Modesto City Council
December 12, 2023

Account Maintenance
• Conducting remote training on new features and devices for Agency’s leadership • Thoroughly documenting issues and workflows and suggesting new workflows to improve the effectiveness of the Axon program
• Conducting weekly conference calls to cover current issues and program status • Visiting Agency quarterly (up to 3 consecutive days) to perform a quarterly business review, discuss Agency's goals for your Axon program, and continue to ensure a successful deployment of Axon devices
Direct Support
• Providing remote, tier 1 and tier 2 technical support for Axon devices • Creating and monitoring RMAs remotely
Data Analysis
• Providing quarterly Axon usage data to identify trends and program efficiency opportunities • Comparing an Agency's Axon usage and trends to peers to establish best practices • Proactively monitoring the health of Axon equipment and coordinating returns when needed Agency Advocacy
• Coordinating bi-yearly Voice of Agency meetings with Device Management team • Recording and tracking Agency feature requests and major bugs 4 Out of Scope Services. The ASE is responsible to perform only the Services described in this Appendix. Any additional Services discussed or implied that are not defined explicitly in this Appendix will be considered out of the scope.
5 ASE Leave Time. The ASE will be allowed up 7 days of sick leave and up to 15 days of vacation time per each calendar year. The ASE will work with Agency to coordinate any time off and will provide Agency with at least 2 weeks’ notice before utilizing any vacation days.

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AXON CLOUD SERVICES PRIVACY POLICY
Last Updated: August 9th, 2021
This Axon Cloud Services Privacy Policy (“Policy”) applies only to the information that Axon Enterprise, Inc. (“Axon”) collects and you or your employer (collectively, “Customer”) provide to Axon in connection with Customer’s use of Axon Cloud Services (as defined below). Axon's marketing sites and other public websites are governed by the Axon Privacy Policy. Usage of Axon Citizen is governed by the Axon Citizen Privacy Policy.

Unless otherwise provided in this Policy, this Policy is subject to the terms of the Master Services Purchasing Agreement, or other similar agreement, if any, between Axon and Customer (“Agreement”).

To the extent this Policy contains terms and conditions that differ from those contained in the Agreement, the Agreement shall control. A concept or principle covered in this Policy shall apply and be incorporated into all other provisions of the Agreement in which the concept or principle is also applicable, notwithstanding the absence of any specific cross-reference thereto. All capitalized and defined terms referenced, but not defined, in this Policy shall have the meanings assigned to them in the Agreement.

Axon complies with the EU-U.S. Privacy Shield Framework and the Swiss-U.S. Privacy Shield Framework (“Privacy Shield”) as set forth by the U.S. Department of Commerce regarding the collection, use, and retention of personal information transferred from the European Union, the United Kingdom, and Switzerland to the United States in reliance on Privacy Shield. Axon has certified to the U.S. Department of Commerce that it adheres to the Privacy Shield Principles with respect to such information. If any conflict exists between the terms of this Policy and the Privacy Shield Principles, the Privacy Shield Principles shall govern. To learn more about the Privacy Shield program, and to view our certification, please visit https://www.privacyshield.gov/.

By using Axon Cloud Services, Customer acknowledges that Customer has read and understand this Policy and Customer agrees to be bound by its terms and conditions. Axon may occasionally update this Policy. When Axon posts changes, Axon will revise the "last updated" date at the top of this page. Customer’s continued use of Axon Cloud Services will signify Customer’s agreement and acceptance to any such changes.

Definitions
 “Axon Cloud Services” means Axon’s web services hosted on evidence.com including Axon Evidence, Axon Records, and Axon Dispatch, and other related offerings, including, without limitation, interactions between Axon Cloud Services and Axon Products (as defined below).  “Axon Products” means:
(1) Axon Cloud Services;
(2) devices sold by Axon (including, without limitation, conducted energy weapons, cameras, sensors, and docking systems) (collectively, “Axon Devices”); (3) other software offered by Axon (including, without limitation, Axon Capture, Axon Evidence SYNC, Axon Device Manager, Axon View, Axon Interview, Axon Commander, Axon Uploader XT, and Axon View XL) (collectively, “Axon Client Applications”); and (4) ancillary hardware, equipment, software, services, cloud-based services, documentation, and software maintenance releases and updates. Axon Products do not include any third-party applications, hardware, warranties, or the 'my.evidence.com' services.  “Customer Data” means:
(1) “Customer Content”, which means data uploaded into, ingested by, or created in Axon Cloud Services within Customer’s tenant, including, without limitation, media or multimedia uploaded into Axon Cloud Services by Customer (“Evidence”); and
(2) “Non-Content Data”, which means:

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(a) “Customer Entity and User Data”, which means Personal Data and non-Personal Data regarding Customer’s Axon Cloud Services tenant configuration and users; (b) “Customer Entity and User Service Interaction” Data which means data regarding Customer's interactions with Axon Cloud Services and Axon Client Applications; (c) “Service Operations and Security Data”, which means data within service logs, metrics and events and vulnerability data, including, without limitation: (i) application, host, and infrastructure logs; (ii) Axon Device and Axon Client Application logs; (iii) service metrics and events logs; and (iv) web transaction logs;
(d) “Account Data”, which means information provided to Axon during sign-up, purchase, or administration of Axon Cloud Services, including, without limitation, the name, address, phone number, and email address Customer provides, as well as aggregated usage information related to Customer’s account and administrative data associated with the account; and (e) “Support Data”, which means the information Axon collects when Customer contacts or engages Axon for support, including, without limitation, information about hardware, software, and other details gathered related to the support incident, such as contact or authentication information, chat session personalization, information about the condition of the machine and the application when the fault occurred and during diagnostics, system and registry data about software installations and hardware configurations, and error-tracking files.

For purposes of clarity, Customer Content does not include Non-Content Data, and Non-Content Data does not include Customer Content.
 “Data Controller” means the natural or legal person, public authority, or any other body which alone or jointly with others determines the purposes and means of the processing of Personal Data (as defined below).
 “Data Processor” means a natural or legal person, public authority or any other body which processes Personal Data on behalf of the Data Controller.  “Data Exporter” means the Data Controller who transfers the Personal Data.  “Data Importer” means the Data Processor who agrees to receive from the Data Exporter Personal Data intended for processing on Data Exporter's behalf after the transfer in accordance with the Agreement and who is not subject to a third country’s system ensuring adequate protection with in the meaning of the General Data Protection Regulation (EU) 2016/679 of the European Parliament (“GDPR”)
 “Personal Data” means any information relating to an identified or identifiable natural person. An identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.  “Processing” means any operation or set of operations which is performed on Personal Data or on sets of Personal Data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
 “Sub-processor” means any processor engaged by the Data Importer or by any other subprocessor of the Data Importer who agrees to receive from the Data Importer or from any other sub-processor of the Data Importer Personal Data exclusively intended for processing activities to be carried out on behalf of the Data Exporter after the transfer in accordance with its instructions, the terms of the Clauses and the terms of the written subcontract.

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Axon's Role
Axon is a Data Processor of Customer Content. Customer controls and owns all right, title, and interest in and to Customer Content and Axon obtains no rights to the Customer Content. Customer is solely responsible for the uploading, sharing, withdrawal, management and deletion of Customer Content.

Customer grants Axon limited access to Customer Content solely to provide and support Axon Cloud Services to and for Customer and Customer’s end-users. Customer represents and warrants to Axon that:
(1) Customer owns Customer Content; (2) and Customer Content, and Customer’s end-users’ use of Customer Content and Axon Cloud Services, does not violate this Policy or applicable data protection laws and regulations.

Axon may also collect, control, and process Non-Content Data. Axon is a Data Controller for Non-Content Data. Axon collects, controls, and processes Non-Content Data to provide Axon Cloud Services and to support the overall delivery of Axon Products including business, operational, and security purposes. With Non-Content Data, Axon may analyze and report anonymized and aggregated data to communicate with external and internal stakeholders. In regard to Customer Entity & User Data, Axon is a Data Controller and Customer is an independent Data Controller, not a joint Data Controller with Customer.

Data Collection and Processing Activities

CUSTOMER CONTENT
Axon will only use Customer Content to provide Customer Axon Cloud Services. Axon will not use Customer Content for any advertising or similar commercial purposes.

Axon periodically upgrades or changes Axon Cloud Services to provide customers with new features and enhancements in alignment with the Axon Evidence Maintenance Schedule. Axon communicates such upgrades or changes to customers one week prior to release via mechanisms outlined in the Maintenance Schedule. Changes to Axon Cloud Services may increase the capabilities of the service and ways in which Customer Content can be processed.

NON-CONTENT DATA
Non-Content Data includes data, configuration, and usage information about customer's Axon Cloud Services tenant, Axon Devices, Axon Client Applications, and users that is transmitted or generated when using Axon Products. Non-Content Data includes the following:

Customer Entity And User Data
Customer Entity and User Data includes personal and non-personal data regarding Customer's Axon Cloud Services tenant configuration and users. Axon uses Customer Entity and User Data to: (1) provide Axon Cloud Services, including, without limitation, user authentication and authorization functionality; (2) improve the quality of Axon Products or provide enhanced functionality and features; (3) contact Customer to provide information about its account, tenant, subscriptions, billing, and updates to Axon Cloud Services, including, without limitation, information about new features, security and other technical issues; and (4) market our products or services to Customer via email, by sending promotional communication including targeted advertisements, or presenting a Customer with relevant offers.

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Customer cannot unsubscribe from non-promotional communications but may unsubscribe from promotional communications at any time.

Customer Entity and User Service Interaction Data
Customer Entity and User Service Interaction Data includes data regarding Customers' interactions with Axon Cloud Services and Axon Client Applications. Axon uses Customer Entity and User Service Interaction Data to improve the quality of Axon Products and provide enhanced functionality and features.

Service Operations and Security Data
Axon uses Service Operations and Security Data to provide service operations and monitoring.

Account Data
Axon uses Account Data to provide Axon Cloud Services, manage Customer's accounts, market to, and communicate with Customer. Customer may unsubscribe from promotional communications at any time.

Support Data
Axon uses Support Data to resolve Customer’s support incident, and to operate, improve, and personalize Axon Products. If Customer shares Customer Content to Axon in a support scenario, the Customer Content will be treated as Support Data but will only be used for resolving support incidents.

Axon may provide support through phone, email, or online chat. With Customer’s permission, Axon may use Guest Access (“GA") to temporarily navigate Customer’s Axon Cloud Service's tenant to view data in order to resolve a support incident. Phone conversations, online chat sessions, or GA sessions with Axon support professionals may be recorded and/or monitored.

Server and Data Location

CUSTOMER CONTENT
Axon offers Axon Cloud Services in numerous geographic regions. Before creating an account in Axon Cloud Services, Customer determines where Axon will store Customer Content by designating an economic area.

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Axon ensures that all Customer Content in Axon Cloud Services remains within the selected economic area, including, without limitation, all backup data, replication sites, and disaster recovery sites. Customer selected economic areas can be determined through review of Customer's Axon Cloud Services URL.

Customer URLs conform to the <youragency>.<regioncode>.evidence.com scheme with the exception of US customers where the scheme may exclude the region code and is <youragency>.evidence.com. US Federal customers conform to the scheme <youragency>.us.evidence.com

NON-CONTENT DATA
Customer Entity and User Data
Customer Entity and User Data is located in Customer's selected economic area for Customer Content.

Customer Entity and User Data may be copied or transferred to the United States.

Customer Entity and User Service Interaction Data
Customer Entity and User Service Interaction Data is located in Customer's selected economic area for Customer Content and the United States.

Service Operations and Security Data
Service Operations and Security Data is located in Customer's selected economic area for Customer Content and the United States.

Account Data and Support Data
Account and Support data is located is in the United States and may be located in Customer's selected economic area for Customer Content.

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Information Sharing
Axon may transfer data with its direct and indirect subsidiaries and Sub-processors, including, without limitation, service providers and other partners to support the overall delivery of Axon Products as described in “Data Collection and Processing Activities” section of this Policy.

Axon exercises commercially reasonable efforts in connection with contractual obligations to ensure its Sub-processors are compliant with all applicable data protection laws and regulations surrounding the Sub-processors access and scope of work in connection with Customer Content.

Customer consents to the transfer of Customer Content to Axon's Sub-processors for the purpose of storing Customer Content. Such Sub-processors responsible for storing Customer Content are contracted by Axon for data storage services. Ownership of Customer Content remains with Customer.

Axon may hire Sub-processors to provide or enhance Axon Products on its behalf. Axon will only permit any such Sub-processors to obtain Customer Content from Axon Cloud Services to deliver services to Axon and will be prohibited from using Customer Content for any other purpose. Axon may engage new Sub-processors. Axon will give Customer notice (by updating the website) of any new Sub-processor.

Prior to onboarding Sub-processors, Axon conducts an audit of the security and privacy practices of Subprocessors to ensure Sub-processors provide a level of security and privacy appropriate to its access to data and scope of services.

Under Privacy Shield's “Onward Transfer Principle”, Axon remains responsible for personal data that may be shared with Axon's Sub-processors.

Customer can transfer data from Axon Cloud Services to third parties. Customer must ensure data sharing agreements are in place with third parties to protect data throughout its lifecycle.

Axon Sub-Processors
Understand the server locations, data processed, and functions performed.

Axon maintains an up-to-date list of the names and locations of all Sub-processors. This list is below.

If you are a current Axon Cloud Services customer with a data processing agreement in place with Axon, you may subscribe to receive notifications of a new Sub-processor(s) before Axon authorizes any new Sub-processor to process personal data in connection with the provision of your service.

You can subscribe to receive email notifications for changes to Axon Cloud Services Sub-processor(s) by submitting a request here.

For a complete list of Axon Sub-Processors, click here.

TELECOMMUNICATION SUB-PROCESSORS
Axon Body 3 includes embedded cellular technologies used to connect to telecommunication networks in order to provide connectivity between Axon Body 3 and Axon Cloud Services. Cellular technologies enable Axon Aware services. Customer’s Axon Body 3 cameras will send data to the respective Axon Cloud Services region selected telecommunications providers as needed to enable cellular connectivity.

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registration and account management associated to the cellular subscription. Personal Data of Customers is not collected by Axon or telecommunications providers for the purposes of cellular account management.

Outlined below is the telecommunication sub-processors. In regions where there are more than one telecommunication sub-processor, Axon will manage customers’ Axon Body 3 cellular registration.

Customer URLs conform to the <youragency>.<regioncode>.evidence.com scheme with the exception of US customers where the scheme may exclude the region code and is <youragency>.evidence.com. US Federal customers conform to the scheme <youragency>.us.evidence.com Required Disclosures
Axon will not disclose Customer Content except as compelled by a court or administrative body or required by any law or regulation. Axon will notify Customer if any disclosure request is received for Customer Content so Customer may file an objection with the court or administrative body.

Customer's Access and Choice
Customer Content
Customer can access Customer's tenant to manage Customer Content.

Non-Content Data
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Axon or Sub-processors holds. Axon will also take reasonable steps to enable Customers to correct, amend, or delete Personal Data that is demonstrated to be inaccurate.

If at any time after registering an account on Axon Cloud Services you desire to update Personal Data you have shared with us, change your mind about sharing Personal Data with us, desire to cancel your Customer account, or request that Axon no longer use provided Personal Data to provide you services, please contact us at [email protected]. We will retain and use Personal Data for as long as needed to provide you services, comply with our legal obligations, resolve disputes, and enforce our agreements.

Certain data processing is determined by Customer based on Axon Product usage, Customer network or device configuration, and administrative settings made available with Axon Cloud Services or Axon Client Applications:

Axon Body 3 WiFi Positioning
Axon Body 3 cameras offer customers a feature to enhance location services where GPS/GNSS signals may not be available, for instance within buildings or underground. Customer administrators can manage their choice to use this service within the administrative features of Axon Cloud Services. When WiFi Positioning is enabled, Non-Content and Personal Data including location, device and network information data will be sent to Skyhook Holdings, Inc (Skyhook) to facilitate the WiFi Positioning functionality. Skyhook will act as both a data sub-processor (as reflected in this policy) and as a data controller. Skyhook becomes a data sub-processor for Axon when Skyhook processes data from Axon Body 3 devices to determine a location. Skyhook acts a data controller when it collects data sent from Axon Body 3 cameras to maintain their services and to develop new products, services or datasets. Data controlled by Skyhook is outside the scope of the Axon Cloud Services Privacy Policy and is subject to the Skyhook Services Privacy Policy.

Client Push Notifications
Axon Products leverage push notification services made available by mobile operating system providers (i.e. Google’s Cloud Messaging and Apple’s Push Notification Service to deliver functional notifications to client applications. Push notification services can be managed by leveraging notification settings made available in both mobile applications and the mobile operating system.

User Analytics
Customers can opt-out of user analytics tracking on Axon Cloud Services by disabling cookies or preventing Customer's browser or device from accepting new cookies. To prevent data from being collected by Mixpanel, network or device access to *.mixpanel.com should be blocked Service Support
Mobile client application crash analytics are used provide Axon personnel insight to crashes when using Axon client applications. To opt out of crash reporting, network or device access to *.crashlytics.com should be blocked.

Geolocation Services
Geolocation services are critical to proper user functionality of many of Axon products. However, customers can chose to opt out of mapping and geolocation functionality by blocking network or device access to *.mapbox.com and *.arcgisonline.com
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Data Security Measures
Axon is committed to help protect the security of Customer Data. Axon has established and implemented policies, programs, and procedures that are commercially reasonable and in compliance with applicable industry practices, including administrative, technical and physical safeguards to protect the confidentiality, integrity and security of Customer Content and Non-Content Data against unauthorized access, use, modification, disclosure or other misuse.

Axon will take appropriate steps to ensure compliance with the data security measures by its employees, contractors and Sub-processors, to the extent applicable to the respective scope of performance.

CONFIDENTIALITY
Customer Content and Non-Content Data is encrypted in transit over public networks. Customer Content is encrypted at rest in all Axon Cloud Service regions.

Axon protects all Customer Content and Non-Content Data with strong logical access control mechanisms to ensure only users with appropriate business needs have access to data. Third-party specialized security firms periodically validate access control mechanisms. Access control lists are reviewed periodically by Axon.

INTEGRITY
As Evidence is ingested into Axon Cloud Services, a Secure Hash Algorithm (“SHA”) checksum is generated on the upload device and again upon ingestion into Axon Cloud Services. If the SHA checksum does not match, the upload will be reinitiated. Once upload of Evidence is successful, the SHA checksum is retained by Axon Cloud Services and is made viewable by users with access to the Evidence audit trail for the specific piece of Evidence. Tamper-proof audit trails are created automatically by Axon Cloud Services upon ingestion of any Evidence.

AVAILABILITY
Axon takes a comprehensive approach to ensure the availability of Axon Cloud Services. Axon replicates Customer Content over multiple systems to help to protect against accidental destruction or loss. Axon Cloud Services systems are designed to minimize single points of failure. Axon has designed and regularly plans and tests its business continuity planning and disaster recovery programs.

ISOLATION
Axon logically isolates Customer Content. Customer Content for an authenticated customer will not be displayed to another customer (unless Customers explicitly create a sharing relationship between their tenants or shared data between themselves). Centralized authentication systems are used across an Axon Cloud Service region to increase uniform data security.

Additional role-based access control is leveraged within Customer’s Axon Cloud Service tenant to define what users can interact with or access Customer Content. Customer solely manages the role based access control mechanisms within its Axon Cloud Services tenant.

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Within the Axon Cloud Services supporting infrastructure, access is granted based on the principle of least privilege. All access must be approved by system owners and undergo at least quarterly user access reviews. Any shared computing or networking resource will undergo extensive hardening and is validated periodically to ensure appropriate isolation of Customer Content.

Non-Content Data is logically isolated within information systems such that only appropriate Axon personnel have access.

PERSONNEL
Axon personnel are required to conduct themselves in a manner consistent with applicable law, the company’s guidelines regarding confidentiality, business ethics, acceptable usage, and professional standards. Axon personnel must complete security training upon hire in addition to annual and rolespecific security training.

