shall be construed to be limited to work that requires highly specialized knowledge, abilities, or equipment not ordinarily available in the type of contracting organizations qualified and expected to bid or propose on the contract as a whole and in general are to be limited to minor components of the overall contract. 23 CFR 635.102.
2. Pursuant to 23 CFR 635.116(a), the contract amount upon which the requirements set forth in paragraph (1) of Section VI is computed includes the cost of material and manufactured products which are to be purchased or produced by the contractor under the contract provisions.
3. Pursuant to 23 CFR 635.116(c), the contractor shall furnish (a) a competent superintendent or supervisor who is employed by the firm, has full authority to direct performance of the work in accordance with the contract requirements, and is in charge of all construction operations (regardless of who performs the work) and (b) such other of its own organizational resources (supervision, management, and engineering services) as the contracting officer determines is necessary to assure the performance of the contract.
4. No portion of the contract shall be sublet, assigned or otherwise disposed of except with the written consent of the contracting officer, or authorized representative, and such consent when given shall not be construed to relieve the contractor of any responsibility for the fulfillment of the contract. Written consent will be given only after the contracting agency has assured that each subcontract is evidenced in writing and that it contains all pertinent provisions and requirements of the prime contract. (based on long-standing interpretation of 23 CFR 635.116).
5. The 30-percent self-performance requirement of paragraph (1) is not applicable to design-build contracts; however, contracting agencies may establish their own self-performance requirements. 23 CFR 635.116(d).
VII. SAFETY: ACCIDENT PREVENTION
This provision is applicable to all Federal-aid construction contracts and to all related subcontracts.
1. In the performance of this contract the contractor shall comply with all applicable Federal, State, and local laws governing safety, health, and sanitation (23 CFR Part 635). The contractor shall provide all safeguards, safety devices and protective equipment and take any other needed actions as it determines, or as the contracting officer may determine, to be reasonably necessary to protect the life and health of employees on the job and the safety of the public and to protect property in connection with the performance of the work covered by the contract. 23 CFR 635.108.
2. It is a condition of this contract, and shall be made a condition of each subcontract, which the contractor enters into pursuant to this contract, that the contractor and any subcontractor shall not permit any employee, in performance of the contract, to work in surroundings or under conditions which are unsanitary, hazardous or dangerous to his/her health or safety, as determined under construction safety and health standards (29 CFR Part 1926) promulgated by the Secretary of Labor, in accordance with Section 107 of the Contract Work Hours and Safety Standards Act (40 U.S.C. 3704). 29 CFR 1926.10.
3. Pursuant to 29 CFR 1926.3, it is a condition of this contract that the Secretary of Labor or authorized representative thereof, shall have right of entry to any site of contract performance to inspect or investigate the matter of compliance with the construction safety and health standards and to carry out the duties of the Secretary under Section 107 of the Contract Work Hours and Safety Standards Act (40 U.S.C. 3704).
VIII. FALSE STATEMENTS CONCERNING HIGHWAY PROJECTS
This provision is applicable to all Federal-aid construction contracts and to all related subcontracts.
In order to assure high quality and durable construction in conformity with approved plans and specifications and a high degree of reliability on statements and representations made by engineers, contractors, suppliers, and workers on Federal-aid highway projects, it is essential that all persons concerned with the project perform their functions as carefully, thoroughly, and honestly as possible. Willful falsification, distortion, or misrepresentation with respect to any facts related to the project is a violation of Federal law. To prevent any misunderstanding regarding the seriousness of these and similar acts, Form FHWA-1022 shall be posted on each Federal-aid highway project (23 CFR Part 635) in one or more places where it is readily available to all persons concerned with the project:
18 U.S.C. 1020 reads as follows:
"Whoever, being an officer, agent, or employee of the United States, or of any State or Territory, or whoever, whether a person, association, firm, or corporation, knowingly makes any false statement, false representation, or false report as to the character, quality, quantity, or cost of the material used or to be used, or the quantity or quality of the work performed or to be performed, or the cost thereof in connection with the submission of plans, maps, specifications, contracts, or costs of construction on any highway or related project submitted for approval to the Secretary of Transportation; or
#13..
- 590 -
Local Assistance Procedures Manual Exhibit 12-G
Required Federal-Aid Contract Language
May 2023
Whoever knowingly makes any false statement, false
representation, false report or false claim with respect to the character, quality, quantity, or cost of any work performed or to be performed, or materials furnished or to be furnished, in connection with the construction of any highway or related project approved by the Secretary of Transportation; or
Whoever knowingly makes any false statement or false
representation as to material fact in any statement, certificate, or report submitted pursuant to provisions of the Federal-aid Roads Act approved July 11, 1916, (39 Stat. 355), as amended and supplemented;
Shall be fined under this title or imprisoned not more than 5 years or both."
IX. IMPLEMENTATION OF CLEAN AIR ACT AND FEDERAL
WATER POLLUTION CONTROL ACT (42 U.S.C. 7606; 2 CFR
200.88; EO 11738)
This provision is applicable to all Federal-aid construction contracts in excess of $150,000 and to all related subcontracts. 48 CFR 2.101; 2 CFR 200.326.
By submission of this bid/proposal or the execution of this contract or subcontract, as appropriate, the bidder, proposer, Federal-aid construction contractor, subcontractor, supplier, or vendor agrees to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act (42 U.S.C. 7401-7671q) and the Federal Water Pollution Control Act, as amended (33 U.S.C. 1251-1387). Violations must be reported to the Federal Highway Administration and the Regional Office of the Environmental Protection Agency. 2 CFR Part 200, Appendix II.
The contractor agrees to include or cause to be included the requirements of this Section in every subcontract, and further agrees to take such action as the contracting agency may direct as a means of enforcing such requirements. 2 CFR 200.326.
X. CERTIFICATION REGARDING DEBARMENT, SUSPENSION,
INELIGIBILITY AND VOLUNTARY EXCLUSION
This provision is applicable to all Federal-aid construction contracts, design-build contracts, subcontracts, lower-tier subcontracts, purchase orders, lease agreements, consultant contracts or any other covered transaction requiring FHWA approval or that is estimated to cost $25,000 or more – as defined in 2 CFR Parts 180 and 1200. 2 CFR 180.220 and 1200.220.
1. Instructions for Certification – First Tier Participants:
a. By signing and submitting this proposal, the prospective first tier participant is providing the certification set out below. b. The inability of a person to provide the certification set out below will not necessarily result in denial of participation in this covered transaction. The prospective first tier participant shall submit an explanation of why it cannot provide the certification set out below. The certification or explanation will be considered in connection with the department or agency's determination whether to enter into this transaction. However, failure of the prospective first tier participant to furnish a certification or an explanation shall disqualify such a person from participation in this transaction. 2 CFR 180.320.
c. The certification in this clause is a material representation of fact upon which reliance was placed when the contracting agency determined to enter into this transaction. If it is later determined that the prospective participant knowingly rendered an erroneous certification, in addition to other remedies available to the Federal Government, the contracting agency may terminate this transaction for cause of default. 2 CFR 180.325.
d. The prospective first tier participant shall provide immediate written notice to the contracting agency to whom this proposal is submitted if any time the prospective first tier participant learns that its certification was erroneous when submitted or has become erroneous by reason of changed circumstances. 2 CFR 180.345 and 180.350.
e. The terms "covered transaction," "debarred," "suspended," "ineligible," "participant," "person," "principal," and "voluntarily excluded," as used in this clause, are defined in 2 CFR Parts 180, Subpart I, 180.900-180.1020, and 1200. “First Tier Covered Transactions” refers to any covered transaction between a recipient or subrecipient of Federal funds and a participant (such as the prime or general contract). “Lower Tier Covered Transactions” refers to any covered transaction under a First Tier Covered Transaction (such as subcontracts). “First Tier Participant” refers to the participant who has entered into a covered transaction with a recipient or subrecipient of Federal funds (such as the prime or general contractor). “Lower Tier Participant” refers any participant who has entered into a covered transaction with a First Tier Participant or other Lower Tier Participants (such as subcontractors and suppliers).
f. The prospective first tier participant agrees by submitting this proposal that, should the proposed covered transaction be entered into, it shall not knowingly enter into any lower tier covered transaction with a person who is debarred, suspended, declared ineligible, or voluntarily excluded from participation in this covered transaction, unless authorized by the department or agency entering into this transaction. 2 CFR 180.330.
g. The prospective first tier participant further agrees by submitting this proposal that it will include the clause titled "Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion-Lower Tier Covered Transactions," provided by the department or contracting agency, entering into this covered transaction, without modification, in all lower tier covered transactions and in all solicitations for lower tier covered transactions exceeding the $25,000 threshold. 2 CFR 180.220 and 180.300.
h. A participant in a covered transaction may rely upon a certification of a prospective participant in a lower tier covered transaction that is not debarred, suspended, ineligible, or voluntarily excluded from the covered transaction, unless it knows that the certification is erroneous. 2 CFR 180.300; 180.320, and 180.325. A participant is responsible for ensuring that its principals are not suspended, debarred, or otherwise ineligible to participate in covered transactions. 2 CFR 180.335. To verify the eligibility of its principals, as well as the eligibility of any lower tier prospective participants, each participant may, but is not required to, check the System for Award Management website
(https://www.sam.gov/). 2 CFR 180.300, 180.320, and 180.325. i. Nothing contained in the foregoing shall be construed to require the establishment of a system of records in order to render in good faith the certification required by this clause. The knowledge and information of the prospective participant is not required to exceed that which is normally possessed by a prudent person in the ordinary course of business dealings.
#13..
- 591 -
Local Assistance Procedures Manual Exhibit 12-G
Required Federal-Aid Contract Language
May 2023
j. Except for transactions authorized under paragraph (f) of these instructions, if a participant in a covered transaction knowingly enters into a lower tier covered transaction with a person who is suspended, debarred, ineligible, or voluntarily excluded from participation in this transaction, in addition to other remedies available to the Federal Government, the department or agency may terminate this transaction for cause or default. 2 CFR 180.325. * * * * *
2. Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion – First Tier Participants:
a. The prospective first tier participant certifies to the best of its knowledge and belief, that it and its principals:
(1) Are not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participating in covered transactions by any Federal department or agency, 2 CFR 180.335;.
(2) Have not within a three-year period preceding this proposal been convicted of or had a civil judgment rendered against them for commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (Federal, State, or local) transaction or contract under a public transaction; violation of Federal or State antitrust statutes or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, or receiving stolen property, 2 CFR 180.800;
(3) Are not presently indicted for or otherwise criminally or civilly charged by a governmental entity (Federal, State or local) with commission of any of the offenses enumerated in paragraph (a)(2) of this certification, 2 CFR 180.700 and 180.800; and (4) Have not within a three-year period preceding this
application/proposal had one or more public transactions (Federal, State or local) terminated for cause or default. 2 CFR 180.335(d).
(5) Are not a corporation that has been convicted of a felony violation under any Federal law within the two-year period preceding this proposal (USDOT Order 4200.6 implementing appropriations act requirements); and
(6) Are not a corporation with any unpaid Federal tax liability that has been assessed, for which all judicial and administrative remedies have been exhausted, or have lapsed, and that is not being paid in a timely manner pursuant to an agreement with the authority responsible for collecting the tax liability (USDOT Order 4200.6 implementing appropriations act requirements).
b. Where the prospective participant is unable to certify to any of the statements in this certification, such prospective participant should attach an explanation to this proposal. 2 CFR 180.335 and 180.340.
3. Instructions for Certification - Lower Tier Participants:
(Applicable to all subcontracts, purchase orders, and other lower tier transactions requiring prior FHWA approval or estimated to cost $25,000 or more - 2 CFR Parts 180 and 1200). 2 CFR 180.220 and 1200.220.
a. By signing and submitting this proposal, the prospective lower tier participant is providing the certification set out below. b. The certification in this clause is a material representation of fact upon which reliance was placed when this transaction was entered into. If it is later determined that the prospective lower tier participant knowingly rendered an erroneous certification, in addition to other remedies available to the Federal Government, the department, or agency with which this transaction originated may pursue available remedies, including suspension and/or debarment.
c. The prospective lower tier participant shall provide immediate written notice to the person to which this proposal is submitted if at any time the prospective lower tier participant learns that its certification was erroneous by reason of changed circumstances. 2 CFR 180.365.
d. The terms "covered transaction," "debarred," "suspended," "ineligible," "participant," "person," "principal," and "voluntarily excluded," as used in this clause, are defined in 2 CFR Parts 180, Subpart I, 180.900 – 180.1020, and 1200. You may contact the person to which this proposal is submitted for assistance in obtaining a copy of those regulations. “First Tier Covered Transactions” refers to any covered transaction between a recipient or subrecipient of Federal funds and a participant (such as the prime or general contract). “Lower Tier Covered Transactions” refers to any covered transaction under a First Tier Covered Transaction (such as subcontracts). “First Tier Participant” refers to the participant who has entered into a covered transaction with a recipient or subrecipient of Federal funds (such as the prime or general contractor). “Lower Tier Participant” refers any participant who has entered into a covered transaction with a First Tier Participant or other Lower Tier Participants (such as subcontractors and suppliers).
e. The prospective lower tier participant agrees by submitting this proposal that, should the proposed covered transaction be entered into, it shall not knowingly enter into any lower tier covered transaction with a person who is debarred, suspended, declared ineligible, or voluntarily excluded from participation in this covered transaction, unless authorized by the department or agency with which this transaction originated. 2 CFR 1200.220 and 1200.332. f. The prospective lower tier participant further agrees by submitting this proposal that it will include this clause titled "Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion-Lower Tier Covered Transaction," without modification, in all lower tier covered transactions and in all solicitations for lower tier covered transactions exceeding the $25,000 threshold. 2 CFR 180.220 and 1200.220.
g. A participant in a covered transaction may rely upon a certification of a prospective participant in a lower tier covered transaction that is not debarred, suspended, ineligible, or voluntarily excluded from the covered transaction, unless it knows that the certification is erroneous. A participant is responsible for ensuring that its principals are not suspended, debarred, or otherwise ineligible to participate in covered transactions. To verify the eligibility of its principals, as well as the eligibility of any lower tier prospective participants, each participant may, but is not required to, check the System for Award Management website (https://www.sam.gov/), which is compiled by the General Services Administration. 2 CFR 180.300, 180.320, 180.330, and 180.335.
h. Nothing contained in the foregoing shall be construed to require establishment of a system of records in order to render in good faith the certification required by this clause. The knowledge and information of participant is not required to exceed that which is normally possessed by a prudent person in the ordinary course of business dealings.
#13..
- 592 -
Local Assistance Procedures Manual Exhibit 12-G
Required Federal-Aid Contract Language
May 2023
i. Except for transactions authorized under paragraph e of these instructions, if a participant in a covered transaction knowingly enters into a lower tier covered transaction with a person who is suspended, debarred, ineligible, or voluntarily excluded from participation in this transaction, in addition to other remedies available to the Federal Government, the department or agency with which this transaction originated may pursue available remedies, including suspension and/or debarment. 2 CFR 180.325.
* * * * *
Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion--Lower Tier Participants:
1. The prospective lower tier participant certifies, by submission of this proposal, that neither it nor its principals:
(a) is presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participating in covered transactions by any Federal department or agency, 2 CFR 180.355;
(b) is a corporation that has been convicted of a felony violation under any Federal law within the two-year period preceding this proposal (USDOT Order 4200.6 implementing appropriations act requirements); and
(c) is a corporation with any unpaid Federal tax liability that has been assessed, for which all judicial and administrative remedies have been exhausted, or have lapsed, and that is not being paid in a timely manner pursuant to an agreement with the authority responsible for collecting the tax liability. (USDOT Order 4200.6 implementing appropriations act requirements)
2. Where the prospective lower tier participant is unable to certify to any of the statements in this certification, such prospective participant should attach an explanation to this proposal. * * * * *
XI. CERTIFICATION REGARDING USE OF CONTRACT FUNDS
FOR LOBBYING
This provision is applicable to all Federal-aid construction contracts and to all related subcontracts which exceed $100,000. 49 CFR Part 20, App. A.
1. The prospective participant certifies, by signing and submitting this bid or proposal, to the best of his or her knowledge and belief, that:
a. No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of any Federal agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement. b. If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any Federal agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form-LLL, "Disclosure Form to Report Lobbying," in accordance with its instructions.
2. This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into.
Submission of this certification is a prerequisite for making or entering into this transaction imposed by 31 U.S.C. 1352. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure.
3. The prospective participant also agrees by submitting its bid or proposal that the participant shall require that the language of this certification be included in all lower tier subcontracts, which exceed $100,000 and that all such recipients shall certify and disclose accordingly.
XII. USE OF UNITED STATES-FLAG VESSELS:
This provision is applicable to all Federal-aid construction contracts, design-build contracts, subcontracts, lower-tier subcontracts, purchase orders, lease agreements, or any other covered transaction. 46 CFR Part 381.
This requirement applies to material or equipment that is acquired for a specific Federal-aid highway project. 46 CFR 381.7. It is not applicable to goods or materials that come into inventories independent of an FHWA funded-contract.
When oceanic shipments (or shipments across the Great Lakes) are necessary for materials or equipment acquired for a specific Federalaid construction project, the bidder, proposer, contractor, subcontractor, or vendor agrees:
1. To utilize privately owned United States-flag commercial vessels to ship at least 50 percent of the gross tonnage (computed separately for dry bulk carriers, dry cargo liners, and tankers) involved, whenever shipping any equipment, material, or commodities pursuant to this contract, to the extent such vessels are available at fair and reasonable rates for United States-flag commercial vessels. 46 CFR 381.7.
2. To furnish within 20 days following the date of loading for shipments originating within the United States or within 30 working days following the date of loading for shipments originating outside the United States, a legible copy of a rated, ‘on-board’ commercial ocean bill-of-lading in English for each shipment of cargo described in paragraph (b)(1) of this section to both the Contracting Officer (through the prime contractor in the case of subcontractor bills-oflading) and to the Office of Cargo and Commercial Sealift (MAR620), Maritime Administration, Washington, DC 20590. (MARAD requires copies of the ocean carrier's (master) bills of lading, certified onboard, dated, with rates and charges. These bills of lading may contain business sensitive information and therefore may be submitted directly to MARAD by the Ocean Transportation Intermediary on behalf of the contractor). 46 CFR 381.7. #13..
- 593 -
The United States Department of Transportation (USDOT)
Standard Title VI/Non-Discrimination Assurances
DOT Order No. 1050.2A
The California Department of Transportation (herein referred to as the “Recipient”), HEREBY AGREES THAT, as a condition to receiving any Federal financial assistance from the U.S. Department of Transportation (DOT), through the Federal Highway Administration (FHWA), is subject to and will comply with the following:
Statutory/Regulatory Authorities
• Title VI of the Civil Rights Act of 1964 (42 U.S.C § 2000d et seq., 78 stat. 252), (prohibits discrimination on the basis of race, color, national origin); • 49 C.F.R Part 21 (entitled Nondiscrimination In Federally-Assisted Programs Of The Department Of Transportation—Effectuation Of Title VI Of The Civil Rights Act Of 1964);
• 28 C.F.R. § 50.3 (U.S. Department of Justice Guidelines for Enforcement of Title VI of the Civil Rights Act of 1964)
The preceding statutory and regulatory cites hereinafter are referred to as the “Acts” and “Regulations,” respectively.
General Assurances
In accordance with the Acts, the Regulations, and other pertinent directives, circulars, policy, memoranda, and/or guidance, the Recipient herby gives assurance that it will promptly take any measures necessary to ensure that:
“No person in the United States shall, on the grounds of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination under any program or activity,” for which the Recipient receives Federal financial assistance from DOT, including the FHWA.
The Civil Rights Restoration Act of 1987 clarified the original intent of Congress, with respect to Title VI and other Non-discrimination requirements (The Age Discrimination Act of 1975, and Section 504 of the Rehabilitation Act of 1973), by restoring the broad, institutional-wide scope and coverage of these nondiscrimination statutes and requirements to include all programs and activities of the Recipient, so long as any portion of the program is Federally assisted.
Title VI Assurances with Appendices A - E
1 of 13
EXHIBIT C EXHIBIT C
#13..
- 594 -
Specific Assurances
More specifically, and without limiting the above general Assurance, the Recipient agrees with and gives the following Assurances with respect to all programs or activities for which the Recipient receives Federal financial assistance:
1. The Recipient agrees that each “activity,” “facility,” or “program,” as defined in §§ 21.23 (b) and 21.23 € of 49 C.F.R. § 21 will be (with regard to an “activity”) facilitated, or will be (with regard to a “facility”) operated, or will be )with regard to a program”) conducted in compliance with all requirements imposed by, or pursuant to the Acts and the Regulations.
2. The Recipient will insert the following notification in all solicitations for bids, Requests For Proposals for work, or material subject to the Acts and the Regulations made in connection with all programs or activities for which the Recipient receives Federal financial assistance, and in adapted form, in all proposals for negotiated agreements regardless of funding source:
“The California Department of Transportation, in accordance with the provisions of Title VI of the Civil Rights Act of 1964 (78 Stat. 252, 42 U.S.C. §§ 2000d to 2000d-4) and the Regulations, hereby notifies all bidders that it will affirmatively insure that any contract entered into pursuant to this advertisement, disadvantaged business enterprises will be afforded full opportunity to submit bids in response to this invitation and will not be discriminated against on the grounds of race, color, or national origin for an award.”
3. The Recipient will insert the clauses of Appendix A and E of this Assurance in every contract or agreement subject to the Acts and the Regulations.
4. The Recipient will insert the clauses of Appendix B of this Assurance, as a covenant running with the land, in any deed from the United States effecting or recording a transfer of real property, structures, use, or improvements thereon or interest therein to a Recipient.
5. That where the Recipient receives Federal financial assistance to construct a facility, or part of a facility, the Assurance will extend to the entire facility and facilities operated in connection therewith.
Title VI Assurances with Appendices A - E
2 of 13
#13..
- 595 -
6. That where the Recipient receives Federal financial assistance in the form, or for the acquisition of real property or an interest in real property, the Assurance will extend to rights to space on, over, or under such property.
7. That the Recipient will include the clauses set forth in Appendix C and Appendix D of this Assurance, as a covenant running with the land, in any future deeds, leases, licenses, permits, or similar instruments entered into by the Recipient with other parties:
a. for the subsequent transfer or real property acquired or improved under the applicable activity, project, or program; and b. for the construction or use of, or access to, space on, over, or under real property acquired or improved under the applicable activity, project, or program.
8. That this Assurance obligates the Recipient for the period during which Federal financial assistance is extended to the program, except where the Federal financial assistance is to provide, or is in the form of, personal property, or interest therein, or structures or improvements thereon, in which case the Assurance obligates the Recipient, or any transferee for the longer of the following periods:
a. the period during which the property is used for a purpose for which the Federal financial assistance is extended, or for another purpose involving the provision of similar services or benefits; or b. the period during which the Recipient retains ownership or possession of the property.
9. The Recipient will provide for such methods of administration for the program as are found by the Secretary of Transportation or the official to whom he/she delegates specific authority to give reasonable guarantee that it, other recipients, sub-recipients, sub-grantees, contractors, subcontractors, consultants, transferees, successors in interest, and other participants of Federal financial assistance under such program will comply with all requirements imposed or pursuant to the Acts, the Regulations, and this Assurance.
Title VI Assurances with Appendices A - E
3 of 13
#13..
- 596 -
10. The Recipient agrees that the United States has a right to seek judicial enforcement with regard to any matter arising under the Acts, the Regulations, and this Assurance.
By signing this ASSURANCE, the Recipient also agrees to comply (and require any sub-recipients, sub-grantees, contractors, successors, transferees, and/or assignees to comply) with all applicable provisions governing DOT’s access to records, accounts, documents, information, facilities, and staff. You also recognize that you must comply with any program or compliance reviews, and/or complaint investigations conducted by DOT. You must keep records, reports, and submit the material for review upon request to DOT, or its designee in a timely, complete, and accurate way. Additionally, you must comply with all other reporting, data collection, and evaluation requirements, as prescribed by law or detailed in program guidance.
The Recipient gives this ASSURANCE in consideration of and for obtaining any Federal grants, loans, contracts, agreements, property, and/or discounts, or other Federal-aid and Federal financial assistance extended after the date hereof to the recipients by the U.S. Department of Transportation under all programs or activities receiving Federal financial assistance. This ASSURANCE is binding on California, other recipients, sub-recipients, sub-grantees, contractors, subcontractors and their subcontractors’, transferees, successors in interest, and any other participants in all programs or activities receiving Federal financial assistance. The person(s) signing below is authorized to sign this ASSURANCE on behalf of the Recipient.
California Department of Transportation
(Name of Recipient)
by original signed by Toks Omishakin
(Signature of Authorized Official)
DATED 09/17/2021
Title VI Assurances with Appendices A - E
4 of 13
#13..
- 597 -
APPENDIX A
During the performance of this contract, the contractor, for itself, its assignees, and successors in interest (hereinafter referred to as the “contractor”) agrees as follows:
1. Compliance with Regulations: The contractor (hereinafter includes consultants) will comply with the Acts and the Regulations relative to Nondiscrimination in Federally-assisted programs of the U.S. Department of Transportation, Federal Highway Administration, as they may be amended from time to time, which are herein incorporated by reference and made a part of this contract.
2. Non-discrimination: The contractor, with regard to the work performed by it during the contract, will not discriminate on the grounds of race, color, national origin, age, sex, or disability in the selection and retention of subcontractors, including procurements of materials and leases of equipment. The contractor will not participate directly or indirectly in the discrimination prohibited by the Acts and the Regulations, including employment practices when the contract covers any activity, project, or program set forth in Appendix B of 49 CFR Part 21.
3. Solicitation for Subcontracts, Including Procurements of Materials and Equipment: In all solicitations, either by competitive bidding, or negotiation made by the contractor for work to be performed under a subcontract, including procurements of materials, or leases of equipment, each potential subcontractor or supplier will be notified by the contractor of the contractor’s obligations under this contract and the Acts and the Regulations relative to Non-discrimination on the grounds of race, color, national origin, age, sex, or disability.
Title VI Assurances with Appendices A - E
5 of 13
#13..
- 598 -
4. Information and Reports: The contractor will provide all information and reports required by the Acts, the Regulations, and directives issued pursuant thereto and will permit access to its books, records, accounts, other sources of information, and its facilities as may be determined by the Recipient or the FHWA to be pertinent to ascertain compliance with such Acts, Regulations, and instructions. Where any information required of a contractor is in the exclusive possession of another who fails or refuses to furnish the information, the contractor will so certify to the Recipient or the FHWA, as appropriate, and will set forth what efforts it has made to obtain the information.
5. Sanctions for Noncompliance: In the event of a contractor’s noncompliance with the Non-discrimination provisions of this contract, the Recipient will impose such contract sanctions as it or the FHWA may determine to be appropriate, including, but not limited to:
1. withholding payments to the contractor under the contract until the contractor complies; and/or
2. cancelling, terminating, or suspending a contract, in whole or in part.
6. Incorporation of Provisions: The contractor will include the provisions of paragraphs one through six in every subcontract, including procurements of materials and leases of equipment, unless exempt by the Acts, the Regulations and directives issued pursuant thereto. The contractor will take action with respect to any subcontract or procurement as the Recipient or the FHWA may direct as a means of enforcing such provisions including sanctions for noncompliance. Provided, that if the contractor becomes involved in, or threatened with litigation by a subcontractor, or supplier because of such direction, the contractor may request the Recipient to enter into any litigation to protect the interests of the Recipient. In addition, the contractor may request the United States to enter into the litigation to protect the interests of the United States.