Axon personnel undergo an extensive background check process to the extent legally permissible and in accordance with applicable local labor laws and statutory regulations. Axon personnel supporting Axon Cloud Services are subject to additional role-specific security clearances or adjudication processes, including Criminal Justice Information Services background screening and national security clearances and vetting.

Data Breach

NOTIFICATION
If Axon becomes aware that Customer Data has been accessed, disclosed, altered, or destroyed by an unlawful or unauthorized party, Axon will notify relevant authorities and affected customers.

Within 48 hours of an incident confirmation, Axon will notify Customer administrators registered on Axon Cloud Services. Authorities will be notified through Axon's established channels and timelines. The notification will reasonably explain known facts, actions that have been taken, and make commitments regarding subsequent updates. Additional details are available in the Axon Cloud Services Security Incident Handling and Response Statement.

Data Portability, Migration, and Transfer Back Assistance

DATA PORTABILITY
Evidence uploaded to Axon Cloud Services is retained in original format. Evidence may be retrieved and downloaded by Customer from Axon Cloud Services to move data to an alternative information system.

Evidence audit trails and system reports may also be downloaded in various industry-standard, nonproprietary formats.

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DATA MIGRATION
In the event Customer’s access to Axon Cloud Services is terminated, Axon will not delete any Customer Content during the 90 days following termination. During this 90-day period, Customer may retrieve Customer Content only if Customer has paid all amounts due (there will be no application functionality of the Axon Cloud Services during this 90-day period other than the ability for Customer to retrieve Customer Content). Customer will not incur any additional fees if Customer downloads Customer Content from Axon Cloud Services during this 90-day period. Axon has no obligation to maintain or provide any Customer Content after the 90-day period and thereafter, unless legally prohibited, may delete Customer Content upon termination as part of normal retention and data management instructions from customers.

Upon written request, Axon will provide written proof that all Customer Content has been successfully deleted and removed from Axon Cloud Services.

POST-TERMINATION ASSISTANCE
Axon will provide Customer with the same post-termination data retrieval assistance that is generally made available to all customers. Requests for additional assistance to Customer in downloading or transferring Content will result in additional fees and Axon cannot warrant or guarantee data integrity or readability in the external systems.

Data Retention, Restitution, and Deletion
Axon maintains internal disaster recovery and data retention policies in accordance with applicable laws and regulations. The disaster recovery plan relates to Axon's data and extends to Axon Cloud Services and Customer Content stored within. Axon's data retention policies relate to Axon's Non-Content data.

Axon's data retention policies instruct for the secure disposal of Non-Content Data when such data is no longer necessary for the delivery and support of Axon product and services and in accordance with applicable regulations. As outlined below, Customer is responsible for adhering to its own retention policies and procedures.

Evidence Retention
Customer defines Evidence retention periods pursuant to Customer’s internal retention policies and procedures. Customer can establish its retention policies within Axon Cloud Services. Therefore, customer controls the retention and deletion of its Evidence within Axon Cloud Services. Axon Cloud Services can automate weekly messages summarizing upcoming agency-wide deletions to all customer Axon Cloud Services administrators. Customer users can receive a weekly message regarding Evidence uploaded within their user account to protect against accidental deletions. Customer can recover Evidence up to 7 days after Customer queues such Evidence for deletion. After this 7-day grace period, Axon Cloud Services initiates deletion of Evidence. Data deletion processing may occur asynchronously across storage systems and data centers. During and after data deletion processing, Evidence will not be recovered or recoverable by any party.

Accountability
As outlined herein, Axon is committed to maintaining compliance with relevant security and privacy standards to ensure the continued security, availability, integrity, confidentiality, and privacy of Axon Cloud Services and Customer Data stored within.

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In addition to the security efforts outlined herein, Axon will maintain its ISO/IEC 27001:2013 certification or comparable assurances for Axon Cloud Services. Customers may review the certificate.

Social Media Publishing
Axon provides social media features that enable Customer’s and their end users (“Users”) to share Customer Content directly from the Evidence Detail page in Axon Evidence to social media websites (“Publish to Social Media Feature”). For example: when a User uploads a video directly to YouTube from Axon Evidence. This may include Customer Content such as video, audio, images or other types of media or multimedia; and the title, description and tags associated with those media. Customer Axon Evidence administrators can manage the enablement of this feature, for all Users, within the administrative functions of Axon Evidence. The use of this feature by Users may result in the collection or sharing of information about them, depending on the feature. The privacy and security practices of the social media website is not covered by this Policy, and Axon is not responsible for, or makes attestations regarding, their privacy or security practices. When Users enable the Publish to Social Media Feature, and/or publish content to a social media website using this feature, they acknowledge and agree to be bound by the terms of service and privacy policy(s), if applicable, of the social media website in which the Customer Content is published to. Axon encourages Users to review the terms of service and privacy policy(s) of the social media website, to make sure they understand the data that may be collected, used, and shared by the website.
 Google LLC, (YouTube API Services): Axon uses YouTube's API services in connection with our Publish to Social Media Feature. When Users link, connect, or login (“Connect”) their Google account(s) with Axon Evidence, they are agreeing to be bound by the YouTube Terms of Service (https://www.youtube.com/t/terms). In addition, they are directing Google to send Axon data as controlled by Google or as authorized by the User via their privacy settings at Google. Through YouTube's API services, Axon only accesses, collects, and stores a token which Axon uses to Connect the associated Google account(s) with Axon Evidence. The token is only used to enable a user to upload a video to YouTube and is not shared with external parties. Axon does not obtain or store the associated Google account(s) login credentials, through YouTube's API services.

Google has settings that list which apps can connect to a Google account(s). When Users Connect an associated Google account(s) to Axon Evidence, Axon Evidence gets authorized in these settings as a connected site or app. If Users remove Axon Evidence from these settings, its access to the account is revoked. Users may revoke this access at any time by following the instructions here: https://help.axon.com/hc/en-us/articles/360052689392-Removing-AxonEvidence-Access-to-Your-YouTube-Account. Revoking Axon Evidence access will prevent Users from publishing videos to YouTube from Axon Evidence.

Axon encourages Users to review YouTube's Terms of Service (https://www.youtube.com/t/terms) and Google's Privacy Policy (http://www.google.com/policies/privacy) to make sure they understand the data that may be collected, used, and shared by Google.

Insurance
Axon will maintain, during the term of the Agreement, a cyber-insurance policy and will furnish certificates of insurance as set forth in the Master Agreement and any appendices thereto.

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How to Contact Us
Axon commits to resolve complaints about Customer privacy and use of Axon Products. Complaints surrounding this Policy can be directed to Customer's local Axon representative or [email protected]. If Customer has any questions or concerns regarding privacy and security of Customer Content or Axon's handling of Customer's Personal Data under Privacy Shield, please contact [email protected].

If Customer is an EU citizen and we are unable to satisfactorily resolve any complaint relating to the Privacy Shield, or if Axon fails to acknowledge Customer's complaint in a timely fashion, Customer can contact the relevant EU Data Protection Authorities (DPAs) or the Swiss Federal Data Protection and Information Commissioner (FDPIC). In certain circumstances, the Privacy Shield provides the right to invoke binding arbitration to resolve complaints not resolved by other means, as described in Annex I to the Privacy Shield Principles in each of the Privacy Shield Frameworks. Axon is subject to the investigatory and enforcement powers of the U.S. Federal Trade Commission.

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Appendix A – UNIVERSITY OF NEBRASKA TECHNOLOGY
Software/Services Standardized Agreement Language
Introduction
The purpose of this document is to incorporate specific terms and conditions pertinent to technology at the University of Nebraska. This document addresses select topics of particular importance to Information Technology Services (“ITS”) in order to be compliant with Board of Regents Policies, as well as Nebraska State laws.

1. INCORPORATION BY REFERENCE
This UNIVERSITY OF NEBRASKA TECHNOLOGY Software/Services Standardized Agreement Language is attached to and incorporated by reference into the Master Agreement (“Agreement”) between Axon Enterprise, Inc. (“Service Provider”) and the Board of Regents of the University of Nebraska as Appendix A.

2. OWNERSHIP AND PROPRIETARY RIGHTS

2.1 Service Provider owns and retains all right, title and interest in Service Provider-Owned Materials. ITS owns and retains all right, title and interest in ITS’s Owned Materials. ITS Students own and retain all right, title and interest in ITS Student-Owned Material. ITS acknowledges and agrees that, unless otherwise agreed by Service Provider in writing, Service Provider is the sole and exclusive owner of all rights, including but not limited to all patent rights, copyrights, trade secrets, trademarks, and other proprietary rights in the systems, programs, specifications, user documentation, and other Service Provider-Owned Materials used by Service Provider in the course of its provision of services hereunder. ITS also acknowledges and agrees that in entering into this Agreement, ITS acquires no ownership rights in Service Provider-Owned Materials. ITS shall not copy, transfer, sell, distribute, assign, display, or otherwise make Service Provider-Owned Materials available to third parties. Service Provider acquires no rights of ownership in or to the ITS owned Materials or the Student-Owned Materials; or anything that is provided to Service Provider by ITS, including but not limited to business processes, software and related documentation. Any modifications or enhancements to the ITS Owned Materials or the Student-Owned Materials including those suggested or implemented by Service Provider, shall belong to ITS.

Service Provider agrees that its rights to use any such materials or data provided by ITS, including all ITS-owned Materials is limited to such use as is necessary to permit Service Provider to perform Services and obligations in this Agreement.

2.2 ITS has the responsibility for providing Service Provider with the copyright notice language to appear on websites, delivered course content and/or assessments, and on any related practice and/or demonstration materials. Service Provider will have the responsibility for ensuring that the copyright notice language provided to Service Provider by ITS will appear as provided on any applicable materials. Any copyright notice language or other language acknowledging Service Provider’s ownership or other legal rights of Service Provider which appears on websites, course content and/or assessments, and in any practice and/or demonstrational materials will be limited to such language as is necessary to protect Service Provider's legal rights. Unless provided to Service Provider by ITS, no language acknowledging the legal rights of any third party shall appear on materials without the prior written consent of ITS.

2.3 Notwithstanding anything in the Agreement to the contrary, any and all Deliverables (defined below) shall be the sole and exclusive property of ITS. Notwithstanding the foregoing, the intellectual capital (including without limitation, ideas, methodologies, processes, inventions and tools) developed or possessed by Service Provider prior to, or acquired during, the performance of the Scope of Work shall be Service Provider-Owned Material.

2.4 Upon ITS’ request or upon the expiration or termination of this Agreement, Service Provider shall deliver or return all copies of the work to ITS. Service Provider is permitted, subject to its obligations of confidentiality, to retain one copy of the work for archival purposes and to defend its work product.

2.5 To the extent Service Provider develops any tangible work products identified as deliverables (“Deliverables”) DocuSign Envelope ID: C8B1B8C7-E10A-4C23-A23F-9B48865A148F #19..
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solely for the use of ITS during the Term or Terms of this Agreement, Service Provider shall grant to ITS a royaltyfree, worldwide, non-transferable, non-exclusive, perpetual right to use such work. Service Provider will retain all intellectual property rights and ownership in such work.

2.7 ITS recognizes that Service Provider’s business depends substantially upon the accumulation of learning, knowledge, data, techniques, tools, processes, and generic materials that it utilizes and develops in its engagements. ITS’s business also depends substantially upon the accumulation and application of learning, knowledge, data, techniques, tools, processes, and generic materials that it utilizes and develops through collaboration with Service Provider and other service providers. Accordingly, to the extent material that is used in, enhanced, or developed in the course of providing Services hereunder is of a general abstract character, or may be generically re-used, and does not contain Confidential Information of ITS, then Service Provider will own such material including, without limitation: methodologies; delivery strategies, approaches and practices; generic software tools, routines, and components; generic content, research and background materials; training materials; application building blocks; templates; analytical models; project tools; development tools; inventions; solutions and descriptions thereof; ideas; and know-how (collectively “Know-how”) developed by Service Provider and ITS will own the Know-how developed by ITS. To the extent such Know-how is contained or reflected in the Work Product, each party hereby grants the other a fully paid up, perpetual license to use such Know-how. Neither party will sublicense or sell Know-How of the other party to any third party, and neither party will use or exploit the KnowHow of the other party to compete with the information technology and professional services of Service Provider or the educational services and delivery of ITS.

3. DATA USE
As between the parties, ITS will own, or retain all of its rights in, all data and information that ITS provides to the Service Provider, as well as all data managed by Service Provider on behalf of ITS, including all output, reports, logs, analyses, and other materials relating to or generated by the Services, even if generated by the Service Provider, as well as all data obtained or extracted through ITS’ or Service Provider’s use of the Services (collectively, the ITS Data). The ITS Data also includes all data and information provided directly to Service Provider by ITS students and employees, and includes personal data, metadata, and user content. The ITS Data will be ITS’ Intellectual Property and Service Provider will treat it as ITS’ confidential and proprietary information.

Service Provider will not use, access, disclose, or license or provide to third parties, any ITS Data, or materials derived therefrom, except: (i) to the extent necessary to fulfill Service Provider’s obligations to ITS hereunder; (ii) as authorized in writing by ITS, and (iii) in compliance with Axon’s Cloud Services Privacy Policy attached to the Agreement. Without limiting the generality of the foregoing, Service Provider may not use any ITS Data, whether or not aggregated or de-identified, for product development, marketing, profiling, benchmarking, or product demonstrations, without, in each case, ITS’s prior written consent. Upon request by ITS, Service Provider will deliver, destroy, and/or make available to ITS, any or all of the ITS Data.

4. PROPRIETARY AND CONFIDENTIAL INFORMATION

4.1 Service Provider acknowledges and understands that in connection with this Agreement, the performance of the Scope of Work and otherwise, Service Provider has had or shall have access to, has obtained or shall obtain, or has been or shall be given ITS’ Confidential Information (as defined herein). For purposes of this Agreement, “Confidential Information” means all information provided by ITS, or ITS students to Service Provider, including without limitation information concerning the ITS’ business strategies, political and legislative affairs, students, employees, vendors, service providers, student records, customer lists, finances, properties, methods of operation, computer and telecommunications systems, software and documentation, student materials, student name and other identifying information which is generated by the student, such as biometrics. Confidential Information includes information in any and all formats and media, including without limitation oral communication, and includes the originals and any and all copies and derivatives of such information. Service Provider shall comply with all applicable federal, state and local laws restricting access, use and disclosure of protected information.

4.2 Service Provider shall use the Confidential Information only if and when required for the performance of the Services, and for no other purpose whatsoever, and only by Service Provider employees engaged in that DocuSign Envelope ID: C8B1B8C7-E10A-4C23-A23F-9B48865A148F #19..
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performance. Service Provider may also share Confidential Information with its corporate affiliates and with agents and service providers who are bound by similar obligations of confidentiality and who need such information as part of Service Provider’s performance under this Agreement. Service Provider shall forward any request for disclosure of Confidential Information to:

Information Technology Services
Canfield Administration Building North (ADMN) 332
Lincoln, NE 68588-0435

4.3 Service Provider acknowledges and understands that ITS is required to protect certain Confidential Information from disclosure under applicable law, including but not limited to the Family Educational Rights and Privacy Act (“FERPA”), the Gramm Leach Bliley Act (“GLBA”), or the Nebraska Public Records Law, including regulations promulgated thereunder, as the laws and regulations may be amended from time to time. The Confidential Information that is protected under FERPA was provided to the Service Provider as it is handling an institution service or function that would ordinarily be performed by ITS’ employees. Service Provider agrees that it shall be obligated to protect the Confidential Information in its possession or control in accordance with the Privacy Laws and as a “school official” under FERPA. The Service Provider further agrees that it is subject to the requirements governing the use and re-disclosure of personally identifiable information from education records as provided in FERPA.

4.4 Service Provider may disclose Confidential Information as required by legal process. If Service Provider is required by legal process to disclose Confidential Information, Service Provider shall immediately notify ITS, and before disclosing such information shall allow ITS reasonable time to take appropriate legal action to prevent disclosure of the Confidential Information.

4.5 Service Provider's obligations with respect to Confidential Information shall survive the expiration or the termination of this Agreement.

4.6 Service Provider acknowledges that its failure to comply fully with the restrictions placed upon use, disclosure and access to Confidential Information may cause ITS grievous irreparable harm and injury.

Therefore, any failure to comply with the requirements of this section may be a material breach of this Agreement.

4.7 Except to the extent otherwise required by applicable law or professional standards, the obligations under this section do not apply to information that (1) is or becomes generally known to the public, other than as a result of disclosure by Service Provider, (2) had been previously possessed by Service Provider without restriction against disclosure at the time of receipt by Service Provider, (3) was independently developed by Service Provider without violation of this Agreement, or (4) Service Provider and ITS agree in writing to disclose.

To the extent allowed by Nebraska State Law, each party shall be deemed to have met its nondisclosure obligations under this section as long as it exercises the same level of care to protect the other’s information as it exercises to protect its own Confidential Information.

4.8 Service Provider agrees to use Student-Owned Materials, ITS Owned Materials and ITS’ Confidential Information only as necessary to perform its responsibilities under this Agreement, keep it confidential in accordance with this Agreement and use reasonable commercial efforts to prevent and protect the contents of these materials, or any parts of them, from unauthorized disclosure. Further, Service Provider will take industry standard measures to protect the security and confidentiality of such information including controlled and audited access to any location where such confidential and proprietary data and materials reside while in the custody of Service Provider and employing security measures to prevent system attacks (e.g., hacker and virus attacks).

4.9 Upon termination, cancellation, expiration or other conclusion of the Agreement, Service Provider shall return all Confidential Information to ITS or, if return is not feasible, destroy any and all Confidential Information without the prior written authorization from ITS. If the Service Provider destroys the information, the Service Provider shall provide ITS with a certificate confirming the date of destruction of the data. Any data referred to DocuSign Envelope ID: C8B1B8C7-E10A-4C23-A23F-9B48865A148F #19..
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in this section that is still within Service Provider’s actual or constructive control shall be subject to the terms of this Agreement in perpetuity.

4.10 ITS will implement security measures at its offices and all other associated facilities to ensure the confidentiality of Service Provider’s Confidential Information and materials in manner like that provided by ITS for its own information and materials identified as confidential under this Agreement. Unless otherwise provided by separate agreement, upon termination of this Agreement, ITS shall return to Service Provider all Service Provider-Owned Materials, including software, Source Code, and/or documentation provided to ITS by Service Provider; alternatively, and at Service Provider’s option, ITS shall destroy any or all of the aforementioned beyond recoverability. ITS shall not retain any electronic or other copies of any Service Provider-Owned Materials or other Service Provider Proprietary and Confidential Information absent of prior written authorization from Service Provider.

4.11 Service Provider agrees to abide by the limitation on re-disclosure of personally identifiable information (PII) from education set forth in The Family Educational Rights and Privacy Act and with the terms set forth below. 34 CFR 99.33 (a)(2) states that the officers, employees and agents of a party that receives education record information from ITS may use the information but only for the purposes for which the disclosure of the information was made. Further, Service Provider agrees to protect all ITS sensitive data including all PII, financial, corporate business intelligence or intellectual property of ITS faculty, staff, and employees in accordance with generally accepted Information security standards and best practices.

5. INTENTIONALLY OMITTED

6. TERMINATION

6.1 The University may terminate this Agreement upon thirty (30) days’ written notice in accordance with the terms of the Agreement.

6.2 The University may terminate this Agreement upon any breach by Service Provider of the terms of this Agreement, any Business Associate Addendum, or incorporated attachment to the Agreement, in accordance with the terms of the Agreement.

6.3 Service Provider may terminate this Agreement if the University materially breaches this Agreement and then fails to correct such breach within thirty (30) days following receipt of written notice from Service Provider.

In the event of an uncorrected breach by the University, the Service Provider shall be entitled to recover actual amounts owed by the University to Service Provider that accrued on or before the date of termination. Service Provider expressly waives and disclaims any right or remedy it may have to unilaterally de-install, disable or repossess any Software of any portion thereof.

6.4 The University’s rights to the Software as provided in this Agreement will survive a bankruptcy claim by the Service Provider consistent with applicable laws. The rights granted under this Agreement shall be deemed a license of “intellectual property” for purposes of the United States Code, Title 11 (“Bankruptcy Code”), Section 365(n). In the event of the bankruptcy of Service Provider and a subsequent rejection of this Agreement, the University may elect to retain its license rights, subject to and in accordance with the provisions of the Bankruptcy Code or other applicable law.