Title VI Assurances with Appendices A - E
6 of 13
#13..
- 599 -
APPENDIX B
CLAUSES FOR DEEDS TRANSFERRING UNITED STATES PROPERTY
The following clauses will be included in deeds effecting or recording the transfer of real property, structures, or improvements thereon, or granting interest therein from the United States pursuant to the provisions of Assurance 4:
NOW THEREFORE, the U.S. Department of Transportation as authorized by law and upon the condition that the California Department of Transportation will accept title to the lands and maintain the project constructed thereon in accordance with Title 23 U.S.C., the regulations for the administration of the preceding statute, and the policies and procedures prescribed by the FHWA of the U.S. Department of Transportation in accordance and in compliance with all requirements imposed by Title 49, Code of Federal Regulations, U.S. Department of Transportation, Subtitle A, Office of the Secretary, Part 21, Non-discrimination in Federally-assisted programs of the U.S. Department of Transportation pertaining to and effectuating the provisions of Title VI of the Civil Rights Act of 1964 (78 Stat. 252; 42 U.S.C. § 2000d to 2000d-4), does hereby remise, release, quitclaim and convey unto the California Department of Transportation all the right, title and interest of the U.S. Department of Transportation in and to said lands described in Exhibit A attached hereto and made a part hereof. (HABENDUM CLAUSE)
TO HAVE AND TO HOLD said lands and interests therein unto the California Department of Transportation and its successors forever, subject, however, to the covenants, conditions, restrictions and reservations herein contained as follows, which will remain in effect for the period during which the real property or structures are used for a purpose for which Federal financial assistance is extended or for another purpose involving the provision of similar services or benefits and will be binding on the California Department of Transportation, its successors and assigns.
Title VI Assurances with Appendices A - E
7 of 13
#13..
- 600 -
The California Department of Transportation, in consideration of the conveyance of said lands and interest in lands, does hereby covenant and agree as a covenant running with the land for itself, its successors and assigns, that (1) no person will on the grounds of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination with regard to any facility located wholly or in part on, over, or under such lands hereby conveyed [,] [and]* (2) that the California Department of Transportation will use the lands and interests in lands and interest in lands so conveyed, in compliance with all requirements imposed by or pursuant to Title 49, Code of Federal Regulations, U.S. Department of Transportation, Subtitle A, Office of the Secretary, Part 21, Non-discrimination in Federally-assisted programs of the U.S. Department of Transportation, Effectuation of Title VI of the Civil Rights Act of 1964, and as said Regulations and Acts may be amended[, and (3) that in the event of breach of any of the above-mentioned non-discrimination conditions, the Department will have a right to enter or re-enter said lands and facilities on said lands, and that above described land and facilities will thereon revert to and vest in and become the absolute property of the U.S. Department of Transportation and its assigns as such interest existed prior to this instruction].*
(*Reverter clause and related language to be used only when it is determined that such a clause is necessary in order to make clear the purpose of Title VI.) Title VI Assurances with Appendices A - E
8 of 13
#13..
- 601 -
APPENDIX C
CLAUSES FOR TRANSFER OF REAL PROPERTY ACQUIRED OR IMPROVED UNDER THE
ACTIVITY, FACILITY, OR PROGRAM
The following clauses will be included in deeds, licenses, leases, permits, or similar instruments entered into by the California Department of Transportation pursuant to the provisions of Assurance 7(a):
A. The (grantee, lessee, permittee, etc. as appropriate) for himself/herself, his/her heirs, personal representatives, successors in interest, and assigns, as a part of the consideration hereof, does hereby covenant and agree [in the case of deeds and leases add “as a covenant running with the land”] that:
1. In the event facilities are constructed, maintained, or otherwise operated on the property described in this (deed, license, lease, permit, etc.) for a purpose for which a U.S. Department of Transportation activity, facility, or program is extended or for another purpose involving the provision of similar services or benefits, the (grantee, licensee, lessee, permittee, etc.) will maintain and operate such facilities and services in compliance with all requirements imposed by the Acts and Regulations (as may be amended) such that no person on the grounds of race, color, or national origin, will be excluded from participation in, denied the benefits of, or be otherwise subjected to discrimination in the use of said facilities.
B. With respect to licenses, leases, permits, etc., in the event of breach of any of the above Non-discrimination covenants, the California Department of Transportation will have the right to terminate the (lease, license, permit, etc.) and to enter, re-enter, and repossess said lands and facilities thereon, and hold the same as if the (lease, license, permit, etc.) had never been made or issued.*
Title VI Assurances with Appendices A - E
9 of 13
#13..
- 602 -
C. With respect to a deed, in the event of breach of any of the above Nondiscrimination covenants, the California Department of Transportation will have the right to enter or re-enter the lands and facilities thereon, and the above described lands and facilities will there upon revert to and vest in and become the absolute property of the California Department of Transportation and its assigns.*
(*Reverter clause and related language to be used only when it is determined that such a clause is necessary to make clear the purpose of Title VI.) Title VI Assurances with Appendices A - E
10 of 13
#13..
- 603 -
APPENDIX D
CLAUSES FOR CONSTRUCTION/USE.ACCESS TO REAL PROPERTY ACQUIRED UNDER
THE ACTIVITY, FACILITY OR PROGRAM
The following clauses will be included in deeds, licenses, permits, or similar instruments/agreements entered into by the California Department of Transportation pursuant to the provisions of Assurance 7(b):
A. The (grantee, licensee, permittee, etc., as appropriate) for himself/herself, his/her heirs, personal representatives, successors in interest ,and assigns, as a part of the consideration hereof, does hereby covenant and agree (in the case of deeds and leases add, “as a covenant running with the land”) that (1) no person on the ground of race, color, or national origin, will be excluded from participation in, denied the benefits of, or be otherwise subjected to discrimination in the use of said facilities, (2) that in the construction of any improvements on, over, or under such land, and the furnishings of services thereon, no person on the ground of race, color, or national origin, will be excluded from participation in, denied the benefits or, or otherwise be subjected to discrimination, (3) that the (grantee, licensee, lessee, permittee, etc.) will use the premises in compliance with all other requirements imposed by or pursuant to the Acts and Regulations, as amended, set forth in this Assurance.
B. With respect to (licenses, leases, permits, etc.) in the event of breach of any of the above of the above Non-discrimination covenants, the California Department of Transportation will have the right to terminate the (license, permits, etc., as appropriate) and to enter or re-enter and repossess said land and the facilities thereon, and hold the same as if said (license, permit, etc., as appropriate) had never been made or issued.* C. With respect to deeds, in the event of breach of any of the above Nondiscrimination covenants, the California Department of Transportation will there upon revert to and vest in and become the absolute property of the California Department of Transportation and its assigns. (*Reverter clause and related language to be used only when it is determined that such a clause is necessary to make clear the purpose of Title VI.) Title VI Assurances with Appendices A - E
11 of 13
#13..
- 604 -
APPENDIX E
During the performance of this contract, the contractor, for itself, its assignees, and successors in interest (hereinafter referred to as the “contractor”) agrees to comply with the following non-discrimination statutes and authorities, including, but not limited to:
Pertinent Non-Discrimination Authorities:
• Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d et seq., 78 stat. 252), prohibits discrimination on the basis of race, color, national origin); and 49 CFR Part 21.
• The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, (42 U.S.C. § 4601), (prohibits unfair treatment of persons displaced or whose property has been acquired because of Federal or Federal-aid programs and projects);
• Federal-Aid Highway Act of 1973, (23 U.S.C. § 324 et seq.), prohibits discrimination on the basis of sex;
• Section 504 of the Rehabilitation Act of 1973, (29 U.S.C. § 794 et seq.), as amended, (prohibits discrimination on the basis of disability); and 49 CR Part 27;
• The Age Discrimination Act of 1975, as amended, (42 U.S.C. § 6101 et seq.), prohibits discrimination on the basis of age);
• Airport and Airway Improvement Act of 1982, (49 U.S.C. § 471, Section 47123), as amended, (prohibits discrimination based on race, creed, color, national origin, or sex);
• The Civil Rights Restoration Act of 1987, (PL 100-209), (Broadened the scope, coverage and applicability of Title VI of the Civil Rights Act of 1964, The Age Discrimination Act of 1975 and Section 504 of the Rehabilitation Act of 1973, by expanding the definition of the terms “programs or activities” to include all of the programs or activities of the Federal-aid recipients, sub-recipients and contractors, whether such programs or activities are Federally funded or not);
• Titles II and III of the Americans with Disabilities Act, which prohibit discrimination of the basis of disability in the operation of public entities, public and private transportation systems, places of public accommodation, and certain testing entities (42 U.S.C. §§ 12131 – 12189) as implemented by Department of Transportation regulations 49 C.F.R. parts 37 and 38;
Title VI Assurances with Appendices A - E
12 of 13
#13..
- 605 -
• The Federal Aviation Administration’s Non-discrimination statute (49 U.S.C. § 47123) (prohibits discrimination on the basis of race, color, national origin, and sex);
• Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, which ensures discrimination against minority populations by discouraging programs, policies, and activities with disproportionately high and adverse human health or environmental effects on minority and low-income populations; • Executive Order 13166, Improving Access to Services for Persons with Limited English Proficiency, and resulting agency guidance, national origin discrimination includes discrimination because of limited English proficiency (LEP). To ensure compliance with Title VI, you must take reasonable steps to ensure that LEP persons have meaningful access to your programs (70 Fed. Reg. at 74087 to 74100);
• Title IX of the Education Amendments of 1972, as amended, which prohibits you from discriminating because of sex in education programs or activities (20 U.S.C. 1681 et seq).
Title VI Assurances with Appendices A - E
13 of 13
#13..
- 606 -
#13..
- 607 -
#13..
- 608 -
CML 5059(245) & CML 5059(246) Claus Road and Scenic Drive Signal Coordination Bid Tabulation Monday, September 25, 2023
Project Title: Claus Road and Scenic Drive Signal Coordination Project ID #: 2023-020
Vault ID #: 25-D-0237
Account #: 101322, 101323
Bid Opening: 9/19/2023 at 11:00 AM Designer: Mark Murphy Basis of Award: By Blind Bid Design Manager: Mark Murphy Project Description: Project will upgrade the City’s Advanced Traffic Management System (ATMS) in various locations. Project will drop fiber optic cable into each cabinet along Claus Road and Scenic Drive and upgrade ATMS Central Software and Traffic Signal Controllers.
Item # Item Description Units Quantity Unit Price Extension Apparent Low Bidder
Tennyson Electric LLC
(925) 606-1038, Fax (925) 606-7656 7275 National Drive, Suite A2, Livermore, CA 94550 Base Bid
1. Clearing, Grubbing, and Mobilization LS 1 $25,000.00 $25,000.00
2. Traffic Control, Barricades, and Other Related Fees LS 1 $68,950.00 $68,950.00
3. Fiber Optic Cable Installation LS 1 $183,650.00 $183,650.00
4. Install City Supplied Ethernet Switches EA 5 $1,350.00 $6,750.00
5. Fusion Splice EA 2 $23,500.00 $47,000.00
6. Conduit/Pullbox Installation LS 1 $38,500.00 $38,500.00
7. Water Pollution Control Plan (WPCP) LS 1 $2,500.00 $2,500.00
8. Clearing, Grubbing, and Mobilization LS 1 $9,500.00 $9,500.00
9. Traffic Control, Barricades, and Other Related Fees LS 1 $48,750.00 $48,750.00
10. Fiber Optic Cable Installation LS 1 $191,850.00 $191,850.00
11. Install City-Supplied Ethernet Switches EA 5 $1,350.00 $6,750.00
12. Fusion Splice EA 2 $65,000.00 $130,000.00
13. Conduit/Pullbox Installation LS 1 $36,500.00 $36,500.00
14. Water Pollution Control Plan (WPCP) LS 1 $2,500.00 $2,500.00 Total Base Bid: $798,200.00
Percent From Engineer's Estimate: 41.25%
Engineer's Estimate
Base Bid
1. Clearing, Grubbing, and Mobilization LS 1 $15,000.00 $15,000.00
2. Traffic Control, Barricades, and Other Related Fees LS 1 $15,000.00 $15,000.00
3. Fiber Optic Cable Installation LS 1 $100,000.00 $100,000.00
4. Install City Supplied Ethernet Switches EA 5 $1,000.00 $5,000.00
5. Fusion Splice EA 2 $15,000.00 $30,000.00
6. Conduit/Pullbox Installation LS 1 $55,000.00 $55,000.00
7. Water Pollution Control Plan (WPCP) LS 1 $5,000.00 $5,000.00
8. Clearing, Grubbing, and Mobilization LS 1 $15,000.00 $15,000.00
9. Traffic Control, Barricades, and Other Related Fees LS 1 $15,000.00 $15,000.00
10. Fiber Optic Cable Installation LS 1 $170,115.00 $170,115.00
11. Install City-Supplied Ethernet Switches EA 5 $1,000.00 $5,000.00
12. Fusion Splice EA 2 $15,000.00 $30,000.00
13. Conduit/Pullbox Installation LS 1 $100,000.00 $100,000.00
14. Water Pollution Control Plan (WPCP) LS 1 $5,000.00 $5,000.00 Total Base Bid: $565,115.00
#13..
- 609 -
CITY OF MODESTO
COUNCIL AGENDA REPORT
DATE OF MEETING:
November 7, 2023
Date: October 16, 2023
TO: Mayor and City Council
THROUGH: Joseph P. Lopez, City Manager
FROM: William Wong, Director of Utilities
SUBJECT: Award Regional Water Recycling Facility - Sutter Campus Parking Lot and Security Upgrade Project
CONTACT: Cristian Ciotau, Senior Civil Engineer, [email protected], 209-577-5260 DESCRIPTION:
Consider accepting the Plans and Specifications for the Regional Water Recycling Facility - Sutter Campus Parking Lot and Security Upgrade Project and Awarding a Construction Contract to George Reed, Inc., of Modesto, CA, in an amount not to exceed $7,272,462 and approving an Engineering Support During Construction Agreement with West Yost Associates, of Sacramento, CA, in an amount not to exceed $220,767.
(Funding Source: Wastewater Fund)
STRATEGIC PLAN ELEMENT:
The recommended action supports the 2020-2025 City of Modesto Strategic Plan Initiatives, Goal D: Provide safe, efficient, and reliable infrastructure through proactive community investment, maintenance, and sustainability efforts.
BACKGROUND:
As it is currently configured, the existing entrance at the Regional Water Recycling Facility - Sutter Campus (RWRF-SC) presents security and safety concerns. The Sutter Facility Layout Plan (SFLP) identified recommended improvements for access, traffic circulation and parking.
This Project’s scope of work will combine the following SFLP recommended improvements as well as improvements requested by Wastewater Operations and Maintenance Staff.
Plant Entrance
Address Facility Traffic Circulation Needs
Install New Ornamental Iron Fence
Address Road Pavement and Drainage Improvements
Modify Intersection of Sutter Avenue and Robertson Road to Accommodate New Entrance Location
Parking Lot
Create New Parking Areas
#14..
- 610 -
City Council, November 7, 2023
Award Regional Water Recycling Facility Parking Lot and Security Upgrade Project
Install New Landscaping and Irrigation System
Vac-Con Facility
Build New Steel Canopy Structure Over the Vac-Con Parking Area Septic Receiving Station
Build New Septic Receiving Station
Install Card Access and Analyzer Equipment
Construct Two-Lane Access for Increased Efficiency
Facility Wide
Install Security Camera System
DISCUSSION:
The project was advertised for bids on August 22, 2023. Bids were publicly opened on October 3, 2023, pursuant to City Charter Section 1307 and George Reed, Inc., of Modesto, CA, was determined to be the responsible bidder with the lowest responsive bid.
Bid Analysis:
Number of bids received 4
Number of bids within 10% of engineer’s estimate 3
Number of bids above the engineer’s estimate 3
Number of bids below the engineer’s estimate 1
Percent low bid is below the engineer’s estimate 4.26%
George Reed, Inc., of Modesto, CA, was 4.26% below the engineer’s estimate. The next lowest bid was 6.97% above the engineer’s estimate. Three of the four bids were within 10% of the engineer’s estimate; one was below the engineer’s estimate and three were above the engineer’s estimate. The highest bid was 15.67% above the engineer’s estimate. Bidder competition and participation was evident as the City received four bids.
Modesto Municipal Code Section 8-3.203 generally requires all purchases, which meet or exceed $50,000 for material, equipment, or contractual services to follow the formal bid procedures. The award of Contract for the construction of the Regional Water Recycling Facility - Sutter Campus Parking Lot and Security Upgrade Project to George Reed, Inc., of Modesto, CA, conforms to the Modesto Municipal Code because the City complied with the formal bid procedures and George Reed, Inc., of Modesto, CA was the lowest responsive and responsible bidder.
The City’s “Change Order Approval Policy” enacted by Council Resolution No. 1994-443 on July 19, 1994, and revised on July 9, 2019, by Council Resolution No. 2019-326, and by Council Resolution 2023-405 on September 12, 2023, established a Contract change order authority of 10% for Construction Contracts of this dollar value. However, after reviewing the plans and specifications, and given the nature, location and complexity of this project, unforeseen conditions may be encountered. It is likely that this project may exceed the Director’s Authority of 10% ($632,388) of the Construction Contract amount of $6,323,880; therefore, Staff is requesting that the Director’s Authority to issue change orders be increased to 15% ($948,582) of the Construction Contract amount.
#14..
- 611 -
City Council, November 7, 2023
Award Regional Water Recycling Facility Parking Lot and Security Upgrade Project
While the contingency policy is utilized for each Construction Contract awarded by the City, it is not written into each contract, nor is it a guaranteed amount included in the final compensation to the contractor. Prior to bidding a project, Staff works diligently to ensure that all projects and bid packages contain well-defined scopes of work and that all projects stay within budget.
On January 22, 2019, by Resolution No. 2019-22, Council approved an agreement with West Yost Associates to provide Engineering Design Services for the Regional Water Recycling Facility - Sutter Campus Parking Lot and Security Upgrade Project in an amount not to exceed $527,794.
Additionally, considering the size and complexity of the project and that West Yost Associates (West Yost) is the Engineer-of-Record for the project, Engineering Support During Construction services will be needed from West Yost to ensure construction of the project meets the original design described in the plans and specifications. The scope of work will include reviewing materials submittals, requests for information, and field engineering support. Therefore, Staff is requesting approval of an Agreement with West Yost for Engineering Support During Construction in the amount of $200,697, plus $20,070 in additional services (if needed), for a total amount not to exceed $220,767.
Modesto Municipal Code Section 8-3.204(d) does not require formal bidding where the Purchasing Manager, in his or her discretion, determines that a process other than the formal bid procedure will result in a procurement for the City at the lowest possible cost commensurate with the desired quality. Because West Yost is the Engineer-of-Record for this project, they are most qualified to address engineering questions that arise during construction and selecting another engineering firm to provide such services will result in increased costs due to the new firm needing to familiarize themselves with the project. .
FISCAL IMPACT:
The total estimated cost for the construction phase of this project is $8,275,617. Expenses associated with this effort will be housed in the following Capital Improvement Program Project:
100372 – Sutter Plant Pkg Lot/Security
ANTICIPATED CONSTRUCTION EXPENDITURES:
Construction $6,323,880
Construction Contingency (15%) $948,582
Construction Administration – City Staff (10%) $632,388 Engineering Support During Construction – Consultant Agreement $200,697 Additional Services (if needed) $20,070
Engineering/Design/Administration – City Staff $150,000 TOTAL: $8,275,617
A budget adjustment in the amount of $2,967,790 from Wastewater Reserves will be necessary to fund this phase of the Regional Water Recycling Facility - Sutter Campus Parking Lot and Security Upgrade Project.
COMMITTEE RECOMMENDATION:
This item was presented to the Finance Committee at the meeting held on August 21, 2023, where it was recommended that it be forwarded to Council. #14..
- 612 -
City Council, November 7, 2023
Award Regional Water Recycling Facility Parking Lot and Security Upgrade Project
CEQA/NEPA REQUIREMENTS:
Environmental review has been provided through a Categorical Exemption under CEQA Section 15301 - Minor Alterations to Existing Facilities.
RECOMMENDED COUNCIL ACTION
Staff Recommendations:
Resolution approving Plans and Specifications for the Regional Water Recycling Facility - Sutter Campus Parking Lot and Security Upgrade Project and awarding a Construction Contract to George Reed, Inc., of Modesto, CA, in the amount of $6,323,880 plus $948,582 in Contingency (if needed), for a total amount not to exceed $7,272,462 and authorizing the City Manager, or his designee, to execute the Contract.
Resolution authorizing an increase in the Director’s Authority to issue change orders for the Regional Water Recycling Facility - Sutter Campus Parking Lot and Security Upgrade Project from 10% ($632,388) to 15% ($948,582) of the Construction Contract amount of $6,323,880 with George Reed, Inc., of Modesto, CA.
Resolution approving an Agreement with West Yost Associates, of Sacramento, CA, for Engineering Support During Construction for the Regional Water Recycling Facility - Sutter Campus Parking Lot and Security Upgrade Project, in the amount of $200,697 for the identified scope of services, plus $20,070 for additional services (if needed), for a total amount not to exceed $220,767 and authorizing the City Manager, or his designee, to execute the agreement.
Resolution amending the Fiscal Year 2023-24 Capital Improvement Program Budget in the amount of $2,967,790 to fund the Construction Phase of the Regional Water Recycling Facility - Sutter Campus Parking Lot and Security Upgrade Project and authorizing the City Manager, or his designee, to implement the provisions of this resolution.
Approved by:
William Wong, Director of Utilities
Joseph P. Lopez, City Manager
Attachments:
1. Resolutions (4)
2. Construction Contract & Financial Interest Disclosure Form - George Reed, Inc.
3. Bid Results
4. Engineering Support During Construction Agreement & Exhibits - West Yost Associates #14..
- 613 -
11/07/2023/Utilities/CCiotau/Item X 1 2023-XX
MODESTO CITY COUNCIL
RESOLUTION NO. 2023-
RESOLUTION APPROVING PLANS AND SPECIFICATIONS FOR THE
REGIONAL WATER RECYCLING FACILITY - SUTTER CAMPUS PARKING
LOT AND SECURITY UPGRADE PROJECT AND AWARDING A
CONSTRUCTION CONTRACT TO GEORGE REED, INC., OF MODESTO, CA, IN THE AMOUNT OF $6,323,880 PLUS $948,582 IN CONTINGENCY (IF NEEDED), FOR A TOTAL AMOUNT NOT TO EXCEED $7,272,462 AND
AUTHORIZING THE CITY MANAGER, OR HIS DESIGNEE, TO EXECUTE
THE CONTRACT
WHEREAS, the Sutter Facility Layout Plan (SFLP) identifies recommended improvements for access, traffic circulation and parking, and WHEREAS, the project’s scope of work is a combination of the SFLP identified improvements as well as improvements identified by Operations and Maintenance staff, and
WHEREAS, plans and specifications have been prepared for the Regional Water Recycling Facility - Sutter Campus Parking Lot and Security Upgrade Project, and WHEREAS, the project was advertised for bids on August 22, 2023, and WHERAS, on October 3, 2023, bids were publicly opened, pursuant to City Charter Section 1307, four bids were received and George Reed Inc, of Modesto, CA, was the responsible bidder with the lowest responsive bid, and WHEREAS, Modesto Municipal Code Section 8-3.203 generally requires all purchases, which meet or exceed $50,000 for material, equipment, or contractual services to follow the formal bid procedures, and
WHEREAS, the award of Contract for the construction of the Regional Water Recycling Facility - Sutter Campus Parking Lot and Security Upgrade Project to George Reed, Inc., of Modesto, CA, conforms to the Modesto Municipal Code because the City #14..
- 614 -
11/07/2023/Utilities/CCiotau/Item X 2 2023-XX
complied with the formal bid procedures and George Reed, Inc., of Modesto, CA was the lowest responsive and responsible bidder, and
WHEREAS, Staff recommends awarding the Contract to George Reed Inc, of Modesto, CA.
NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Modesto that it hereby approves the plans and specifications for the Regional Water Recycling Facility - Sutter Campus Parking Lot and Security Upgrade Project, accepts the bid of $6,323,880 plus $948,582 in contingency (if needed), for a total amount not to exceed $7,272,462 and awards the Construction Contract to George Reed Inc, of Modesto, CA.
BE IT FURTHER RESOLVED that the City Manager, or his designee, is hereby authorized to execute the Contract, in a form approved by the City Attorney. #14..
- 615 -
11/07/2023/Utilities/CCiotau/Item X 3 2023-XX
The foregoing resolution was introduced at a regular meeting of the Council of the City of Modesto held on the 7th day of November 2023, by Councilmember ?, who moved its adoption, which motion being duly seconded by Councilmember ?, was upon roll call carried and the resolution adopted by the following vote:
AYES: Councilmembers:
NOES: Councilmembers:
ABSENT: Councilmembers:
ATTEST:
DIANA NAYARES-PEREZ, City Clerk
(SEAL)
APPROVED AS TO FORM:
BY: ____________________________________
JOSE M. SANCHEZ, City Attorney
#14..
- 616 -
11/07/2023/Utilities/CCiotau/Item X 1 2023-XX
MODESTO CITY COUNCIL
RESOLUTION NO. 2023-
RESOLUTION AUTHORIZING AN INCREASE IN THE DIRECTOR’S
AUTHORITY TO ISSUE CHANGE ORDERS FOR THE REGIONAL WATER
RECYCLING FACILITY - SUTTER CAMPUS PARKING LOT AND SECURITY UPGRADE PROJECT FROM 10% ($632,388) TO 15% ($948,582) OF THE CONSTRUCTION CONTRACT AMOUNT OF $6,323,880 WITH GEORGE
REED, INC., OF MODESTO, CA
WHEREAS, the City’s “Change Order Approval Policy”, enacted by Council Resolution No. 94-443 on July 19, 1994, and updated by Resolution No. 2019-326 on July 9, 2019, and by Resolution No. 2023-405 on September 12, 2023, established a contract change order budget of 10% for projects up to $10 Million, and WHEREAS, given the nature, location and complexity of this project, unforeseen conditions may be encountered; it is likely that this project may exceed the Director’s Authority of 10% ($632,388) of the Construction Contract amount of $6,323,880, and WHEREAS, Staff is requesting that the Director’s Authority to issue change orders be increased to 15% ($948,582) of the Construction Contract amount.
NOW, THEREFORE BE IT RESOLVED by the Council of the City of Modesto that it hereby authorizes the Director of the Engineering Services Department to issue change orders for the Regional Water Recycling Facility - Sutter Campus Parking Lot and Security Upgrade Project from 10% ($632,388) to 15% ($948,582) of the construction contract price of $6,323,880 with George Reed Inc., of Modesto, CA. #14..
- 617 -
11/07/2023/Utilities/CCiotau/Item X 2 2023-XX
The foregoing resolution was introduced at a regular meeting of the Council of the City of Modesto held on the 7th day of November 2023, by Councilmember ?, who moved its adoption, which motion being duly seconded by Councilmember ?, was upon roll call carried and the resolution adopted by the following vote:
AYES: Councilmembers:
NOES: Councilmembers:
ABSENT: Councilmembers:
ATTEST:
DIANA NAYARES-PEREZ, City Clerk
(SEAL)
APPROVED AS TO FORM:
BY: ____________________________________
JOSE M. SANCHEZ, City Attorney
#14..