6.5 The following Sections shall survive the expiration or termination of this Agreement: Grant of License; Ownership and Proprietary Rights; Warranties, Representations and covenants; Limitation of Liability; University Data; Privacy; Cyber Insurance; Termination; and Audit Rights. Any terms of this Agreement which by their nature extend beyond its termination remain in effect until fulfilled and apply to respective successors and assigns.

7. SECURITY
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7.1 Service Provider will implement security measures at its offices and all other associated facilities in connection with Service Provider software to ensure the strictest confidentiality of ITS’ Owned Materials, ITS’ Confidential Information, and all other confidential information and materials. These measures will include, without limitation, encryption, use of a sign-on and access privilege system and other measures described in this Agreement, and such other measures as Service Provider deems necessary in its professional discretion.

Service Provider shall impose these measures on all subcontractors used by Service Provider.

7.2 Service Provider shall endorse ITS’ requirement to adhere to the University of Nebraska’s (ITS) IT Security Standards (http://idm.unl.edu/authentication-services-policy). ITS is required to assess risks, ensure data integrity, and determine the level of accessibility that must be maintained. Specific activities include:

A. Identification of security, privacy, legal, and other organizational requirements for recovery of institutional resources such as data, software, hardware, configurations, and licenses at the termination of the contract.

B. Assessment of the Service Provider’s security and privacy controls.

C. Including ITS’ security and privacy requirements in the agreement.

D. Periodic reassessment of Service Provider services provisioned to ensure all contract obligations are being met and to manage and mitigate risk.

7.3 Service Provider shall (i) establish and maintain industry standard technical and organizational measures to help to protect against accidental damage to, or destruction, loss, or alteration of the materials; (ii) establish and maintain industry standard technical and organizational measures to help to protect against unauthorized access to the Services and materials; and (iii) establish and maintain network and internet security procedures, protocols, security gateways and firewalls with respect to the Services. Service Provider software and its components are equipped and/or designed with systems intended to prevent industry known system attacks (e.g., hacker and virus attacks) and unauthorized access to Confidential Information.

7.4 For the purposes of this article, a “Breach” has the meaning given to it under relevant Nebraska or federal law, for example; the Nebraska Financial Data Protection and Consumer Notification of Data Security Breach Act of 2006 (codified at Neb. Rev. Stat. § 87-802) (See 9.5). Service Provider’s report shall identify: (i) the nature of the unauthorized use or disclosure, (ii) the CDI used or disclosed, (iii) the identity of the individual or entity that received the unauthorized disclosure, (iv) any pertinent application, access, or security logs or analysis (v) the action(s) that the Service Provider has taken or shall take to mitigate any potentially negative effects of the unauthorized use or disclosure, and (vi) the corrective action(s) the Service Provider has taken or shall take to prevent future similar unauthorized uses or disclosures. Service Provider shall provide additional information in connection with the unauthorized disclosure reasonably requested by ITS.

In the event of a breach arising out of Service Providers negligence or misconduct, Service Provider agrees to promptly reimburse all costs to ITS arising from such breach, including but not limited to (i) costs of notification of individuals, (ii) credit monitoring and/or identity restoration services, (iii) time of ITS personnel responding to the breach, (iv) civil or criminal penalties levied against ITS, attorneys’ fees, court costs, etc.

7.5 The contact for the ITS Computer Incident Response Team (CIRT) shall be identified as: 402-472-5700 or [email protected]. Report any confirmed or suspected breach of University data to ITS’s CIRT within forty-eight (48) hours of discovery or detection.

7.6 ITS or an appointed audit firm (Auditors) has the right to audit Service Provider. Audits will be at ITS’ sole expense which includes operational charges by Service Provider, except where the audit reveals material noncompliance with contract specifications, in which case the cost, inclusive of operational charges by Service Provider, will be borne by the Service Provider. In lieu of ITS or its appointed audit firm performing their own audit, if Service Provider has an external audit firm that performs a review, ITS has the right to review the controls tested as well as the results and has the right to request additional controls to be added to the certified report for testing the controls that have an impact on ITS data.

7.7 Service Provider will, prior to the Agreement effective date and annually thereafter during the Term (as well as promptly after any Security Breach), engage an independent CPA firm to conduct a review of controls DocuSign Envelope ID: C8B1B8C7-E10A-4C23-A23F-9B48865A148F #19..
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over security, availability, processing integrity, confidentiality and privacy related to the Service Provider’s information technology system. Such review will be conducted at the Service Provider’s expense and in accordance with the AICPA’s Statements on Standards for Attestation Engagements No. 16 (“SSAE”) Service Organization Controls Type 1 or Type 2 report (SOC 1/SOC 2). Service Provider will provide ITS with a copy of the SOC report within thirty (30) days of the ITS’ request. If exceptions are noted in the SOC audit, Service Provider will document a plan to promptly address such exceptions and will implement corrective measures within a reasonable period. Service Provider will provide a copy or summary of the exception remediation plan within thirty (30) days of ITS’ request and keep ITS informed of the progress and completion of corrective measures. If a SOC audit has not been conducted in the past twelve (12) months and Service Provider is unable to provide associated SOC reports, at ITS’ request, Service Provider will appoint a qualified CPA firm to conduct a SOC audit and shall provide ITS with a copy of each applicable SOC report at Service Provider’s expense. To the extent the SOC reports provided to ITS do not satisfy ITS’ reporting or audit requirements, ITS may conduct its own audits at its expense.

7.8 The Federal Trade Commission has promulgated regulations collectively known as the “Red Flags Rule” with which ITS must comply. See 16 CFR 681. Under the Red Flags Rule, ITS must ensure that Service Provider either complies with ITS’ identity theft Program or that Service Provider has its own policies and procedures in place to detect and respond to identity theft Red Flags. Service Provider represents and warrants that is has reasonable policies and procedures in place to detect, prevent and mitigate identity theft. Service Provider shall review and comply with all relevant portions of ITS’ identity theft policy, if any, as well as any applicable ITS identity theft plan. Service Provider shall report any Red Flags that it detects in connection with the Agreement to ITS.

8. CYBER INSURANCE
The Service Provider agrees to purchase and maintain throughout the term of this Agreement a technology/professional liability insurance policy, including coverage for network security/data protection liability insurance (also called “cyber liability”), covering liabilities for financial loss resulting or arising from acts, errors, or omissions in rendering technology/professional services or in connection with the specific services described in violation or infringement of any right of privacy, including: breach of security and breach of security/privacy laws, rules or regulations globally, now or hereinafter constituted or amended; data theft, damage, unauthorized disclosure, destruction, or corruption, including without limitation, unauthorized access, unauthorized use, identity theft, theft of personally identifiable information or confidential corporate information in whatever form, transmission of a computer virus or other type of malicious code, and participation in a denial of service attack on third party computer systems; loss or denial of service; no cyber terrorism exclusion, with a minimum limit of $10,000,000 each and every claim and in the aggregate. Such coverage must include technology/professional liability including breach of contract, privacy and security liability, privacy regulatory defense and payment of civil fines, payment of credit card provider penalties, and breach response costs (including without limitation, notification costs, forensics, credit protection services, call center services, identity theft protection services, and crisis management/public relations services).

Such insurance must explicitly address all of the foregoing without limitation if caused by an employee of the Service Provider or an independent contractor working on behalf of the Service Provider in performing services under this Agreement. The policy must provide coverage for wrongful acts, claims, and lawsuits anywhere in the world. Such insurance must include affirmative contractual liability coverage for the data breach indemnity in this Agreement for all damages, defense costs, privacy regulatory civil fines and penalties, and reasonable and necessary data breach notification, forensics, credit protection services, public relations/crisis management, and other data breach mitigation services resulting from a confidentiality or breach of security by or on behalf of the Service Provider.

9. MISCELLANEOUS TERMS

9.1 Accessibility (Section 508 ADAA Compliance). If the solution includes any end-user-facing human interface, such as an end-user device software component or web site form, file upload system, etc., then the Service Provider shall conform with the Web Content Accessibility Guidelines (WCAG) 2.1 Level AA Success Criteria to the greatest extent possible.. The Service Provider further agrees to indemnify and hold harmless the DocuSign Envelope ID: C8B1B8C7-E10A-4C23-A23F-9B48865A148F #19..
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University of Nebraska campuses and system using the Service Provider’s products or services from any third party claim arising out of its failure to comply with the aforesaid requirements.

ITS, at its discretion, may at any time test the Service Provider’s products or services covered by this Agreement to ensure compliance with the requirements set forth above. If ITS has any accessibility issues, then ITS must contact it’s designated Service Provider representative or [email protected] and identify the particular accessibility issue(s) with as much specificity as possible. If an accommodation is found to be necessary due to a verified accessibility issue, then Service Provider agrees to remediate the accessibility issue upon request or provide an alternative accommodation at Service Provider’s cost. If the accessibility issue cannot be immediately remediated, then Axon will provide a reasonable timeline for any requested remediation or accommodation. Service Provider agrees that, upon ITS’s written request, Service Provider will provide updates or reports to ITS regarding Service Provider’s progress with respect to any requested remediation or accommodation. Testing that results discovery of a verified accessibility issue may, in ITS’s sole discretion, result in payments for impacted products or services under the Agreement being withheld. All withheld amounts will be paid to the Service Provider upon correction of the non-compliance and acceptance by ITS. Said acceptance will not be unreasonably withheld.

Failure to comply with these requirements shall constitute a breach and be grounds for termination of this Agreement and a pro-rated refund of fees paid from ITS for the remainder of original contract period.

The parties agree that a verified accessibility issue will not include issues due to intermediary interference (e.g. virus protection software, outdated web browsers or outdated assistive technology) or a user’s inability to properly utilize compliant assistive technology. Client agrees to cooperate and work with Axon to discuss options for accessibility and accommodations. If the parties cannot agree that there is a verifiable accessibility issue, then Axon reserves the right to consult with an independent and mutually agreeable accessibility expert to verify the accessibility issue, provide remediation options and/or provide an alternative accommodation. Such right shall not affect University’s right to withhold payment set forth above. To the extent that Axon utilizes other third-party applications or plug-ins, now or in the future, Axon encourages third-parties to make their products and services accessible. These third-party applications and/or plug-ins are not controlled by Axon and may present challenges for individuals with disabilities that Axon may not be able to control or remedy.

9.2 University & State College Participation. In some instances, state colleges or state agencies may wish to explore the possibility of sharing in the benefits of this contract.

9.3 Examination of Records. ITS shall have access to and the right to examine any pertinent books, documents, papers, and electronic records such as logs of the Service Provider involving transactions and work related to this Agreement. Service Provider shall retain project records for a period of three (3) years from the date of final payment.

9.4 Assistance with Litigation or Investigation. E-Discovery: In order to provide ITS with the ability to be compliant with e-discovery rules, Service Provider must provide the following where “relevant data” might include any data stored regarding any person affiliated with ITS, access logs, activity logs, transaction logs, changes to access rights, etc., as detailed by the system architecture and practices provided by Service Provider.

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For the Board of Regents of the University of Nebraska
Signature: __________________________________________________ Date: _______ Printed Name: _______________________________________________ Title: ______________________________________________________ For the Service Provider (Service Provider)
Signature: __________________________________________________ Date: _______ Printed Name: _______________________________________________ Title: ______________________________________________________ I affirm that if I am an employee of the University of Nebraska, I have notified buyer of my status as such and that this contract must be completed in accordance with Board of Regents Policy 6.2.1.12, Purchases involving University Personnel.

Notice. Any notice to either party hereunder shall be in writing and shall be served either personally or by registered or certified mail addressed to the following individuals:

To the Service Provider: To the University:
_______________________________________ _____________________________________ _______________________________________ _____________________________________ _______________________________________ _____________________________________ _______________________________________ _____________________________________ Axon Enterprise, Inc.

Attn: General
Counsel
DocuSign Envelope ID: C8B1B8C7-E10A-4C23-A23F-9B48865A148F 12/16/2022 | 12:06 PM MST
Robert E Driscoll
17800 N 85th Street
Scottsdale, AZ 85255
VP, Assoc. General Counsel
1700 Y Street, BSC 125
Legal Notices
Lincoln, NE 68588-0645
C/O P2P Procurement Contracts
Chris Kabourek
Senior VP | CFO
12/21/22 | 12:48 CST
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Service Offerings Agreement
Title: [Title]
Department: Legal
Version: 1.0
Release Date: 6/9/2021
Part 1 – Axon Evidence Service Level Agreement
This Service Level Agreement (SLA) identifies the Axon Evidence Service Offerings and the expected level of services between Axon1(Axon, us or we) and users of Service Offerings (Customer or you). Unless otherwise provided in this SLA, this SLA is subject to the terms of the purchase agreement, or other similar agreement, if any, between Axon and Customer. This SLA applies separately to each Customer using Service Offerings. By using Service Offerings, you agree that you understand this SLA and you accept and agree to be bound by the following terms and conditions. Axon reserves the right to update and change the terms of this SLA. When we post changes, we will revise the “last updated” date at the top of this page. If there are adverse material changes to this SLA, we will inform you by directly sending you a notification. We encourage you to periodically review the most current version of the Axon Cloud Services Maintenance Schedule by visiting: https://www.axon.com/products/axonevidence/maintenance-schedule.

Definitions
 “Axon Cloud Services” means Axon’s web services for Axon Evidence, Axon Records, Axon Dispatch, and interactions between Evidence.com and Axon devices or Axon client software.

Axon Cloud Service excludes third-party applications, hardware warranties, and my.evidence.com.
 “Downtime” means periods of time, measured in minutes, in which the Service Offering is Unavailable to you. “Downtime” does not include Scheduled Downtime and does not include Unavailability of the Service Offering due to limitations described under the section Exclusions.
 “Incident” means a disruption of Service Offerings during which the Customer experiences Downtime.
 “Maximum Available Minutes” means the total amount of accumulated minutes during a Service Month for the Service Offering.
 “Monthly Uptime Percentage” means (Maximum Available Minutes - Downtime) / Maximum Available Minutes * 100.
 “Scheduled Downtime” means periods of time, measured in minutes, in which the Service Offering is unavailable to Customer, which fall within scheduled routine maintenance or planned maintenance timeframes.
 “Service Month” means a calendar month at Coordinated Universal Time (UTC).

1 “Axon” refers to the Axon entity that you are in a contractual agreement with for the provision of Axon Cloud Services, including but not limited to Axon Public Safety UK Limited, Axon Public Safety Germany SE, etc.

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Service Offerings Agreement
Title: [Title]
Department: Legal
Version: 1.0
Release Date: 6/9/2021
 “Service Credits” means credits received by users of Service Offerings in the event that the service level objectives are not achieved.
 “Service Offerings” means all Axon Evidence services provided by Axon pursuant to this SLA.  “Unavailable” and “Unavailability” means a situation where the Service Offering does not allow for the upload of evidence files, viewing of evidence files or interactive login by an enduser.

Service Level Objective
Axon will use commercially reasonable efforts to make the Service Offerings available 99.99% of the time. Guaranteed service level & Service Credits:

Monthly Uptime
Percentage
Service Credit in
Days
Less than 99.9% 3
Less than 99.0% 7
Requesting Service Credits
In order for Axon to consider a claim for Service Credits, you must submit the claim to Axon Customer Support (https://www.axon.com/contact) including all information necessary for us to validate the claim, including but not limited to: (i) a detailed description of the Incident; (ii) information regarding the time and duration of the Incident; (iii) the number and location(s) of affected users (if applicable); and (iv) descriptions of your attempts to resolve the Incident at the time of occurrence.

Service Maintenance
 Maintenance will take place according to the prevailing Axon Cloud Services Maintenance Schedule: https://www.axon.com/products/axon-evidence/maintenance-schedule.  Maintenance periods may periodically result in the Service Offerings being Unavailable to you. Downtime falling within scheduled routine or planned maintenance is Scheduled Downtime and is not eligible for Service Credits.
 Emergency maintenance may have less than a 24-hour notification period. Emergency maintenance may be performed at any time, with or without notice as deemed necessary by Axon. Emergency maintenance falling outside scheduled routine or planned maintenance is eligible for Service Credits.
 Axon will make available updates as released by Axon to the Axon Cloud Services. The Customer is responsible for maintaining the computer equipment and internet connections necessary for use of Axon Cloud Services.

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Service Offerings Agreement
Title: [Title]
Department: Legal
Version: 1.0
Release Date: 6/9/2021
 For the support of Android & iOS Applications, including Axon View, Axon Device Manager, and Axon Capture, Axon will use reasonable efforts to continue supporting previous version of such applications for 45 days after the change. In the event the Customer does not update their Android/iOS application to the most current version within 45 days of release, Axon may disable the application or force updates to the non-supported application.

Terms
Axon must receive the claim within one month of the end of the month in which the Incident that is the subject of the claim occurred. For example, if the Incident occurred on February 12th, we must receive the claim and all required information by March 31st.

We will evaluate all information reasonably available to us and make a good faith determination of whether a Service Credit is owed. We will use commercially reasonable efforts to process claims during the subsequent month and within forty-five days of receipt. You must be in compliance with all Axon agreements in order to be eligible for a Service Credit. If we determine that a Service Credit is owed to you, we will apply the Service Credit to the end of your Service Offering subscription term. Service Credits may not be exchanged for or converted to monetary amounts.

Exclusions
This SLA does not apply to any unavailability, suspension or termination of the Service Offerings, or any other Axon Evidence performance issues: (a) caused by factors outside of our reasonable control, including any force majeure event, terrorism, sabotage, virus attack or Customer internet access and related problems beyond the demarcation point of the Service Offerings (including Domain Name Server issues outside our direct control); (b) that result from any actions or inactions of you or a third party; (c) that result from your communication delays, including wrong, bad or missing data, improperly formatted, organized or transmitted data received from you, or any other data issues related to the communication or data received from or through you; (d) that result from your equipment, software or other technology and/or third party equipment, software or other technology (other than third party equipment within our direct control); (e) that result from any maintenance as provided for pursuant to this SLA; or (f) arising from our suspension and termination of your right to use the Service Offerings in accordance with the agreement for the provision of Axon Evidence between you and Axon.

Planned Maintenance
Axon may schedule and plan maintenance windows outside of the timeframes detailed in “Scheduled Routine Maintenance”.

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Service Offerings Agreement
Title: [Title]
Department: Legal
Version: 1.0
Release Date: 6/9/2021
Scheduled Routine Maintenance: routine maintenance is scheduled on the fourth Tuesday of each month in Pacific Time (PT)*:
* Pacific Time (PT) observes daylight savings. UTC time data is reflective of maintenance windows regardless of daylight savings observation.

Refer to UTC to calculate local time of maintenance.
** Maintenance performed on UK and AU a week after the fourth Tuesday of each month *** Time period includes time on Wednesday in UTC
**** Time period is on Wednesday in UTC
Emergency Maintenance
Patches and emergency releases are used to deliver ad-hoc application fixes and are typically seamless to customers. Whenever possible, patches and emergency releases are deployed during off-peak hours and without Downtime. Emergency releases are conducted on an as-needed basis and can occur any day of the week.

Axon Device Firmware Updates
Firmware updates and enhancements to Axon devices are pushed from Axon Cloud Services.

Customer interaction is not required. Updates are retrieved, installed and validated during the normal device charging and data transfer process. Firmware updates are systemically rolled out to customers in waves.

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Service Offerings Agreement
Title: [Title]
Department: Legal
Version: 1.0
Release Date: 6/9/2021
Notification of Maintenance
Notification of upcoming routine maintenance is not provided in advance unless there has been a change to the Scheduled Routine Maintenance. Approximately one (1) week prior to the routine maintenance, release notes are provided to Axon Evidence customer administrators.

If planned maintenance is required, Axon will communicate via email to Axon Evidence Customer administrators at least one (1) week in advance.

In the event of scheduled routine or planned maintenance that requires customer action (e.g. updating network settings), Axon will communicate via email at least sixty (60) days prior to the maintenance. Please Note: If emergency maintenance that requires customer action is necessary, Customers may be notified less than one (1) week in advance.

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Service Offerings Agreement
Title: [Title]
Department: Legal
Version: 1.0
Release Date: 6/9/2021
Part 2 - Customer Support Response Statement
Axon has implemented Incident response policies and practices for Axon devices and Axon Cloud Services, which follow industry best practice standards. Axon reserves the right to change the terms of these response policies.

Definitions
 “Business Day” means Monday to Friday 08:00 – 17:30, excluding public holidays.  “BOD” means the Board of Directors
 “Incident” means a fault related to an Axon product or Axon Cloud Services experienced by the Customer.
 “Targeted Response Time” means the target timeframe for Axon to respond to Customer and/or escalate the Incident within the “Axon Customer Support Solution”.  “Targeted Resolution Time” means the target timeframe for the full resolution of the Incident. It excludes time delays caused by Customer or third parties outside of Axon’s reasonable control.
 “Workaround” means a method for overcoming an Incident allowing the Customer to operate the core function of Axon devices and/or Axon Cloud Services.

Axon Support Channels
Axon Resource Centre: https://my.axon.com
Telephone:

US & Canada: 800-978-2737
UK: +44 (0)1327 709 666
Email:

UK: [email protected]
Germany: [email protected]
Rest of EMEA: [email protected] or [email protected] DocuSign Envelope ID: C8B1B8C7-E10A-4C23-A23F-9B48865A148F #19..
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Service Offerings Agreement
Title: [Title]
Department: Legal
Version: 1.0
Release Date: 6/9/2021
Incident Classifications and Response Times
Incident
Classification Description
Targeted
Response
Time
Targeted
Resolution
Time
Customer Response
Commitment
Severity 1
- Business critical
function is down
- Material impact
to Customer's
business
- No Workaround
exists
Less than 1
hour
Less than 24
hours
Customer shall remain
accessible by phone for
troubleshooting from the
time a Severity 1 issue is
logged until such time as it is
resolved.

Severity 2
- Business critical
function is
impaired or
degraded
- There are timesensitive issues
that materially
impact ongoing
production
- Workaround
exists, but it is only
temporary
1 Business
Day
Less than 2
weeks
Customer shall remain
accessible by phone or other
electronic means for
troubleshooting from the
time a Severity 2 issue is
logged until such time as it is
resolved.

Severity 3
- Non-critical
function down or
impaired
- Does not have
significant current
production impact
- Performance is
degraded
1 Business
Day
Mutually
agreed
timeframe
based on
prioritization
For Customers with 4 levels of Incident classification such as Critical, High, Medium and Low, Axon will recognize this and will consider the two highest categories as “Severity 1”. For example:

Critical and High would be classed as a “Severity 1” Incident and managed accordingly.

Severity Level Determination
Customer shall reasonably self-diagnose each Incident and recommend to Axon an appropriate severity level designation. Axon shall validate your severity level designation or notify you of a proposed change to a higher or lower level with justification for the proposal. In the event of a conflict regarding the appropriate severity level designation, each party shall promptly escalate such conflict to its management team for resolution through consultation between the parties’ management, during which time the parties shall continue to handle the Incident support in accordance with Axon’s severity level designation. In the rare case a conflict requires a management discussion, both parties shall be available within one hour of the escalation.

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Service Offerings Agreement
Title: [Title]
Department: Legal
Version: 1.0
Release Date: 6/9/2021
Escalation
Escalation
Level Description Escalation
Targeted
Response
Time
Targeted
Resolution
Time
Tier 1
Basic technical or
commercial issues -
Non-time critical
None Less than 6
hours
Less than 1
business day
Tier 2
Advanced technical
or commercial issues
- Non-time critical.

BoD / Country
Manager
Less than 4
hours
Less than 1
business day
Tier 3 Technical or
commercial issues -
Time critical
Country Manager
to Axon
BoD/Support
Team
Less than 2
hours
Less than 1
business day
Exclusions
This Customer Support Response Statement does not apply to any unavailability, suspension, or termination of the Service Offerings caused by all the exclusion events under Part 1 of this document, nor to services or hardware not within Axon’s control. Hardware warranty will be dependent on Customer’s specific agreement with Axon and levels covered. Please see Part 3 for “Return of Merchandise Authorization”.

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Service Offerings Agreement
Title: [Title]
Department: Legal
Version: 1.0
Release Date: 6/9/2021
Part 3 – Return of Merchandise Authorization (RMA)
The Axon Evidence Device Return Service provides Customers with the ability to manage return merchandise authorization (RMA) requests within Axon Evidence.com. Authorized users will be able to create, update, save, submit, and track device returns for their agency in one place.

Hardware warranty will be dependent on Customer’s specific agreement with Axon and levels covered.

Targeted Replacement Time:

Axon aims to have replacement devices shipped to the Customer within 48 hours from receipt of the faulty device (excluding weekends or public holidays).

Exclusions
The Return of Merchandise Authorization does not apply to services or hardware not within Axon’s control. Axon’s customer support will provide detail on return times as soon as possible to the Customer’s point of contact.

N.B. TASER products (conducted electrical devices) are not covered under the terms of this Return of Merchandise Authorization. Customers are requested to contact Customer support directly to report a faulty TASER device.

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BUSINESS ASSOCIATE AGREEMENT
This Business Associate Agreement (this “Agreement”) is entered into by and between Axon Enterprise, Inc., a Delaware corporation with an address located at 17800 N 85th Street, Scottsdale, AZ 85255 (herein referred to as “Business Associate”), and The Board of Regents of the University of Nebraska, a public body corporate,(herein referred to as “Covered Entity”) and shall be effective on the later of the dates of the parties’ signatures below (the “Effective Date”).

1. Definitions.

1.1. “HIPAA Regulations” means the Administrative Simplification requirements of the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), and the regulations promulgated thereunder, including (i) the Standards for Privacy of Individually Identifiable Health Information at 45 C.F.R. Parts 160 and 164 (Subparts A and E) (the “HIPAA Privacy Rule”); (ii) the Administrative Requirements applicable to Transactions at 45 C.F.R. Parts 160 and 162 (Subparts A and I) (the “Electronic Transactions Rule”); (iii) the Security Standards for the Protection of Electronic Protected Health Information at 45 C.F.R. Parts 160 and 164 (Subparts A and C) (the “HIPAA Security Rule”); and (iv) the Standards for Notification in the Case of Breach of Unsecured Protected Health Information at 45 C.F.R. Parts 160 and 164 (Subparts A and D).

1.2. “HITECH Act” means the Health Information Technology for Economic and Clinical Health Act, Title XIII of Division A and Title IV of Division B of the American Recovery and Reinvestment Act of 2009 (Pub. L. 111-5).

1.3. “Protected Health Information” or “PHI” means information, including demographic information, that (i) relates to the past, present, or future physical or mental health or condition of an individual, the provision of health care to an individual, or the past, present, or future payment for the provision of health care to an individual; (ii) identifies the individual (or there is a reasonable basis for believing that the information can be used to identify the individual); and (iii) is received by Business Associate from or on behalf of Covered Entity, is created by Business Associate on behalf of Covered Entity, or is made accessible to Business Associate by Covered Entity.

1.4. “Services” means provision of Axon Cloud Services as described in the agreement between the Parties (the “Underlying Agreement”).

1.5. “Successful Security Incident” shall mean a Security Incident that results in the unauthorized access, use, disclosure, modification, or destruction of PHI.

1.6. “Unsuccessful Security Incident” shall mean a Security Incident that does not result in unauthorized access, use, disclosure, modification, or destruction of PHI (including, for example, and not for limitation, pings on Business Associate’s firewall, port scans, attempts to log onto a system or enter a database with an invalid password or username, denial-of-service attacks that do not result in the system being taken off-line, or malware such as worms or viruses).

1.7. Except as otherwise set forth in this Agreement, capitalized terms used, but not otherwise defined, in this Agreement shall have the same meanings as those terms in the HIPAA Regulations. A reference in this Agreement to the HIPAA Regulations, the HIPAA Privacy Rule, the Electronic Transaction Rule, the HIPAA Security Rule and the HITECH Act DocuSign Envelope ID: C8B1B8C7-E10A-4C23-A23F-9B48865A148F #19..
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means the law or regulation as may be amended from time to time. Any ambiguity in this Agreement shall be resolved to permit compliance with the HIPAA Regulations.

2. Business Associate’s Satisfactory Assurances.

2.1. Permitted Uses of PHI. Business Associate shall Use PHI only as necessary to perform the Services, for Business Associate’s proper management and administration, or to carry out Business Associate’s legal responsibilities. If and only to the extent part of the Services, Business Associate may perform data aggregation with regard to the health care operations of Covered Entity.

2.2. Permitted Disclosures of PHI. Business Associate shall Disclose PHI only:

2.2.1. As necessary to perform the Services;

2.2.2. For Business Associate’s proper management and administration or to carry out Business Associate’s legal responsibilities, provided that:

2.2.2.1. The Disclosure is Required By Law; provided, however, that Business Associate shall notify Covered Entity no less than five (5) business days prior to any such Disclosure and provide Covered Entity with the opportunity to seek confidential treatment for any PHI Disclosed and cooperate with Covered Entity if it should seek confidential treatment; or

2.2.2.2. Prior to the Disclosure, Business Associate obtains reasonable written assurances from the person or entity to whom the PHI is Disclosed that:
(a) the PHI will be held in confidence and Used or further Disclosed only as Required By Law or for the lawful purpose for which it was Disclosed to the person or entity; and (b) the person or entity will notify Business Associate of any instances of which it is aware in which the confidentiality of the PHI has been breached within two (2) days of becoming aware of such an occurrence.

2.3. Confidentiality Obligation. Business Associate will not Use or Disclose PHI other than as permitted by this Agreement or as Required By Law.

2.4. Safeguards. Business Associate agrees to implement appropriate administrative, physical, and technical safeguards to prevent the unauthorized Use and Disclosure of Protected Health Information, and to protect the confidentiality, integrity, and availability of Electronic Protected Health Information, as required by the HIPAA Regulations. Without limiting the foregoing, Business Associate agrees to comply with the requirements of the HIPAA Security Rule.

2.5. Deidentification. Business Associate may not de-identify Protected Health Information except as necessary to provide the Services. Business Associate is prohibited from Using or Disclosing any such deidentified information for its own purposes without the prior DocuSign Envelope ID: C8B1B8C7-E10A-4C23-A23F-9B48865A148F #19..
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written consent of Covered Entity. Business Associate is further prohibited from Disclosing such deidentified information to any third party who may reidentify such information, in violation of 45 C.F.R. 164. Such disclosure shall constitute a breach of this Agreement.

2.6. Access. If and to the extent Business Associate maintains PHI in a Designated Record Set, Business Associate shall make the PHI specified by Covered Entity available to the individual(s) identified by Covered Entity as being entitled to access in accordance with 45 C.F.R. § 164.524, as amended by the HITECH Act. If Covered Entity determines that an Individual is entitled to such access, and that such PHI is under the control of Business Associate, Covered Entity will communicate the decision to Business Associate. Covered Entity shall provide access to the PHI in the same manner as would be required for Covered Entity. If Business Associate receives an Individual’s request to access his or her PHI, Business Associate shall forward such request to Covered Entity within five (5) business days.

2.7. Amendment. Upon request by an Individual, Covered Entity shall determine whether any Individual is entitled to amend his or her PHI pursuant to 45 C.F.R. § 164.526. If Covered Entity determines that an Individual is entitled to such an amendment, and that such PHI is both in a Designated Record Set and under the control of Business Associate, Covered Entity will communicate the decision to Business Associate. Business Associate shall provide an opportunity to amend the PHI in the same manner as would be required for Covered Entity. If Business Associate receives an Individual’s request to amend his or her PHI, Business Associate shall forward such request to Covered Entity within five (5) business days.

2.8. Accounting. Upon Covered Entity’s request, Business Associate shall make available to Covered Entity the information necessary to provide an accounting of each Disclosure of PHI made by Business Associate in accordance with 45 C.F.R. § 164.528. If Business Associate receives an Individual’s request for an accounting of Disclosures, Business Associate shall forward such request to Covered Entity within five (5) business days and will thereafter follow the directions of Covered Entity with respect to such a request for an accounting.

2.9. Restrictions on Disclosures. Upon request by an Individual, Covered Entity shall determine whether an Individual is entitled to a restriction on disclosure of PHI pursuant to 45 C.F.R. § 164.522. If Covered Entity determines that an Individual is entitled to such a restriction, Covered Entity will communicate the decision to Business Associate.

Business Associate will restrict its Disclosures of the Individual’s PHI in the same manner as would be required for Covered Entity. If Business Associate receives an Individual’s request for a restriction, Business Associate shall forward such request to Covered Entity within five (5) business days.

2.10. Activities to Assist Covered Entity’s Compliance with the HIPAA Privacy Rule. In the event the performance of the Services requires Business Associate to perform any activity on behalf of Covered Entity in order to assist Covered Entity in complying with the HIPAA Privacy Rule, Business Associate agrees to comply with the requirements of the HIPAA Privacy Rule that apply to Covered Entity in the performance of such activity.

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2.11. Access to Books and Records. Business Associate shall make its internal practices, books and records relating to the Use and Disclosure of PHI available to the Secretary for purposes of determining compliance with the HIPAA Regulations.

2.12. Background Screenings. Business Associate has obtained, at Business Associate’s own expense and in a manner compliant with all applicable local, state, federal and international laws, including the Federal Bureau of Investigation Criminal Justice Information Services Security Addendum, a background screening for all of its Workforce members with access to any Protected Health Information, which background screening was completed consistent with current industry standards and included, without limitation, a national federal criminal database check, a seven (7) year county of residence criminal conviction search, and, as applicable, an international criminal record check (a “Satisfactory Background Screening”). If additional Workforce members (whether existing or new hires) will have access to any Protected Health Information, Business Associate shall ensure Business Associate has obtained a Satisfactory Background Screening for each such additional Workforce member prior to permitting him/her any access to Protected Health Information. Business Associate agrees to update any Workforce background screening upon reasonable request by Covered Entity, it being agreed that any request based upon the occurrence of any Breach or other illegal activity involving Business Associate or its personnel, or the reasonable suspicion of illegal activity involving Protected Health Information, or any regulatory requirements requiring such updates, would be deemed reasonable hereunder. Business Associate shall provide Covered Entity with evidence of the completion of the required Satisfactory Background Screenings upon Covered Entity’s request. Business Associate shall not hire, retain or engage any Workforce who will have access to any PHI who has been convicted (felony or misdemeanor) of or entered into a court-supervised diversion program for theft or fraud (including, but not limited to, embezzlement, larceny, perjury, forgery, credit card fraud, check fraud, identity theft), terrorism, or any other breach of trust or fiduciary duty crime.

2.13. Agents and Subcontractors. Business Associate shall not permit any agent, Subcontractor or other third party to create, access, receive, maintain, transmit, use, disclose or store PHI in any form on behalf of Business Associate without Covered Entity’s prior written consent. Business Associate agrees to ensure that any permitted agent or permitted Subcontractor to which it provides Protected Health Information agrees to the same requirements that apply through this Agreement to Business Associate with respect to such information and to enter into a written business associate agreement with any such agent or Subcontractor. Business Associate shall be liable to Covered Entity for any acts, failures or omissions of the agent or Subcontractor in providing the services as if they were Business Associate’s own acts failures or omissions to the extent permitted by law.

2.14. Reporting of Violations. Business Associate shall report to Covered Entity any of the following events within two (2) business days of becoming aware of the occurrence of the event:

2.14.1. Any Use or Disclosure of PHI not authorized by this Agreement;

2.14.2. Any Successful Security Incident; and

2.14.3. Any acquisition, access, Use or Disclosure of Unsecured PHI in a manner not permitted by the HIPAA Privacy Rule. Such report shall include the identification of each Individual whose Unsecured PHI has been, or is reasonably believed by DocuSign Envelope ID: C8B1B8C7-E10A-4C23-A23F-9B48865A148F #19..
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Business Associate to have been, accessed, acquired, Used or Disclosed. As soon as possible thereafter, and to the extent known, Business Associate shall also provide Covered Entity with a description of:

2.14.3.1. What happened, including the date of the acquisition, access, Use or Disclosure and the date of its discovery;

2.14.3.2. The types of Unsecured PHI involved in the acquisition, access, Use or Disclosure;

2.14.3.3. Any steps Individuals should take to protect themselves from potential harm from the acquisition, access, Use or Disclosure; and

2.14.3.4. What Business Associate is doing to investigate the acquisition, access, Use or Disclosure, to mitigate harm to Individuals, and to protect against any further unpermitted acquisition, access, Use or Disclosure of Unsecured PHI.

2.15. Reporting Unsuccessful Security Incidents. The Parties acknowledge and agree that this Section constitutes notice by Business Associate to Covered Entity of the ongoing existence and occurrence of Unsuccessful Security Incidents. The foregoing notwithstanding, Business Associate shall, upon Covered Entity’s reasonable written request, report to Covered Entity Unsuccessful Security Incidents in accordance with the reporting requirements herein. For Unsuccessful Security Incidents, Business Associate shall provide Covered Entity, upon its written request, a report that: (a) identifies the categories of Unsuccessful Security Incidents; (b) indicates whether Business Associate believes its current defensive security measures are adequate to address all Unsuccessful Security Incidents, given the scope and nature of such attempts; and (c) if the security measures are not adequate, the measures Business Associate will implement to address the security inadequacies.

2.16. Cooperation with Violations. Business Associate will cooperate with Covered Entity’s investigation and/or risk assessment with respect to any report made pursuant to Section

2.14, will abide by Covered Entity’s decision with respect to whether such acquisition, access, Use or Disclosure constitutes a Breach of PHI and will follow Covered Entity’s instructions with respect to any event reported to Covered Entity by Business Associate pursuant to Section 2.14. Business Associate shall maintain complete records regarding any event requiring reporting for the period required by 45 C.F.R. 164.530(j) or such longer period as may be required by state law and shall make such records available to Covered Entity promptly upon request but in no event later than within five (5) business days.

2.17. Mitigation. Business Associate agrees to mitigate, at its sole expense: (i) any harmful effect resulting from a Security Incident involving PHI or any Use or Disclosure of PHI by Business Associate or its Subcontractors in violation of the requirements of this Agreement, the HIPAA Regulations, or other applicable law; and (ii) any risks identified or discovered as a result of an Unsuccessful Security Incident.

2.18. Breach. In the event of a Breach of PHI arising out of the acts or omissions of Business Associate or any permitted agent or permitted Subcontractor of Business Associate and as instructed by Covered Entity, Business Associate agrees to either perform at its sole cost and expense, or pay the cost of Covered Entity’s performance of, reasonable mitigation or DocuSign Envelope ID: C8B1B8C7-E10A-4C23-A23F-9B48865A148F #19..
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remediation services which shall include at a minimum: (i) reimburse Covered Entity for the cost of providing any notice to individuals affected by the Breach as Covered Entity reasonably determines to be required; (ii) at its own expense, providing any required notice of the Breach to government agencies, media, and/or other entities as Covered Entity reasonably determines to be required; (iii) if required by applicable law, providing individuals affected by the Breach of Protected Health Information with credit protection services designed to prevent fraud associated with identity theft crimes for a specific period not to exceed twelve (12) months, except to the extent applicable law specifies a longer period for such credit protection services, in which case such longer period shall then apply; (iv) providing reasonable contact support in the form of a toll-free number for affected individuals for a specific period not less than ninety (90) calendar days, except to the extent applicable law specifies a longer period of time for such contact support, in which case such longer period shall then apply; vi) paying reasonable fees associated with computer forensics work required for investigation activities related or relevant to the Breach of Protected Health Information; (vii) paying nonappealable fines or penalties assessed by governments or regulators; (viii) paying reasonable costs or fees associated with any obligations imposed by applicable law, including HIPAA, in addition to the costs and fees defined herein; and (ix) undertaking any other action both Parties agree to be appropriate.

2.19. No Remuneration for PHI. Business Associate shall not receive remuneration, either directly or indirectly, in exchange for PHI, except as may be permitted by Section 13405(d) of the HITECH Act or any regulations adopted as a result of that provision.