- 618 -
11/07/2023/Utilities/CCiotau/Item X 1 2023-XX
MODESTO CITY COUNCIL
RESOLUTION NO. 2023-
RESOLUTION APPROVING AN AGREEMENT WITH WEST YOST
ASSOCIATES, OF SACRAMENTO, CA, FOR ENGINEERING SUPPORT
DURING CONSTRUCTION FOR THE REGIONAL WATER RECYCLING
FACILITY - SUTTER CAMPUS PARKING LOT AND SECURITY UPGRADE PROJECT, IN THE AMOUNT OF $200,697 FOR THE IDENTIFIED SCOPE OF SERVICES, PLUS $20,070 FOR ADDITIONAL SERVICES (IF NEEDED), FOR A TOTAL AMOUNT NOT TO EXCEED $220,767 AND AUTHORIZING THE CITY
MANAGER, OR HIS DESIGNEE, TO EXECUTE THE AGREEMENT
WHEREAS, the existing entrance at the Regional Water Recycling Facility - Sutter Campus presents security and safety concerns, and WHEREAS, the Sutter Facility Layout Plan (SFLP) identified recommended improvements for access, traffic circulation and parking, and WHEREAS, the Project’s scope of work will combine the SFLP recommend improvements as well as improvements requested by Wastewater Operations and Maintenance Staff, and
WHEREAS, on January 22, 2019, by Resolution No. 2019-22, Council approved an agreement with West Yost Associates to provide Engineering Design Services for the Regional Water Recycling Facility - Sutter Campus Parking Lot and Security Upgrade Project, and
WHEREAS, considering the size and complexity of the Regional Water Recycling Facility - Sutter Campus Parking Lot and Security Upgrade Project, and WHEREAS, West Yost Associates is the Engineer-of-Record for the project, Engineering Support During Construction will be needed from West Yost Associates to ensure construction of the facilities meets the original design described in the plans and specifications, and
#14..
- 619 -
11/07/2023/Utilities/CCiotau/Item X 2 2023-XX
WHEREAS, Administrative Directive 3.1 allows for an accelerated selection process, if in the best interest of the City, where a consultant may be secured for specific projects to provide professional services, and
WHEREAS, Modesto Municipal Code Section 8-3.204(d) does not require formal bidding where the Purchasing Manager, in his or her discretion, determines that a process other than the formal bid procedure will result in a procurement for the City at the lowest possible cost commensurate with the desired quality, and WHEREAS, because West Yost is the Engineer-of-Record for this project, they are most qualified to address engineering questions that arise during construction, and selecting another engineering firm to provide such services will result in increased costs due to the new firm needing to familiarize themselves with the project.
NOW, THEREFORE BE IT RESOLVED by the Council of the City of Modesto that it hereby approves an agreement with West Yost Associates, for Engineering Support During Construction for the Regional Water Recycling Facility - Sutter Campus Parking Lot and Security Upgrade Project in an amount not to exceed $200,697 for the identified scope of services, plus $20,070 for additional services, if needed, for a total amount not to exceed $220,767.
BE IT FURTHER RESOLVED that the City Manager, or his designee, is hereby authorized to execute the agreement, in a form approved by the City Attorney. #14..
- 620 -
11/07/2023/Utilities/CCiotau/Item X 3 2023-XX
The foregoing resolution was introduced at a regular meeting of the Council of the City of Modesto held on the 7th day of November 2023, by Councilmember ?, who moved its adoption, which motion being duly seconded by Councilmember ?, was upon roll call carried and the resolution adopted by the following vote:
AYES: Councilmembers:
NOES: Councilmembers:
ABSENT: Councilmembers:
ATTEST:
DIANA NAYARES-PEREZ, City Clerk
(SEAL)
APPROVED AS TO FORM:
BY: ____________________________________
JOSE M. SANCHEZ, City Attorney
#14..
- 621 -
11/07/2023/Utilities/CCiotau/Item X 1 2023-XX
MODESTO CITY COUNCIL
RESOLUTION NO. 2023-
RESOLUTION AMENDING THE FISCAL YEAR 2023-24 CAPITAL
IMPROVEMENT PROGRAM BUDGET IN THE AMOUNT OF $2,967,790 TO
FUND THE CONSTRUCTION PHASE OF THE REGIONAL WATER
RECYCLING FACILITY - SUTTER CAMPUS PARKING LOT AND SECURITY
UPGRADE PROJECT AND AUTHORIZING THE CITY MANAGER, OR HIS
DESIGNEE, TO IMPLEMENT THE PROVISIONS OF THIS RESOLUTION WHEREAS, certain budgetary transactions are necessary in the amount of $2,967,789, in order to fund the Regional Water Recycling Facility - Sutter Campus Parking Lot and Security Upgrade Project, and
WHEREAS, the Fiscal Year 2023-24 Capital Improvement Program Budget must be amended.
NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Modesto that it hereby approves the amendment of the Fiscal Year 2023-24 Capital Improvement Program Budget in the amount of $2,967,789.
BE IT FURTHER RESOLVED that the City Manager, or his designee, is hereby authorized to implement the provisions of this resolution. #14..
- 622 -
11/07/2023/Utilities/CCiotau/Item X 2 2023-XX
The foregoing resolution was introduced at a regular meeting of the Council of the City of Modesto held on the 7th day of November 2023, by Councilmember ?, who moved its adoption, which motion being duly seconded by Councilmember ?, was upon roll call carried and the resolution adopted by the following vote:
AYES: Councilmembers:
NOES: Councilmembers:
ABSENT: Councilmembers:
ATTEST:
DIANA NAYARES-PEREZ, City Clerk
(SEAL)
APPROVED AS TO FORM:
BY: ____________________________________
JOSE M. SANCHEZ, City Attorney
#14..
- 623 -
#14..
- 624 -
#14..
- 625 -
#14..
- 626 -
#14..
- 627 -
#14..
- 628 -
#14..
- 629 -
#14..
- 630 -
#14..
- 631 -
#14..
- 632 -
#14..
- 633 -
#14..
- 634 -
#14..
- 635 -
#14..
- 636 -
#14..
- 637 -
#14..
- 638 -
#14..
- 639 -
#14..
- 640 -
#14..
- 641 -
#14..
- 642 -
Bid Tabulation Thursday, October 5, 2023
Project Title: RWRF – Sutter Campus Parking Lot and Security Upgrade
Project ID #: 2024-02
Account#: 100372
Vault ID #: 14-D-0127
Bid Opening: 10/3/2023 at 11:00 AM
Basis of Award: By Base Bid Designer: West Yost Associates Design Manager: Cristian Ciotau
Project Description: Implement improvements to address security, traffic, and parking deficiencies in the following areas: roadway in front of plant, plant entrance, parking, septage station and Vac-con facility.
Item # Item Description Units Quantity Unit Price Extension Apparent Low Bidder
George Reed Inc.
(209) 523-0734 P.O. Box 4760, Modesto, CA, 95352
Base Bid
1 Mobilization & Demobilization LS 1 $650,000.00 $650,000.00 2 Worker Safety and Protection LS 1 $1.00 $1.00
3 Storm Water Pollution Prevention Plan LS 1 $25,000.00 $25,000.00 (SWPPP)
4 Field Engineering LS 1 $60,000.00 $60,000.00
5 Allocation for MID Coordination & Utility LS 1 $250,000.00 $250,000.00 Poles Relocation
6 Guard Booth LS 1 $120,000.00 $120,000.00
7 Septage Receiving Station Equipment, LS 1 $265,000.00 $265,000.00 Piping, & Controls
8 Retaining Wall at Existing Vac-Con Dump LS 1 $32,000.00 $32,000.00 Facility
9 Vac-Con Parking Area Canopy LS 1 $340,000.00 $340,000.00 10 Demolition LS 1 $299,000.00 $299,000.00
11 Clear and Grub LS 1 $400,000.00 $400,000.00
12 Earthwork Onsite Cut to Fill CY 8600 $24.00 $206,400.00 13 Earthwork Export to RWRF Jennings Campus CY 3600 $40.00 $144,000.00 14 Slurry Seal SF 74000 $0.34 $25,160.00
15 4.5-inch Asphalt Paving TON 8400 $82.00 $688,800.00
16 4.5-inch Aggregate Base CY 4300 $42.00 $180,600.00
17 Traffic Stripes and Pavement Markings LS 1 $98,398.00 $98,398.00 18 Traffic Signs EA 16 $1,400.00 $22,400.00
19 Monument Sign LS 1 $98,000.00 $98,000.00
20 Curb and Gutter LF 2186 $41.00 $89,626.00
21 Vertical Curb LF 5510 $43.00 $236,930.00
22 Header Board LF 465 $16.00 $7,440.00
23 6-inch Concrete Paving SF 7025 $21.00 $147,525.00
24 Concrete Sidewalk SF 1065 $22.00 $23,430.00
25 Catch Basins EA 17 $7,000.00 $119,000.00
#14..
- 643 -
26 Modify Existing Catch Basin LS 1 $5,000.00 $5,000.00 27 12-inch Storm Drain Pipe LF 519 $95.00 $49,305.00
28 18-inch Storm Drain Pipe LF 632 $105.00 $66,360.00
29 24-inch Storm Drain Pipe LF 12 $298.00 $3,576.00
30 Storm Drain Manhole LS 1 $9,890.00 $9,890.00
31 Connect to Existing Manhole or Catch Basin EA 3 $6,500.00 $19,500.00 and Adjust Structure to Grade
32 24-inch Tideflex Checkmate Inline Check LS 1 $22,500.00 $22,500.00 Valve
33 2-inch Water Line LF 128 $105.00 $13,440.00
34 4-inch Water Line LF 275 $106.00 $29,150.00
35 6-inch Sewer and Drain Lines LF 86 $315.00 $27,090.00 36 Chain Link Fence LF 67 $81.00 $5,427.00
37 Ornamental Iron Fence LF 1257 $208.00 $261,456.00
38 Electrically Operated Rolling Gate in Iron EA 3 $29,000.00 $87,000.00 Fence
39 Landscaping and Irrigation LS 1 $344,226.00 $344,226.00 40 Electrical Site Distribution Power, Signal, LS 1 $816,250.00 $816,250.00 and Lighting
41 Flagpole and Flagpole Foundation LS 1 $10,000.00 $10,000.00 42 Traffic Control LS 1 $25,000.00 $25,000.00
Total: $6,323,880.00
Percent From Engineer's Estimate: -4.26%
United Pavement Maintenance Inc.
(209) 883-4345 PO Box 1017, Hughson, CA 95326
Base Bid
1 Mobilization & Demobilization LS 1 $202,940.00 $202,940.00 2 Worker Safety and Protection LS 1 $7,500.00 $7,500.00 3 Storm Water Pollution Prevention Plan LS 1 $53,988.00 $53,988.00 (SWPPP)
4 Field Engineering LS 1 $46,516.00 $46,516.00
5 Allocation for MID Coordination & Utility LS 1 $250,000.00 $250,000.00 Poles Relocation
6 Guard Booth LS 1 $332,458.00 $332,458.00
7 Septage Receiving Station Equipment, LS 1 $442,458.00 $442,458.00 Piping, & Controls
8 Retaining Wall at Existing Vac-Con Dump LS 1 $5,000.00 $5,000.00 Facility
9 Vac-Con Parking Area Canopy LS 1 $317,900.00 $317,900.00 10 Demolition LS 1 $42,000.00 $42,000.00
11 Clear and Grub LS 1 $42,900.00 $42,900.00
12 Earthwork Onsite Cut to Fill CY 8600 $15.00 $129,000.00 13 Earthwork Export to RWRF Jennings Campus CY 3600 $28.57 $102,852.00 14 Slurry Seal SF 74000 $0.52 $38,480.00
15 4.5-inch Asphalt Paving TON 8400 $129.00 $1,083,600.00 16 4.5-inch Aggregate Base CY 4300 $139.00 $597,700.00
17 Traffic Stripes and Pavement Markings LS 1 $116,488.00 $116,488.00 18 Traffic Signs EA 16 $605.00 $9,680.00
19 Monument Sign LS 1 $106,488.00 $106,488.00
20 Curb and Gutter LF 2186 $55.00 $120,230.00
21 Vertical Curb LF 5510 $50.00 $275,500.00
22 Header Board LF 465 $10.00 $4,650.00
#14..
- 644 -
23 6-inch Concrete Paving SF 7025 $20.00 $140,500.00
24 Concrete Sidewalk SF 1065 $15.00 $15,975.00
25 Catch Basins EA 17 $19,670.00 $334,390.00
26 Modify Existing Catch Basin LS 1 $3,500.00 $3,500.00 27 12-inch Storm Drain Pipe LF 519 $180.00 $93,420.00
28 18-inch Storm Drain Pipe LF 632 $195.00 $123,240.00
29 24-inch Storm Drain Pipe LF 12 $270.00 $3,240.00
30 Storm Drain Manhole LS 1 $10,500.00 $10,500.00
31 Connect to Existing Manhole or Catch Basin EA 3 $2,850.00 $8,550.00 and Adjust Structure to Grade
32 24-inch Tideflex Checkmate Inline Check LS 1 $15,750.00 $15,750.00 Valve
33 2-inch Water Line LF 128 $105.00 $13,440.00
34 4-inch Water Line LF 275 $75.00 $20,625.00
35 6-inch Sewer and Drain Lines LF 86 $260.00 $22,360.00 36 Chain Link Fence LF 67 $88.00 $5,896.00
37 Ornamental Iron Fence LF 1257 $250.00 $314,250.00
38 Electrically Operated Rolling Gate in Iron EA 3 $31,320.00 $93,960.00 Fence
39 Landscaping and Irrigation LS 1 $378,648.00 $378,648.00 40 Electrical Site Distribution Power, Signal, LS 1 $1,114,195.00 $1,114,195.00 and Lighting
41 Flagpole and Flagpole Foundation LS 1 $7,405.00 $7,405.00 42 Traffic Control LS 1 $17,500.00 $17,500.00
Total: $7,065,672.00
Percent From Engineer's Estimate: 6.97%
McGuire and Hester
(510) 632-7676 9009 Railroad Ave, Oakland, CA 94603
Base Bid
1 Mobilization & Demobilization LS 1 $400,000.00 $400,000.00 2 Worker Safety and Protection LS 1 $17,000.00 $17,000.00 3 Storm Water Pollution Prevention Plan LS 1 $30,000.00 $30,000.00 (SWPPP)
4 Field Engineering LS 1 $37,000.00 $37,000.00
5 Allocation for MID Coordination & Utility LS 1 $250,000.00 $250,000.00 Poles Relocation
6 Guard Booth LS 1 $125,000.00 $125,000.00
7 Septage Receiving Station Equipment, LS 1 $400,000.00 $400,000.00 Piping, & Controls
8 Retaining Wall at Existing Vac-Con Dump LS 1 $35,000.00 $35,000.00 Facility
9 Vac-Con Parking Area Canopy LS 1 $440,000.00 $440,000.00 10 Demolition LS 1 $40,000.00 $40,000.00
11 Clear and Grub LS 1 $80,000.00 $80,000.00
12 Earthwork Onsite Cut to Fill CY 8600 $10.00 $86,000.00 13 Earthwork Export to RWRF Jennings Campus CY 3600 $35.00 $126,000.00 14 Slurry Seal SF 74000 $0.35 $25,900.00
15 4.5-inch Asphalt Paving TON 8400 $140.00 $1,176,000.00 16 4.5-inch Aggregate Base CY 4300 $105.00 $451,500.00
17 Traffic Stripes and Pavement Markings LS 1 $113,000.00 $113,000.00 #14..
- 645 -
18 Traffic Signs EA 16 $590.00 $9,440.00
19 Monument Sign LS 1 $60,000.00 $60,000.00
20 Curb and Gutter LF 2186 $65.00 $142,090.00
21 Vertical Curb LF 5510 $65.00 $358,150.00
22 Header Board LF 465 $15.00 $6,975.00
23 6-inch Concrete Paving SF 7025 $22.00 $154,550.00
24 Concrete Sidewalk SF 1065 $44.00 $46,860.00
25 Catch Basins EA 17 $8,000.00 $136,000.00
26 Modify Existing Catch Basin LS 1 $2,000.00 $2,000.00 27 12-inch Storm Drain Pipe LF 519 $155.00 $80,445.00
28 18-inch Storm Drain Pipe LF 632 $210.00 $132,720.00
29 24-inch Storm Drain Pipe LF 12 $650.00 $7,800.00
30 Storm Drain Manhole LS 1 $13,500.00 $13,500.00
31 Connect to Existing Manhole or Catch Basin EA 3 $4,200.00 $12,600.00 and Adjust Structure to Grade
32 24-inch Tideflex Checkmate Inline Check LS 1 $25,000.00 $25,000.00 Valve
33 2-inch Water Line LF 128 $505.00 $64,640.00
34 4-inch Water Line LF 275 $150.00 $41,250.00
35 6-inch Sewer and Drain Lines LF 86 $700.00 $60,200.00 36 Chain Link Fence LF 67 $245.00 $16,415.00
37 Ornamental Iron Fence LF 1257 $340.00 $427,380.00
38 Electrically Operated Rolling Gate in Iron EA 3 $35,000.00 $105,000.00 Fence
39 Landscaping and Irrigation LS 1 $345,000.00 $345,000.00 40 Electrical Site Distribution Power, Signal, LS 1 $1,000,000.00 $1,000,000.00 and Lighting
41 Flagpole and Flagpole Foundation LS 1 $15,000.00 $15,000.00 42 Traffic Control LS 1 $50,000.00 $50,000.00
Total: $7,145,415.00
Percent From Engineer's Estimate: 8.18%
Sinclair General Engineering Construction, Inc.
(209) 847-6100 P.O. Box 1453 Oakdale CA 95361
Base Bid
1 Mobilization & Demobilization LS 1 $435,334.00 $435,334.00 2 Worker Safety and Protection LS 1 $50,000.00 $50,000.00 3 Storm Water Pollution Prevention Plan LS 1 $194,000.00 $194,000.00 (SWPPP)
4 Field Engineering LS 1 $72,000.00 $72,000.00
5 Allocation for MID Coordination & Utility LS 1 $250,000.00 $250,000.00 Poles Relocation
6 Guard Booth LS 1 $78,500.00 $78,500.00
7 Septage Receiving Station Equipment, LS 1 $874,000.00 $874,000.00 Piping, & Controls
8 Retaining Wall at Existing Vac-Con Dump LS 1 $27,000.00 $27,000.00 Facility
9 Vac-Con Parking Area Canopy LS 1 $358,700.00 $358,700.00 10 Demolition LS 1 $79,500.00 $79,500.00
11 Clear and Grub LS 1 $82,000.00 $82,000.00
12 Earthwork Onsite Cut to Fill CY 8600 $53.80 $462,680.00 13 Earthwork Export to RWRF Jennings Campus CY 3600 $20.36 $73,296.00 14 Slurry Seal SF 74000 $0.55 $40,700.00
#14..
- 646 -
15 4.5-inch Asphalt Paving TON 8400 $125.51 $1,054,284.00 16 4.5-inch Aggregate Base CY 4300 $129.62 $557,366.00
17 Traffic Stripes and Pavement Markings LS 1 $106,000.00 $106,000.00 18 Traffic Signs EA 16 $1,500.00 $24,000.00
19 Monument Sign LS 1 $48,300.00 $48,300.00
20 Curb and Gutter LF 2186 $63.00 $137,718.00
21 Vertical Curb LF 5510 $44.00 $242,440.00
22 Header Board LF 465 $9.00 $4,185.00
23 6-inch Concrete Paving SF 7025 $15.56 $109,309.00
24 Concrete Sidewalk SF 1065 $42.00 $44,730.00
25 Catch Basins EA 17 $7,566.00 $128,622.00
26 Modify Existing Catch Basin LS 1 $5,400.00 $5,400.00 27 12-inch Storm Drain Pipe LF 519 $102.00 $52,938.00
28 18-inch Storm Drain Pipe LF 632 $113.50 $71,732.00
29 24-inch Storm Drain Pipe LF 12 $322.00 $3,864.00
30 Storm Drain Manhole LS 1 $10,600.00 $10,600.00
31 Connect to Existing Manhole or Catch Basin EA 3 $9,000.00 $27,000.00 and Adjust Structure to Grade
32 24-inch Tideflex Checkmate Inline Check LS 1 $24,300.00 $24,300.00 Valve
33 2-inch Water Line LF 128 $113.50 $14,528.00
34 4-inch Water Line LF 275 $114.00 $31,350.00
35 6-inch Sewer and Drain Lines LF 86 $340.00 $29,240.00 36 Chain Link Fence LF 67 $264.00 $17,688.00
37 Ornamental Iron Fence LF 1257 $351.00 $441,207.00
38 Electrically Operated Rolling Gate in Iron EA 3 $38,800.00 $116,400.00 Fence
39 Landscaping and Irrigation LS 1 $372,000.00 $372,000.00 40 Electrical Site Distribution Power, Signal, LS 1 $857,000.00 $857,000.00 and Lighting
41 Flagpole and Flagpole Foundation LS 1 $14,100.00 $14,100.00 42 Traffic Control LS 1 $16,000.00 $16,000.00
Total: $7,640,011.00
Percent From Engineer's Estimate: 15.67%
Engineer's Estimate
Base Bid
1 Mobilization & Demobilization LS 1 $201,651.00 $201,651.00 2 Worker Safety and Protection LS 1 $48,000.00 $48,000.00 3 Storm Water Pollution Prevention Plan LS 1 $58,204.00 $58,204.00 (SWPPP)
4 Field Engineering LS 1 $146,521.00 $146,521.00
5 Allocation for MID Coordination & Utility LS 1 $250,000.00 $250,000.00 Poles Relocation
6 Guard Booth LS 1 $100,000.00 $100,000.00
7 Septage Receiving Station Equipment, LS 1 $600,564.00 $600,564.00 Piping, & Controls
8 Retaining Wall at Existing Vac-Con Dump LS 1 $75,000.00 $75,000.00 Facility
9 Vac-Con Parking Area Canopy LS 1 $353,425.00 $353,425.00 10 Demolition LS 1 $100,000.00 $100,000.00
11 Clear and Grub LS 1 $50,000.00 $50,000.00
12 Earthwork Onsite Cut to Fill CY 8600 $30.00 $258,000.00 13 Earthwork Export to RWRF Jennings Campus CY 3600 $38.00 $136,800.00 #14..
- 647 -
14 Slurry Seal SF 74000 $1.50 $111,000.00
15 4.5-inch Asphalt Paving TON 8400 $104.00 $873,600.00 16 4.5-inch Aggregate Base CY 4300 $120.00 $516,000.00
17 Traffic Stripes and Pavement Markings LS 1 $50,000.00 $50,000.00 18 Traffic Signs EA 16 $471.00 $7,536.00
19 Monument Sign LS 1 $85,000.00 $85,000.00
20 Curb and Gutter LF 2186 $47.00 $102,742.00
21 Vertical Curb LF 5510 $35.00 $192,850.00
22 Header Board LF 465 $20.00 $9,300.00
23 6-inch Concrete Paving SF 7025 $22.00 $154,550.00
24 Concrete Sidewalk SF 1065 $40.00 $42,600.00
25 Catch Basins EA 17 $4,712.00 $80,104.00
26 Modify Existing Catch Basin LS 1 $5,000.00 $5,000.00 27 12-inch Storm Drain Pipe LF 519 $100.00 $51,900.00
28 18-inch Storm Drain Pipe LF 632 $125.00 $79,000.00
29 24-inch Storm Drain Pipe LF 12 $300.00 $3,600.00
30 Storm Drain Manhole LS 1 $5,890.00 $5,890.00
31 Connect to Existing Manhole or Catch Basin EA 3 $3,000.00 $9,000.00 and Adjust Structure to Grade
32 24-inch Tideflex Checkmate Inline Check LS 1 $16,493.00 $16,493.00 Valve
33 2-inch Water Line LF 128 $75.00 $9,600.00
34 4-inch Water Line LF 275 $85.00 $23,375.00
35 6-inch Sewer and Drain Lines LF 86 $120.00 $10,320.00 36 Chain Link Fence LF 67 $65.00 $4,355.00
37 Ornamental Iron Fence LF 1257 $183.00 $230,031.00
38 Electrically Operated Rolling Gate in Iron EA 3 $29,452.00 $88,356.00 Fence
39 Landscaping and Irrigation LS 1 $338,838.00 $338,838.00 40 Electrical Site Distribution Power, Signal, LS 1 $1,010,795.00 $1,010,795.00 and Lighting
41 Flagpole and Flagpole Foundation LS 1 $15,000.00 $15,000.00 42 Traffic Control LS 1 $100,000.00 $100,000.00
Total: $6,605,000.00
#14..
- 648 -
-1-
ENGINEERING SUPPORT DURING CONSTRUCTION AGREEMENT
REGIONAL WATER RECYCLING FACILITY – SUTTER CAMPUS
PARKING LOT AND SECURITY UPGRADES PROJECT
THIS AGREEMENT, made and entered into in the City of Modesto, State of California, this ______ day of_____________, 2023, (“Effective Date”) by and between the CITY OF MODESTO, a municipal corporation of the State of California, hereinafter referred to as "City", and WEST YOST ASSOCIATES, a California corporation, hereinafter referred to as "Consultant".
This Agreement is made with regard to the following recitals:
A. The City has determined that Engineering Support During Construction Services are necessary for the Regional Water Recycling Facility – Sutter Campus Parking Lot and Security Upgrades Project.
B. Consultant represents that it is qualified, willing and able to provide the aforementioned services.
NOW, THEREFORE, in consideration of this agreement, and the mutual promises, covenants, and stipulations hereinafter contained, the parties agree as follows:
1. SCOPE OF SERVICES.
Consultant shall undertake and complete the preparation of the scope of work as set forth and described in the documents attached hereto and referred to as Exhibit "A" or "project". The Consultant shall perform the services as described in Exhibit "A" in a manner compatible with the standards of its profession, and shall produce a fully complete project that is acceptable to City.
2. TERM OF AGREEMENT.
This Agreement is effective as of the date first written above and will #14..
- 649 -
-2-
continue in effect until City's acceptance of and payment for all services authorized by City and performed by Consultant, unless terminated earlier in accordance with the provisions of the termination clause in this Agreement.
Consultant shall undertake and complete the preparation of the scope of work as set forth and described in the documents commonly referred to as “project” attached hereto as Exhibit "A" and made a part hereof. City hereby gives Consultant notice to proceed with the preparation of the project in the manner described in Exhibit "A", as of the Effective Date of this agreement. Consultant shall diligently proceed with the preparation of the project and agrees to complete said preparation within the time period set forth in Exhibit "A".
3. COMPENSATION.
Consultant agrees to accept a sum not to exceed TWO HUNDRED THOUSAND SIX HUNDRED NINETY-SEVEN AND 00/100 DOLLARS ($200,697) (maximum compensation) as full remuneration for performing all services and furnishing all staffing and materials for Modesto in accordance with Exhibit "A" attached hereto and for performance by Consultant of all of its duties and obligations under this Agreement, except that additional services may be compensated as described below.
The Compensation shall be paid pursuant in the manner and at the times set forth below:
City shall pay Consultant on a time and materials basis for Consultant’s actual costs for all work called for in Exhibit “A” to this Agreement. All work to be performed under this Agreement shall be billed at the hourly rates set forth in Exhibit “B” attached hereto, Consultant shall submit monthly invoices to City which include detailed tasks, hours worked, and billable rates for all work completed, and detailed receipts for any out-of-pocket costs paid by Consultant in connection with work performed on this project. #14..
- 650 -
-3-
Additional services may be authorized by the City Manager in an amount up to, but not to exceed ten percent (10%) of the agreed maximum compensation, or TWENTY THOUSAND SEVENTY AND 00/100 DOLLARS ($20,070). In the event that additional services are deemed necessary, the Consultant shall provide a written request to the City Manager indicating the reason for additional work, scope and cost of such work. The City Manager shall provide a written response to the request, either approving or denying the additional expenditure.
If additional services are requested and approved, they will be billed at the hourly rates set forth in Exhibit “B” and may not exceed the amount requested and approved in writing by the City Manager. In that event, the new total compensation shall not exceed TWO HUNDRED TWENTY THOUSAND SEVEN HUNDRED SIXTY-SEVEN AND 00/100 DOLLARS ($220,767). If additional services in excess of this amount are deemed necessary by City Staff, an amendment to this Agreement will be required and must be approved by the City Council prior to commencing the work, as provided in Paragraph 9 of this agreement.
4. OBLIGATIONS OF CONSULTANT.
Throughout the term of this Agreement, Consultant shall possess, or secure all licenses, permits, qualifications and approvals legally required to conduct business.
Consultant represents that it has all of the necessary professional capabilities and experience, as well as all tools, instrumentalities, facilities and other resources necessary to provide the City with the services contemplated by this Agreement. Consultant further represents that it will follow the best current, generally accepted and professional practices to make findings, render opinions, prepare factual presentations, and provide professional advice and recommendations regarding this project. In providing services under this Agreement, Consultant shall perform in a manner consistent with that degree of care and skill ordinarily exercised by members of the same profession currently practicing under similar circumstances at the same time and in the same or similar locality ("Standard of Care").”
#14..
- 651 -
-4-
5. PERFORMANCE BY KEY EMPLOYEE.
Consultant has represented to City that Bill Schilling, will be the person primarily responsible for the performance of the services referred to in this Agreement. City has entered into this Agreement in reliance on that representation by Consultant. Consultant therefore agrees that ten percent (10%) or more of the time to be devoted to the project that is the subject of this Agreement will be that of the above-named person.
6. OWNERSHIP OF DOCUMENTS/TITLE TO DATA.
Ownership of Documents
All reports, drawings, designs, graphics, working papers and other incidental work or materials furnished hereunder shall become and remain the property of the City, upon payment of all invoices due and owing to Consultant, and may be used by City as it may require without any additional cost to City. No reports shall be used by the Consultant for purposes other than this contract without the express prior written consent of City. City shall, to the fullest extent permitted by law, defend, indemnify, and hold harmless Consultant from and against any and all costs, expenses, fees, losses, claims, demands, liabilities, suits, actions, and damages whatsoever arising out of or resulting from such unauthorized reuse or distribution.
Title to Data
If, as a part of the agreement, Consultant is required to produce data such as, but not limited to, drawings, plans, specifications, calculations, models, flow diagrams, visual aids and other related materials, the originals of all such data generated under this agreement will be delivered to City upon the completion or termination of services under the contract.
All materials, documents, data or information obtained from the City data files or any City medium furnished to Consultant in the performance of this Agreement will at all times remain the property of the City. Such data or information may not be used or copied for #14..
- 652 -
-5-
direct or indirect use by Consultant after termination of this Agreement without written consent of the City.
7. NEWS AND INFORMATION RELEASE.
Consultant agrees that it will not issue any news releases in connection with either the award of this Agreement, or any subsequent amendment of or efforts under this Agreement, without first obtaining review and approval of said news releases from City through the City Manager.
8. INTEREST OF CONTRACTOR.
Consultant warrants that it presently has no interest and shall not acquire any interest, direct or indirect, which would conflict in any manner or degree with the performance of services required to be performed under this Agreement. Consultant warrants that, in performance of this Agreement, Consultant shall not employ any person having any such interest. Consultant agrees to file a Statement of Economic Interests with the City Clerk at the start and end of this contract if so required at the option of City.
9. AMENDMENTS.
Both parties to this Agreement understand that it may become desirable or necessary during the execution of this Agreement, for City or Consultant to modify the scope of services provided for under this Agreement. Any material extension or change in the scope of work shall be discussed with City and the change and cost shall be memorialized in a written amendment to the original contract prior to the performance of the additional work.
Until a change order is so executed, City will not be responsible to pay any charges Consultant may incur in performing such additional services, and Consultant shall not be required to perform any such additional services. #14..
- 653 -
-6-
10. INDEPENDENT CONTRACTOR.
All acts of Consultant, its agents, officers, and employees and all others acting on behalf of Consultant relating to the performance of this Agreement, shall be performed as independent contractors and not as agents, officers, or employees of City. Consultant, by virtue of this Agreement, has no authority to bind or incur any obligation on behalf of City.
Consultant has no authority or responsibility to exercise any rights or power vested in the City.
No agent, officer, or employee of the City is to be considered an employee of Consultant. It is understood by both Consultant and City that this Agreement shall not under any circumstances be construed or considered to create an employer-employee relationship or a joint venture.
Consultant, its agents, officers and employees are and, at all times during the terms of this Agreement, shall represent and conduct themselves as independent contractors and not as employees of City.
Consultant shall determine the method, details and means of performing the work and services to be provided by Consultant under this Agreement in a manner consistent with the Standard of Care. Consultant shall be responsible to City only for the requirements and results specified in this Agreement, and, except as expressly provided in this Agreement, shall not be subjected to City's control with respect to the physical action or activities of the Consultant in fulfillment of this Agreement. Consultant has control over the manner and means of performing the services under this Agreement.
Consultant is permitted to provide services to others during the same period service is provided to City under this Agreement. If necessary, Consultant has the responsibility for employing other persons or firms to assist Consultant in fulfilling the terms and obligations under this Agreement.
If in the performance of this Agreement any third persons are employed by Consultant, such persons shall be entirely and exclusively under the direction, supervision, and #14..
- 654 -
-7-
control of Consultant. All terms of employment including hours, wages, working conditions, discipline, hiring, and discharging or any other term of employment or requirement of law shall be determined by the Consultant.
It is understood and agreed that as an independent contractor and not an employee of City neither the Consultant or Consultant's assigned personnel shall have any entitlement as a City employee, right to act on behalf of the City in any capacity whatsoever as an agent, or to bind the City to any obligation whatsoever.
It is further understood and agreed that Consultant must issue W-2 forms or other forms as required by law for income and employment tax purposes for all of Consultant's personnel.
As an independent contractor, Consultant hereby indemnifies and holds City harmless from any and all claims that may be made against City based upon any contention by any third party that an employer-employee relationship exists by reason of this Agreement.
11. ASSIGNMENT.
Neither this Agreement nor any portion thereof shall be subcontracted or assigned without the express prior written consent of the City in each and every instance.
12. PATENT/COPYRIGHT MATERIALS.
Unless otherwise expressly provided in the contract, Consultant shall be solely responsible for obtaining the right to use any patented or copyrighted materials in the performance of this Agreement. Consultant shall furnish a warranty of such right to use to City at the request of City.
13. NOTICES.
Notice required by this Agreement shall be given in writing and shall be deemed given and effective upon receipt provided that such are delivered in accordance with the #14..
- 655 -
-8-
provisions of this Section. Notices shall be delivered either by: (a) personal delivery (including delivery by an overnight courier service which obtains confirmation of receipt); or (b) by facsimile, provided that such transmission is followed by delivery by an overnight courier service which obtains confirmation of receipt; or (c) postage prepaid, return receipt requested, certified mail; or (d) by electronic transmission subject to reasonable proof that the notice was both transmitted and received. Each such notice shall be sent to the parties at the address respectively set forth below or to such other address as a party may designate by written notice given in accordance with the provisions of this Section:
FOR CONSULTANT: Name: West Yost Associates
Address: 8950 Cal Center Drive
Suite 363
Sacramento, CA 95826
Attention: Bill Schilling
Phone: (916) 306-2250
Email: [email protected]
FOR CITY: Name:
Address:
City of Modesto
1010 10th Street
Suite 4600
Modesto, CA 95354
Attention: Cristian Ciotau
Phone (209) 577-5260
Email: [email protected]
14. INSURANCE REQUIREMENTS.
The Consultant shall provide at its own expense and maintain at all times the following insurance with insurance companies licensed in the State of California and shall provide evidence of such insurance to the City as may be required by the Risk Manager of the City. The policies or certificates thereof shall provide that, thirty (30) days prior to cancellation or material change in the policy, notices of same shall be given to the Risk Manager of the City by certified mail, return receipt requested, for all of the following stated insurance policies. #14..
- 656 -
-9-
In the event the certificates of insurance required hereunder do not provide for notice of cancellation to the certificate holder and/or additional insureds, the Consultant shall provide, and shall require its subcontractors to provide, as an express condition precedent to payment hereunder, an endorsement from their insurers providing that the additional insureds identified herein shall be provided 30 days notice of the cancellation on the policies of insurance required hereunder (10 days notice if the policies are cancelled for non-payment of premium). In addition, the named insured on all such policies shall provide to the additional insureds identified herein any notices of cancellation of said insurance policies within 5 business days of receipt of such notice. The Consultant shall, as a further express condition precedent to payment for work performed, affirm under penalty of perjury that the required insurance on the project remains in place and said insurance has not been cancelled.
(a) Worker's Compensation - in compliance with the statutes of the State of California, plus employer's liability with a minimum limit of liability of $1,000,000. (b) General Liability insurance with a minimum limit of liability per occurrence of $1,000,000 for bodily injury and property damage. If Commercial General Liability Insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit. This insurance shall indicate on the certificate of insurance the following coverages and indicate the policy aggregate limit applying to: premises and operations; broad form contractual; independent consultants and subcontractors; products and completed operations as applicable.
(c) Automobile Liability insurance with a minimum limit of liability per occurrence of $1,000,000 for bodily injury and property damage. This insurance shall cover any automobile for bodily injury and property damage.
#14..
- 657 -
-10-
(d) Professional Liability insurance with a minimum limit of $1,000,000 per claim and policy aggregate. If coverage is on a claims made basis it shall be maintained for at least three (3) years following completion of the work.
If at any time any of said policies shall be unsatisfactory to the City, as to form or substance, or if a company issuing such policy shall be unsatisfactory to the City, the Consultant shall promptly obtain a new policy, submit the same to the Risk Manager for approval and submit a certificate thereof as hereinabove provided. Upon failure of the Consultant to furnish, deliver or maintain such insurance and certificates as above provided, this Agreement, at the election of the City, may be forthwith declared suspended or terminated.
Failure of the Consultant to obtain and/or maintain any required insurance shall not relieve the Consultant from any liability under this Agreement, nor shall the insurance requirements be construed to conflict with or otherwise limit the obligations of the Consultant 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 and Professional Liability. The Workers' Compensation insurer shall agree to waive all rights of subrogation against the City, its agents, officers, employees, and volunteers for losses arising from work performed by Consultant for the City. The Consultant's insurance policy(ies) shall include a provision that the coverage is primary as respects the City; shall include no special limitations to coverage provided to additional insured; and, shall be placed with insurer(s) with acceptable Best's rating of A:VII or with approval of the Risk Manager. The Consultant must deliver certificates evidencing existence of the insurance listed above to the City prior to the time the contract is signed.
CONSULTANT shall provide CITY with separate endorsements evidencing proof of the CITY’s additional insured status as to both the general liability and #14..
- 658 -
-11-
automobile liability insurance policies. In addition, CONSULTANT shall provide CITY with a Workers Compensation subrogation waiver by way of a separate endorsement. All endorsements referenced above must include the applicable policy number.
For any claims related to this project, the CONSULTANT’S insurance coverage shall be primary insurance as respects the Entity, its officers, officials, employees, and volunteers. Any insurance or self-insurance maintained by the Entity, its officers, officials, employees, or volunteers shall be excess of the CONSULTANT’S insurance and shall not contribute with it.
15. TERMINATION OF AGREEMENT.
Termination by City for Default of Consultant
Should Consultant default in the performance of this Agreement or materially breach any of its provisions, at its option, City may terminate this Agreement by giving written notification to Consultant. The termination date shall be the effective date of the notice. For the purposes of this section, material breach of this Agreement shall include, but not be limited to, any of the following: failure to perform required services or duties, willful destruction of City's property by Consultant, dishonesty or theft. #14..
- 659 -
-12-
Termination byCity for Convenience
The City may also terminate the Consultant's performance under the Agreement, either in whole or in part, at its own discretion, or when conditions encountered during the Work make it impossible or impracticable to proceed, or when the Cityis prevented from proceeding with the Agreement by act of God, by law, or by official action of a public authority, or upon a determination by the City that such termination is in the best interest and convenience of the City, or whenever the City is prohibited from completing the Work for any reason. The City shall provide no less than ten (10) calendar days written notice of its intent to terminate the Agreement for convenience, and shall endeavor to provide the Consultant with consultation with the City prior to termination.
Post-Termination Procedure
Upon receipt of a written notice of termination pursuant to either of the foregoing paragraphs, the Consultant shall:
a. Cease its work as directed in the notice of termination as of the termination date and see to it that its employees, subconsultants and agents are notified of such termination and act as specified in the notice of termination;
b. Terminate all orders and Subcontractors except as necessary to complete any portion of the Work that is not terminated; c. If directed in writing by the City to do so, assign all right, title and interest in subcontracts and materials in progress to City, in which case the City will have the right at its discretion to settle, or pay any or all claims arising out of the termination of such subconsultants, but in no event shall recovery by any Consultant or #14..
- 660 -
-13-
subconsultant include lost profits for portions of the Work not completed or undertaken, including materials not delivered; d. Deliver or otherwise make available to the City all data, drawings, specifications, reports, estimates, summaries and such other information and material as may have been accumulated by the Consultant in performing the Work whether completed or in process;
e. Settle outstanding liabilities and claims, subject to the approval of City;
f. Complete performance of such part of the Work as has not been terminated;
g. Take such other actions as may be necessary, or as may be directed by the City for the protection and preservation of the Work and/or property related to the Work;
h. If City so requests, and at City's cost, Consultant shall provide sufficient oral or written status reports to make City reasonably aware of the status of Consultant's work on the project. i. The Consultant understands and agrees that City may, in City's sole discretion, refuse to pay Consultant for that portion of Consultant's services which were performed by Consultant on the project prior to the termination date and which remain
unacceptable and/or not useful to City as of the termination date.
City will pay Consultant an amount based on the percentage of satisfactory work completed in accordance with the notice of termination. The final payment to #14..
- 661 -
-14-
the Consultant after termination for convenience shall be limited to amounts due and owing under the Agreement at time of termination, including the following:
a. The cost of settling and paying valid claims arising out of the termination of the Work such as subconsultant agreements or contracts for materials;
b. The Agreement price allocable to the portion of the Work properly performed or goods supplied to the work site by the Consultant as of the date of termination, as determined in accordance with the notice of termination, reduced by any sums previously paid to the Consultant.
Authorization to Terminate Agreement
Termination of the Agreement may be invoked by the City Manager, or his/her designee, subject to the right of the Consultant to appeal the City Manager, or his/her designee’s, decision to the City Council. The Consultant shall appeal by notifying the City Clerk in writing within ten (10) calendar days of receipt of written notification from City of termination of the Agreement. In the event that termination of this Agreement is upheld by the City Council, any cessation of payment of delay claims, extended claims, Eichleay claims, or any other claims for delay shall be retroactive to the date of termination selected by the City Manager, or his/her designee.
#14..
- 662 -
-15-
16. CERTIFIED PAYROLL REQUIREMENT.
For consultants performing field work on public works contracts on which prevailing wages are required: The Consultant shall comply with the provisions of Section 1776 of the California Labor Code, regarding payroll records, and shall require its subconsultants and subcontractors to comply with that section as may be required by law.
17. INDEMNITY.
The Consultant shall hold the City, its agents, 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, to the extent they are arising directly or indirectly out of any negligent, reckless, or willful misconduct of Consultant, or its agents, officers, employees, or volunteers relating to or during the performance of its obligations under this Agreement. The Parties also acknowledge that this Agreement is subject to California Civil Code 2782.8 as amended and effective January 1, 2018.
Consultant's obligation to defend, indemnify, and hold the City, its agents, officers, and employees harmless under the provisions of this paragraph is not limited to or restricted by any requirement in this Agreement for Consultant to procure and maintain a policy of insurance.
18. DISPUTE RESOLUTION.
All claims, controversies, or disputes arising out of, or relating to the formation of this Agreement, or the breach, termination execution, enforcement, interpretation, or validity of this Agreement, including the determination of the scope or applicability of this contract provision shall be determined by binding arbitration in Modesto, California by one arbitrator, except as otherwise specified in this Agreement. The American Arbitration #14..
- 663 -
-16-
Association shall administer the arbitration under its Arbitration Rules then in effect, subject to the modifications of those rules contained in this paragraph. This agreement to arbitrate shall be specifically enforceable under the prevailing law of any court having jurisdiction, and the award rendered by the arbitrator may be entered in any court having jurisdiction. The appropriate venue for any arbitration or court proceeding relating to or arising out of this provision shall be in Stanislaus County, California.
This paragraph is not intended to and does not waive the claim filing requirements found in California Government Code section 900 et seq. In the event that a timely and legally sufficient, arbitrable claim is filed by Consultant with City, and the claim is rejected in whole or in part by City, this paragraph shall result in the conclusive, final, and binding resolution of all the issues presented in the claim by Consultant so long as any issues presented by the claim are arbitrable. Claims rejected by City or by operation of law, shall be submitted by Consultant to arbitration pursuant to the Arbitration Rules of the American Arbitration Association within ninety (90) days after mailing of the written rejection by City to Consultant.
Otherwise, the claim or claims shall be deemed waived in their entirety.
The “fast track’ rules of the American Arbitration Association shall apply to any claim or counterclaim less than ONE HUNDRED FIFTY THOUSAND AND 00/100 ($150,000.00) DOLLARS. In arbitration not proceeding under the “fast track” rules, the arbitrator shall have the power to order that depositions be taken and other discovery be made.
Both City and Consultant shall have the right, upon written notice, to take no more than three (3) depositions of the other as a matter of right in an arbitration proceeding under the “fast track” rules.
Whether or not City and Consultant may be engaged in interstate commerce, any controversy or dispute mentioned above shall be determined by, and the parties #14..
- 664 -
-17-
shall be bound by, the substantive law of the State of California, and not the Federal Arbitration Act at 9 USC Section 1 et seq.
The arbitrator may grant any remedy or relief deemed by the arbitrator just and equitable under the circumstances, whether or not such relief could be awarded in a court of law. The arbitrator shall be empowered to award monetary sanctions against a party for failure of cooperation in the arbitration. The arbitrator shall, in written award, allocate all the costs of the arbitration, including the fees of the arbitrator and the reasonable attorney fees of the prevailing party, against the party who did not prevail. The prevailing party shall be the party in whose favor the majority of the central issues in the case are resolved.
Notwithstanding anything in this provision to the contrary, the arbitrator shall have no power to award punitive damages or other damages not measured by the party’s actual damages (excluding litigation costs and fees) against any party. This limitation of the arbitrator’s powers under this Agreement shall not operate as an exclusion of the issue of punitive damages from this Agreement to Arbitrate sufficient to vest jurisdiction in a court with respect to that issue.
Consultant shall include in all subcontracts a specification whereby the subcontractor consents to being joined in an arbitration between City and Consultant involving the work of the subcontractor to be joined. Consultant’s failure to do so shall be a breach of this Agreement.
The parties hereby waive any rights provided by Title 9.2 of the California Code of Civil Procedure, Section 1296. The arbitrator’s award shall be deemed final, conclusive and binding to the fullest extent allowed by California law.
19. ENTIRE AGREEMENT.
#14..
- 665 -
-18-
This Agreement and its exhibits contain the entire understanding between Consultant and City. Additional or new terms contained in this Agreement which vary from Consultant's proposal are controlling and are deemed accepted by Consultant by shipment of any article or other commencement of performance hereunder. All previous proposals, offers and communications relative to this Agreement, whether oral or written, are hereby superseded except to the extent that they have been incorporated into this Agreement. No future waiver of or exception to any of the terms, conditions, and provisions of this Agreement shall be considered valid unless specifically agreed to in writing by all the parties.
20. PARTIAL INVALIDITY.
If any provision in this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions shall nevertheless continue in full force without being impaired or invalidated in any way.
21. WAIVER.
The waiver by any party to this Agreement of a breach of any provision hereof shall be in writing and shall not operate or be construed as a waiver of any other or subsequent breach hereof unless specifically stated in writing. #14..
- 666 -
-19-
22. AUDIT.
The City's duly authorized representative shall have access at all reasonable times to all reports, contract records, contract documents, contract files, and personnel necessary to audit and verify Consultant's charges to City under this Agreement.
Consultant agrees to retain reports, records, documents, and files related to charges under this Agreement for a period of four (4) years following the date of final payment for Consultant services. City's representative shall have the right to reproduce any of the aforesaid documents.
23. GOVERNING LAW.
This Agreement shall be governed according to the laws of the State of California.
24. HEADINGS NOT CONTROLLING.
Headings used in the Agreement are for reference purposes only and shall not be considered in construing this Agreement.
25. COMPLIANCE WITH LAWS.
Consultant shall comply with all safety and hourly requirements for employees, in accordance with federal, state, and county safety and health regulations and laws.
Consultant shall comply with all applicable federal, state, and local laws, ordinances, regulations and permits.
26. CITY BUSINESS LICENSE.
Consultant will have a City of Modesto business license. #14..
- 667 -
-20-
IN WITNESS WHEREOF, the City of Modesto, a municipal corporation, has authorized the execution of this Agreement 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 WEST YOST ASSOCIATES has caused this agreement to be duly executed as of the Effective Date. #14..
- 668 -
8950 Cal Center Drive
Bldg. 1, Suite 363
Sacramento CA 95826
916.306.2250 phone
530.756.5991 fax
westyost.com
October 9, 2023 SENT VIA: EMAIL
Mr. Cristian Ciotau, PE
Senior Civil Engineer
Utilities Department
City of Modesto
1010 10th Street, Suite 4600
Modesto CA 95354
SUBJECT: Proposal to Provide Engineering Services During Construction for the City of Modesto’s RWRF Sutter Campus Parking Lot and Security Upgrades Project Dear Mr. Ciotau:
We are please to submit this proposal to provide engineering services during construction (ESDC) for the City of Modesto’s (City’s) Regional Water Recycling Facility (RWRF) Sutter Campus Parking Lot and Security Upgrades Project (Project). Our proposed scope of work, anticipated schedule, and estimated fee to provide ESDC for this Project are detailed in the following sections.
SCOPE OF SERVICES
The following is a list of the key tasks necessary to perform this proposed scope of services, each further described below:
Task 1. Project Management
Task 2. Submittal Review
Task 3. Respond to Requests for Information (RFIs)
Task 3. Design Clarifications/Change Order Support
Task 4. Meetings/Site Visits
Task 5. Record Drawings
Task 1. Project Management Services
The following services will be provided under this task:
Overall management of project scope, schedule, and budget Coordination and communication with City staff
Coordination with and management of West Yost subconsultants Quality assurance and quality control (QA/QC) activities
EXHIBIT A
#14..
- 669 -
Cristain Ciotau, PE
October 9, 2023
X-X-XXX-XXX-XXX
Preparation of monthly progress reports and invoices
Task 1 Deliverables
Progress reports and invoices: One (1) electronic copy per month Task 2. Submittal Review
West Yost will review Contractor submittals (e.g. shop drawings, product data, samples, operations and maintenance (O&M) manuals, etc.), as required by the technical specifications, for work related to our scope of design services. This work will be conducted as follows:
West Yost will review the submittals for the limited purpose of checking for conformance with the design concept and the information expressed in the contract documents. West Yost’s review will not include review of the accuracy or completeness of details, such as quantities, dimensions, weights or gauges, fabrication process, construction means or methods, coordination of the work with other trades, or construction safety precautions; all of which are the sole responsibility of the Contractor. Our review will be conducted with reasonable promptness while allowing sufficient time in our judgment to permit adequate review. In general, submittal reviews will be completed within 10 – 15 business days.
Review of a specific item will not indicate that we have reviewed the entire assembly of which the item is a component.
West Yost will not be responsible for any deviations from the contract documents not brought to the attention of us in writing by the Contractor. West Yost will not be required to review partial submissions nor those for which submissions of correlated items have not been received.
The budget assumes that the West Yost team will provide responses to the following number of submittals:
8 General Submittals
16 Civil Submittals
3 Landscaping Submittals
2 Architectural Submittal
3 Structural Submittals
12 Mechanical Submittals
16 Electrical/Instrumentation Submittals
Total = 60
It is assumed that the submittal review process will be coordinated by a Construction Manager (CM).
The CM will receive submittals from the Contractor and distribute them to West Yost for review. The
EXHIBIT A
#14..
- 670 -
Cristain Ciotau, PE
October 9, 2023
X-X-XXX-XXX-XXX
CM will solicit input from City staff or other parties when needed. West Yost will submit written responses to the CM and the CM will distribute the responses to the Contractor. The CM will be responsible for tracking submittals and keeping an update log of submittals.
Task 2 Deliverables
Submittal Review Comments: One (1) electronic copy per submittal Task 3. Respond to Requests for Information (RFIs)
The West Yost team will review requests for information (RFIs) submitted by the Contractor and will provide written responses to each RFI on a West Yost standard response form.
The budget assumes that the West Yost team will provide responses to up to 64 RFIs. It is also assumed that the RFI process will be coordinated by a CM. The CM will receive RFIs from the Contractor and distribute them to West Yost for review. The CM will solicit input from City staff or other parties when needed. West Yost will submit written responses to the CM and the CM will distribute the responses to the Contractor. The CM will be responsible for tracking RFIs and keeping an update log of RFIs.
Task 3 Deliverables
RFI Responses: One (1) electronic copy per RFI
Task 4. Design Clarifications
The West Yost team will issue design clarifications when requested by the CM to clarify the intent of the Contract Documents or to communicate a change to the Contract Documents initiated by the engineer or Owner. Design clarifications may include narrative descriptions, revised Contract Drawings, and/or revised Contract Specifications. The budget for this task assumes preparation of 6 design clarifications and includes approximately 92 hours for engineering, drafting, Quality Assurance/Quality Control (QA/QC), and administrative activities associated with design clarifications.
Task 4 Deliverables
Design Clarifications: One (1) electronic copy with cover page and amended contract documents per design clarification
Task 5. Meetings & Site Visits
The West Yost team will attend regularly scheduled meetings with City staff, the Construction Manager, and Contractor’s representatives. In addition, at the Construction Manager’s request, the West Yost team will visit the project site to provide advice and assistance, or to answer any questions that may arise concerning design intent.
The anticipated meetings and site visits are summarized in Table 1 below. As shown, some meetings are assumed to be teleconferences and some meetings are assumed to be in-person meetings.
EXHIBIT A
#14..