2.20. Activities Outside the United States. Business Associate represents that neither it nor any permitted agents nor permitted Subcontractors will transfer, access or otherwise handle Protected Health Information outside the United States without the prior written consent of Covered Entity.

3. Responsibilities of Covered Entity. With regard to the use and/or disclosure of PHI by Business Associate, Covered Entity hereby agrees to do the following:

3.1. Covered Entity may only upload, add or provide PHI to Business Associate’s cloud services that is: (i) captured through Covered Entity’s use of body worn cameras purchased from Business Associate (“BWC”) or (ii) information strictly necessary to identify or categorize the PHI captured by BWC and uploaded to Business Associate’s cloud services, but excluding, without limitation, any information describing or documenting an Individual’s diagnosis, treatment, or Genetic information that is not captured by BWC.

3.2. Covered Entity shall manage its own data.

3.3. Covered Entity will make its privacy practices available at https://nebraskamed.com/patients/rights-responsibilities/notice-privacy-practices for Business Associate’s review.

3.4. Inform Business Associate of any changes in, or revocation of, the permission by an individual to use or disclose PHI, to the extent such limitation may affect Business Associate’s use or disclosure of PHI.

3.5. Notify Business Associate, in writing and in a timely manner, of any restriction on the use or disclosure of PHI that Covered Entity has agreed to or is required to abide by DocuSign Envelope ID: C8B1B8C7-E10A-4C23-A23F-9B48865A148F #19..
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under 45 C.F.R. § 164.522, to the extent that such restriction may impact in any manner the use and/or disclosure of PHI by Business Associate under this Agreement.

3.6. Not request Business Associate to use or disclose PHI in any manner that would not be permissible under the Privacy and Security Rules if done by Covered Entity.

3.7. Promptly notify Business Associate of any breach by Covered Entity of the Privacy or Security Rules.

4. Standard Transactions. To the extent Business Associate conducts on behalf of Covered Entity all or part of a Transaction, Business Associate shall comply with the Electronic Transactions Rule.

5. Term and Termination.

5.1. Term. This Agreement begins on the Effective Date and remains in effect until the Business Associate ceases to perform the Services for Covered Entity.

5.2. Termination. Either party may terminate this Agreement in the event it determines that the other party has violated a material term of this Agreement and such violation has not been remedied within ten (10) days following written notice to the violating party.

5.3. Survival. Except as otherwise expressly provided in this Agreement, all covenants, agreements, representations and warranties, express and implied, shall survive the execution of this Agreement, and shall remain in effect and binding upon the Parties until they have fulfilled all of their obligations hereunder, and the statute of limitations shall not commence to run until the time such obligations have been fulfilled. Any terms of this Agreement that must survive the expiration or termination of this Agreement in order to have their intended effect shall survive the expiration or termination of this Agreement whether or not expressly stated.

5.4. Duties Upon Termination. Upon termination of this Agreement, Business Associate shall allow Covered Entity to retrieve all PHI in the possession or control of Business Associate or its agents and Subcontractors and shall then destroy all PHI in its possession or control, as further set forth in the Underlying Agreement. However, if Business Associate determines that neither return nor destruction of PHI is feasible, Business Associate may retain PHI, provided that it extends the protections of this Agreement to the information and limits further Uses and Disclosures to those purposes that make the return or destruction of the information infeasible.

6. General Provisions

6.1. Affiliated Covered Entity (ACE). Covered Entity represents and warrants that it is an affiliate of the other Covered Entities listed on Exhibit A, and together Covered Entity and the Covered Entities listed in Exhibit A are members of an “Affiliated Covered Entity” as defined in 45 C.F.R. § 164.105. As such, the parties agree that it is their intention that this Agreement applies to Covered Entity and all Covered Entities listed on Exhibit A pursuant to the signature of Company.

6.2. No Third Party Beneficiaries. This Agreement is for the sole benefit of the Parties, and there are no third-party beneficiaries to the Agreement.

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6.3. Future Amendments to HIPAA or HIPAA Regulations. To the extent HIPAA and/or the HIPAA Regulations are amended in the future and to the extent such amendments contain requirements and/or provisions not already contained in this Agreement required to be incorporated into this Agreement, the Parties agree that either (i) this Agreement shall be deemed to be automatically amended to the extent necessary to incorporate such additional requirements and/or provisions, or (ii) if determined necessary by Covered Entity, they will attempt in good faith to negotiate an amendment to this Agreement in order to incorporate any such additional requirements and/or provisions, provided that in the event that the Parties are unable to agree to such an amendment within sixty (60) days, either Party may terminate this Agreement upon thirty (30) days written notice to the other Party.

6.4. Indemnification. Business Associate agrees to indemnify and hold harmless Covered Entity from any and all liability, damages, costs (including reasonable attorneys’ fees and costs) and expenses imposed upon or asserted against Covered Entity arising out of any claims, demands, awards, settlements or judgments relating to any breach of the terms of this Agreement by Business Associate, including, but not limited to, any Use or Disclosure of PHI by Business Associate, or its agents or Subcontractors that is contrary to the provisions of this Agreement or applicable law. This Section shall survive the termination or expiration of this Agreement.

6.5. Limitation of Liability. EXCEPT TO THE EXTENT SUCH LIMITATIONS ARE

PROHIBITED BY APPLICABLE LAW, BUSINESS ASSOCIATES CUMULATIVE

LIABILITY TO ANY PARTY FOR ANY LOSS OR DAMAGE RESULTING FROM

ANY CLAIM, DEMAND, OR ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT WILL NOT EXCEED ONE (1) MILLION USD. NEITHER PARTY

WILL BE LIABLE FOR DIRECT, SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE

OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, WHETHER FOR

BREACH OF WARRANTY OR CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT OR ANY OTHER LEGAL THEORY.

6.6. Insurance. Business Associate agrees to keep in full force and effect and maintain at its sole cost and expense a policy of data breach and cyber liability insurance covering theft, loss, or unauthorized Disclosure of Protected Health Information, personally identifiable nonpublic information or third-party corporate information in the care, custody or control of Business Associate in an amount sufficient to cover Business Associate’s obligations hereunder, regardless of when the claim is brought, which amount shall be not less than ten million dollars ($10,000,000) per occurrence, ten million dollars ($10,000,000) aggregate. All insurance shall name Covered Entity as a certificate holder, and Business Associate shall furnish or cause its insurance carrier to furnish a certificate of insurance to Covered Entity as evidence of such agreement on the Effective Date hereof. This insurance shall be not changed or canceled without Business Associate providing at least thirty (30) days’ prior written notice to Covered Entity (unless such cancellation is due to nonpayment of premiums, in which event ten (10) days’ prior written notice shall be provided).

6.7. No Assignment. Business Associate’s duties under this Agreement may not be transferred, assigned or assumed by any other person, in whole or in part, without the prior written consent of Covered Entity. Subject to the foregoing, this Agreement shall be binding upon, and shall inure to the benefit of, the Parties hereto and their respective permitted successors and assigns.

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6.8. No Ownership. Any Protected Health Information provided by Covered Entity, its employees, agents, consultants or Subcontractors to Business Associate, or created, obtained, procured, Used or accessed by Business Associate on Covered Entity’s behalf, shall at all times be and remain the sole property of Covered Entity, and Business Associate shall not have or obtain any rights therein except as stated herein.

6.9. Remedies. The Parties agree that the remedies at law for a violation of the terms of the Agreement may be inadequate and that monetary damages resulting from such violation may not be readily measured. Accordingly, in the event of a violation by either Party of the terms of the Agreement, the other Party shall be entitled to immediate injunctive relief.

Nothing herein shall prohibit either Party from pursuing any other remedies that may be available to either of them for such violation.

6.10. Independent Contractors. It is expressly agreed that Business Associate, including its employees and Subcontractors, are performing services for Covered Entity as independent contractors. Neither Business Associate nor any of its employees, agents or Subcontractors is an employee or agent of Covered Entity. Nothing in this Agreement shall be construed to create (i) a partnership, joint venture or other joint business relationship between the Parties or their affiliates, or (ii) an agency relationship for purposes of the HITECH Act.

6.11. Notices. All notices and other communications required under this Agreement will be in writing, addressed to either party to the attention of its Privacy Officer at its address set forth above, and will be deemed effectively delivered (i) upon personal delivery, or (ii) upon receipt from a courier service as confirmed by written verification of receipt. Either party may change its address for such communications by giving an appropriate notice to the other party in conformity with this Section.

If to Covered Entity:

University of Nebraska Medical Center
988102 Nebraska Medical Center
Omaha, NE 68198-8102
Attn: Privacy Officer
With a copy to:

University of Nebraska
6001 Dodge Street
Omaha, NE 68182
Attn: Chief Compliance Officer
If to Business Associate:

Axon Enterprise, Inc.
17800 N 85th Street
Scottsdale, AZ 85255
Attn: General Counsel

6.12. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original but all of which shall constitute one and the same instrument. An executed Agreement delivered by facsimile or other electronic transmission shall be treated as if an original.

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[Signatures on the following page]
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IN WITNESS WHEREOF, the parties hereto have caused their authorized representatives to execute this Agreement as of the dates set forth below.

The Board of Regents of the University of Nebraska
By:

Name:

Title:

Date:

Axon Enterprise, Inc.

By:

Name:

Title:

Date:

DocuSign Envelope ID: C8B1B8C7-E10A-4C23-A23F-9B48865A148F Robert E Driscoll
12/16/2022 | 12:06 PM MST
VP, Assoc. General Counsel
Senior VP | CFO
Chris Kabourek
12/21/22 | 12:48 CST
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EXHIBIT A
ACE Covered Entities
The Nebraska Medical Center, located at 987400 Nebraska Medical Center, Omaha, NE 68198-7400
Bellevue Medical Center, located at 2500 Bellevue Medical Center Drive, Bellevue, NE 68123
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CITY OF MODESTO

COUNCIL AGENDA REPORT
DATE OF MEETING:

December 12, 2023
Date: November 8, 2023
TO: Mayor and City Council
THROUGH: Joseph P. Lopez, City Manager
FROM: Brandon Gillespie, Chief of Police
SUBJECT: Retirement of Canine Hank and Purchase of Retired City of Modesto Police Canine Hank by Officer Nicolas Largent
CONTACT: Brian Kleiber, Lieutenant, [email protected] , 209-572-9500 DESCRIPTION:

Consider approving an Agreement with Officer Nicholas Largent for the purchase of Retired City of Modesto Police Canine, Hank in the amount of $1. (Funding source: General Fund) STRATEGIC PLAN ELEMENT:

The item is related to the 2020-2025 Strategic Plan goal of improving community safety and quality of life through a combination of prevention and intervention efforts that address safety and its underlying issues.

BACKGROUND:

Canine Hank has served with the Modesto Police Department for seven years. Hank was born in Slovakia and will turn 9-years-old on May 10, 2024. Canine Hank was handled by Police Officer Erick Garcia-Martinez. In January 2022, his first handler, Officer Nicholas Largent, left employment with the City of Modesto. Canine Hank has transferred to Officer Erick GarciaMartinez.

Hank has had a distinguished career as a police service dog and is a valued member of the Modesto Police Department and community.

DISCUSSION:

In May 2023, Hank had a very serious surgery to repair his back. Since that time, Hank has been unable to resume full duties as a police service dog. Our veterinary professionals have advised Modesto Police Department that his recovery has apexed and he will not improve further. It would be cruel and risky to his future health to ask him to continue his career as a police service dog.
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Council Meeting, December 12, 2023
Retirement & Purchase of Canine Hank

Officer Largent came back to employment with the City of Modesto in August 2023. He is willing to take ownership of Canine Hank and any associated liability, so Officer Garcia-Martinez can continue his canine career with a new dog.

FISCAL IMPACT:

If approved by the City Council, Officer Nicholas Largent will purchase the canine for $1, per Resolution No. 99-370.

COMMITTEE RECOMMENDATION:

This was approved by the Safety & Communities Committee on November 6, 2023, and was recommended to forward to the Council for approval.

RECOMMENDED COUNCIL ACTION:

Staff Recommendations:

Resolution approving the Agreement with Officer Nicholas Largent for the purchase of Retired City of Modesto Police Canine Hank for the amount of $1, and authorizing the City Manager, or his designee, to execute the Agreement.

Approved by:

Brandon Gillespie, Chief of Police
Joseph P. Lopez, City Manager
Attachments:

1. Resolution

2. Canine Transfer Contract with Office Nicholas Largent #20..
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MODESTO CITY COUNCIL
RESOLUTION NO. 2023 -XXX

RESOLUTION APPROVING AN AGREEMENT WITH OFFICER NICHOLAS

LARGENT FOR THE PURCHASE OF RETIRED CITY OF MODESTO POLICE CANINE, HANK IN THE AMOUNT OF $1; AND AUTHORIZING THE CITY

MANAGER, OR HIS DESIGNEE, TO EXECUTE THE AGREEMENT
WHEREAS, the Chief of Police for the City of Modesto, from time to time, officially retires police canines from departmental service, and WHEREAS, the City Council approved the sale of retired police canines for $1 with Council Resolution, 99-370, and
WHEREAS, Modesto Police Canine Hank has had a surgery to repair his back and is unable to resume full duties as a police service dog, and WHEREAS, City of Modesto, Officer Nicholas Largent, wishes to purchase and assume possession of the canine, Hank, upon the dog’s official retirement.

NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Modesto that it hereby approves an agreement with Office Nicholas Largent for the purchase of retired police canine, Hank, in the amount of $1.

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. #20..
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The foregoing resolution was introduced at a regular meeting of the Council of the City of Modesto held on the 12th day of December, 2023, by Councilmember ?, who moved its adoption, which motion being duly seconded by Councilmember ?, was upon roll call carried and the resolution adopted by the following vote:

AYES: Councilmembers:

NOES: Councilmembers:

ABSENT: Councilmembers:

ATTEST:

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

BY: _____________________________________
JOSE M. SANCHEZ, City Attorney
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1 MODESTO POLICE DEPARTMENT CANINE TRANSFER CONTRACT
This AGREEMENT made and entered into in the City of Modesto, State of California, this _____ day of _______________ 2023, by and between the City of Modesto, a municipal corporation of the State of California, hereinafter referred to as “CITY”, and Nicholas Largent, Police Officer for the Modesto Police Department, hereinafter referred to as “PURCHASER”.

The CITY and the PURCHASER shall collectively be referred to as the “PARTIES”.

Facts:

Canine “Hank” has been with the Modesto Police Department since September 18, 2018. “Hank” has served the city for 5 years. “Hank” was born in Slovakia and will turn 9 years old on May 10, 2024. “Hank” has had a distinguished career as a police service dog. “Hank” had a very serious surgery to repair his back. Since that time, he has been unable to resume full duties as a police service dog. Veterinary professionals have advised Modesto Police Department that his recovery has apexed and will not improve further. It would be cruel and risky to his future health to ask him to continue his career. “Hank” has been removed from active service with the Modesto Police Department, Canine Unit.

It is the City’s recommendation that canine “Hank” be retired from service.

This AGREEMENT is made with regard to the following recitals:

A. PURCHASER wishes to assume ownership and take possession of that certain retired City of Modesto police canine named “Hank”.

B. PURCHASER wishes to take ownership of the above-referenced dog, and the CITY wishes to divest itself of both ownership and vicarious or direct liability for the subject dog.

C. CITY does hereby agree to relinquish all of its right, title and ownership interest in said canine named “Hank” whatsoever, effective upon PURCHASER’s execution and return #20..
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2 of this document and payment of the sum of one and no/100ths dollars ($1.00) to the City of Modesto.

NOW, THEREFORE, in consideration of the matters contained in this AGREEMENT, it is mutually agreed as follows:

1. PURCHASER does agree to assume ownership of the Modesto police canine named “Hank”, and to assume any and all risks, including, but not limited to, risk of injury or death to third persons, and to hold CITY, its Police Department, and its agents, officers, employees, and/or volunteers harmless from and save, defend and indemnify them against any and all liabilities, claims, losses, judgments, or damages from every cause, including but not limited to injury to person or property or wrongful death, including reasonable costs and expenses of defense of any judicial or administrative action, arising directly or indirectly out of any negligent or intentional act or omission of PURCHASER relating to any acts of the subject police canine named “Hank” after the date ownership of the canine is transferred pursuant to this AGREEMENT. That date of ownership is hereby fixed by agreement by and among the PARTIES hereto as being_______.

2. PURCHASER further agrees to assume all liability for risks and dangers relating to his/her ownership of the subject police canine named “Hank” on and after the aforementioned date, and to indemnify and hold CITY harmless in the event that any legal or administrative action, whether by claim, demand or otherwise, is made by any person or entity as a consequence of or arising out of any event, act or disturbance involving the subject police canine on or after the date ownership is transferred. These hold harmless provisions shall extend to any direct or vicarious liability arising from any and all losses, liabilities, charges (including reasonable attorney fees and court costs), and any other expenses whatsoever which may arise in any manner after the PURCHASER’S assumption of ownership on the date of ownership identified #20..
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3 herein.

3. PUCHASER acknowledges that he/she has read the foregoing AGREEMENT and understands that it is contractual in nature and understands each of its provisions.

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

CITY OF MODESTO, a NEW OWNER:

Municipal Corporation
By: ___________________________
By: __________________________
JOSEPH P. LOPEZ NICOLAS LARGENT
City Manager Purchaser

ATTEST:

By: _____________________________

DIANE NAYARES-PEREZ
City Clerk
APPROVED AS TO FORM:

By: _________________________________
JOSE M. SANCHEZ
City Attorney
#20..
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CITY OF MODESTO

COUNCIL AGENDA REPORT
DATE OF MEETING:

December 12, 2023
Date: November 9, 2023
TO: Mayor and City Council
THROUGH: Joseph P. Lopez, City Manager
FROM: Brandon Gillespie, Chief of Police
SUBJECT: Acceptance of the Substance Abuse and Mental Health Services Administration grant
CONTACT: Jessica Smart, Police Administrator, [email protected] , 209-572-9500 DESCRIPTION:

Consider accepting the Department of Health and Human Services Substance Abuse and Mental Health Services Administration Grant in the amount of $970,370 in Grants Funds with no match requirement. (Funding: Grant Funds)
STRATEGIC PLAN ELEMENT:

This item is related to the adopted City Council 2020-2025 Strategic Plan focus area of Quality of Life under Goal – Improve Community Safety.

BACKGROUND:

The Department of Health and Human Services of the Federal Government offered the Substance Abuse and Mental Health Services Administration (SAMHSA) grant. Funding is made available to agencies on the state and local level to support programs that promote the prevention or treatment of mental health disorders, and substance abuse, by providing rehabilitation, outreach and other support services.

This grant made $970,370 available competitively to state and local agencies to support the use of non-sworn resources to handle calls for service involving individuals experiencing mental health crisis and increase the rate at which calls are diverted from the police to non-sworn alternative responses.

Applicants may implement new activities, strategies, or programs, OR expand existing activities, strategies, or programs.
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Council Meeting, December 12, 2023
Acceptance of Substance Abuse and Mental Health Services Administration Grant

DISCUSSION:

The Modesto Police Department has been notified that it is being awarded $970,370 in grant funds from the Department of Health and Human Services Substance Abuse and Mental Health Services Administration (SAMHSA) grant program. The grant project period is from September 30, 2023, through September 29, 2024.

The Modesto Police Department will utilize the grant funds to expand the existing Community Health and Assistance Team (CHAT) to include a team of Outreach Specialists that will be paired with Paramedics and/or Emergency Medical Technicians. This team will handle calls for service that do not require a sworn officer to respond and be the first contact to as many behavioral health, homeless, and quality of life related calls for service as possible. This funding will also allow for consistent follow-up, connection to services, completion of required forms, data collection and overall case management.

CHAT members have a primary goal of handling calls for service that do not require a sworn officer to respond, and to be the first contact at as many behavioral health, homeless, and quality-of-life calls for service as possible. They work to locate, identify and build relationships with unsheltered persons as well as those experiencing behavioral health crises and substance abuse issues by engaging with these individuals for the provision of immediate support, intervention, and connection to assistance programs. The response activity frees up police officers to handle calls for service that require a sworn officer and utilizes specialists who have more training and time to handle those calls for service.