- 671 -
Cristain Ciotau, PE
October 9, 2023
X-X-XXX-XXX-XXX
Table 1. Anticipated Meetings & Site Visits
Meeting
Description Meeting Type Frequency
Estimated
Meeting Length Total Meetings
Staff per
Meeting
Pre-Construction
Meeting In-Person Once 6 hours (including travel time & prep) 1 2 Regular
Progress Meetings Phone Call Weekly 1 hour 52 1
As-Needed
Site Visits
In-Person As-Needed 6 hours (including
travel time & prep) 3 2
Task 6. Record Drawings
Upon completion of the Project, West Yost will provide record drawings for the Project. Record drawings will be based upon a single set of red-line mark-ups provided by the Contractor. It is assumed that the Contractor will provide a set of drawings with red-line markups that indicate the changes that were made through the course of construction. It is assumed that the Construction Manager will be responsible for checking that the Contractor is taking necessary steps throughout the course of construction to document record drawing information in the redline markups. It is assumed that all record drawing information will be included in the red-line markups without the need for separate instructions, interpretations, or separate sheets that are attached to the drawings or provided separately of the drawing set.
Task 6 Deliverables
Record Drawings: One (1) copy in AutoCAD format and one (1) copy in pdf format.
PROPOSED FEE
Services will be performed on a time and materials basis in accordance with the West Yost team’s standard rates at the time the services are performed. The estimated fees for each task are shown in Table 2. We will not exceed the Total Estimated Fee without prior authorization from the City.
Table 2. Estimated Fee by Task and Subtask
Task No. Task Estimated Fee, dollars
1. Project Management $18,754
2. Submittal Review $64,802
3. Respond to Requests for Information $46,524
4. Design Clarifications $21,172
5. Meetings & Site Visits $28,350
6. Record Drawings $21,095
Total $200,697
ANTICIPATED SCHEDULE
Table 3 shows the anticipated schedule of services to be performed.
EXHIBIT A
#14..
- 672 -
Cristain Ciotau, PE
October 9, 2023
X-X-XXX-XXX-XXX
Table 3. Anticipated Project Milestones
Milestone Approximate Completion Date
Bid Opening October 3, 2023
Award November 6, 2023
Notice to Proceed December 4, 2023
Substantial Completion November 8, 2024
Final Completion December 6, 2024
Thank you for providing West Yost the opportunity to be of continued service to the City of Modesto. We look forward to continuing to support and work with you on this important project. Please call if you have any questions or require additional information.
Sincerely,
WEST YOST
Bill Schilling Tim Banyai
Project Manager Treatment Business Section Manager
Attachment(s):
Attachment A – West Yost Cost Proposal
EXHIBIT A
#14..
- 673 -
Costs
West Yost Associates VP PE/PS/PG I SE/SS/SG II ESG II TS II CAD II ADM IV EM/SM/GM I Hours Fee ODEL VES PEZZ Sub. Other Total $348 $297 $280 $201 $209 $181 $157 $329 w/ markup Direct Costs PROJECT: RWRF Sutter Campus Parking Lot & Security Upgrades Pelz Schilling Shimberg Retzlaff Colorado Barber Admin 10% Task 1 Project Management
1.01 Project Management 3 48 22 73 $ 18,754 $ 18,754
Subtotal, Task 1 (hours) 3 48 0 0 0 0 22 0 73
Subtotal, Task 1 ($) $ 1,044 $ 14,256 $ 3,454 $ 18,754 $ 18,754 Task 2 Submittal Review
2.01 Submittal Review 10 76 152 10 248 $ 58,092 $ 1,600 $ 2,500 $ 2,000 6,710$ $ 64,802 Subtotal, Task 2 (hours) 0 10 76 152 0 0 0 10 248
Subtotal, Task 2 ($) $ 2,970 $ 21,280 $ 30,552 $ 3,290 $ 58,092 $ 1,600 $ 2,500 $ 2,000 6,710$ $ 64,802 Task 3 Respond to RFIs
3.01 Respond to RFIs 10 38 114 10 172 $ 39,814 $ 1,600 $ 2,500 $ 2,000 6,710$ $ 46,524 Subtotal, Task 3 (hours) 0 10 38 114 0 0 0 10 172
Subtotal, Task 3 ($) $ 2,970 $ 10,640 $ 22,914 $ 3,290 $ 39,814 $ 1,600 $ 2,500 $ 2,000 6,710$ $ 46,524 Task 4 Design Clarifications
4.01 Design Clarifications 12 12 24 24 2 74 $ 16,750 $ 1,200 $ 1,320 $ 1,500 4,422$ $ 21,172 Subtotal, Task 4 (hours) 0 12 12 24 0 24 0 2 74
Subtotal, Task 4 ($) $ 3,564 $ 3,360 $ 4,824 $ 4,344 $ 658 $ 16,750 $ 1,200 $ 1,320 $ 1,500 4,422$ $ 21,172 Task 5 Meetings & Site Visits
5.01 Meetings & Site Visits 12 70 82 $ 23,164 $ 1,400 $ 1,360 $ 1,500 4,686$ $ 28,350 500 $ Subtotal, Task 5 (hours) 0 12 70 0 0 0 0 0 82
Subtotal, Task 5 ($) $ 3,564 $ 19,600 $ 23,164 $ 1,400 $ 1,360 $ 1,500 4,686$ $ 28,350 500 $ Task 6 Record Drawings
6.01 Record Drawings 8 28 28 1 65 $ 16,173 $ 1,200 $ 1,320 $ 1,500 4,422$ $ 21,095 500 $ Subtotal, Task 6 (hours) 0 8 28 28 0 0 0 1 65
Subtotal, Task 6 ($) $ 2,376 $ 7,840 $ 5,628 $ 329 $ 16,173 $ 1,200 $ 1,320 $ 1,500 4,422$ $ 21,095 500 $ TOTAL (hours) 3 100 224 318 0 24 22 23 714
TOTAL ($) $ 1,044 $ 29,700 $ 62,720 $ 63,918 $ 4,344 $ 3,454 $ 7,567 $ 172,747 $ 7,000 $ 9,000 $ 26,950$ 8,500 $ 1,000 $ 200,697 Labor
EXHIBIT B
#14..
- 674 -
CITY OF MODESTO
COUNCIL AGENDA REPORT
DATE OF MEETING:
November 7, 2023
Date: October 3, 2023
TO: Mayor and City Council
THROUGH: Joseph P. Lopez, City Manager
FROM: William Wong, Director of Utilities
SUBJECT: Sole Source Procurement of Nitrate Analyzer Equipment and Services CONTACT: Manuel Martinez, Acting Water Division Manager, [email protected], 209-342-4592
DESCRIPTION:
Consider approving a Sole Source Agreement with Hach Company, Loveland, CO for Nitrate Analyzer Equipment and Field Services, for a total amount not to exceed $530,000 over three years. (Funding Source: Water Fund)
STRATEGIC PLAN ELEMENT:
The recommended action supports the 2020-2025 City of Modesto Strategic Plan Initiatives, Goal D: Provide safe efficient, and reliable infrastructure through proactive community investment, maintenance, and sustainability efforts.
BACKGROUND:
In 2006, the installation of nitrate analyzers was mandated by the California Department of Public Health (CDPH). The CDPH is now known as the State Water Resources Control Boards (SWRCB). The SWRCB operating permit requires nitrate concentrations be monitored continuously by an online nitrate analyzer at facilities with high nitrate concentration levels.
Nitrate analyzers are purchased and installed to maintain compliance with the SWRCB drinking water permit.
The Water Services Division uses Hach nitrate analyzer equipment and services for regulatory compliance by the State.
The Hach nitrate analyzers in use were chosen because of their reliability, ease of use, and accuracy and Hach is the sole manufacturer for nitrate analyzer equipment and service. Service and maintenance must be done by a Hach certified technician, or the warranty will be voided. In general, nitrate analyzers last approximately ten years with proper maintenance and repair. The contract with Hach ensures dependable service and warranty compliance for these units.
Hach’s factory-trained service personnel are authorized to perform any repair, start-up service, or maintenance on these instruments. Hach does not recognize or authorize any other service #15..
- 675 -
City Council, November 7, 2023
Sole Source Procurement of Nitrate Analyzer Equipment and Services
organization to perform repair or recalibration on these analyzers. This contract will also provide for the replacement of analyzers as they reach the end of their useful life.
On October 3, 2017, by Resolution No. 2017-387, Council approved the sole source procurement of nitrate analyzer equipment and field services to Hach Company, Loveland, CO, for a three-year agreement with an annual estimated cost of $84,098, and a total of up to $252,294 over three years. Agreement No. 129157 expired November 30, 2020.
On October 27, 2020, by Resolution No. 2020-444, Council approved the sole source procurement of nitrate analyzer equipment and field services to Hach Company, Loveland, CO, for a three-year agreement with an annual estimated cost of $103,000, and a total of up to $339,000 over three years. Agreement No. 193106 expires on November 30, 2023.
DISCUSSION:
The City currently has twenty-seven nitrate analyzers. In the event of an equipment failure, a replacement unit may be needed for any existing nitrate analyzer and annual testing equipment.
If staff is unable to provide nitrate analyzers, wells will be taken offline which would negatively impact the service we provide to our customers.
Modesto Municipal Code Section 8-3.203 generally requires all purchases, in excess of fifty thousand dollars ($50,000) 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. The service and maintenance of the City’s existing Hach nitrate analyzers must be done by a Hach certified technician, or the warranty will be voided. Therefore, this purchase qualifies for exemption from the formal bidding procedures.
FISCAL IMPACT:
The anticipated cost of $530,000 will be absorbed within the current Utilities Department, Water Fund, Fiscal Year 2023-24 operating budget, in the following accounts: Professional Services, 4100-45050-53300 and Repair and Maintenance, 4100-45050-53150.
Current Agreement Expenditures:
Account Numbers Account Name Agreement
Yr. 1
Agreement
Yr. 2
Agreement
Yr. 3 TOTAL
4100-45050-53300 Professional Services $43,705 $45,016 $46,078 $134,799 4100-45050-53150
Supplies and Services -
Repair and Maintenance $- $13,544 $34,297 $47,841
ANNUAL CONTRACT EXPENDITURE $43,705 $58,560 $80,375 $182,640 Due to supply chain shortages, long lead times and high demand parts and supplies have increased by 23% and service and labor has increased by 41%. #15..
- 676 -
City Council, November 7, 2023
Sole Source Procurement of Nitrate Analyzer Equipment and Services
Anticipated Agreement Expenditures:
Service and Labor, Agreement Year 1 $61,128
Equipment and Parts, Agreement Year 1 $64,318
Service and Labor, Agreement Year 2 $63,573
Equipment and Parts, Agreement Year 2 $68,527
Service and Labor, Agreement Year 3 $66,214
Equipment and Parts, Agreement Year 3 $72,734
Replacement Units (Potential Equipment Failure) $90,000 Sales Tax 8.875% $43,176
Total Anticipated Contract Cost (Rounded) $530,000
COMMITTEE RECOMMENDATION:
This item was presented to the Economic Development Committee on October 2, 2023 and was recommended to forward to Council for approval.
RECOMMENDED COUNCIL ACTION:
Staff Recommendations:
Resolution approving the sole source Agreement with Hach Company, Loveland, CO for Nitrate Analyzer Equipment and Field Services for a three-year Agreement for a total amount not to exceed $530,000, and authorizing the City Manager, or his designee to execute the Agreement.
Approved by:
William Wong, Director of Utilities
Joseph P. Lopez, City Manager
Attachments:
1. Hach – Resolution
2. Hach – Agreement No. 256569
3. Hach – Service and Labor Quote 2023
4. Hach – Parts Quote 2023
5. Hach – Bid Waiver
#15..
- 677 -
11/07/2023/Utilities/Mmartinez/Item X 1 2023-XX
MODESTO CITY COUNCIL
RESOLUTION NO. 2023-
RESOLUTION APPROVING THE SOLE SOURCE AGREEMENT WITH HACH
COMPANY, LOVELAND, CO FOR NITRATE AND ANALYZER EQUIPMENT
AND FIELD SERVICES FOR A THREE-YEAR AGREEMENT FOR A TOTAL AMOUNT NOT TO EXCEED $530,000 AND AUTHORIZING THE CITY
MANAGER, OR HIS DESIGNEE, TO EXECUTE THE AGREEMENT
WHEREAS, in 2006, the installation of nitrate analyzers was mandated by the California Department of Public Health (CDPH) which is now knows as the State Water Resources Control Boards (SWRCB), and
WHEREAS, the SWRCB operating permit requires nitrate concentrations to be monitored continuously by an online nitrate analyzer at facilities with high nitrate concentration levels, and
WHEREAS, the Water Services Division uses Hach nitrate analyzer equipment and services for regulatory compliance by the State, and WHEREAS, Hach nitrate analyzers were chosen because of their reliability, ease of use and accuracy and Hach is the sole manufacturer for nitrate analyzer equipment and service, and
WHEREAS, nitrate analyzers last approximately ten years with proper maintenance and repair. The contract with Hach ensures dependable service and warranty compliance for these units, and
WHEREAS, Hach’s factory-trained service personnel are authorized to perform any repair, start-up service, or maintenance on these instruments, and they do not recognize or authorize any other service organization to perform repair or recalibration on these analyzers, and
#15..
- 678 -
11/07/2023/Utilities/Mmartinez/Item X 2 2023-XX
WHEREAS, on October 2, 2017, by Resolution No. 2017-387, Council approved the sole source procurement of nitrate analyzer equipment and field services to Hach Company, Loveland, CO for a three-year agreement, and
WHEREAS, on October 27, 2020, by Resolution No. 2020-444, Council approved the sole source procurement of nitrate analyzer equipment and field services to Hach Company, Loveland, CO for a three-year agreement, and WHEREAS, the City currently has twenty-seven nitrate analyzers, and WHEREAS, in the event of an equipment failure, a replacement unit may be needed for any existing nitrate analyzer and annual testing, if staff is unable to provide nitrate analyzers, wells will be taken offline which would negatively impact the service we provide to our customers, and
WHEREAS, keeping the system in place will not only enable the City of Modesto to maintain its current permit with the State, but also ensure compliance with the drinking water quality standards it has previously maintained, and WHEREAS, the Modesto Municipal Code Section 8-3.203 generally requires all purchases more than fifty thousand dollars to follow formal bidding 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, and
WHEREAS, 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 #15..
- 679 -
11/07/2023/Utilities/Mmartinez/Item X 3 2023-XX
procurement for the City at the lowest possible cost commensurate with the desired quality, and
WHEREAS, the service and maintenance of the City’s existing Hach nitrate analyzers must be done by a Hach certified technician, or the warranty will be voided.
Therefore, this purchase qualifies for exemption from the formal bidding procedure.
NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Modesto that it hereby approves a Sole Source Agreement of Nitrate Analyzer Equipment and Field Services with Hach Company, Loveland Co, for total amount not to exceed $530,000 over three (3) years.
BE IT FURTHER RESOLVED that the City Manager, or his designee, is hereby authorized to execute the Agreement in a form approved by the City Attorney. #15..
- 680 -
11/07/2023/Utilities/Mmartinez/Item X 1 2023-XX
The foregoing resolution was introduced at a regular meeting of the Council of the City of Modesto held on the 7th day of November, 2023, by Councilmember ?, who moved its adoption, which motion being duly seconded by Councilmember ?, was upon roll call carried and the resolution adopted by the following vote:
AYES: Councilmembers:
NOES: Councilmembers:
ABSENT: Councilmembers:
ATTEST: _____________________________________
DIANE NAYARES-PEREZ, CMC, City Clerk
(SEAL)
APPROVED AS TO FORM:
BY: ____________________________________
JOSE M. SANCHEZ, City Attorney
#15..
- 681 -
1 ANNUAL AGREEMENT NO. 256569
FOR NITRATE ANALYZER EQUIPMENT AND SERVICES
HACH COMPANY
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 Hach Company, 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 Nitrate Analyzer Equipment and Services to CONTRACTOR, attached hereto as Exhibit “A” and made a part hereof, and
WHEREAS, the CONTRACTOR is the sole manufacturer and service provider of Hach Nitrate Analyzers, associated parts and field services, and
WHEREAS, CONTRACTOR shall provide services to CITY as defined in the “Hach Service Partnership Quotation”, attached hereto as Exhibit “B” and made a part hereof, and WHEREAS, the CITY and CONTRACTORS shall enter into an agreement for the furnishing of nitrate analyzer equipment, associated parts, and field services, as described in “Pricing Quotation” for Parts attached hereto as Exhibit “C” and Hach Service Partnership Quote attached hereto as Exhibit “B” made a part hereof, and
#15..
- 682 -
2 WHEREAS, the City shall have authorization to add additional parts and services as needed throughout the life of the agreement, 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 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. The total amount paid by CITY to CONTRACTOR over the full term of the AGREEMENT shall not exceed $530,000.00. Unless the services provided are for a lump sum or flat fee, fees for work performed by CONRACTOR on an hourly basis shall not exceed the amounts shown on the quote attached hereto as Exhibit B and Exhibit C.
Line Part Number Description Qty Net Unit Price Extended Price Year 1 Year 2 Year 3 1 FSPNITRATAX Fld Svc-2V Nitratax 26 $4,695.00 $122,070.00 $40,690.00 $40,690.00 $40,690.00 2 FSPSC200 Fld Svc-1v SC200 26 $909.00 $23,634.00 $7,878.00 $7,878.00 $7,878.00 3 FSPSC1000 Fld Svc-1V SC1000 Controller 1 $1,224.00 $1,224.00 $408.00 $408.00 $408.00 4 PMP-GLPHORP-4V PMP-GLI pH ORP PROBE 4V-(FRV 1) 6 $1,014.00 $6,084.00 $2,028.00 $2,028.00 $2,028.00 5 FSPCLX10 Fld Svc-2V CLx10 3 $5,064.00 $15,192.00 $5,064.00 $5,064.00 $5,064.00 6 PMP-NITRATAX-2V PMP-NITRATAX-2V (FRV 2) 1 $11,304.00 $11,304.00 $3,768.00 $3,768.00 $3,768.00 7 PMP-CLX10-2V PMP-CLX10-2V (FRV2) 1 $3,876.00 $3,876.00 $1,292.00 $1,292.00 $1,292.00 8 $2,445.12
9 $5,085.85
Total $61,128.00 $63,573.12 $66,213.85
SERVICE RATES
Year 2 Increase
Year 3 Increase
#15..
- 683 -
3 Line Part Number Description Qty
Net Unit
Price
Extended
Price
1 2105560
DPD Free Chlorine Reagent, Swiftest™ D
ispenser Refill Vial, Approximately 250 50 $70.29 $3,514.50 2 2427606
Sample Cell: 1" Round Glass 10mL.
Standard lead time 5 days. 10 $71.57 $715.70
3 2444400
Chlorine (Total) Test Kit, Model CN-21P.
Standard lead time 10 days. 3 $105.02 $315.06
4 2769920
Singlet Single-Use pH Buffer Kit, pH 4.01
& 7.00, pk/2x10. Standard lead time 5
days. 2 $54.46 $108.92
5 2802300
DPD Free Chlorine Reagent, Swiftest™ D
ispenser. Standard lead time 5 days. 20 $92.50 $1,850.00 6 LPV445.97.00110
DR300 Pocket Colorimeter, Chlorine,
Free + Total, LR/HR, with Box. Standard
lead time 5 days. 10 $702.99 $7,029.90
7 LPV445.97.02110
DR300 Pocket Colorimeter, Nitrate, with
Box. Standard lead time 10 days. 2 $702.99 $1,405.98
8 LXV448.99.21001
NT3100sc UV Nitrate Sensor, 2 mm path
length. Standard lead time 15 days. 2 $16,504.75 $33,009.50 9 LXV525.99A11551
SC4500 Controller, Prognosys, 5x mA
Output, 2 digital Sensors, 100-240 VAC,
without power cord. Standard lead time
10 days. 2 $3,451.82 $6,903.64
10 LZX869
Flow through unit for
NT3100sc/NT3200sc 1/2 mm, Nitratax
plus sc 2 mm, Uvas plus sc 2 mm probe.
Standard lead time 25 days. 2 $3,751.42 $7,502.84
11 PRO-C3A1N
PRO Series Transmitter, Contacting
Conductivity. Standard lead time 5 days. 2 $981.19 $1,962.38 $64,318.42
YEAR 1 - PARTS RATE
YEAR 1
#15..
- 684 -
4 Line Part Number Description Qty
Net Unit
Price
Extended
Price
1 2105560
DPD Free Chlorine Reagent, Swiftest™ D
ispenser Refill Vial, Approximately 250
Tests. Standard lead time 5 days. 50 $74.89 $3,744.50
2 2427606
Sample Cell: 1" Round Glass 10mL.
Standard lead time 5 days. 10 $76.25 $762.50
3 2444400
Chlorine (Total) Test Kit, Model CN-21P.
Standard lead time 10 days. 3 $111.89 $335.67
4 2769920
Singlet Single-Use pH Buffer Kit, pH 4.01
& 7.00, pk/2x10. Standard lead time 5
days. 2 $58.03 $116.06
5 2802300
DPD Free Chlorine Reagent, Swiftest™ D
ispenser. Standard lead time 5 days. 20 $98.55 $1,971.00 6 LPV445.97.00110
DR300 Pocket Colorimeter, Chlorine,
Free + Total, LR/HR, with Box. Standard
lead time 5 days. 10 $748.98 $7,489.80
7 LPV445.97.02110
DR300 Pocket Colorimeter, Nitrate, with
Box. Standard lead time 10 days. 2 $748.98 $1,497.96
8 LXV448.99.21001
NT3100sc UV Nitrate Sensor, 2 mm path
length. Standard lead time 15 days. 2 $17,584.50 $35,169.00 9 LXV525.99A11551
SC4500 Controller, Prognosys, 5x mA
Output, 2 digital Sensors, 100-240 VAC,
without power cord. Standard lead time
10 days. 2 $3,677.64 $7,355.28
10 LZX869
Flow through unit for
NT3100sc/NT3200sc 1/2 mm, Nitratax
plus sc 2 mm, Uvas plus sc 2 mm probe.
Standard lead time 25 days. 2 $3,996.84 $7,993.68
11 PRO-C3A1N
PRO Series Transmitter, Contacting
Conductivity. Standard lead time 5 days. 2 $1,045.38 $2,090.76 $68,526.21
YEAR 2 - PARTS RATE
YEAR 2
#15..
- 685 -
5 Line Part Number Description Qty
Net Unit
Price
Extended
Price
1 2105560
DPD Free Chlorine Reagent, Swiftest™ D
ispenser Refill Vial, Approximately 250
Tests. Standard lead time 5 days. 50 $79.48 $3,974.00
2 2427606
Sample Cell: 1" Round Glass 10mL.
Standard lead time 5 days. 10 $80.94 $809.40
3 2444400
Chlorine (Total) Test Kit, Model CN-21P.
Standard lead time 10 days. 3 $118.76 $356.28
4 2769920
Singlet Single-Use pH Buffer Kit, pH 4.01
& 7.00, pk/2x10. Standard lead time 5
days. 2 $61.59 $123.18
5 2802300
DPD Free Chlorine Reagent, Swiftest™ D
ispenser. Standard lead time 5 days. 20 $104.60 $2,092.00 6 LPV445.97.00110
DR300 Pocket Colorimeter, Chlorine,
Free + Total, LR/HR, with Box. Standard
lead time 5 days. 10 $794.97 $7,949.70
7 LPV445.97.02110
DR300 Pocket Colorimeter, Nitrate, with
Box. Standard lead time 10 days. 2 $794.97 $1,589.94
8 LXV448.99.21001
NT3100sc UV Nitrate Sensor, 2 mm path
length. Standard lead time 15 days. 2 $18,664.25 $37,328.50 9 LXV525.99A11551
SC4500 Controller, Prognosys, 5x mA
Output, 2 digital Sensors, 100-240 VAC,
without power cord. Standard lead time
10 days. 2 $3,903.46 $7,806.92
10 LZX869
Flow through unit for
NT3100sc/NT3200sc 1/2 mm, Nitratax
plus sc 2 mm, Uvas plus sc 2 mm probe.
Standard lead time 25 days. 2 $4,242.26 $8,484.52
11 PRO-C3A1N
PRO Series Transmitter, Contacting
Conductivity. Standard lead time 5 days. 2 $1,109.57 $2,219.14 YEAR 3 $72,733.58
YEAR 3 - PARTS RATE
#15..
- 686 -
6 2. CITY REPRESENTATIVE:
CITY Representative: Tony Benns, Utility Plant Operations Supervisor, [email protected], (209) 342-4574
Purchasing Division Contact: Melvin Rosal, Buyer, [email protected], (209) 577-5420 The CITY Representative is not authorized to commit the CITY to changes in specifications, requirements, or scope of work, changes in price(s), period of performance or delivery date(s) or method of shipment. Changes of a contractual or business nature shall be effective only by written change to the AGREEMENT, issued by the City of Modesto, Purchasing Division.
3. TERM OF AGREEMENT:
The term of the AGREEMENT shall be for a period of three (3) years.
Year 1: December 1, 2023 through November 30, 2024
Year 2: December 1, 2024 through November 30, 2025
Year 3: December 1, 2025 through November 30, 2026
Pricing as set forth in Section 1.e. above shall remain firm for the first three years of the AGREEMENT.
Price increases for any AGREEMENT years, 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.
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 #15..
- 687 -
7 $1,000,000 for bodily injury and property damage. The insurance shall indicate on the certificate of insurance the following coverage and indicate the policy aggregate limit applying to: premises and operations; broad form contractual; independent contractors and subcontractors; products and completed operations; and/or professional liability.
b) Automobile Liability – Insurance with a minimum limit of liability per occurrence of $1,000,000 for bodily injury and property damage and transportation related pollution liability. This insurance shall cover any automobile for bodily injury and property damage. c) Workers' Compensation – In compliance with the statutes of the State of California, plus employer's liability with a minimum limit of liability of $1,000,000 per accident for bodily injury or disease.
If at any time any of said policies shall be unsatisfactory to the CITY, as to form or substance or if a company issuing such policy shall be unsatisfactory to the CITY, the CONTRACTOR shall promptly obtain a new policy, submit the same to the CITY’s Risk Manager for approval and submit a certificate thereof as hereinabove provided. Upon failure of the CONTRACTOR to furnish, deliver or maintain such insurance and certificates as above provided, this AGREEMENT, at the election of the CITY, may be forthwith declared suspended, or terminated. Failure of the CONTRACTOR to obtain and/or maintain any required insurance shall not relieve the CONTRACTOR from any liability under this Agreement, nor shall the insurance requirements be construed to conflict with or otherwise limit the obligations of the CONTRACTOR concerning indemnification.
The CITY, its 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, #15..
- 688 -
8 shall be placed with insurer(s) with acceptable Best's rating of A: VII or with approval of the CITY’s Risk Manager.
For any claims related to this AGREEMENT, the CONTRACTOR’s insurance coverage shall be primary insurance as respects CITY, its officers, officials, employees, agents and volunteers. Any insurance or selfinsurance 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: CONTRACTOR shall invoice CITY not less than once per month based on the cost for services performed and reimbursable costs incurred prior to the invoice date. All invoices shall be paid in full the following payment terms within thirty days after completion and acceptance of the Services by the CITY, and receipt of a properly prepared invoice, CITY will pay CONTRACTOR Net 45 Days via manual check. The CITY is exempt from payment of Federal Excise Tax, and all invoices shall be exclusive of such excise tax.