FISCAL IMPACT:

The authorizing statute for the Substance Abuse and Mental Health Services Administration does not require matching funds. The grant will result in amending the Fiscal Year 2023-24 annual operating and multi-year non-capital project budget to set up the account for the grant as outlined in the chart below:

SAMHSABudget Grant Funds
Salaries and Benefits $ 970,370
Total $ 970,370
COMMITTEE RECOMMENDATION:

This was approved by the Safety & Communities Committee on November 6, 2023, and was recommended to forward to the Council for approval.

RECOMMENDED COUNCIL ACTION:

Staff Recommendations:

Resolution accepting the Department of Health and Human Services Substance Abuse and Mental Health Services Administration Grant in the amount of $970,370 in Grant Funds with no match requirement, and authorizing the City Manager, or his designee, to execute and submit all documents which may be necessary for the completion of the grant acceptance.

Resolution amending the Fiscal Year 2023-2024 annual Operating and Multi-Year Non-Capital Project Budget to appropriate revenue and expenses in the total amount of $970,370 related to the Department of Health and Human Services Substance Abuse and Mental Health Services Administration Grant, and authorizing the City Manager, or his designee, to take the necessary steps to implement the required budget adjustment.
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Council Meeting, December 12, 2023
Acceptance of Substance Abuse and Mental Health Services Administration Grant

Approved by:

Brandon Gillespie, Chief of Police
Joseph P. Lopez, City Manager
Attachments:

1. Resolution for acceptance

2. Resolution for budget adjustment

3. Notice of Award
#21..
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1 MODESTO CITY COUNCIL
RESOLUTION NO. 2023-?

RESOLUTION ACCEPTING THE DEPARTMENT OF HEALTH AND HUMAN

SERVICES SUBSTANCE ABUSE AND MENTAL HEALTH SERVICES
ADMINISTRATION GRANT IN THE AMOUNT OF $970,370 IN GRANT FUNDS WITH NO MATCH REQUIREMENT; AND AUTHORIZING THE CITY

MANAGER, OR HIS DESIGNEE, TO EXECUTE AND SUBMIT ALL

DOCUMENTS WHICH MAY BE NECESSARY FOR THE COMPLETION OF

THE GRANT ACCEPTANCE
WHEREAS, the Department of Health and Human Services of the Federal Government offered the Substance Abuse and Mental Health Services Administration (SAMHSA) grant. Funding is made available to agencies on the state and local level to support programs that promote the prevention or treatment of mental health disorders, and substance abuse, by providing rehabilitation, outreach and other support services, and WHEREAS, the Modesto Police Department (MPD) was the lead agency on the grant application and it was submitted May 3, 2023, and WHEREAS, the MPD has been notified that is being awarded $970,370 in grant funds from the Department of Health and Human Services Substance Abuse and Mental Health Services Administration grant, and
WHEREAS, the Police Department has a detailed work and spending plan for the $970,370 in grant funds.

NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Modesto that it hereby accepts the Substance Abuse and Mental Health Services Administration Grant in the amount of $970, 370 in grant funds.

BE IT FURTHER RESOLVED that the City Manager, or his designee, is authorized to execute and submit all documents which may be necessary hereby for the completion of the grant acceptance.
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2 The foregoing resolution was introduced at a regular meeting of the Council of the City of Modesto held on the 12th day of December, 2023, by Councilmember ?, who moved its adoption, which motion being duly seconded by Councilmember ?, was upon roll call carried and the resolution adopted by the following vote:

AYES: Councilmembers:

NOES: Councilmembers:

ABSENT: Councilmembers:

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

BY: _____________________________________
JOSE M. SANCHEZ, City Attorney
#21..
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1 MODESTO CITY COUNCIL
RESOLUTION NO. 2023-?
RESOLUTION AMENDNG THE FISCAL YEAR 2023-2024 ANNUAL

OPERATING AND MULTI-YEAR NON-CAPITAL PROJECT BUDGET TO

APPROPRIATE REVENUE AND EXPENSES IN THE TOTAL AMOUNT OF $970,370 RELATED TO THE DEPARTMENT OF HEALTH AND HUMAN

SERVICES SUBSTANCE ABUSE AND MENTAL HEALTH SERVICES
ADMINISTRATION GRANT; AND AUTHORIZING THE CITY MANAGER, OR

HIS DESIGNEE, TO TAKE THE NECESSARY STEPS TO IMPLEMENT THE

REQUIRED BUDGET ADJUSTMENTS
WHEREAS, the Modesto Police Department has been awarded a grant in the amount of $970, 370 from the Department of Health and Humans Services for the Substance Abuse and Mental Health Services Administration grant; and WHERAS, certain budgetary adjustments are necessary to account for the programming of revenues and expenses related to the Substance Abuse and Mental Health Services Administration grant to allow for the receipt of grant revenue and appropriation of expenditure budgets in both operating cost centers and multi-year noncapital project expenditure budgets.

NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Modesto that it hereby approves the amendment of the Fiscal Year 2023-2024 Annual Operating and Multi-Year Non-Capital Budget by a total of $970,370 in revenues and expenses in grant funds for the Substance Abuse and Mental Health Services Administration Grant Program.

BE IT FURTHER RESOLVED that the City Manager, or his designee, is authorized to take the necessary steps to implement the required budget adjustments necessary for this action.
#21..
- 705 -
2 The foregoing resolution was introduced at a regular meeting of the Council of the City of Modesto held on the 12th day of December, 2023, by Councilmember ?, who moved its adoption, which motion being duly seconded by Councilmember ?, was upon roll call carried and the resolution adopted by the following vote:

AYES: Councilmembers:

NOES: Councilmembers:

ABSENT: Councilmembers:

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

BY: _____________________________________
JOSE M. SANCHEZ, City Attorney
#21..
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Version: 200 - 2/5/2023 3:10 PM | Generated on: 9/8/2023 12:19 AM

Department of Health and Human Services
Substance Abuse and Mental Health Services Administration Center for Flex Grants
Notice of Award
FAIN# H79FG001127
Federal Award Date
09/08/2023
Recipient Information

1. Recipient Name

CITY OF MODESTO
1010 10TH ST
MODESTO, CA 95354

2. Congressional District of Recipient
05 3. Payment System Identifier (ID)
1946000374A2

4. Employer Identification Number (EIN)
946000374

5. Data Universal Numbering System (DUNS)
060125051

6. Recipient’s Unique Entity Identifier
C9NNEMEHETD8

7. Project Director or Principal Investigator
Aurelia Harris
[email protected]
209-342-9185

8. Authorized Official
Aurelia Harris
[email protected]
209-342-9185
Federal Agency Information

9. Awarding Agency Contact Information
Andrew Payne
Grants Specialist
[email protected]
(240) 276-1238

10. Program Official Contact Information
Bethaney Myers
Program Official
[email protected]
240-276-1579
Federal Award Information

11. Award Number
1H79FG001127-01

12. Unique Federal Award Identification Number (FAIN)
H79FG001127

13. Statutory Authority
Consolidated Appropriation Act, 2023 [P.L. 117-328]

14. Federal Award Project Title
Use of non-sworn police resources to handle calls for service

15. Assistance Listing Number

93.493

16. Assistance Listing Program Title
Community Funded Projects

17. Award Action Type
New Competing

18. Is the Award R&D?
No
Summary Federal Award Financial Information

19. Budget Period Start Date 09/30/2023 – End Date 09/29/2024

20. Total Amount of Federal Funds Obligated by this Action $970,370 20a. Direct Cost Amount $970,370
20b. Indirect Cost Amount $0

21. Authorized Carryover

22. Offset

23. Total Amount of Federal Funds Obligated this budget period $970,370

24. Total Approved Cost Sharing or Matching, where applicable $0

25. Total Federal and Non-Federal Approved this Budget Period $970,370 ---------------------------------------------------------------------------------------------------------

26. Project Period Start Date 09/30/2023 – End Date 09/29/2024

27. Total Amount of the Federal Award including Approved Cost Sharing or Matching this Project Period
$970,370

28. Authorized Treatment of Program Income
Additional Costs

29. Grants Management Officer - Signature
Lesley Schrier

30. Remarks
Acceptance of this award, including the "Terms and Conditions," is acknowledged by the recipient when funds are drawn down or otherwise requested from the grant payment system.
#21..
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Version: 200 - 2/5/2023 3:10 PM | Generated on: 9/8/2023 12:19 AM Notice of Award
Congressional Directed Spending Projects Issue Date: 09/08/2023 Department of Health and Human Services
Substance Abuse and Mental Health Services Administration Center for Flex Grants
Award Number: 1H79FG001127-01
FAIN: H79FG001127
Program Director: Aurelia Harris
Project Title: Use of non-sworn police resources to handle calls for service Organization Name: CITY OF MODESTO
Authorized Official: Aurelia Harris
Authorized Official e-mail address: [email protected] Budget Period: 09/30/2023 – 09/29/2024
Project Period: 09/30/2023 – 09/29/2024
Dear Grantee:

The Substance Abuse and Mental Health Services Administration hereby awards a grant in the amount of $970,370 (see “Award Calculation” in Section I and “Terms and Conditions” in Section III) to CITY OF MODESTO in support of the above referenced project. This award is pursuant to the authority of Consolidated Appropriation Act, 2023 [P.L. 117-328] and is subject to the requirements of this statute and regulation and of other referenced, incorporated or attached terms and conditions.

Award recipients may access the SAMHSA website at www.samhsa.gov (click on “Grants” then SAMHSA Grants Management), which provides information relating to the Division of Payment Management System, HHS Division of Cost Allocation and Postaward Administration Requirements. Please use your grant number for reference.

Acceptance of this award including the “Terms and Conditions” is acknowledged by the grantee when funds are drawn down or otherwise obtained from the grant payment system.

If you have any questions about this award, please contact your Grants Management Specialist and your Government Project Officer listed in your terms and conditions.

Sincerely yours,
Lesley Schrier
Grants Management Officer
Division of Grants Management
See additional information below
#21..
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Version: 200 - 2/5/2023 3:10 PM | Generated on: 9/8/2023 12:19 AM SECTION I – AWARD DATA – 1H79FG001127-01
Award Calculation (U.S. Dollars)
Personnel(non-research) $677,870
Fringe Benefits $292,500
Direct Cost $970,370
Approved Budget $970,370
Federal Share $970,370
Cumulative Prior Awards for this Budget Period $0
AMOUNT OF THIS ACTION (FEDERAL SHARE) $970,370

SUMMARY TOTALS FOR ALL YEARS

YR AMOUNT
1 $970,370
Note: Recommended future year total cost support, subject to the availability of funds and satisfactory progress of the project.

Fiscal Information:

CFDA Number: 93.493
EIN: 1946000374A2
Document Number: 23FG01127E
Fiscal Year: 2023
IC CAN Amount
FG C96CF01 $970,370
IC CAN 2023
FG C96CF01 $970,370
FG Administrative Data:

PCC: CDS-SM23 / OC: 4145
SECTION II – PAYMENT/HOTLINE INFORMATION – 1H79FG001127-01 Payments under this award will be made available through the HHS Payment Management System (PMS).

PMS is a centralized grants payment and cash management system, operated by the HHS Program Support Center (PSC), Division of Payment Management (DPM). Inquiries regarding payment should be directed to: The Division of Payment Management System, PO Box 6021, Rockville, MD 20852, Help Desk Support – Telephone Number: 1-877-614-5533.

The HHS Inspector General maintains a toll-free hotline for receiving information concerning fraud, waste, or abuse under grants and cooperative agreements. The telephone number is: 1-800-HHS-TIPS (1-800- 447-8477). The mailing address is: Office of Inspector General, Department of Health and Human Services, Attn: HOTLINE, 330 Independence Ave., SW, Washington, DC 20201.

SECTION III – TERMS AND CONDITIONS – 1H79FG001127-01
This award is based on the application submitted to, and as approved by, SAMHSA on the above-title project and is subject to the terms and conditions incorporated either directly or by reference in the #21..
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Version: 200 - 2/5/2023 3:10 PM | Generated on: 9/8/2023 12:19 AM following:
a. The grant program legislation and program regulation cited in this Notice of Award. b. The restrictions on the expenditure of federal funds in appropriations acts to the extent those restrictions are pertinent to the award.
c. 45 CFR Part 75 as applicable.
d. The HHS Grants Policy Statement.
e. This award notice, INCLUDING THE TERMS AND CONDITIONS CITED BELOW.

Treatment of Program Income:

Use of program income – Additive: Recipients will add program income to funds committed to the project to further eligible project objectives. Sub-recipients that are for-profit commercial organizations under the same award must use the deductive alternative and reduce their subaward by the amount of program income earned.

In accordance with the regulatory requirements provided at 45 CFR 75.113 and Appendix XII to 45 CFR Part 75, recipients that have currently active Federal grants, cooperative agreements, and procurement contracts with cumulative total value greater than $10,000,000 must report and maintain information in the System for Award Management (SAM) about civil, criminal, and administrative proceedings in connection with the award or performance of a Federal award that reached final disposition within the most recent five-year period. The recipient must also make semiannual disclosures regarding such proceedings. Proceedings information will be made publicly available in the designated integrity and performance system (currently the Federal Awardee Performance and Integrity Information System (FAPIIS)). Full reporting requirements and procedures are found in Appendix XII to 45 CFR Part 75.

SECTION IV – FG SPECIAL TERMS AND CONDITIONS – 1H79FG001127-01

REMARKS
CDS Remark
USE OF SAMHSA FUNDS:

SAMHSA's mission is to reduce the impact of substance use and mental illness on America's communities. SAMHSA works in partnership with states, communities, and private organizations to advance mental and substance use disorder prevention, treatment, and recovery services to improve individual, community, and public health.

Funds approved for this award must be used in support of the SAMHSA mission.

1. This Notice of Award (NoA) is issued to inform your organization that the application submitted through the funding opportunity FY2023 Congressional Directive Spending Projects Notice of Funding Announcement FG-23-099 has been selected for funding. Services and activities are to commence on September 30, 2023.

1a) This award reflects approval of the revised budget submitted July 02, 2023, by your organization. This award also reflects acceptance of the responses received in eRA two-way correspondence on July 02, 2023.
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2. Recipients are expected to plan their work to ensure that funds are expended within the 12- month budget and project period reflected on this Notice of Award.

3. All responses to award terms and conditions must be submitted as .pdf documents in eRA Commons. For more information on how to respond to tracked terms and conditions or how to submit a post award amendment request please refer to https://www.samhsa.gov/grants/grants-training-materials under heading Grant Management Reference Materials for Grantees.

4. All Post-Award Amendments must be submitted in eRA Commons for prior approval.

Please refer to the SAMHSA website for specific SAMHSA guidance on how to submit a postaward amendment in eRA Commons: https://www.samhsa.gov/grants/grantsmanagement/post-award-amendments Prior approval is required for, but is not limited to: a change in key personnel and level of effort, a budget revision, a change in scope, and a no cost extension. Reference the full prior approval term on the SAMHSA website under Standard Terms and Conditions at: https://www.samhsa.gov/grants/grants-management/notice-awardnoa/standard-terms-conditions. Technical questions regarding the submission of a post-award amendment in eRA Commons should be directed to the eRA Service Desk:
http://grants.nih.gov/support/

5. Register Program Director/Project Director (PD) in eRA Commons:

If you have not already done so, you must register the PD in eRA Commons to assign a Commons ID. Once the PD has received their Commons ID, please send this information to your Grants Management Specialist. You can find additional information about the eRA Commons registration process at https://era.nih.gov/reg_accounts/register_commons.cfm.

6. Key Personnel Key personnel (or key personnel positions, if staff has not been selected) are listed below:

TBH, Project Director @ TBD% level of effort
If the Project Director identified on the NoA is incorrect, submit a post award amendment for a change in key personnel via eRA Commons.

Organizations receiving Federal Funds may not exceed 100% level of effort for any program staff member (Key Personnel or otherwise) across all federally funded sources. Any changes to key personnel including level of effort involving separation from the project for more than three months or a 25 percent reduction in time dedicated to the project requires prior approval and must be submitted as a post-award amendment in eRA Commons.

Note: If an organization is awarded a grant and chooses to move forward with hiring an individual for a Key Personnel position before receiving SAMHSA's formal approval, this will be #21..
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Version: 200 - 2/5/2023 3:10 PM | Generated on: 9/8/2023 12:19 AM done at the organization s own risk. If SAMHSA s review of the Key Personnel request results in the proposed individual not being approved or deemed not qualified for the position, the expectation is that the organization must submit a qualified candidate to be placed in the Key Personnel position. SAMHSA will not be liable for any costs incurred or pay for salaries of a Key Personnel that is not approved or deemed not qualified on this grant program.

For additional information on how to submit a post-award amendment, please visit the SAMHSA website: https://www.samhsa.gov/grants/grants-management/post-award-changes.

Any technical questions regarding the submission process should be directed to the eRA Service Desk: http://grants.nih.gov/support/.

CDS Project Remarks

1. Allowable, allocable, reasonable, and necessary costs - Award recipients are responsible for ensuring that costs allocated to the grant award are reasonable and allowable in accordance with the Notice of Funding Opportunity and all applicable Policies & Regulations. Recipients must exercise proper stewardship over Federal funds and ensure that costs charged to awards are allowable, allocable, reasonable, and necessary for the performance of the Federal award, adequately documented, and consistently applied regardless of the source of funds according to reasonable costs consideration per 2 CFR 200.404 and the factors affecting allowability of costs per 2 CFR 200.403.

2. Non-supplant - Federal award funds must supplement, not replace (supplant) nonfederal funds. All recipients who receive awards under programs that prohibit supplanting by law must ensure that federal funds do not supplant funds that have been budgeted for the same purpose through non-federal sources. Applicants or award recipients may be required to demonstrate and document that a reduction in nonfederal resources occurred for reasons other than the receipt of expected receipt of federal funds.

3. Client Assistance -Client Assistance costs should be considered as a temporary solution to address a specific need that advances mental and substance use disorder prevention, treatment, and recovery services.

4. Meals (food not allowable) are generally unallowable unless they are an integral part of a conference grant or specifically stated as an allowable expense in the NOFO.

5. Entertainment (45 CFR §75.438) - Costs of entertainment, including amusement, diversion, and social activities and any associated costs are unallowable, except where specific costs that might otherwise be considered entertainment have a programmatic purpose and are authorized either in the approved budget for the Federal award or with SAMHSA’s prior written approval.

6. Promotional Materials (45 CFR §75.421(e)(3)) - Appropriated funds shall not be used to pay for promotional items and memorabilia including, but not limited to, gifts, souvenirs, clothing, and commemorative items such as pens, mugs/cups, folders/folios, lanyards, and conference bags.
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7. Stipends or payments made to individuals are generally unallowable unless they are permitted by a program’s statute authorizing or implementing regulations or they are payments made to individuals under a Traineeship, Fellowship, and Similar Award Made to Organizations on Behalf of Individuals.

8. Indirect Charges - Indirect costs or General, Facilities, and Administration costs are those expenses incurred for common or joint objectives which cannot be readily identified with an individual project or program but are necessary for the operations of the organization. Costs must be consistently charged as either indirect or direct costs but may not be double charged or inconsistently charged as both.

9. Award Payments - Payments under this award will be made available through the HHS Payment Management System (PMS). PMS is a centralized grants payment and cash management system, operated by the HHS Program Support Center (PSC), Division of Payment Management (DPM). First time PMS users must obtain access to view available funds, request funds, or submit reports. Users will need to request permission and be approved by PSC. Inquiries regarding payments should be directed to PMS by emailing the helpdesk at [email protected] or call 1-877-614-553. You should also visit the PSC website for more information about their services - https://pms.psc.gov/

10. Special Terms & Conditions of Award – There may be special terms and conditions associated with your grant award. Recipients must address all special terms and conditions by the reflected due date. See the Special Terms of Award and Special Conditions of Award sections below for the specific terms and conditions associated with your grant award. A recipient's failure to comply with the terms and conditions of award, may cause SAMHSA to take one or more actions, depending on the severity and duration of the non-compliance. SAMHSA will undertake any such action in accordance with applicable statutes, regulations, and policies

SPECIAL TERMS
CDS Risk Assessment
The Office of Financial Advisory Services (OFAS), SAMHSA may perform an administrative review of your organization’s financial management systems, policies, procedures and records.

If the review discloses material weaknesses or other financial management concerns, grant funding may be restricted in accordance with 45 CFR 75/2 CFR 200, as applicable. The restriction will affect your organization’s ability to withdraw funds from the Payment Management System account, until the concerns are addressed.

CDS Funding Limitations and Restrictions
Award recipients are responsible for ensuring that costs allocated to the grant award are reasonable and allowable in accordance with the Notice of Funding Opportunity and all applicable Policies & Regulations. The Cost Principles that delineate the allowable and unallowable expenditures for HHS recipients are described in the Code of Federal Regulations.

Funding Limitations and Restrictions are listed in the Notice of Funding Opportunity and in the #21..
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Version: 200 - 2/5/2023 3:10 PM | Generated on: 9/8/2023 12:19 AM SAMHSA grantee guidelines on Financial Management Requirements.

CDS Flow Down of Requirements to Subrecipients
The recipient, as the awardee organization, is legally and financially responsible for all aspects of this award including funds provided to subrecipients, in accordance with 45 CFR § 75.351 –

75.352, Subrecipient Monitoring and Management.

CDS Conflicts of Interest Policy
Consistent with 45 CFR § 75.112, recipients must establish written policies and procedures to prevent employees, consultants, and others (including family, business, or other ties) involved in grant-supported activities, from involvement in actual or perceived conflicts of interest. The policies and procedures must:
o address conditions under which outside activities, relationships, or financial interest are proper or improper;
o provide for advance disclosure of outside activities, relationships, or financial interest to a responsible organizational official;
o include a process for notification and review by the responsible official of potential or actual violations of the standards; and
o specify the nature of penalties that may be imposed for violations.

Lobbying Restriction Reminder
Your application disclosed lobbying activities associated with your organization. Recipients of federal funds are not allowed to use federal funding to lobby federal, state, or local officials or their staff to receive additional funding or influence legislation. As a general matter, these lobbying restrictions preclude recipients from:
o Spending federal funds to influence an officer or employee of any agency or Congressional member/staff regarding federal awards;
o Failing to submit required certification and disclosure forms (i.e., SF-LLL); o Using grants funds provided to non-profit organizations or institutions of higher education to influence an election, contribute to a partisan organization, or influence enactment or modification of any pending federal or state legislation; or o Expending federal funds to influence federal, state, or local officials or legislation Please reference the standard award term on lobbying for your award at https://www.samhsa.gov/grants/grants-management/notice-award-noa/standard-termsconditions.

SPECIAL CONDITIONS
CDS-23 SF-424, SF-424A, and Revised Detailed Budget with Narrative Justification By October 30, 2023, submit the following via the eRA Commons Terms Tracker:

A. A completed SF-424 with the Project Director (PD) name and contact information listed #21..
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Version: 200 - 2/5/2023 3:10 PM | Generated on: 9/8/2023 12:19 AM in Section 8f and the Authorized Representative listed in Section 21. The contact information for the PD in Section 8f must match the eRA Commons ID for the PD/PI provided in the Section 4 "Applicant Identifier." A blank SF-424 can be accessed
at https://apply07.grants.gov/apply/forms/sample/SF424_4_0-V4.0.pdf B. A completed SF-424A for an amount equal to but not exceeding the “Total Amount of the Federal Award” shown on page 1 of this NoA. A blank SF-424A can be accessed at https://apply07.grants.gov/apply/forms/sample/SF424A-V1.0.pdf C. A completed detailed budget with narrative justification. It is highly recommended that the SAMHSA Budget Template be used to submit the revised
budget. The “SAMHSA Budget Template,” guidance, and a completed “Sample Budget-NONMATCH" can be accessed at https://www.samhsa.gov/grants/applying/forms-resources. 1) Project Director must be provided within budget even if their time is “in-kind” o Narrative needs to be provided for all positions.
2) Fringe – Names need to be provided for all staff positions All responses to award terms and conditions must be submitted as .pdf documents in eRA Commons. For more information on how to respond to tracked terms and conditions please refer to https://www.samhsa.gov/grants/grants-training-materials under heading How to Respond to Terms and Conditions.

Required Key Personnel
By October 30, 2023, you must submit a post award amendment request for change in key personnel via eRA Commons. For key personnel post award amendments, refer to the following link: https://www.samhsa.gov/grants/grants-management/post-award-amendments#change-inkey-personnel.

Note Project Director wasn't reflected in your application budget.

1. In submitting your post award actions, please include the level of effort, annual salary and resume/job description.

STANDARD TERMS AND CONDITIONS
CDS Standard Terms for Awards
Your organization must comply with the Standard Terms and Conditions for the Fiscal Year in which your grant was awarded. The Fiscal Year for your award is identified on your Notice of Award. SAMHSA's Terms and Conditions Webpage is located at:
https://www.samhsa.gov/grants/grants-management/notice-award-noa/standard-termsconditions.

Standards for Financial Management
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Version: 200 - 2/5/2023 3:10 PM | Generated on: 9/8/2023 12:19 AM Recipients and subrecipients are required to meet the standards and requirements for financial management systems set forth in 45 CFR part 75 Subpart D. The financial systems must enable the recipient and subrecipient to maintain records that adequately identify the sources of funds for federally assisted activities and the purposes for which the award was used, including authorizations, obligations, unobligated balances, assets, liabilities, outlays or expenditures, and any program income. The system must also enable the recipient and subrecipient to compare actual expenditures or outlays with the approved budget for the award. SAMHSA funds must retain their specific identity − they may not be commingled with non-federal funds or other federal funds. “Commingling funds” typically means depositing or recording funds in a general account without the ability to identify each specific source of funds with related expenditures.

Reasonable Costs for consideration
Recipients must exercise proper stewardship over Federal funds and ensure that costs charged to awards are allowable, allocable, reasonable, necessary, and consistently applied regardless of the source of funds according to Reasonable Costs consideration per 2 CFR 200.404 and the Factors affecting allowability of costs per 2 CFR 200.403. A cost is reasonable if, in its nature and amount, it does not exceed that which would be incurred by a prudent person under the circumstances prevailing at the time the decision was made to incur the cost.

Consistent Treatment of Costs
Recipients must treat costs consistently across all federal and non-federal grants, projects and cost centers. Recipients may not direct-charge federal grants for costs typically considered indirect in nature, unless done consistently. If part of the indirect cost rate, then it may not also be charged as a direct cost. Examples of indirect costs include (administrative salaries, rent, accounting fees, utilities, office supplies, etc.). If typical indirect cost categories are included in the budget as direct costs, it is SAMHSA s understanding that your organization has developed a cost accounting system adequate to justify the direct charges and to avoid an unfair allocation of these costs to the federal government. Also, note that all awards are subject to later review in accordance with the requirements of 45 CFR 75.364, 45 CFR 75.371, 45 CFR 75.386 and 45 CFR Part 75, Subpart F, Audit Requirements.

Compliance with Award Terms and Conditions

FAILURE TO COMPLY WITH THE ABOVE STATED TERMS AND CONDITIONS MAY RESULT IN ACTIONS IN ACCORDANCE WITH 45 CFR 75.371, REMEDIES FOR NON-COMPLIANCE AND 45 CFR 75.372 TERMINATION. THIS MAY INCLUDE WITHHOLDING PAYMENT,

DISALLOWANCE OF COSTS, SUSPENSION AND DEBARMENT, TERMINATION OF THIS AWARD, OR DENIAL OF FUTURE FUNDING.
eRA Support
o For technical support, contact eRA Service Desk at 866-504-9552 (Press 6 for SAMHSA Grantees).

Training & Resources - Visit the following pages on our website, https://www.samhsa.gov, for more information on implementation, monitoring and reporting on your new grant award:
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Version: 200 - 2/5/2023 3:10 PM | Generated on: 9/8/2023 12:19 AM o Grants Management
o Training & Resources for recipients
o eRA Commons
CDS Closeout Requirements - Discretionary Grants
Recipients must complete all actions required for closeout to include:
o Liquidate all obligations incurred under the award. All payment requests must be submitted before the end of the (120) days post-award reconciliation/liquidation period.
o Reconcile financial expenditures to the reported total disbursements and charges in PMS.
o Return any funds due to PMS as a result of refunds, corrections, or audits. Refer the following link for additional guidance https://pms.psc.gov/grant-recipients/returning-fundsinterest.html Recipients must close the award in accordance with 2 CFR 200.344 Closeout and the terms and conditions listed in the grant notice of award. Recipients must liquidate all obligations incurred under an award not later than one hundred twenty (120) days after the end of awards obligation and project period. After one hundred twenty (120) days, PMS account is automatically - locked. SAMHSA does not approve payment requests after one hundred twenty (120) days post-award reconciliation/liquidation period. Therefore, recipients are expected to complete all expenditure requests within the approved project period and the aforementioned 120-day post-award reconciliation/liquidation period. Recipients late withdrawal requests occurring after the aforementioned periods will be denied. Final reports are due to SAMHSA no later than 120 days after the end of the project period. Final reports include:
o Submit via PMS the Final Federal Financial Report (Final FFR, SF-425) (PDF | 1.2 MB).
o Submit in eRA Commons the Final Progress Report (FPR) or other reports required by the terms and conditions of the award.
o Submit in eRA Commons a Tangible Personal Property Report (TPPR SF-428, SF428B & if needed additional forms from SF428 series) to account for any property acquired with federal funds or indicate on the form that you have no property to report.

Failure to complete the closeout actions in 120 days after the project period end may result in a unilateral closeout of the grant by SAMHSA. This may affect future funding of federal programs and result in the reimbursement of funding to SAMHSA. If the recipient does not submit all reports satisfactorily in accordance with 2 CFR 200.344 SAMHSA will report the recipients material failure to comply with the terms and conditions of the award with the OMB-designated integrity and performance system (currently FAPIIS). Federal awarding agencies may also pursue other enforcement actions per 2 CFR 200.339. Refer to the following SAMHSA for Closeout Standard Terms and Conditions https://www.samhsa.gov/grants/grants-management/noticeaward-noa/standard-terms-conditions. Additional information on closeout is available at https://www.samhsa.gov/grants/grants-management/grant-closeout. #21..
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Version: 200 - 2/5/2023 3:10 PM | Generated on: 9/8/2023 12:19 AM Staff Contacts:

Bethaney Myers, Program Official
Phone: 240-276-1579 Email: [email protected] Andrew Payne, Grants Specialist
Phone: (240) 276-1238 Email: [email protected] Fax: (240) 276-1430 #21..
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CITY OF MODESTO

COUNCIL AGENDA REPORT
DATE OF MEETING:

December 12, 2023
Date: November 9, 2023
TO: Mayor and City Council
THROUGH: Joseph P. Lopez, City Manager
FROM: Brandon Gillespie, Chief of Police
SUBJECT: Second Amendment to the Polygraph Examination Services agreement with Mansfield, Lierly and Associates
CONTACT: Jessica Smart, Police Administrator, [email protected] , 209-572-9500 DESCRIPTION:

Consider approving the Second Amendment to the Agreement with Mansfield, Lierly and Associates for Polygraph Examination Services for a new total amount not to exceed $231,485 over three years and extending the term of the Agreement to July 12, 2024. (Funding Source:

General Fund)
STRATEGIC PLAN ELEMENT:

This item is related to the adopted City Council 2020-2025 Strategic Plan focus area of Quality of Life under Goal - Improve Community Safety. It is also related to the Strategic Plan focus area of Economic Vitality under Goal – Retain and attract commercial development to meet the community’s needs.

BACKGROUND:

The Modesto Police Department (MPD) utilizes polygraph services as part of its rigorous hiring process, including a comprehensive background investigation, that helps the department select high quality candidates. The MPD hiring process is a long and extensive process, of which, the polygraph exam is an early and critical screening tool for both sworn and civilian candidates.

The MPD has been processing a higher volume of candidates through the hiring process resulting in an increased number of candidates through the polygraph phase of hiring in an effort to fill the department vacancies. On February 2, 2021, by Resolution 2021-029 Council approved an agreement with Mansfield, Lierly and Associates for polygraph examination services for a not exceed amount of $135,675 for the term of three years.

DISCUSSION:

On September 13, 2022, the City Council approved, by Resolution 2022-377, a First Amendment to the polygraph examination services agreement with Mansfield, Lierly and Associates to increase the previously approved annual estimated amount from $45,225 to #22..
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Council Meeting, December 12, 2023
Second Amendment to the Polygraph Examination Services agreement with Mansfield, Lierly and Associates

$72,025 for polygraph examination services with an end date of January 11, 2024. With recruitment and the addition of vacancies, due to retirements or employment at other agencies, the MPD needs to conduct polygraph screenings for candidates for positions, sworn and nonsworn, at a very aggressive rate.

With this second amendment to the agreement, which will increase the funds available on the agreement by $42,210 and extend the term of the agreement to July 12, 2024, the MPD can continue polygraph screens in a timely manner while staff work with the Purchasing Division on a formal Request for Proposal process for a new agreement for polygraph examination services.

In accordance with Modesto Municipal Code Sec. 8-3.203 generally requires all purchases, which meet or exceed $100,000 for material, equipment, or contractual services to be formally bid. However, exceptions to the formal bidding process are granted in MMC 8-3.204, “where the Purchasing Manager in his or her discretion, determines that the term of an existing agreement should be extended for period of no greater that one year to allow the City to complete a formal bidding process for a long-term agreement or to avoid disruption to City projects or services.” FISCAL IMPACT:

The MPD and Mansfield, Lierly and Associates have agreed to continue administering polygraph examinations for the next 6 months at $335 per screening, with approximately 21 screenings per month, between January 11 and July 12, 2024, for a total of approximately $42,210. This would bring the new total for the agreement to $231,485.

The following is an agreement year breakdown of polygraph examinations expenses for the current agreement and estimated expenses for the remainder of the term:

Fiscal Year # of Exams Cost
2021-22 191 $ 63,985
2022-23 191 $ 63,985
2023-24 (September) 98 $ 32,830
Oct 2023 - July 2024 Estimate 211 $ 70,685
Total 691 $ 231,485
Sufficient funds are available in the current Police Department Fiscal Year Operating Budget in the Records and Support cost center’s professional services account which resides in the General Fund.

COMMITTEE RECOMMENDATION:

This was approved by the Safety & Communities Committee on November 6, 2023, and was recommended to forward to the Council for approval.

RECOMMENDED COUNCIL ACTION:

Staff Recommendations:

Resolution approving the Second Amendment to the Agreement with Mansfield, Lierly and Associates for Polygraph Examination Services for a new total amount not to exceed $231,485 #22..
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Council Meeting, December 12, 2023
Second Amendment to the Polygraph Examination Services agreement with Mansfield, Lierly and Associates

over three years and extending the term of the Agreement to July 12, 2024; and authorizing the City Manager, or his designee, to execute the Amendment.

Approved by:

Brandon Gillespie, Chief of Police
Joseph P. Lopez, City Manager
Attachments:

1. Resolution

2. Second Amendment

3. First Amendment

4. Mansfield, Lierly & Associates Agreement
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1 MODESTO CITY COUNCIL
RESOLUTION NO. 2023-

RESOLUTION APPROVING THE SECOND AMENDMENT TO THE

AGREEMENT WITH MANSFIELD, LIERLY AND ASSOCIATES FOR

POLYGRAPH EXAMINATION SERVICES FOR A NEW TOTAL AMOUNT
NOT TO EXCEED $231,485 OVER THREE YEARS AND EXTENDING THE TERM OF THE AGREEMENT TO JULY 12, 2024; AND AUTHORIZING THE

CITY MANAGER, OR HIS DESIGNEE TO EXECUTE THE AMENDMENT
WHEREAS, on February 2, 2021, Mansfield, Lierly and Associates, entered into an agreement with the City of Modesto to perform polygraph examination services for pre-employment screenings for an amount not to exceed $45,225 annually; and WHEREAS, on September 13, 2022, City Council approved a First Amendment to the agreement for approval an annual estimated from $45,225 to $72,025 for the furnishing of polygraph examination services, and
WHEREAS, the hiring process for both sworn and civilian employees is a long and extensive process of which the polygraph is an early and critical screening tool; and WHEREAS, the department has been processing a higher than usual volume of candidates through the hiring process resulting in an increased number of candidates going through the polygraph phase of hiring in an effort to fill department vacancies; and WHEREAS, the Modesto Police Department seeks approval to increase the funds available on the agreement by $42,210 and extend the term of the agreement to July 12, 2024, so that the department can continue polygraph screenings in a timely manner while staff work with the Purchasing Division on a formal Request for Proposal process for a new agreement for polygraph examination services.
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2 NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Modesto that it hereby approves the Second Amendment to the agreement with Mansfield, Lierly and Associates, increasing the agreement to a revised total amount of $231,485.

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

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

AYES: Councilmembers:

NOES: Councilmembers:

ABSENT: Councilmembers:
/
ATTEST: _______________________________

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

BY: _____________________________________
JOSE M. SANCHEZ, City Attorney
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1 SECOND AMENDMENT TO AGREEMENT

FOR POLYGRAPH EXAMINATION SERVICES FOR MODESTO POLICE

DEPARTMENT
This Second Amendment (“Amendment”) is made to the Agreement entered into the CITY OF MODESTO, this ______ day of ____________, 2023, by and between the CITY OF MODESTO, a municipal corporation of the State of California (hereinafter the “City”) and MANSFIELD, LIERLY & ASSOCIATES, (hereinafter “Contractor”).

RECITALS
This Second Amendment to Agreement for polygraph examination services is made with regard to the following recitals:

1. An AGREEMENT, hereinafter referred to as AGREEMENT was entered into by and between CITY and CONTRACTOR on the 2nd day of FEBRUARY 2021 for the furnishing of polygraph examination services for one (1) year agreement with two (2) one-year extension options, for an annual amount estimated amount cost of $45,225 and a total amount not to exceed $135,675 over three years.

2. CITY AND CONTRACTOR entered into a FIRST AMENDMENT to the AGREEMENT by increasing the previously approved annual estimated amount from $45,225 to $72,025 for the furnishing of polygraph examination services as identified in the AGREEMENT.

NOW, THEREFORE, in consideration of this Second Amendment, and the mutual promises, covenants, and stipulations contained in the Original Agreement for polygraph examination services and this Amendment to Agreement, the parties agree as follows:
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2 1. Section 3 “TERM OF CONTRACT” Original AGREEMENT shall be amended to extend term date from January 12, 2023, to July 12, 2024.

2. Section 1(f) “SCOPE OF WORK” of the Original AGREEMENT shall be amended to increase the agreement by $42,210 for a new total agreement amount, not to exceed $231,485.

3. Except as modified and amended by this SECOND AMENDMENT to the AGREEMENT, all other provisions of the Agreement shall remain unchanged and in full force and effect.

IN WITNESS WHEREOF, the City of Modesto, a municipal corporation, has authorized the execution of this Second Amendment to Agreement by its City Manager and attested by its City Clerk under the authority of Resolution No______, adopted by the Council of the City of Modesto on the ________ day of ___________, 2023, and Mansfield, Lierly & Associates has caused this Second Agreement to be duly executed.
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1 AGREEMENT FOR POLYGRAPH EXAMINATION SERVICES

FOR MODESTO POLICE DEPARTMENT
This Agreement, made and entered into in the City of Modesto, State of California, this ____ day of _________, 2021, by and between the City of Modesto, a municipal corporation of the State of California, hereinafter called CITY, and Mansfield, Lierly & Associates hereinafter called CONTRACTOR,
W I T N E S S E T H:

WHEREAS, the Modesto City Council adopted Resolution No. __________ authorizing the award of proposal and contract for the furnishing of Polygraph Examination Services to CONTRACTOR, attached hereto as Exhibit “A” and made a part hereof, and WHEREAS, the CONTRACTOR provided a responsive and responsible submittal to RFP 1718-06 for Polygraph Examination Services that best meets CITY needs, and WHEREAS, CONTRACTOR shall provide services to CITY as defined in the “Scope-of-Work”, attached hereto as Exhibit “B” and made a part hereof, and WHEREAS, the CITY and CONTRACTOR shall enter into an agreement for the furnishing of Polygraph Examination Services, as described in RFP 1718-06, attached hereto as Exhibit “C” and made a part hereof, and
NOW, THEREFORE, the parties hereto mutually agree as follows:

1. SCOPE OF WORK.
a. CONTRACTOR shall furnish As Needed Polygraph Examination Services and insurance necessary to furnish (service), in strict accordance with the conditions of the complete Contract.
b. CONTRACTOR shall do and perform the work in a professional and businesslike manner under the direction of and to the satisfaction of the CITY.