Invoice to: City of Modesto
Attn: Accounts Payable
P.O. Box 642
Modesto, CA 95353
Email to: [email protected]
At a minimum, invoices shall state the following:
• This AGREEMENT number 256569
• 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, its 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, #15..
- 689 -
9 arising directly or indirectly out of any negligent or intentional act or omission of CONTRACTOR, or its officers, officials, 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. Any and all indemnification obligations imposed upon CONTRACTOR are limited to the extent of those damages proportionately caused by CONTRACTOR'S breach of the Agreement, negligence, wrongful conduct, or violations of law. In no case is CONTRACTOR liable for any damages caused by negligence, misuse or misapplication of goods by others.
7. VENUE & GOVERNING LAW: Venue for any dispute or claim arising or related to this AGREEMENT its performance, breach, or interpretation (including issues about its validity or enforceability), shall be exclusively in the Superior Court of Stanislaus County or the United States District Court for the Eastern District of California.
This AGREEMENT shall be deemed made in, governed by, performed in, and construed and enforced in accordance with the laws of the State of California, without giving effect to its conflicts of law’s provisions or principles.
8. LIMITATION ON LIABILITY: The total liability of CONTRACTOR and its subsidiaries, affiliates, employees, directors, officers and agents arising out of performance, nonperformance, or obligations in connection with the design, manufacture, sale, delivery, and/or use of goods and/or services in no circumstance includes any liquidated, penalty, incidental or consequential damages of any kind, nor exceed an amount that is unreasonably disproportionate to the total amount of compensation actually paid to CONTRACTOR under the agreement, except only in the case of damages arising due to CONTRACTOR'S willful misconduct.
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 #15..
- 690 -
10 entitled to reasonable attorneys’ fees in addition to any other relief to which that party may be entitled. The court may set such fees in the same action or in a separate action brought for that purpose.
10. COMMENCEMENT AND COMPLETION OF THE WORK: The work contemplated herein shall be commenced as immediately after 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
11. TERMINATION OF SERVICES:
Termination for Default: In the event either party fails to perform under this AGREEMENT or breaches any condition contained herein, the other party shall notify in writing the breaching party of the nonperformance. Within 10 days after receipt of notification, the breaching party shall correct any nonperformance to the reasonable satisfaction of the non-breaching party, or such other time as may be identified in the notice. Failure to correct any non-performance shall allow the non-breaching party to terminate this AGREEMENT for cause.
Termination by City for Convenience: The City may also terminate this AGREEMENT the Contractor's performance underthe Agreement, eitherin whole orin part, at its own discretion and without cause.
Post-Termination Procedure: Upon receipt of a written notice of termination pursuant to either of the foregoing paragraphs, the CONTRACTOR shall:
a) Cease its work as directed in the notice of termination as of the termination date and see to it that its employees, subcontractors and agents are notified of such termination and act as specified in the notice of termination;
b) Terminate all orders and subcontracts except as necessary to complete any portion of the SERVICES that are not terminated;
#15..
- 691 -
11 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 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; #15..
- 692 -
12 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) Recommend termination of AGREEMENT between said the CONTRACTOR and the City of Modesto.
Those discrepancies and deficiencies in the SERVICES that remains uncorrected after the date set for correction may be the necessary justification for a billing adjustment in the month following the occurrence.
Unless otherwise negotiated, billing adjustments for this incomplete or uncorrected work shall be permanent retention of 100% of the estimated monthly cost for the SERVICES not corrected or completed.
14. ASSIGNMENT OF RIGHTS: The CONTRACTOR offers and agrees, and will require all subcontractors and suppliers to agree, to assign to the CITY all rights, title, and interest in and to all causes of action it and they may have under Section 4 of the Clayton Act (15 United States code, Section 15) or under the Cartwright Act (Business and Professions Code, Section 16700 et seq.), arising from the acquisition of goods, services, or materials pursuant to this AGREEMENT or any allowed subcontract. The assignment made by CONTRACTOR and all assignments made by subcontractors and suppliers shall be made and become effective #15..
- 693 -
13 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. 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 to the damages it caused, immediately, at CONTRACTOR’s sole cost and expense, to the satisfaction of the CITY.
17. 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: Hach Company
P.O. Box 389
5600 Lindbergh Drive
Loveland, CO 80539-0389
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.
18. 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.
19. QUANTITIES: No minimum or maximum is guaranteed or implied.
20. 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.
#15..
- 694 -
14 21. OTHER GOVERNMENT/PUBLICLY FUNDED AGENCIES: Reserved.
22. NON-DISCRIMINATION:
a) During the performance of this AGREEMENT, CONTRACTOR and any allowed subcontractors shall not unlawfully discriminate against any employee or applicant for employment because of race, color, ancestry, religion, sex, national origin, marital status, age, medical condition (cancer related), physical handicap (including AIDS), sexual orientation, or any other basis prohibited by Federal or California law. Equal employment opportunity extends, but is not limited to recruitment, compensation, benefits, layoff, termination, and all other conditions of employment. The CONTRACTOR and any allowed subcontractors shall ensure that the evaluation and treatment of their employees and applicants for employment are free of such discrimination. The CONTRACTOR and any allowed subcontractors shall comply with the provisions of the Fair Employment and Housing Act (Government Code, Section 12900 et seq.) and the applicable regulations promulgated thereunder (California Administrative Code, Title 2, and Section 7285.0 et seq.). The applicable regulations of the Fair Employment and Housing Commission implementing Government Code, Section 12900, set forth in Chapter 5 of Division 4 of Title 2 of the California Administrative Code are incorporated into this contract by reference and made a part hereof as if set forth in full. b) The CONTRACTOR and any allowed subcontractors shall give written notice of their obligations under this clause to labor organizations with which they have a collective bargaining or other agreement.
c) The CONTRACTOR shall include the nondiscrimination and compliance provisions of this clause in any allowed subcontracts to perform SERVICES. d) The Contractor shall permit access by representatives of the Department of Fair Employment and Housing and the CITY upon reasonable notice at any time during the normal business hours, but in no case less than 24 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. #15..
- 695 -
15 e) By executing this AGREEMENT, CONTRACTOR certifies that it shall follow and be in compliance with the Americans with Disabilities Act of 1990, the applicable administrative requirements promulgated in response thereto, and any other applicable Federal laws and regulations relating to handicap discrimination and participation and will continue to do so for at least the duration of the AGREEMENT and any extensions thereof.
23. 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.
24. 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.
CONTRACTOR retains all rights in and to any intellectual property and confidential information created or procured by it or its representatives at any time, and CONTRACTOR grants CITY a non-exclusive, nontransferable license to use such intellectual property and information to the extent necessary and solely for CITY’s use of SERVICES purchased hereunder.
25. 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.
26. INDEPENDENT CONTRACTOR; NOT AGENT: At all times during the term of this #15..
- 696 -
16 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.
27. 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.
28. 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.
29. 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.
30. HEADINGS NOT CONTROLLING: Headings used in the Agreement are for reference purposes only and shall not be considered in construing this AGREEMENT.
31. MISCELLANEOUS: Time is of the essence in CONTRACTOR’s performance under each provision of this AGREEMENT.
32. 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 quote, #15..
- 697 -
17 attached hereto as Exhibit B and Exhibit C, are incorporated herein. In the event of a conflict between the quote 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.
33. 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.
34. WARRANTY: CONTRACTOR warrants that it will perform all Services in accordance with its standard practices and that the Services will be free from defects in workmanship for a period of ninety (90) days from their date of performance. If CONTRACTOR breaches this warranty and the CITY notifies CONTRACTOR of such breach within 30 days of the end of the applicable warranty period, CONTRACTOR will, at its option, re-perform any nonconforming Services, or refund the amounts paid by CITY to CONTRACTOR for the nonconforming Services. THIS IS THE EXCLUSIVE REMEDY FOR ANY BREACH OF WARRANTY. CONTRACTOR EXPRESSLY DISCLAIMS ANY REMEDIES OF “COVER” AND ANY
WARRANTIES IMPLIED BY LAW, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
35. FORCE MAJEURE: Under no circumstances shall CONTRACTOR have any liability for any breach relating to non-performance or underperformance caused by extreme weather, natural disaster, fire, accident or other act of God; strike, lock out or other labor shortage or disturbance; lock down, boycott, embargo or tariff; terrorism or act of terrorism, war or war condition or civil disturbance or riot; failure of public or private telecommunications networks; delay of carriers or other industrial, agricultural or transportation disturbance; failure of normal sources of supply; epidemics, pandemics, contagion, disease or quarantine; law, regulation or any act of government; or any other cause beyond CONTRACTOR’s reasonable control. CONTRACTOR’s #15..
- 698 -
18 performance shall be excused and deemed suspended during the continuation of such event or events and, for a reasonable time, thereafter, delayed or adjusted accordingly. #15..
- 699 -
19 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 Hach Company has caused this Agreement to be duly executed. #15..
- 700 -
HACH SERVICE PARTNERSHIP
QUOTATION
Page :
Partnership Number :
1 of 9
HACH236382
Headquarters
P.O. Box 389
5600 Lindbergh Drive
Loveland, CO 80539-0389
Purchase Orders
WebSite: www.hach.com Remittance
2207 Collections Center Dr
Chicago, IL 60693
Wire Transfers
Bank of America
231 S. LaSalle St.
Chicago, IL 60604
Account: 8765602385
Routing (ABA): 026009593
Partnership Number : HACH236382 Version : 0.36 Quotation Date : 23-JUN-23 Expiration Date : 20-JAN-24
Hach Company
Contact : Johnson, Julia Malina
Service Partnership
Phone :
Service Partnership
Email : [email protected]
Customer Ref : Customer Contact : WATTLE, CAROL
Customer Phone : 2095775406 Customer Fax : Customer Email : [email protected] Bill-To Account # 109327 Ship-To Account # 109327
Customer Name CITY OF MODESTO Customer
Name
CITY OF MODESTO Payment Terms: Net 30
Address4 ACCTS PAYABLE Address4 Billing Method: Annual-Invoices on START Date
Address1 PO BOX 642 Address1 1201 S CARPENTER RD Currency: USD Address2 Address2
Address3 Address3
City,State,
PostalCode
MODESTO-CA-95353-0642 City,State,
Postalcode
MODESTO-CA-95351-2155
Province/
Country
US Province/
Country
US
Line Service Name Line Total
Covered Product Start Date End Date Description/Serial Number 1 FSPNITRATAX 02-JAN-24 01-JAN-27 Fld Svc-2V Nitratax
Sensor:02-JAN-2024:01-JAN-2027
107,985.00
1.1 LXV417.99.20002 db ff NITRATAX PLUS SC 2MM ;
1205006
1.2 LXV417.99.20002 db ff NITRATAX PLUS SC 2MM ;
1212050
1.3 LXV417.99.20002 db ff NITRATAX PLUS SC 2MM ;
1214694
1.4 LXV417.99.20002 db ff NITRATAX PLUS SC 2MM ;
1214696
1.5 LXV417.99.20002 db ff NITRATAX PLUS SC 2MM ;
1214697
#15..
- 701 -
HACH SERVICE PARTNERSHIP
QUOTATION
Page :
Partnership Number :
2 of 9
HACH236382
Headquarters
P.O. Box 389
5600 Lindbergh Drive
Loveland, CO 80539-0389
Purchase Orders
WebSite: www.hach.com Remittance
2207 Collections Center Dr
Chicago, IL 60693
Wire Transfers
Bank of America
231 S. LaSalle St.
Chicago, IL 60604
Account: 8765602385
Routing (ABA): 026009593
1.6 LXV417.99.20002 db ff NITRATAX PLUS SC 2MM ;
1214701
1.7 LXV417.99.20002 db ff NITRATAX PLUS SC 2MM ;
1279638
1.8 LXV417.99.20002 db ff NITRATAX PLUS SC 2MM ;
1280507
1.9 LXU417.99.20002 oo ARRA NITRATAX PLUS SC
2MM ; 1334751
1.10 LXV417.99.20002 db ff NITRATAX PLUS SC 2MM ;
1504056
1.11 LXV417.99.20002 db ff NITRATAX PLUS SC 2MM ;
1439008
1.12 LXV417.99.20002 db ff NITRATAX PLUS SC 2MM ;
1499628
1.13 LXV417.99.20002 db ff NITRATAX PLUS SC 2MM ;
1539701
1.14 LXV417.99.50002 db ff NITRATAX PLUS SC 5 MM ;
1226827
1.15 LXV417.99.20002 db ff NITRATAX PLUS SC 2MM ;
1536475
1.16 LXV417.99.20002 db ff NITRATAX PLUS SC 2MM ;
1672551
1.17 LXV417.99.20002 db ff NITRATAX PLUS SC 2MM ;
1673333
1.18 LXV417.99.20002 db ff NITRATAX PLUS SC 2MM ;
1539349
1.19 LXV417.99.50002 db ff NITRATAX PLUS SC 5 MM ;
1462010
1.20 LXV417.99.20002 db ff NITRATAX PLUS SC 2MM ;
1674785
1.21 LXV417.99.20002 db ff NITRATAX PLUS SC 2MM ;
1674302
1.22 LXV417.99.20002 db ff NITRATAX PLUS SC 2MM ;
1729956
#15..
- 702 -
HACH SERVICE PARTNERSHIP
QUOTATION
Page :
Partnership Number :
3 of 9
HACH236382
Headquarters
P.O. Box 389
5600 Lindbergh Drive
Loveland, CO 80539-0389
Purchase Orders
WebSite: www.hach.com Remittance
2207 Collections Center Dr
Chicago, IL 60693
Wire Transfers
Bank of America
231 S. LaSalle St.
Chicago, IL 60604
Account: 8765602385
Routing (ABA): 026009593
1.23 LXV417.99.20002 db ff NITRATAX PLUS SC 2MM ;
1724376
2 FSPSC200 02-JAN-24 01-JAN-27 Fld Svc-1V SC200
Controller:02-JAN-2024:01-JAN-20
27 22,725.00
2.1 LXV404.99.00552 nn sc200 CONTROLLER, AC-DC,
2 DIG, HACH ; 1306C0070115
2.2 LXV404.99.00552 nn sc200 CONTROLLER, AC-DC,
2 DIG, HACH ; 1605C0158714
2.3 LXV404.99.00552 nn sc200 CONTROLLER, AC-DC,
2 DIG, HACH ; 1606C0133759
2.4 LXV404.99.00552 nn sc200 CONTROLLER, AC-DC,
2 DIG, HACH ; 1402C0102459
2.5 LXV404.99.00552 nn sc200 CONTROLLER, AC-DC,
2 DIG, HACH ; 1404C0104719
2.6 LXV404.99.00552 nn sc200 CONTROLLER, AC-DC,
2 DIG, HACH ; 1508C0149428
2.7 LXV404.99.00552 nn sc200 CONTROLLER, AC-DC,
2 DIG, HACH ; 1508C0122819
2.8 LXV404.99.00552 nn sc200 CONTROLLER, AC-DC,
2 DIG, HACH ; 1404C0094466
2.9 LXV404.99.00552 nn sc200 CONTROLLER, AC-DC,
2 DIG, HACH ; 1403C0093270
2.10 LXV404.99.00552 nn sc200 CONTROLLER, AC-DC,
2 DIG, HACH ; 1705C0146132
2.11 LXV404.99.00552 nn sc200 CONTROLLER, AC-DC,
2 DIG, HACH ; 1705C0146133
2.12 LXV404.99.00552 nn sc200 CONTROLLER, AC-DC,
2 DIG, HACH ; 1705C0146134
2.13 LXV404.99.00552 nn sc200 CONTROLLER, AC-DC,
2 DIG, HACH ; 1705C0146139
2.14 LXV404.99.00552 nn sc200 CONTROLLER, AC-DC,
2 DIG, HACH ; 1705C0146142
2.15 LXV404.99.00552 nn sc200 CONTROLLER, AC-DC,
2 DIG, HACH ; 1705C0155375
#15..
- 703 -
HACH SERVICE PARTNERSHIP
QUOTATION
Page :
Partnership Number :
4 of 9
HACH236382
Headquarters
P.O. Box 389
5600 Lindbergh Drive
Loveland, CO 80539-0389
Purchase Orders
WebSite: www.hach.com Remittance
2207 Collections Center Dr
Chicago, IL 60693
Wire Transfers
Bank of America
231 S. LaSalle St.
Chicago, IL 60604
Account: 8765602385
Routing (ABA): 026009593
2.16 LXV404.99.00552 nn sc200 CONTROLLER, AC-DC,
2 DIG, HACH ; 1705C0155381
2.17 LXV404.99.00552 nn sc200 CONTROLLER, AC-DC,
2 DIG, HACH ; 1705C0155384
2.18 LXV404.99.00552 nn sc200 CONTROLLER, AC-DC,
2 DIG, HACH ; 1705C0171330
2.19 LXV404.99.00552 nn sc200 CONTROLLER, AC-DC,
2 DIG, HACH ; 1705C0171332
2.20 LXV404.99.00552 nn sc200 CONTROLLER, AC-DC,
2 DIG, HACH ; 1509C0151032
2.21 LXV404.99.00552 nn sc200 CONTROLLER, AC-DC,
2 DIG, HACH ; 1612C0165529
2.22 LXV404.99.00552 nn sc200 CONTROLLER, AC-DC,
2 DIG, HACH ; 1610C0146756
2.23 LXV404.99.00552 nn sc200 CONTROLLER, AC-DC,
2 DIG, HACH ; 1610C0138360
2.24 LXV404.99.00552 nn sc200 CONTROLLER, AC-DC,
2 DIG, HACH ; 1704C0145389
2.25 LXV404.99.00552 nn sc200 CONTROLLER, AC-DC,
2 DIG, HACH ; 1704C0145384
3 FSPSC1000 02-JAN-24 01-JAN-27 Fld Svc-1V SC1000 Controller:
GRAYSON SITE
1,224.00
3.1 LXV400.99.10382 ee MODULE, PROBE (6 SNSR)
SC1000, 8mA ; 1503504
4 PMP-GLPHORP-4V 02-JAN-24 01-JAN-27 PMP-GLI pH ORP PROBE 4V-(FRV 1):02-JAN-24:01-JAN-27
6,084.00
4.1 3422B3A Conductivity Sensor,K0.5 ;
0308460162
4.2 3422B3A Conductivity Sensor,K0.5 ;
0308460156
4.3 3422B3A Conductivity Sensor,K0.5 ;
0312460001
4.4 3422B3A Conductivity Sensor,K0.5 ;
0509460026
4.5 3422B3A Conductivity Sensor,K0.5 ;
0509460033
#15..
- 704 -
HACH SERVICE PARTNERSHIP
QUOTATION
Page :
Partnership Number :
5 of 9
HACH236382
Headquarters
P.O. Box 389
5600 Lindbergh Drive
Loveland, CO 80539-0389
Purchase Orders
WebSite: www.hach.com Remittance
2207 Collections Center Dr
Chicago, IL 60693
Wire Transfers
Bank of America
231 S. LaSalle St.
Chicago, IL 60604
Account: 8765602385
Routing (ABA): 026009593
4.6 3422B3A20G Generic 0.5K Sensor with 20'
Cable ; 0401460042
5 FSPCLX10 02-JAN-24 01-JAN-27 Fld Svc-2V CLx10 (free or total):02-JAN-2024:01-JAN-2027
Field Service Partnership includes
all parts, labor, and travel for
on-site repairs, 2 on-site
calibrations per year, factory
recommended maintenance
(including required parts), unlimited
technical support calls, and free
firmware updates. Coverage does
not include the sc200 or optional
pH probe.
10,128.00
5.1 9180600 PANEL ASSY, AMPEROMETRIC
CHLORINE, ENGLISH ;
151045003457
5.2 9180600 PANEL ASSY, AMPEROMETRIC
CHLORINE, ENGLISH ;
151045003440
6 ADMIN_HANDLING_MYA 02-JAN-24 01-JAN-27 YEAR 2 INCREASE 2,445.12
6.1 CONTRACT SPECIAL ITEM
7 ADMIN_HANDLING_MYA 02-JAN-24 01-JAN-27 YEAR 3 INCREASE 5,085.85
7.1 CONTRACT SPECIAL ITEM
8 FSPNITRATAX 02-JAN-24 01-JAN-27 Fld Svc-2V Nitratax
Sensor:02-JAN-2024:01-JAN-2027
14,085.00
8.1 LXV417.99.20002 db ff NITRATAX PLUS SC 2MM ;
1504055
8.2 LXV417.99.20002 db ff NITRATAX PLUS SC 2MM ;
1504057
8.3 LXV417.99.20002 db ff NITRATAX PLUS SC 2MM ;
1544536
9 FSPSC200 02-JAN-24 01-JAN-27 Fld Svc-1V SC200
Controller:GRAYSON SITE
909.00
9.1 LXV404.99.00552 nn sc200 CONTROLLER, AC-DC,
2 DIG, HACH ; 1208C0047729
10 FSPCLX10 02-JAN-24 01-JAN-27 Fld Svc-2V CLx10 (free or total):GRAYSON SITE
Field Service Partnership includes
all parts, labor, and travel for
on-site repairs, 2 on-site
calibrations per year, factory
5,064.00
#15..
- 705 -
HACH SERVICE PARTNERSHIP
QUOTATION
Page :
Partnership Number :
6 of 9
HACH236382
Headquarters
P.O. Box 389
5600 Lindbergh Drive
Loveland, CO 80539-0389
Purchase Orders
WebSite: www.hach.com Remittance
2207 Collections Center Dr
Chicago, IL 60693
Wire Transfers
Bank of America
231 S. LaSalle St.
Chicago, IL 60604
Account: 8765602385
Routing (ABA): 026009593
recommended maintenance
(including required parts), unlimited
technical support calls, and free
firmware updates. Coverage does
not include the sc200 or optional
pH probe.
10.1 9180600 PANEL ASSY, AMPEROMETRIC
CHLORINE, ENGLISH ;
130845001525
11 PMP-NITRATAX-2V 02-JAN-24 01-JAN-27 PMP-NITRATAX-2V (FRV 2):2
ADDITIONAL VISITS PER YEAR
ON SN 1504055, 1504057, 154436
GRAYSON SITE
11,304.00
11.1 CONTRACT SPECIAL ITEM
12 PMP-CLX10-2V 02-JAN-24 01-JAN-27 PMP-CLX10-2V (FRV2):2
ADDITIONAL VISITS PER YEAR
ON SN 130845001525 GRAYSON
SITE
3,876.00
12.1 CONTRACT SPECIAL ITEM
Sub Total : 190,914.97
Tax: 0.00
Total : 190,914.97
Partnership Notes :
ANNUAL COST BREAKDOWN NOTED BELOW:
YEAR 1 SERVICE @ $61,128.00 *
YEAR 2 SERVICE @ $63,573.12 *
YEAR 3 SERVICE @ $66,213.85 *
TOTAL $190,914.97 *
* THIS IS PRE-TAX PRICING AND SUBJECT TO CHANGE WITH EQUIPMENT CHANGES PO/Payment required for total quoted price to lock in multi-year pricing. If PO/payment is only received for one year, quoted price for subsequent years will not be honored and a new quote will need to be obtained upon renewal.
All purchases of Hach Company products and/or services are expressly and without limitation subject to Hach Company's Terms & Conditions of Sale ("Hach TCS"), incorporated herein by reference and published on Hach Company's website at www.hach.com/terms . Hach TCS are incorporated by reference into each of Hach's offers or quotations, order acknowledgments, and invoice and shipping documents. The first of the following acts shall constitute an acceptance of Hach's offer and not a counteroffer and shall create a contract of sale ("Contract") in accordance with the Hach TCS, subject to Hach's final credit approval: (i) Buyer's issuance of a purchase order document against Hach's offer or quotation; (ii) Hach's acknowledgement of Buyer's order; or (iii) commencement of any performance by Hach in response to Buyer's order. Provisions contained in Buyer's purchase documents that materially alter, add to or subtract from the provisions of these Terms and Conditions of Sale shall be null and void and not considered part of the Contract This Contract will automatically renew at the End Date for a period of one year, and at the anniversary of the End Date, unless the Buyer notifies Hach in writing by no later than ninety days before the End Date.
Customer Name : CITY OF MODESTO
Customer P.O. Number : ___________________________________________________ #15..
- 706 -
HACH SERVICE PARTNERSHIP
QUOTATION
Page :
Partnership Number :
7 of 9
HACH236382
Headquarters
P.O. Box 389
5600 Lindbergh Drive
Loveland, CO 80539-0389
Purchase Orders
WebSite: www.hach.com Remittance
2207 Collections Center Dr
Chicago, IL 60693
Wire Transfers
Bank of America
231 S. LaSalle St.
Chicago, IL 60604
Account: 8765602385
Routing (ABA): 026009593
Customer Reference Number : ___________________________________________________
TERMS & CONDITIONS OF SALE FOR HACH COMPANY PRODUCTS AND SERVICES This document sets forth the Terms & Conditions of Sale for goods manufactured and/or supplied, and services provided, by Hach Company of Loveland, Colorado ("Hach") and sold to the original purchaser thereof ("Buyer"). Unless otherwise specifically stated herein, the term "Hach" includes only Hach Company and none of its affiliates. Unless otherwise specifically stated in a previously-executed written purchase agreement signed by authorized representatives of Hach and Buyer, these Terms & Conditions of Sale establish the rights, obligations and remedies of Hach and Buyer which apply to this offer and any resulting order or contract for the sale of Hach's goods and/or services ("Products").
1. APPLICABLE TERMS & CONDITIONS:
These Terms & Conditions of Sale are contained directly and/or by reference in Hach's offer, order acknowledgment, and invoice documents. The first of the following acts constitutes an acceptance of Hach's offer and not a counteroffer and creates a contract of sale ("Contract") in accordance with these Terms & Conditions: (i) Buyer's issuance of a purchase order document against Hach's offer; (ii) acknowledgement of Buyer's order by Hach; or (iii) commencement of any performance by Hach pursuant to Buyer's order. Provisions contained in Buyer's purchase documents (including electronic commerce interfaces) that materially alter, add to or subtract from the provisions of these Terms & Conditions of Sale are not a part of the Contract.
2. CANCELLATION:
Buyer may cancel goods orders subject to fair charges for Hach's expenses including handling, inspection, restocking, freight and invoicing charges as applicable, provided that Buyer returns such goods to Hach at Buyer's expense within 30 days of delivery and in the same condition as received. Buyer may cancel service orders on ninety (90) day's prior written notice and refunds will be prorated based on the duration of the service plan. Inspections and reinstatement fees may apply upon cancellation or expiration of service programs. Seller may cancel all or part of any order prior to delivery without liability if the order includes any Products that Seller determines may not comply with export, safety, local certification, or other applicable compliance requirements.
3. DELIVERY:
Delivery will be accomplished FCA Hach's facility located in Ames, Iowa or Loveland, Colorado, United States (Incoterms 2010). For orders having a final destination within the U.S., legal title and risk of loss or damage pass to Buyer upon transfer to the first carrier. For orders having a final destination outside the U.S., legal title and risk of loss or damage pass to Buyer when the Products enter international waters or airspace or cross an international frontier. Hach will use commercially reasonable efforts to deliver the Products ordered herein within the time specified on the face of this Contract or, if no time is specified, within Hach's normal lead-time necessary for Hach to deliver the Products sold hereunder. Upon prior agreement with Buyer and for an additional charge, Hach will deliver the Products on an expedited basis. Standard service delivery hours are 8 am – 5 pm Monday through Friday, excluding holidays.
4. INSPECTION:
Buyer will promptly inspect and accept any Products delivered pursuant to this Contract after receipt of such Products. In the event the Products do not conform to any applicable specifications, Buyer will promptly notify Hach of such nonconformance in writing. Hach will have a reasonable opportunity to repair or replace the nonconforming product at its option. Buyer will be deemed to have accepted any Products delivered hereunder and to have waived any such nonconformance in the event such a written notification is not received by Hach within thirty (30) days of delivery.
5. PRICES & ORDER SIZES:
All prices are in U.S. dollars and are based on delivery as stated above. Prices do not include any charges for services such as insurance; brokerage fees; sales, use, inventory or excise taxes; import or export duties; special financing fees; VAT, income or royalty taxes imposed outside the U.S.; consular fees; special permits or licenses; or other charges imposed upon the production, sale, distribution, or delivery of Products. Buyer will either pay any and all such charges or provide Hach with acceptable exemption certificates, which obligation survives performance under this Contract. Hach reserves the right to establish minimum order sizes and will advise Buyer accordingly.
6. PAYMENTS:
All payments must be made in U.S. dollars. For Internet orders, the purchase price is due at the time and manner set forth at www.hach.com. Invoices for all other orders are due and payable NET 30 DAYS from date of the invoice without regard to delays for inspection or transportation, with payments to be made by check to Hach at the above address or by wire transfer to the account stated on the front of Hach's invoice, or for customers with no established credit, Hach may require cash or credit card payment in advance of delivery. In the event payments are not made or not made in a timely manner, Hach may, in addition to all other remedies provided at law, either: (a) declare Buyer's performance in breach and terminate this Contract for default; (b) withhold future shipments until delinquent payments are made; (c) deliver future shipments on a cash-with-order or cash-in-advance basis even after the delinquency is cured; (d) charge interest on the delinquency at a rate of 1-1/2% per month or the maximum rate permitted by law, if lower, for each month or part thereof of delinquency in payment plus applicable storage charges and/or inventory carrying charges; (e) repossess the Products for which payment has not been made; (f) recover all costs of collection including reasonable attorney's fees; or (g) combine any of the above rights and remedies as is practicable and permitted by law. Buyer is prohibited from setting off any and all monies owed under this from any other sums, whether liquidated or not, that are or may be due Buyer, which arise out of a different transaction with Hach or any of its affiliates. Should Buyer's financial responsibility become unsatisfactory to Hach in its reasonable discretion, Hach may require cash payment or other security. If Buyer fails to meet these requirements, Hach may treat such failure as reasonable grounds for repudiation of this Contract, in which case reasonable cancellation charges shall be due Hach. Buyer grants Hach a security interest in the Products to secure payment in full, which payment releases the security interest but only if such payments could not be considered an avoidable transfer under the U.S. Bankruptcy Code or other applicable laws. Buyer's insolvency, bankruptcy, assignment for the benefit of creditors, or issolution or termination of the existence of Buyer, constitutes a default under this Contract and affords Hach all the remedies of a secured party under the U.C.C., as well as the remedies stated above for late payment or non-payment.
7. LIMITED WARRANTY:
Hach warrants that Products sold hereunder will be free from defects in material and workmanship and will, when used in accordance with the manufacturer's operating and maintenance instructions, conform to any express written warranty pertaining to the specific goods purchased, which for most Hach instruments is for a period of twelve (12) months from delivery. Hach warrants that services furnished hereunder will be free from defects in workmanship for a period of ninety (90) days from the completion of the services. Parts provided by Hach in the performance of services may be new or refurbished parts functioning equivalent to new parts. Any non-functioning parts that are repaired by Hach shall become the property of Hach. No warranties are extended to consumable items such as, without limitation, reagents, batteries, mercury cells, and light bulbs. All other guarantees, warranties, conditions and representations, either express or implied, whether arising under any statute, law, commercial usage or otherwise, including implied warranties of merchantability and fitness for a particular purpose, are hereby excluded. The sole remedy for Products not meeting this Limited Warranty is replacement, credit or refund of the purchase price. This remedy will not be deemed to have failed of its essential purpose so long as Hach is willing to provide such replacement, credit or refund.
8. INDEMNIFICATION:
Indemnification applies to a party and to such party's successors-in-interest, assignees, affiliates, directors, officers, and employees ("Indemnified Parties"). Hach is responsible for and will defend, indemnify and hold harmless the Buyer Indemnified Parties against all losses, claims, expenses or damages which may result from accident, injury, damage, or death due to Hach's breach of the Limited Warranty. This indemnification is provided on the condition that the Buyer is likewise responsible for and will defend, indemnify and hold harmless the Hach Indemnified Parties against all losses, claims, expenses or damages which may result from accident, injury, damage, or death due to the negligence or misuse or misapplication of any goods or services by the Buyer or any third party affiliated or in privity with Buyer.
9. PATENT PROTECTION:
Subject to all limitations of liability provided herein, Hach will, with respect to any Products of Hach's design or manufacture, indemnify Buyer from any and all damages and costs as finally determined by a court of competent jurisdiction in any suit for infringement of any U.S. patent (or European patent for Products that Hach sells to Buyer for end use in a member state of the E.U.) that has issued as of the delivery date, solely by reason of the sale or normal use of any Products sold to Buyer hereunder and from reasonable expenses incurred by Buyer in defense of such suit if Hach does not undertake the defense thereof, provided that Buyer promptly notifies Hach of such suit and offers Hach either (i) full and exclusive control of the defense of such suit when Products of Hach only are involved, or (ii) the right to participate in the defense of such suit when products other than those of Hach are also involved. Hach's warranty as to use patents only applies to infringement arising solely out of the inherent operation of the Products according to their applications as envisioned by Hach's specifications. In case the Products are in such suit held to constitute infringement and the use of the Products is enjoined, Hach will, at its own expense and at its option, either procure for Buyer the right to continue using such Products or replace them with non-infringing products, or modify them so they become non-infringing, or remove the Products and refund the purchase price (prorated for depreciation) and the transportation costs thereof. The foregoing states the entire liability of Hach for patent infringement by the Products. Further, to the same extent as set forth in Hach's above obligation to Buyer, Buyer agrees to defend, indemnify and hold harmless Hach for patent infringement related to (x) any goods manufactured to the Buyer's design, (y) services provided in accordance with the Buyer's instructions, or (z) Hach's Products when used in combination with any other devices, parts or software not provided by Hach hereunder. #15..
- 707 -
HACH SERVICE PARTNERSHIP
QUOTATION
Page :
Partnership Number :
8 of 9
HACH236382
Headquarters
P.O. Box 389
5600 Lindbergh Drive
Loveland, CO 80539-0389
Purchase Orders
WebSite: www.hach.com Remittance
2207 Collections Center Dr
Chicago, IL 60693
Wire Transfers
Bank of America
231 S. LaSalle St.
Chicago, IL 60604
Account: 8765602385
Routing (ABA): 026009593
10. TRADEMARKS AND OTHER LABELS:
Buyer agrees not to remove or alter any indicia of manufacturing origin or patent numbers contained on or within the Products, including without limitation the serial numbers or trademarks on nameplates or cast, molded or machined components.
11. SOFTWARE:.
All licenses to Hach's separately-provided software products are subject to the separate software license agreement(s) accompanying the software media. In the absence of such terms and for all other software, Hach grants Buyer only a personal, non-exclusive license to access and use the software provided by Hach with Products purchased hereunder solely as necessary for Buyer to enjoy the benefit of the Products. A portion of the software may contain or consist of open source software, which Buyer may use under the terms and conditions of the specific license under which the open source software is distributed. Buyer agrees that it will be bound by any and all such license agreements. Title to software remains with the applicable licensor(s).
12 . PROPRIETARY INFORMATION; PRIVACY:
"Proprietary Information" means any information, technical data or know-how in whatever form, whether documented, contained in machine readable or physical components, mask works or artwork, or otherwise, which Hach considers proprietary, including but not limited to service and maintenance manuals. Buyer and its customers, employees and agents will keep confidential all such Proprietary Information obtained directly or indirectly from Hach and will not transfer or disclose it without Hach's prior written consent, or use it for the manufacture, procurement, servicing or calibration of Products or any similar products, or cause such products to be manufactured, serviced or calibrated by or procured from any other source, or reproduce or otherwise appropriate it. All such Proprietary Information remains Hach's property. No right or license is granted to Buyer or its customers, employees or agents, expressly or by implication, with respect to the Proprietary Information or any patent right or other proprietary right of Hach, except for the limited use licenses implied by law. Hach will manage Customer's information and personal data in accordance with its Privacy Policy, located at http://www.hach.com/privacypolicy.
13. CHANGES AND ADDITIONAL CHARGES:
Hach reserves the right to make design changes or improvements to any products of the same general class as Products being delivered hereunder without liability or obligation to incorporate such changes or improvements to Products ordered by Buyer unless agreed upon in writing before the Products' delivery date. Services which must be performed as a result of any of the following conditions are subject to additional charges for labor, travel and parts: (a) equipment alterations not authorized in writing by Hach; (b) damage resulting from improper use or handling, accident, neglect, power surge, or operation in an environment or manner in which the instrument is not designed to operate or is not in accordance with Hach's operating manuals; (c) the use of parts or accessories not provided by Hach; (d) damage resulting from acts of war, terrorism or nature; (e) services outside standard business hours; (f) site prework not complete per proposal; or (g) any repairs required to ensure equipment meets manufacturer's specifications upon activation of a service agreement.
14. SITE ACCESS / PREPARATION / WORKER SAFETY / ENVIRONMENTAL COMPLIANCE:
In connection with services provided by Hach, Buyer agrees to permit prompt access to equipment. Buyer assumes full responsibility to back-up or otherwise protect its data against loss, damage or destruction before services are performed. Buyer is the operator and in full control of its premises, including those areas where Hach employees or contractors are performing service, repair and maintenance activities. Buyer will ensure that all necessary measures are taken for safety and security of working conditions, sites and installations during the performance of services. Buyer is the generator of any resulting wastes, including without limitation hazardous wastes. Buyer is solely responsible to arrange for the disposal of any wastes at its own expense. Buyer will, at its own expense, provide Hach employees and contractors working on Buyer's premises with all information and training required under applicable safety compliance regulations and Buyer's policies. If the instrument to be serviced is in a Confined Space, as that term is defined under OSHA regulations, Buyer is solely responsible to make it available to be serviced in an unconfined space. Hach service technicians will not work in Confined Spaces. In the event that a Buyer requires Hach employees or contractors to attend safety or compliance training programs provided by Buyer, Buyer will pay Hach the standard hourly rate and expense reimbursement for such training attended. The attendance at or completion of such training does not create or expand any warranty or obligation of Hach and does not serve to alter, amend, limit or supersede any part of this Contract.
15. LIMITATIONS ON USE:
Buyer will not use any Products for any purpose other than those identified in Hach's catalogs and literature as intended uses. Unless Hach has advised the Buyer in writing, in no event will Buyer use any Products in drugs, food additives, food or cosmetics, or medical applications for humans or animals. In no event will Buyer use in any application any Product that requires FDA 510(k) clearance unless and only to the extent the Product has such clearance. Any warranty granted by Hach is void if any goods covered by such warranty are used for any purpose not permitted hereunder.
16. EXPORT AND IMPORT LICENSES AND COMPLIANCE WITH LAWS:
Unless otherwise specified in this Contract, Buyer is responsible for obtaining any required export or import licenses. Hach represents that all Products delivered hereunder will be produced and supplied in compliance with all applicable laws and regulations. Buyer will comply with all laws and regulations applicable to the installation or use of all Products, including applicable import and export control laws and regulations of the U.S., E.U. and any other country having proper jurisdiction, and will obtain all necessary export licenses in connection with any subsequent export, re-export, transfer and use of all Products and technology delivered hereunder. Buyer will not sell, transfer, export or re-export any Hach Products or technology for use in activities which involve the design, development, production, use or stockpiling of nuclear, chemical or biological weapons or missiles, nor use Hach Products or technology in any facility which engages in activities relating to such weapons. Buyer will comply with all local, national, and other laws of all jurisdictions globally relating to anti-corruption, bribery, extortion, kickbacks, or similar matters which are applicable to Buyer's business activities in connection with this Contract, including but not limited to the U.S. Foreign Corrupt Practices Act of 1977, as amended (the "FCPA"). Buyer agrees that no payment of money or provision of anything of value will be offered, promised, paid or transferred, directly or indirectly, by any person or entity, to any government official, government employee, or employee of any company owned in part by a government, political party, political party official, or candidate for any government office or political party office to induce such organizations or persons to use their authority or influence to obtain or retain an improper business advantage for Buyer or for Hach, or which otherwise constitute or have the purpose or effect of public or commercial bribery, acceptance of or acquiescence in extortion, kickbacks or other unlawful or improper means of obtaining business or any improper advantage, with respect to any of Buyer's activities related to this Contract. Hach asks Buyer to "Speak Up!" if aware of any violation of law, regulation or our Standards of Conduct ("SOC") in relation to this Contract. See http://danaher.com/integrity-and-compliance and www.danaherintegrity.com for a copy of the SOC and for access to our Helpline portal.
17. FORCE MAJEURE:
Hach is excused from performance of its obligations under this Contract to the extent caused by acts or omissions that are beyond its control of, including but not limited to Government embargoes, blockages, seizures or freeze of assets, delays or refusals to grant an export or import license or the suspension or revocation thereof, or any other acts of any Government; fires, floods,severe weather conditions, or any other acts of God; quarantines; labor strikes or lockouts; riots; strife; insurrections; civil disobedience or acts of criminals or terrorists; war; material shortages or delays in deliveries to Hach by third parties. In the event of the existence of any force majeure circumstances, the period of time for delivery, payment terms and payments under any letters of credit will be extended for a period of time equal to the period of delay. If the force majeure circumstances extend for six months, Hach may, at its option, terminate this Contract without penalty and without being deemed in default or in breach thereof.
18. NON ASSIGNMENT AND WAIVER:
Buyer will not transfer or assign this Contract or any rights or interests hereunder without Hach's prior written consent. Failure of either party to insist upon strict performance of any provision of this Contract, or to exercise any right or privilege contained herein, or the waiver of any breach of the terms or conditions of this Contract will not be construed as thereafter waiving any such terms, conditions, rights, or privileges, and the same will continue and remain in force and effect as if no waiver had occurred.
19. LIMITATION OF LIABILITY:
None of the Hach Indemnified Parties will be liable to Buyer under any circumstances for any special, treble, incidental or consequential damages, including without limitation, damage to or loss of property other than for the Products purchased hereunder; damages incurred in installation, repair or replacement; lost profits, revenue or opportunity; loss of use; losses resulting from or related to downtime of the products or inaccurate measurements or reporting; the cost of substitute products; or claims of Buyer's customers for such damages, howsoever caused, and whether based on warranty, contract, and/or tort (including negligence, strict liability or otherwise). The total liability of the Hach Indemnified Parties arising out of the performance or nonperformance hereunder or Hach's obligations in connection with the design, manufacture, sale, delivery, and/or use of Products will in no circumstance exceed in the aggregate a sum equal to twice the amount actually paid to Hach for Products delivered hereunder.
20. APPLICABLE LAW AND DISPUTE RESOLUTION:
The construction, interpretation and performance hereof and all transactions hereunder shall be governed by the laws of the State of Colorado, without regard to its principles or laws regarding conflicts of laws. If any provision of this Contract violates any Federal, State or local statutes or regulations of any countries having jurisdiction of this transaction, or is illegal for any reason, said provision shall be self-deleting without affecting the validity of the remaining provisions. Unless otherwise specifically agreed upon in writing between Hach and Buyer, any dispute relating to this Contract which is not resolved by the parties shall be adjudicated in order of preference by a court of competent jurisdiction (i) in the State of Colorado, U.S.A. if Buyer has minimum contacts with Colorado and the U.S., (ii) elsewhere in the U.S. if Buyer has minimum contacts with the U.S. but not Colorado, or (iii) in a neutral location if Buyer does not have minimum contacts with the United States.
21. ENTIRE AGREEMENT & MODIFICATION:
These Terms & Conditions of Sale constitute the entire agreement between the parties and supersede any prior agreements or representations, whether oral or written. No change to or modification of these Terms & Conditions shall be binding upon Hach unless in a written instrument specifically referencing that it is amending these Terms & Conditions of Sale and signed by an authorized representative of Hach. Hach rejects any additional or inconsistent Terms & Conditions of Sale offered by #15..
- 708 -
HACH SERVICE PARTNERSHIP
QUOTATION
Page :
Partnership Number :
9 of 9
HACH236382
Headquarters
P.O. Box 389
5600 Lindbergh Drive
Loveland, CO 80539-0389
Purchase Orders
WebSite: www.hach.com Remittance
2207 Collections Center Dr
Chicago, IL 60693
Wire Transfers
Bank of America
231 S. LaSalle St.
Chicago, IL 60604
Account: 8765602385
Routing (ABA): 026009593
Buyer at any time, whether or not such terms or conditions materially alter the Terms & Conditions herein and irrespective of Hach's acceptance of Buyer's order for the described goods and services. #15..
- 709 -
Quotation
Quote Date: 13-Jun-2023 Quote Expiration: 13-Aug-2023
Quote Number: 100919267v4
Use quote number at time of order to ensure
that you receive prices quoted
Hach
Phone: (800) 227-4224
Email: [email protected]
Website: www.hach.com
PO Box 608
Loveland, CO 80539-0608
70.29 3,514.50
71.57 715.70
105.02 315.06
54.46 108.92
92.50 1,850.00
702.99 7,029.90
702.99 1,405.98
16,504.75 33,009.50
3,451.82 6,903.64
CITY OF MODESTO
ACCTS PAYABLE
PO BOX 642
MODESTO, CA 95353-0642
Name: Michelle Tapley
Phone: 209-577-6316
Email: [email protected]
Customer Account Number : 109327
Customer Quote Reference: BUDGETARY QUOTE
Sales Contact: Julia Johnson Email: [email protected] Phone: 916-479-6512
PRICING QUOTATION
Line Part Number Description Qty Net Unit Price Extended Price 2024
1 2105560 DPD Free Chlorine Reagent, Swiftest™ Dispenser Refill Vial, Approximately 250 Tests. Standard lead time 5 days. 50
2 2427606 Sample Cell: 1" Round Glass 10mL. Standard lead time 5 days. 10 3 2444400 Chlorine (Total) Test Kit, Model CN-21P. Standard lead time 10 days. 3 4 2769920 Singlet Single-Use pH Buffer Kit, pH 4.01 & 7.00, pk/2x10. Standard lead time 5 days. 2
5 2802300 DPD Free Chlorine Reagent, Swiftest™ Dispenser. Standard lead time 5 days. 20 6 LPV445.97.00110 DR300 Pocket Colorimeter, Chlorine, Free + Total, LR/HR, with Box. Standard lead time 5 days. 10
7 LPV445.97.02110 DR300 Pocket Colorimeter, Nitrate, with Box. Standard lead time 10 days. 2 8 LXV448.99.21001 NT3100sc UV Nitrate Sensor, 2 mm path length. Standard lead time 15 days. 2 9 LXV525.99A11551 SC4500 Controller, Prognosys, 5x mA Output, 2 digital Sensors, 100-240 VAC, without power cord. Standard lead time 10 days. 2
#15..
- 710 -
Line Part Number Description Qty Net Unit Price Extended Price 3,751.42 7,502.84
981.19 1,962.38
64,318.42
74.89 3,744.50
76.25 762.50
111.89 335.67
58.03 116.06
98.55 1,971.00
748.98 7,489.80
748.98 1,497.96
17,584.50 35,169.00
3,677.64 7,355.28
3,996.84 7,993.68
1,045.38 2,090.76
68,526.21
79.48 3,974.00
80.94 809.40
118.76 356.28
61.59 123.18
104.60 2,092.00
794.97 7,949.70
794.97 1,589.94
18,664.25 37,328.50
3,903.46 7,806.92
4,242.26 8,484.52
1,109.57 2,219.14
72,733.58
205,578.21
10 LZX869 Flow through unit for NT3100sc/NT3200sc 1/2 mm, Nitratax plus sc 2 mm, Uvas plus sc 2 mm probe. Standard lead time 25 days. 2
11 PRO-C3A1N PRO Series Transmitter, Contacting Conductivity. Standard lead time 5 days. 2 2024 $
2025
12 2105560 DPD Free Chlorine Reagent, Swiftest™ Dispenser Refill Vial, Approximately 250 Tests. Standard lead time 5 days. 50
13 2427606 Sample Cell: 1" Round Glass 10mL. Standard lead time 5 days. 10 14 2444400 Chlorine (Total) Test Kit, Model CN-21P. Standard lead time 10 days. 3 15 2769920 Singlet Single-Use pH Buffer Kit, pH 4.01 & 7.00, pk/2x10. Standard lead time 5 days. 2
16 2802300 DPD Free Chlorine Reagent, Swiftest™ Dispenser. Standard lead time 5 days. 20 17 LPV445.97.00110 DR300 Pocket Colorimeter, Chlorine, Free + Total, LR/HR, with Box. Standard lead time 5 days. 10
18 LPV445.97.02110 DR300 Pocket Colorimeter, Nitrate, with Box. Standard lead time 10 days. 2 19 LXV448.99.21001 NT3100sc UV Nitrate Sensor, 2 mm path length. Standard lead time 15 days. 2 20 LXV525.99A11551 SC4500 Controller, Prognosys, 5x mA Output, 2 digital Sensors, 100-240 VAC, without power cord. Standard lead time 10 days. 2
21 LZX869 Flow through unit for NT3100sc/NT3200sc 1/2 mm, Nitratax plus sc 2 mm, Uvas plus sc 2 mm probe. Standard lead time 25 days. 2
22 PRO-C3A1N PRO Series Transmitter, Contacting Conductivity. Standard lead time 5 days. 2 2025 $
2026
23 2105560 DPD Free Chlorine Reagent, Swiftest™ Dispenser Refill Vial, Approximately 250 Tests. Standard lead time 5 days. 50
24 2427606 Sample Cell: 1" Round Glass 10mL. Standard lead time 5 days. 10 25 2444400 Chlorine (Total) Test Kit, Model CN-21P. Standard lead time 10 days. 3 26 2769920 Singlet Single-Use pH Buffer Kit, pH 4.01 & 7.00, pk/2x10. Standard lead time 5 days. 2
27 2802300 DPD Free Chlorine Reagent, Swiftest™ Dispenser. Standard lead time 5 days. 20 28 LPV445.97.00110 DR300 Pocket Colorimeter, Chlorine, Free + Total, LR/HR, with Box. Standard lead time 5 days. 10
29 LPV445.97.02110 DR300 Pocket Colorimeter, Nitrate, with Box. Standard lead time 10 days. 2 30 LXV448.99.21001 NT3100sc UV Nitrate Sensor, 2 mm path length. Standard lead time 15 days. 2 31 LXV525.99A11551 SC4500 Controller, Prognosys, 5x mA Output, 2 digital Sensors, 100-240 VAC, without power cord. Standard lead time 10 days. 2
32 LZX869 Flow through unit for NT3100sc/NT3200sc 1/2 mm, Nitratax plus sc 2 mm, Uvas plus sc 2 mm probe. Standard lead time 25 days. 2
33 PRO-C3A1N PRO Series Transmitter, Contacting Conductivity. Standard lead time 5 days. 2 2026 $
Grand Total $
NOTES
This is a budgetary quotation and the pricing on the quotation is estimated pricing only and is subject to change.
TERMS OF SALE
Freight: Ground Prepay and Add FCA: Hach's facility
ALL LEAD TIMES ARE ESTIMATED AND NOT GUARANTEED.
All purchases of Hach Company products and/or services are expressly and without limitation subject to Hach Company's Terms & Conditions of Sale ("Hach TCS"), incorporated herein by reference and published on Hach Company's website at www.hach.com/terms. Hach TCS are contained directly and/or by reference in Hach's offer, order acknowledgment, and invoice documents. The first of the following acts constitutes an acceptance of Hach's offer and not a counteroffer and creates a contract of sale "Contract" in accordance with the Hach TCS: (i) Buyer's issuance of a purchase order document against Hach's offer; (ii) acknowledgement of Buyer's order by Hach; or (iii) commencement of any performance by Hach pursuant to Buyer's order. Provisions contained in Buyer's purchase documents (including electronic commerce interfaces) that materially alter, add to or subtract from the provisions of the Hach TCS are not part of the Contract.
#15..
- 711 -
Due to International regulations, a U.S. Department of Commerce Export License may be required. Hach reserves the right to approve specific shipping agents. Wooden boxes suitable for ocean shipment are extra. Specify final destination to ensure proper documentation and packing suitable for International transport. In addition, Hach may require : 1). A statement of intended end-use; 2).Certification that the intended end-use does not relate to proliferation of weapons of mass destruction (prohibited nuclear end use, chemical / biological weapons, missile technology); and 3). Certification that the goods will not be diverted contrary to U.S. and/or applicable laws in force in Buyer’s jurisdiction.
ORDER TERMS:
Terms are Subject to Credit Review
In order for Hach to process the order as quickly as possible, please provide the following information. • Complete Billing address.
• Complete Shipping address.
• Part numbers and quantities of items being ordered.
• Please reference the quotation number on your purchase order If the order is over $25,000 Hach will also require the following additional information. • Pricing
• Purchase Order Number
• Freight terms and INCO term FOB Origin or FCA Shipping Point • Required delivery date
• Vendor name should specify “Hach Company” with the Loveland address:
o Hach, PO Box 389, Loveland, CO 80539
• Credit terms of payment. Default payment terms are Net 30. • Indicate if order needs to ship complete or if it can ship partial. • Tax status
• Special invoicing instructions
Sales tax is not included on quote. Applicable sales tax will be added to the invoice based on the U.S. destination, if applicable provide a resale/exemption certificate.
Shipments will be prepaid and added to invoices unless otherwise specified.
Equipment quoted operates with standard U.S. supply voltage.
Hach standard terms and conditions apply to all sales.
Additional terms and conditions apply to orders for service partnerships.
Prices do not include delivery of product. Reference attached Freight Charge Schedule and Collect Handling Fees.
This Quote is good for a one time purchase
Virtual and/or on-site training must be scheduled/completed within 30 days of order, or the price will be subject to change.
Sales Contact:
Name: Julia Johnson
Title: Regional Sales Manager
Phone: 916-479-6512
Email: [email protected] Page 3 of 3
#15..
- 712 -
HACH COMPANY
Headquarters U.S.A. Remittance
Quotation Addendum
P.O. Box 389
5600 Lindbergh Drive
Loveland, CO 80539-0389
Purchase Orders
PO Box 608
Loveland, CO 80539-0608
WebSite: www.hach.com
Phone: 800-227-4224
Fax: 970-669-2932
E-Mail: [email protected]
[email protected]
[email protected]
Export
Phone: 970-669-3050
Fax: 970-461-3939
Email: [email protected]
2207 Collections Center Drive
Chicago, IL 60693
Wire Transfers
Bank of America
231 S. LaSalle St.
Chicago, IL 60604
Account: 8765602385
Routing (ABA): 071000039
ADVANTAGES OF WORKING WITH HACH
Pick&Ship™ Technical Support
Protect your investment & peace of mind
✓ A global partner who understands your
needs
✓ Delivers timely, high-quality service you
can trust
✓ Provides team of unique experts to help
you maximize instrument uptime
✓ Ensure data integrity
✓ Maintain operational stability
✓ Reduce compliance risk
Pick&Ship™ Program offers a better way to
keep your supplies in stock
✓ Convenience of one purchase order for the
entire year
✓ Flexibility to change, cancel or create new
orders
✓ Savings from locking in prices & thus
avoiding price surges and rush charges
✓ Peace of mind with automatic, reliable
shipments just as you need them
Provides post-sale instrumentation and
application support
✓ Hach’s highly skilled Technical
Support staff is dedicated to helping
you resolve technical issues before,
during and after the sale.
✓ Available via phone, e-mail, or live
online chat at Hach.com!
✓ Fast access to answers at
https://support.hach.com
✓ Toll-free phone: 800-227-4224
✓ E-mail: [email protected]
www.hach.com/service-contracts www.Hach.com/pickandship www.Hach.com
ADVANTAGES OF SIMPLIFIED SHIPPING AND HANDLING
Safe & Fast Delivery Save Time – Less Hassle Save Money ✓ Receive tracking numbers on your order
acknowledgement
✓ Hach will assist with claims if an order is
lost or damaged in shipment
✓ No need to set up deliveries for orders or to
schedule pickup
✓ Hach ships order as product is available, at
no additional charge, when simplified
shipping and handling is used.
✓ No additional invoice to process –
save on time and administrative costs
✓ Only pay shipping once, even if
multiple shipments are required
STANDARD SIMPLIFIED SHIPPING AND HANDLING CHARGES 1, 2, 3, 4 Pricing Effective 6/3/2023 Collect 4 Total Price of
Merchandise Ordered
Standard
Surface
(Mainland USA)
Second Day
Delivery
(Mainland USA)
Next Day
Delivery
(Mainland USA)
Second Day
Delivery
(Alaska & Hawaii)
Next Day
Delivery
(Alaska & Hawaii)
Handling Fee
Effective
6/3/2023
$0.00 - $49.99 $10.00 $25.01 $46.64 $40.14 $76.30 $8.00 $50.00 - $149.99 $12.00 $35.37 $66.74 $50.72 $96.42 $8.00 $150.00 - $349.99 $14.00 $37.35 $76.08 $51.51 $98.85 $8.00 $350.00 - $649.99 $16.00 $41.84 $83.20 $52.30 $101.27 $8.00 $650.00 - $949.99 $16.00 $50.69 $104.55 $61.58 $119.19 $8.00 $950.00 - $1,999.99 $28.00 $59.54 $125.90 $70.86 $137.10 $8.00 $2,000.00 - $3,999.99 $28.00 $73.62 $153.60 $84.76 $164.64 $8.00 $4,000.00 - $5,999.99 $50.00 $87.69 $181.30 $98.66 $192.18 $8.00 $6,000.00 - $7,999.99 $60.00 $101.39 $209.64 $110.51 $213.06 $8.00 $8,000.00 - $9,999.99 $90.00 $151.46 $295.96 $162.06 $307.35 $8.00 Over $10,000 1.0% of Net
Order Value
1.8% of Net
Order Value
2.8% of Net
Order Value
1.8% of Net
Order Value
2.8% of Net
Order Value
$8.00
1 Shipping & Handling charges shown are only applicable to orders billing and shipping to U.S. destinations. Shipping & Handling charges will be prepaid and added to invoice.
Shipping & Handling for the Pick&Ship Program is charged on each shipment release and is based on the total price of each shipment release. Shipping & Handling charges are subject to change without notice.
2 Additional Shipping & Handling charges will be applied to orders containing bulky and/or especially heavy orders. Refrigerated and all weather Samplers do not qualify for simplified Shipping & Handling charges, and are considered heavy products. Dissolved Oxygen Sensors can be damaged if exposed to temps below freezing, causing sensor failure. Must be shipped over night or 2nd day air during the cold weather months. 3 Orders shipping to Alaska or Hawaii: Additional Shipping & Handling charges may be applied at time of order processing. Second Day and Next Day delivery is not available to all destinations.
4 Hach Company will assess a collect handling fee on orders with collect shipping terms. This handling fee covers the additional costs that Hach Company incurs from processing and managing collect shipments.
Due to variations in component characteristics, regulatory transportation requirements and/or associated shipping and handling costs, individual kit components may or may not be packaged together in a single carton at time of final packaging and shipping.
SALES TAX
Sales Tax is not included in the attached quotation. Applicable sales and usage taxes will be added to your invoice, at the time of order, based on U.S. destination of goods, unless a valid resale/exemption certificate for destination state is provided to the above address or fax number, attention of the Tax Dept. #15..
- 713 -
Confidential - Company Proprietary
TERMS & CONDITIONS OF SALE FOR HACH COMPANY PRODUCTS AND SERVICES This document sets forth the Terms & Conditions of Sale for goods manufactured and/or supplied, and services provided, by Hach Company of Loveland, Colorado (“Hach”) and sold to the original purchaser thereof (“Buyer”). Unless otherwise specifically stated herein, the term “Hach” includes only Hach Company and none of its affiliates. Unless otherwise specifically stated in a previously-executed written purchase agreement signed by authorized representatives of Hach and Buyer, these Terms & Conditions of Sale establish the rights, obligations and remedies of Hach and Buyer which apply to this offer and any resulting order or contract for the sale of Hach’s goods and/or services (“Products”).
1. APPLICABLE TERMS & CONDITIONS: These Terms & Conditions of Sale are contained directly and/or by reference in Hach’s offer, order acknowledgment, and invoice documents. The first of the following acts constitutes an acceptance of Hach’s offer and not a counteroffer and creates a contract of sale (“Contract”) in accordance with these Terms & Conditions: (i) Buyer’s issuance of a purchase order document against Hach’s offer; (ii) acknowledgement of Buyer’s order by Hach; or (iii) commencement of any performance by Hach pursuant to Buyer’s order. Provisions contained in Buyer’s purchase documents (including electronic commerce interfaces) that materially alter, add to or subtract from the provisions of these Terms & Conditions of Sale are not a part of the Contract.
2. CANCELLATION: Buyer may cancel goods orders subject to fair charges for Hach’s expenses including handling, inspection, restocking, freight and invoicing charges as applicable, provided that Buyer returns such goods to Hach at Buyer’s expense within thirty (30) days of delivery and in the same condition as received. Buyer may cancel service orders on ninety (90) day’s prior written notice and refunds will be prorated based on the duration of the service plan. Inspections and re-instatement fees may apply upon cancellation or expiration of service programs. Seller may cancel all or part of any order prior to delivery without liability if the order includes any Products that Seller determines may not comply with export, safety, local certification, or other applicable compliance requirements.
3. DELIVERY: Delivery will be accomplished FCA Hach’s facility located in Ames, Iowa or Loveland, Colorado, United States (Incoterms 2010). Legal title and risk of loss or damage pass to Buyer upon transfer to the first carrier. Hach will use commercially reasonable efforts to deliver the Products ordered herein within the time specified on the face of this Contract or, if no time is specified, within Hach’s normal lead-time necessary for Hach to deliver the Products sold hereunder. Upon prior agreement with Buyer and for an additional charge, Hach will deliver the Products on an expedited basis. Standard service delivery hours are 8 am – 5 pm Monday through Friday, excluding holidays.
4. INSPECTION: Buyer will promptly inspect and accept any Products delivered pursuant to this Contract after receipt of such Products. In the event the Products do not conform to any applicable specifications, Buyer will promptly notify Hach of such nonconformance in writing. Hach will have a reasonable opportunity to repair or replace the nonconforming product at its option. Buyer will be deemed to have accepted any Products delivered hereunder and to have waived any such nonconformance in the event such a written notification is not received by Hach within thirty (30) days of delivery.
5. PRICES & ORDER SIZES: All prices are in U.S. dollars and are based on delivery as stated above. Prices do not include any charges for services such as insurance; brokerage fees; sales, use, inventory or excise taxes; import or export duties; special financing fees; VAT, income or royalty taxes imposed outside the U.S.; consular fees; special permits or licenses; or other charges imposed upon the production, sale, distribution, or delivery of Products. Buyer will either pay any and all such charges or provide Hach with acceptable exemption certificates, which obligation survives performance under this Contract. Hach reserves the right to establish minimum order sizes and will advise Buyer accordingly.
6. PAYMENTS: All payments must be made in U.S. dollars. For Internet orders, the purchase price is due at the time and manner set forth at www.hach.com. Invoices for all other orders are due and payable NET 30 DAYS from date of the invoice without regard to delays for inspection or transportation, with payments to be made by check to Hach at the above address or by wire transfer to the account stated on the front of Hach’s invoice, or for customers with no established credit, Hach may require cash or credit card payment in advance of delivery. In the event payments are not made or not made in a timely manner, Hach may, in addition to all other remedies provided at law, either: (a) declare Buyer’s performance in breach and terminate this Contract for default; (b) withhold future shipments until delinquent payments are made; (c) deliver future shipments on a cash-withorder or cash-in-advance basis even after the delinquency is cured; (d) charge interest on the delinquency at a rate of 1-1/2% (one and one half percent) per month or the maximum rate permitted by law, if lower, for each month or part thereof of delinquency in payment plus applicable storage charges and/or inventory carrying charges; (e) repossess the Products for which payment has not been made; (f) recover all costs of collection including reasonable attorney’s fees; or (g) combine any of the above rights and remedies as is practicable and permitted by law. Buyer is prohibited from setting off any and all monies owed under this from anyother sums, whether liquidated or not, that are or may be due Buyer, which arise out of a different transaction with Hach or any of its affiliates. Should Buyer’s financial responsibility become unsatisfactory to Hach in its reasonable discretion, Hach may require cash payment or other security. If Buyer fails to meet these requirements, Hach may treat such failure as reasonable grounds for repudiation of this Contract, in which case reasonable cancellation charges shall be due Hach. Buyer grants Hach a security interest in the Products to secure payment in full, which payment releases the security interest but only if such payments could not be considered an avoidable transfer under the U.S. Bankruptcy Code or other applicable laws. Buyer’s insolvency, bankruptcy, assignment for the benefit of creditors, or dissolution or termination of the existence of Buyer, constitutes a default under this Contract and affords Hach all the remedies of a secured party under the U.C.C., as well as the remedies stated above for late payment or non-payment. See ¶20 for further wire transfer requirements.
7. LIMITED WARRANTY: Hach warrants that Products sold hereunder will be free from defects in material and workmanship and will, when used in accordance with the manufacturer’s operating and maintenance instructions, conform to any express written warranty pertaining to the specific goods purchased, which for most Hach instruments is for a period of twelve (12) months from delivery. Hach warrants that services furnished hereunder will be free from defects in workmanship for a period of ninety (90) days from the completion of the services. Parts provided by Hach in the performance of services may be new or refurbished parts functioning equivalent to new parts.
Any non-functioning parts that are repaired by Hach shall become the property of Hach. No warranties are extended to consumable items such as, without limitation, reagents, batteries, mercury cells, and light bulbs. All other guarantees, warranties, conditions and representations, either express or implied, whether arising under any statute, law, commercial usage or otherwise, including implied warranties of merchantability and fitness for a particular purpose, are hereby excluded. The sole remedy for Products not meeting this Limited Warranty is replacement, credit or refund of the purchase price. This remedy will not be deemed to have failed of its essential purpose so long as Hach is willing to provide such replacement, credit or refund.
8. INDEMNIFICATION: Indemnification applies to a party and to such party’s successors-in-interest, assignees, affiliates, directors, officers, and employees (“Indemnified Parties”). Hach is responsible for and will defend, indemnify and hold harmless the Buyer Indemnified Parties against all losses, claims, expenses or damages which may result from accident, injury, damage, or death due to Hach’s breach of the Limited Warranty. Buyer is responsible for and will defend, indemnify and hold harmless the Hach Indemnified Parties against all losses, claims, expenses or damages which may result from accident, injury, damage, or death due to negligence, misuse or misapplication of anygoods or services, violations of law, or the breach of any provision of this Contract by the Buyer, its affiliates, or those employed by, controlled by or in privity with them. Buyer’s workers’ compensation immunity, if any, does not preclude or limit its indemnification obligations.
9. PATENT PROTECTION: Subject to all limitations of liability provided herein, Hach will, with respect to any Products of Hach’s design or manufacture, indemnify Buyer from any and all damages and costs as finally determined by a court of competent jurisdiction in any suit for infringement of any U.S. patent (or European patent for Products that Hach sells to Buyer for end use in a member state of the E.U.) that has issued as of the delivery date, solely by reason of the sale or normal use of any Products sold to Buyer hereunder and from reasonable expenses incurred by Buyer in defense of such suit if Hach does not undertake the defense thereof, provided that Buyer promptly notifies #15..
- 714 -
TERMS AND CONDITIONS OF SALE FOR HACH® PRODUCTS
v. 2022-11-07 2
Confidential - Company Proprietary
Hach of such suit and offers Hach either (i) full and exclusive control of the defense of such suit when Products of Hach only are involved, or (ii) the right to participate in the defense of such suit when products other than those of Hach are also involved. Hach’s warranty as to use patents only applies to infringement arising solely out of the inherent operation of the Products according to their applications as envisioned by Hach’s specifications. In case the Products are in such suit held to constitute infringement and the use of the Products is enjoined, Hach will, at its own expense and at its option, either procure for Buyer the right to continue using such Products or replace them with non-infringing products, or modify them so they become non-infringing, or remove the Products and refund the purchase price (prorated for depreciation) and the transportation costs thereof. The foregoing states the entire liability of Hach for patent infringement by the Products. Further, to the same extent as set forth in Hach’s above obligation to Buyer, Buyer agrees to defend, indemnify and hold harmless Hach for patent infringement related to (x) any goods manufactured to the Buyer’s design, (y) services provided in accordance with the Buyer’s instructions, or (z) Hach’s Products when used in combination with any other devices, parts or software not provided by Hach hereunder.
10. TRADEMARKS AND OTHER LABELS: Buyer agrees not to remove or alter any indicia of manufacturing origin or patent numbers contained on or within the Products, including without limitation the serial numbers or trademarks on nameplates or cast, molded or machined components.
11. SOFTWARE AND DATA. All licenses to Hach’s separately-provided software products are subject to the separate software license agreement(s) accompanying the software media and/or included as an Appendix to these Terms & Conditions of Sale. Except to the extent such express licenses conflict with the remainder of this paragraph, the following also applies relative to Hach’s software: Hach grants Buyer only a personal, non-exclusive license to access and use the software provided by Hach with Products purchased hereunder solely as necessary for Buyer to enjoy the benefit of the Products. A portion of the software may contain or consist of open source software, which Buyer may use under the terms and conditions of the specific license under which the open source software is distributed. Buyer agrees that it will be bound by all such license agreements. Title to software remains with the applicable licensor(s). In connection with Buyer’s use of Products, Hach may obtain, receive, or collect data or information, including data produced by the Products.
In such cases, Buyer grants Hach a non-exclusive, worldwide, royalty-free, perpetual, non-revocable license to use, compile, distribute, display, store, process, reproduce, or create derivative works of such data, or to aggregate such data for use in an anonymous manner, solely to facilitate marketing, sales and R&D activities of Hach and its affiliates.
12. PROPRIETARY INFORMATION; PRIVACY: “Proprietary Information” means any information, technical data or know-how in whatever form, whether documented, contained in machine readable or physical components, mask works or artwork, or otherwise, which Hach considers proprietary, including but not limited to service and maintenance manuals. Buyer and its customers, employees and agents will keep confidential all such Proprietary Information obtained directly or indirectly from Hach and will not transfer or disclose it without Hach’s prior written consent, or use it for the manufacture, procurement, servicing or calibration of Products or any similar products, or cause such products to be manufactured, serviced or calibrated by or procured from any other source, or reproduce or otherwise appropriate it. All such Proprietary Information remains Hach’s property. No right or license is granted to Buyer or its customers, employees or agents, expressly or by implication, with respect to the Proprietary Information or any patent right or other proprietary right of Hach, except for the limited use licenses implied by law.
Hach will manage Customer’s information and personal data in accordance with its Privacy Policy, located at http://www.hach.com/privacypolicy.
13. CHANGES AND ADDITIONAL CHARGES: Hach reserves the right to make design changes or improvements to any products of the same general class as Products being delivered hereunder without liability or obligation to incorporate such changes or improvements to Products ordered by Buyer unless agreed upon in writing before the Products’ delivery date. Services which must be performed as a result of any of the following conditions are subject to additional charges for labor, travel and parts: (a) equipment alterations not authorized in writing by Hach; (b) damage resulting from improper use or handling, accident, neglect, power surge, or operation in an environment or manner in which the instrument is not designed to operate or is not in accordance with Hach’s operating manuals; (c) the use of parts or accessories not provided by Hach; (d) damage resulting from acts of war, terrorism or nature; (e) services outside standard business hours; (f) site prework not complete per proposal; or (g) any repairs required to ensure equipment meets manufacturer’s specifications upon activation of a service agreement.
14. SITE ACCESS / PREPARATION / WORKER SAFETY / ENVIRONMENTAL COMPLIANCE: In connection with services provided by Hach, Buyer agrees to permit prompt access to equipment. Buyer assumes full responsibility to backup or otherwise protect its data against loss, damage or destruction before services are performed. Buyer is the operator and in full control of its premises, including those areas where Hach employees or contractors are performing service, repair and maintenance activities. Buyer will ensure that all necessary measures are taken for safety and security of working conditions, sites and installations during the performance of services. Buyer is the generator of any resulting wastes, including without limitation hazardous wastes. Buyer is solely responsible to arrange for the disposal of any wastes at its own expense. Buyer will, at its own expense, provide Hach employees and contractors working on Buyer’s premises with all information and training required under applicable safety compliance regulations and Buyer’s policies. If the instrument to be serviced is in a Confined Space, as that term is defined under OSHA regulations, Buyer is solely responsible to make it available to be serviced in an unconfined space. Hach service technicians will not work in Confined Spaces. In the event that a Buyer requires Hach employees or contractors to attend safety or compliance training programs provided by Buyer, Buyer will pay Hach the standard hourly rate and expense reimbursement for such training attended.
The attendance at or completion of such training does not create or expand any warranty or obligation of Hach and does not serve to alter, amend, limit or supersede any part of this Contract.
15. LIMITATIONS ON USE: Buyer will not use any Products for any purpose other than those identified in Hach’s catalogs and literature as intended uses. Unless Hach has advised the Buyer in writing, in no event will Buyer use any Productsin drugs, food additives, food or cosmetics, or medical applications for humans or animals. In no event will Buyer use in any application any Product that requires FDA 510(k) clearance unless and only to the extent the Product has such clearance. Buyer will not sell, transfer, export or re-export any Hach Products or technology for use in activities which involve the design, development, production, use or stockpiling of nuclear, chemical or biological weapons or missiles, nor use Hach Products or technology in any facility which engages in activities relating to such weapons. Unless the “shipto” address is in California, U.S.A., the Products are not intended for sale in California and may lack markings required by California Proposition 65; accordingly, unless Buyer has ordered Products specifying a California ship-to address, Buyer will not sell or deliver any Hach Products for use in California.
Any warranty granted by Hach is void ifany goods covered by such warranty are used for any purpose not permitted hereunder.
16. EXPORT AND IMPORT LICENSES AND COMPLIANCE WITH LAWS:
Unless otherwise specified in this Contract, Buyer is responsible for obtaining any required export or import licenses. Buyer will comply with all laws and regulations applicable to the installation or use of all Products, including applicable import and export control laws and regulations of the U.S., E.U. and any other country having proper jurisdiction, and will obtain all necessary export licenses in connection with any subsequent export, re-export, transfer and use of all Products and technology delivered hereunder. Buyer will comply with all local, national, and other laws of all jurisdictions globally relating to anti-corruption, bribery, extortion, kickbacks, or similar matters which are applicable to Buyer’s business activities in connection with this Contract, including but not limited to the U.S. Foreign Corrupt Practices Act of 1977, as amended (the “FCPA”). Buyer agrees that no payment of money or provision of anything of value will be offered, promised, paid or transferred, directly or indirectly, by any person or entity, to any government official, government employee, or employee of any company owned in part by a government, political party, political party official, or candidate for any government office or political party office to induce such organizations or persons to use their authority or influence to obtain or retain an improper business advantage for Buyer or for Hach, or which otherwise constitute or have the purpose or effect of public or commercial bribery, acceptance of or acquiescence in extortion, kickbacks or other unlawful or improper means of obtaining business or any improper advantage, with respect to any of Buyer’s activities related to this Contract. Hach asks Buyer to “Speak Up!” if aware of any violation of law, regulation or our Standards of Conduct (“SOC”) in relation to this Contract. See http://danaher.com/integrity-and-compliance and www.danaherintegrity.com for a copy of the SOC and for access to our Helpline portal.
17. RELATIONSHIP OF PARTIES: Buyer is not an agent or representative of Hach and will not present itself as such under any circumstances unless and to
#15..
- 715 -
TERMS AND CONDITIONS OF SALE FOR HACH® PRODUCTS
v. 2022-11-07 3
Confidential - Company Proprietary
the extent it has been formally screened by Hach’s compliance department and received a separate duly-authorized letter from Hach setting forth the scope and limitations of such authorization.
18. FORCE MAJEURE: Hach is excused from performance of its obligations under this Contract to the extent caused by acts or omissions that are beyond its control of, including but not limited to Government embargoes, blockages, seizures or freeze of assets, delays or refusals to grant an export or import license or the suspension or revocation thereof, or any other acts of any Government; fires, floods, severe weather conditions, or any other acts of God; quarantines; labor strikes or lockouts; riots; strife; insurrections; civil disobedience or acts of criminals or terrorists; war; material shortages or delays in deliveries to Hach by third parties. In the event of the existence of any force majeure circumstances, the period of time for delivery, payment terms and payments under any letters of credit will be extended for a period of time equal to the period of delay. If the force majeure circumstances extend for six months, Hach may, at its option, terminate this Contract without penalty and without being deemed in default or in breach thereof.
19. NON ASSIGNMENT AND WAIVER: Buyer will not transfer or assign this Contract or any rights or interests hereunder without Hach’s prior written consent. Failure of either party to insist upon strict performance of any provision of this Contract, or to exercise any right or privilege contained herein, or the waiver of any breach of the terms or conditions of this Contract will not be construed as thereafter waiving any such terms, conditions, rights, or privileges, and the same will continue and remain in force and effect as if no waiver had occurred.
20. FUNDS TRANSFERS (PAYMENTS): Buyer and Hach both recognize that there is a risk of banking fraud when individuals impersonating a business demand payment under new banking or mailing instructions. To avoid this risk, Buyer must verbally confirm any new or changed bank transfer or mailing instructions by calling Hach at +1-970-663-1377 and speaking with Hach’s Credit Manager before mailing or transferring any monies using the new instructions.
Both parties agree that they will not institute mailing or bank transfer instruction changes and require immediate payment under the new instructions but will instead provide a ten (10) day grace period to verify any payment instruction changes before any new or outstanding payments are due using the new instructions.
21. LIMITATION OF LIABILITY: None of the Hach Indemnified Parties will be liable to any Buyer Indemnified Parties under any circumstances for any special, treble, incidental or consequential damages, including without limitation, damage to or loss of property other than for the Products purchased hereunder; damages incurred in installation, repair or replacement; lost profits, revenue or opportunity; loss of use; losses resulting from or related to downtime of the products or inaccurate measurements or reporting; the cost of substitute products; or claims of any Buyer Indemnified Parties’ customers for such damages, howsoever caused, and whether based on warranty, contract, and/or tort (including negligence, strict liability or otherwise). The total liability of the Hach Indemnified Parties arising out of the performance or nonperformance hereunder or Hach’s obligations in connection with the design, manufacture, sale, delivery, and/or use of Products will in no circumstance exceed in the aggregate a sum equal to twice the amount actually paid to Hach for Products delivered hereunder.
22. APPLICABLE LAW AND DISPUTE RESOLUTION: The construction, interpretation and performance hereof and all transactions hereunder shall be governed by the laws of the State of Colorado, without regard to its principles or laws regarding conflicts of laws. If any provision of this Contract violates any Federal, State or local statutes or regulations of any countries having jurisdiction of this transaction, or is illegal for any reason, said provision shall be self-deleting without affecting the validity of the remaining provisions.
Unless otherwise specifically agreed upon in writing between Hach and Buyer, any dispute relating to this Contract which is not resolved by the parties shall be adjudicated in order of preference by a court of competent jurisdiction (i) in the State of Colorado, U.S.A. if Buyer has minimum contacts with Colorado and the U.S., (ii) elsewhere in the U.S. if Buyer has minimum contacts with the U.S. but not Colorado, or (iii) in a neutral location if Buyer does not have minimum contacts with the United States.
23. ENTIRE AGREEMENT, TERM & MODIFICATION: These Terms & Conditions of Sale constitute the entire agreement between the parties and supersede anyprior agreements or representations, whether oral or written.
Upon thirty (30) days prior written notice, Hach may, in its sole discretion, elect to terminate any order for the sale of Products and provide a pro-rated refund for any pre-payment of undelivered Products. No change to or modification of these Terms & Conditions shall be binding upon Hach unless in a written instrument specifically referencing that it is amending these Terms & Conditions of Sale and signed by an authorized representative of Hach. Hach rejects any additional or inconsistent Terms & Conditions of Sale offered by Buyer at any time, whether or not such terms or conditions materially alter the Terms & Conditions herein and irrespective of Hach’s acceptance of Buyer’s order for the described goods and services.
24. APPENDICES: If checked, the following Appendices are attached hereto and incorporated by reference into these Terms & Conditions of Sale:
CLAROS SOFTWARE AS A SERVICE SUBSCRIPTION AGREEMENT
* * *
#15..
- 716 -
#15..
- 717 -
#15..
- 718 -
#15..
- 719 -
#15..
- 720 -
CITY OF MODESTO
COUNCIL AGENDA REPORT
DATE OF MEETING:
November 7, 2023
Date: October 16, 2023
TO: Mayor and City Council
THROUGH: Joseph P. Lopez, City Manager
FROM: Jessica Hill, Director of Community & Economic Development SUBJECT: Amendment to Title 10 of the Modesto Minicanal Code regarding Emergency Shelters and Low Barrier Navigation Centers
CONTACT: Diana Lowrance, Senior Planner, [email protected] , 209-577-5302 DESCRIPTION:
Hearing to consider an Ordinance amending the Modesto Municipal Code to adhere to State Regulations regarding Emergency Shelter and Low-Barrier Navigation Centers, including definition updates and identifying zones where these uses will be allowed by ministerial approval. (Funding Source: General Fund)
STRATEGIC PLAN ELEMENT:
The recommended action supports the City’s 2020-2025 Strategic Plan, Goal C: Develop a Homeless and Housing Plan.
BACKGROUND:
Title 10 “Zoning Regulations” of the City’s municipal code is the primary vehicle by which the city implements the policies, goals, and objectives of both the general plan and the housing element (an element of the general plan). The zoning code achieves this by guiding development, on a lot-by-lot basis, throughout the city.
This proposed amendment to Title 10 “Zoning Regulations” is intended to bring the code in line with changes in State laws governing low barrier navigation centers and emergency shelters which became effective on January 1, 2020, and January 1, 2023, respectively.
This amendment is necessary at this time as the city is currently undergoing updates to both the General Plan and the Housing Element and are required for the Housing Element to be found in compliance.
#16..
- 721 -
City Council, November 7, 2023
Amendment to Title 10 of the Modesto Minicanal Code regarding Emergency Shelters and Low Barrier Navigation Centers