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2 c. CONTRACTOR shall perform its duties under this Agreement in accordance with the standard(s) of care prevailing in its industry. d. CONTRACTOR shall maintain proper insurance with the CITY for the duration of the contract.
e. CONTRACTOR shall maintain a CITY business license for the duration of the contract.
f. CONTRACTOR shall furnish the service defined for the following contracted rates, not to exceed $45,225 annually:

Base Rate shall be defined as the rate of pay, which shall be paid to CONTRACTOR.

2. CITY CONTACT:

City Representative for POLYGRAPH EXAMINATION SERVICES
PURCHASING DEPT. Ph: (209) 577-5405
Changes of a contractual or business nature shall be effected only by written change to the contract, issued by the City of Modesto, Purchasing Division.

3. TERM OF CONTRACT:

The term of the contract shall be for a period of one (1) year Year 1: January 12, 2021 through January 11, 2022
Year 2: January 12, 2022 through January 11, 2023
Year 3: January 12, 2023 through January 11, 2024
This Agreement may be renewed for two (2) additional one-year terms by mutual, written agreement of the parties. Such renewal shall be in the form of an amendment to the Agreement. In no such case shall the renewal extend beyond January 11, 2024.

Price will remain firm for the first year of the contract. Price increases for subsequent contract years two (2) through three (3) shall not exceed the Consumer Price Index DocuSign Envelope ID: 6643FAC6-8CCB-4DCE-8F86-607F97745E3F #22..
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3 (CPI) in any one contract year and shall be negotiated through the Purchasing Division. Request for price increases shall be submitted by Contractor in writing, sixty (60) days prior to the annual anniversary date of the contract to be effective for the subsequent year.

4. LIABILITY INSURANCE:

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 CITY as may be required by the Risk Manager.

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 CITY by registered mail, return receipt requested, for all of the following stated insurance policies.
(a) Workers' Compensation - In compliance with the statutes of the State of California, plus employer's liability with a minimum limit of liability of $1,000,000
(b) General Liability insurance with a minimum limit of liability per occurrence of $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 Contractors and subcontractors; products and completed operations as applicable.

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4 (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.

If at any time any of said policies shall be unsatisfactory to CITY, as to form or substance, or if a company issuing such policy shall be unsatisfactory to CITY, CONTRACTOR shall promptly obtain a new policy, submit the same to Risk Manager of CITY for approval and submit a certificate thereof as herein above provided. Upon failure of CONTRACTOR to furnish, deliver or maintain such insurance and certificates as above provided, this Agreement, at the election of CITY, may be forthwith declared suspended, or terminated. Failure of CONTRACTOR to obtain and/or maintain any required insurance shall not relieve CONTRACTOR from any liability under this Agreement, nor shall the insurance requirements be construed to conflict with or otherwise limit the obligations of CONTRACTOR concerning indemnification. CITY, and its agents, officers, officials, employees, and volunteers shall be named as an additional insured on all insurance polices required herein, except Workers’ Compensation, Professional Liability and Financial Institution’s Fidelity. The Workers’ Compensation insurer shall agree to waive all rights of subrogation against CITY, its agents, officers, employees, and volunteers for losses arising from work performed by CONTRACTOR for CITY. CONTRACTOR’S insurance policy(ies) shall include a provision that the coverage is primary as respects 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 of CITY. The CONTRACTOR must deliver certificates evidencing existence of the insurance to the City prior to the time contract is signed.

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5 CONTRACTOR agrees to provide CITY with a separate endorsement evidencing proof of City’s additional insured status required herein (both general and automobile liability) as well as a separate endorsement for the Workers’ Compensation insurer’s waiver of all subrogation rights as stated above. Every endorsement shall identify the policy number.

CONTRACTOR shall provide CITY with separate an endorsement evidencing proof of the CITY’s additional insured status as to the general liability insurance policy. In addition, CONTRACTOR 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 CONTRACTOR’S insurance coverage shall be primary insurance as respects the Entity, its agents, officers, officials, employees, and volunteers. Any insurance or self-insurance maintained by the Entity, its agents, officers, officials, employees, or volunteers shall be excess of the CONTRACTOR’S insurance and shall not contribute with it.

CONTRACTOR further agrees that the amount of insurance required may from time to time be adjusted by CITY’s Risk Manager and CONTRACTOR agrees to file a new insurance certificate with CITY’s City Clerk evidencing the new amounts after a thirty (30) day written notice from CITY’s Risk Manager.

5. PAYMENT:

CONTRACTOR shall invoice CITY at a minimum of a monthly basis.

All invoices shall be paid in full within thirty (30) days after completion and acceptance of the service by the City, and receipt of a properly prepared invoice in duplicate, subject to cash discounts allowed and stated in this proposal document. The City is exempt from payment of DocuSign Envelope ID: 6643FAC6-8CCB-4DCE-8F86-607F97745E3F #22..
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6 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 protected]
CONTRACTOR shall establish a separate billing account number for each CITY department and/or division.

At a minimum invoices shall state the following:
 Reference Annual Agreement #: _____________________
 City department/division name and address
 Billing period
 Service hours worked day and week
 Unit price, extended price, sales tax and total

6. INDEMNITY:

The CONTRACTOR shall hold the CITY, its agents, officers, employees, and volunteers, harmless from and save, defend and indemnify them against any and all claims, losses, liabilities, judgments or damages from every cause, including but not limited to injury to person or property or wrongful death, including reasonable costs and expenses of defense of any judicial or administrative action, arising directly or indirectly out of any negligent or intentional act or omission of CONTRACTOR, or its agents, officers, employees, or volunteers relating to or during the performance of its obligations under this Agreement.

CONTRACTOR’s obligation to defend, indemnify, and hold the CITY, its agents, officers, and employees harmless under the provisions of this paragraph is not limited to or restricted by any requirement in this Agreement for CONTRACTOR to procure and maintain a policy of insurance.

In the indemnity clause contained herein CONTRACTOR agrees to defend, indemnify and hold CITY harmless from the negligence of its employees, among other risks.

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7 With reference to the foregoing, the parties agree that all risk of loss, including but not limited to damages, property losses and defense of third-party suits, arising out of or relating to the operation of CITY owned vehicles by CONTRACTOR’s employees is apportioned to CONTRACTOR in accordance with the provisions contained in Indemnity 6.

7. ARBITRATION:

Any dispute or claim arising or related to this Agreement, its performance, breach, or interpretation (including issues about its validity or enforceability), shall be exclusively, (except as approved below) resolved by final binding arbitration before the American Arbitration Association (AAA), utilizing its Commercial Arbitration Rules. One Arbitrator shall be selected using AAA procedures. The Arbitrator shall use all reasonable efforts to minimize discovery and to complete the arbitration proceedings as expeditiously as possible. The Arbitrator shall render a written decision within thirty (30) calendar days of the hearing. The Arbitrator will not award attorney’s fees, or punitive, incidental, consequential, treble or other multiple or exemplary damages, and the parties hereby agree to waive and not seek such damages. Either party may seek judicial relief to compel the other party to comply with the provisions of this Section, or injunctive or other equitable relief to protect its intellectual property rights, provided (unless prohibited by applicable law) that the remainder of the dispute or claim is submitted to arbitration. The arbitration shall be held in Modesto California; both parties give their irrevocable consent to jurisdiction of courts of or in the State of California, as well as processes of the AAA in California. Awards shall be final, binding and non-appealable (except on the minimal grounds required under the Federal Arbitration Act or other applicable law). All awards may be filed with one or more courts, state, federal or foreign having DocuSign Envelope ID: 6643FAC6-8CCB-4DCE-8F86-607F97745E3F #22..
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8 jurisdiction over the party against whom such award is rendered or its property, as a basis of judgment and of the issuance of execution for its collection.

8. GOVERNING LAW:

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

9. COMMENCEMENT AND COMPLETION OF THE WORK:

The work contemplated herein shall be commenced as soon as possible after receipt of the Notice to Proceed for this contract. The Notice to Proceed shall not be issued until the contract administrator receives and has on file:

Proofs of insurance (approved by Risk Management);
Executed Agreement;
a. Resolution No. ____________ attached hereto as Exhibit “A” and made a part hereof;
b. Scope-of-Work, attached hereto as Exhibit “B” and made a part hereof; c. RFP 1718-06, attached hereto as Exhibit “C” and made a part hereof;

10. TERMINATION OF SERVICES:

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

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9 Termination by City for Convenience
TheCitymay also terminate theContractor's performance underthe Agreement, eitherin whole orin part, at its own discretion, or when conditions encountered duringthe Work make it impossible orimpracticable to proceed, or when theCityis prevented fromproceeding 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. TheCityshall provide no lessthan ten (10) calendar days written notice of its intent to terminate the Agreement for convenience, and shall endeavor to provide the Contractor with consultation with the City prior to termination.

Post-Termination Procedure
Upon receipt of a written notice of termination pursuant to either of the foregoing paragraphs, the Contractor shall:
a. Cease its work as directed in the notice of termination as of the termination date and see to it that its employees, sub-contractors and agents are notified of such termination and act as specified in the notice of termination;
b. Terminate all orders and Subcontractors except as necessary to complete any portion of the Work that is not terminated; c. If directed in writing by the City to do so, assign all right, title and interest in subcontracts and materials in progress to City, in which case the City will have the right at its discretion to settle, or pay any or all claims arising out of the termination of such subContractors, but in no event shall recovery by any Contractor or DocuSign Envelope ID: 6643FAC6-8CCB-4DCE-8F86-607F97745E3F #22..
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10 subContractor include lost profits for portions of the Work not completed or undertaken, including materials not delivered; d. Deliver or otherwise make available to the City all data, drawings, specifications, reports, estimates,summaries and such other information and material as mayhave been accumulated by the Contractor in performing the Work whether completed or in process; e. Settle outstanding liabilities and claims, subject to the approval of City;
f. Complete performance of such part of the Work as has not been terminated;
g. Take such other actions as may be necessary, or as may be directed by the City for the protection and preservation of the Work and/or property related to the Work;
h. If City so requests, and at City's cost, Contractor shall provide sufficient oral or written status reports to make City reasonably aware of the status of Contractor's work on the project. i. The Contractor understands and agrees that City may, in City's sole discretion, refuse to pay Contractor for that portion of Contractor's services which were performed by Contractor on the project prior to the termination date and which remain
unacceptable and/or not useful to City as of the termination date.

City will pay Contractor an amount based on the percentage of satisfactory work completed in accordance with the notice of termination. The final payment to the Contractor after termination DocuSign Envelope ID: 6643FAC6-8CCB-4DCE-8F86-607F97745E3F #22..
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11 for convenience shall be limited to amounts due and owing under the Agreement at time of termination, including the following:
a. The cost of settling and paying valid claims arising out of the termination of the Work such as subcontractor agreements or contracts for materials;
b. The Agreement price allocable to the portion of the Work properly performed or goods supplied to the work site by the Contractor as of the date of termination, as determined in accordance with the notice of termination, reduced by any sums previously paid to the Contractor.

Authorization to Terminate Agreement
Termination of the Agreement may be invoked by the City Manager, or his/her designee, subject to the right of the Contractor to appeal the City Manager, or his/her designee’s, decision to the City Council. The Contractor shall appeal by notifying the City Clerk in writing within ten (10) calendar days 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.

11. COMPLIANCE WITH ALL LAWS:

CONTRACTOR hereby agrees that CONTRACTOR and its subcontractors, if any, in the performance of the work described, designated and shown upon the plans herein referred to, will comply with all federal, state, county and municipal laws, rules and regulations DocuSign Envelope ID: 6643FAC6-8CCB-4DCE-8F86-607F97745E3F #22..
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12 which may be applicable to the work herein contracted for, whether now in existence or hereafter adopted.

12. CONTRACT DOCUMENTS:

The complete contract between the parties hereto consists of this agreement, and all exhibits, and the following documents which are incorporated herein by this reference:
a. Resolution No. _____________;
b. Scope-of-Work;
c. Insurance Certificates,
d. City of Modesto Standard Specifications and General Provisions.

These documents include important legal requirements, procedures and restrictions and should be reviewed by CONTRACTOR. They are available for review during normal business hours in the Department of Finance, Purchasing Division). All documents specified above are intended to operate so that any work called for in any one and not mentioned in the other, or vice versa, is to be executed the same as if mentioned in all said documents.

13. NOTICES:

Any notice, payment or instrument required or permitted by this Contract 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: Jeff Lierly (or designee)
Mansfield, Lierly & Associates
7625 Sunrise Boulevard Suite 214
Citrus Heights, CA. 95610
(916) 710-1030
[email protected]
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13 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.

14. SIGNATOR(IES) FOR CONTRACTOR:

The undersigned signator(ies) for CONTRACTOR warrant(s) and represent(s) that he/she/they is/are legally competent to execute the contract and has/have full authority to execute this contract.

15. ASSIGNMENT:

Neither this agreement nor any portion thereof shall be subcontracted or assigned without the written consent of the CITY in each and every instance.

16. 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.

17. HEADINGS NOT CONTROLLING.

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

18. MISCELLANEOUS:

Time is of the essence in every provision of this contract.

19. ENTIRE AGREEMENT.

This Agreement and its exhibits contain the entire understanding between Consultant and City. Additional or new terms contained in this Agreement which vary from DocuSign Envelope ID: 6643FAC6-8CCB-4DCE-8F86-607F97745E3F #22..
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14 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.

IN WITNESS WHEREOF, the CITY OF MODESTO, a municipal corporation, has authorized the execution of this Agreement in duplicate by its City Manager and attested by its City Clerk under authority of Resolution No. _________, adopted by the Council of the City of Modesto on the _____________-day of _____________________, 2021 and _____________________has caused this Agreement to be duly executed.

DocuSign Envelope ID: 6643FAC6-8CCB-4DCE-8F86-607F97745E3F Mansfield, Lierly &
Associates 2nd
2021-029
February
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CITY OF MODESTO,
a municipal corporation
BY: ____________________________
JOSEPH P. LOPEZ, City Manager
ATTEST:
(Seal)
BY: ____________________________
STEPHANIE LOPEZ, City Clerk

CONSULTANT,
________________________________
BY: ____________________________
By _____________________________
Name Title
BY: ____________________________
By _____________________________
Name Title
APPROVED AS TO FORM:

BY: ____________________________
JOSE M. SANCHEZ, City Attorney
APPROVED AS TO FORM:

BY: ____________________________
JILES SMITH II, Risk Manager
Consultant’s Federal ID # ___________
* Corporations - signature of two (2) officers
required or one (1) officer plus corporate seal.

Partnership - signature of a partner required Sole
Proprietorship - signature of proprietor
required
DocuSign Envelope ID: 6643FAC6-8CCB-4DCE-8F86-607F97745E3F Managing
Partner
Mansfield, Lierly & Associates
Jeff Lierly
20-4707644
2/11/2021
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CITY OF MODESTO

COUNCIL AGENDA REPORT
DATE OF MEETING:

December 12, 2023
Date: November 8, 2023
TO: Mayor and City Council
THROUGH: Joseph P. Lopez, City Manager
FROM: Brandon Gillespie, Chief of Police
SUBJECT: Organized Retail Theft Prevention Grant Equipment and Services Purchases CONTACT: Bob Meredith, Lieutenant, [email protected], 209-572-9500 DESCRIPTION:

Consider approving a Purchase Order with Vigilant Solutions, LLC, Dallas, TX, for the update and expansion of the Modesto Police Department’s Automated License Plate Reader Program, for an amount not to exceed $2,939,812; approving a Purchase Order with Special Services Group (SSG), Marina, CA, for the purchase of equipment, software, installation, and warranty for cameras and trackers for an amount not to exceed $122,366; approving a Purchase Order with Dotworkz, San Diego, CA, for the purchase of equipment, software, and warranty for quad/PTZ camera systems, for an amount not to exceed $357,528; and approving a Purchase Order with Vorp Energy, Rexburg, ID, for the purchase of equipment, software, and warranty for camera trailers, for an amount not to exceed $218,883.(Funding Source: Police Grants) STRATEGIC PLAN ELEMENT:

This item is related to the adopted City Council 2020-2025 Strategic Plan focus area of Quality of Life under Goal - Improve Community Safety. It is also related to the Strategic Plan focus area of Economic Vitality under Goal – Retain and attract commercial development to meet the community’s needs.

BACKGROUND:

The State Budget Act of 2022 (Senate Bill 154, Chapter 43, Statutes of 2022) established the Organized Retail Theft Prevention Grant Program. Funding is available to California city police departments, sheriff departments, and probation departments to support local law enforcement agencies in preventing and responding to organized retail theft, motor vehicle or motor vehicle accessory theft, or cargo theft. The authority and duties of the Board of State and Community Correction (BSCC) are to administer the Organized Retail Theft Prevention Program, including the selection criteria for grants and reporting requirements to the Legislature.

This grant made $242,250,000 available competitively to city police, county sheriffs’ departments, and probation departments. Applicants must implement new activities, strategies, or programs, OR expand existing activities, strategies, or programs. #23..
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City Council, December 12, 2023
Organized Retail Theft Prevention Grant Equipment and Services Purchases

On June 27, 2023, the City Council approved the Modesto Police Department (MPD) to apply for the Organized Retail Theft Prevention Grant Program by Resolution No. 2023-302. The application was submitted to Bureau of State and Community Corrections (BSCC) on July 7, 2023.

On September 15, 2023, the MPD was notified it was awarded $6,003,419 in grant funds from the BSCC Organized Retail Theft Grant Program. The grant agreement service period covers October 1, 2023, and ends on December 31, 2026. However, an additional six (6) months (January 1, 2027, to June 1, 2027) will be included in the term of the grant agreement for the sole purposes of finalizing and submitting a required Local Evaluation Report and finalizing and submitting a required financial audit.

On September 26, 2023, by Resolution No. 2023-431, Council accepted the Board of State and Community Corrections Organized Retail Theft Prevention Grant in the amount of $6,003,419 in grant funds with no match requirement. Subsequently, the City of Modesto entered into an agreement with the BSCC Organized Retail Theft Prevention Grant Program to utilize the Grant funds to combat organized retail theft, motor vehicle theft, and motor vehicle accessory theft.

DISCUSSION:

The MPD will use grant funds from the Organized Retail Theft Prevention Grant Program to improve public health and safety in Modesto by supporting local retail business and consumers using technology, intelligence, cooperation and collaboration with local retailers and allied agencies, and utilizing purpose built directed enforcement to catch, dissuade, and prosecute organized retail theft offenders. This program seeks to improve the quality of life of the citizens of Modesto by reducing crime and the fear of crime when working and shopping in Modesto. It also intends to retain and attract local commercial retailers by providing them with a sense that their local government is actively taking steps to ensure their success so they can provide vital services and products today and in the future.

MPD’s grant strategy includes adding automated license plate reader (ALPR) cameras to no less than 25 intersections, fielding boom camera trailers, ALPR trailers, as well as quick deploying surveillance cameras. Additionally, to aid in combating motor vehicle theft, a bait car system and additional vehicle trackers will also be procured.

Below is an outline of the equipment being requested for purchase, broken out by vendor for ease of tracking with the requested action items. All items detailed below were included in the MPD’s BSCC Organized Retail Theft Grant application and are the basis on which the application was approved, and the grant funds awarded. Per the requirements of the grant, all the items detailed below were submitted to the BSCC via a letter requesting the approval to expend grant funds for fixed assets and services in an amount that exceeds $3,500. MPD received approval from BSCC on November 14, 2023.

Vigilant Solutions, LLC – ALPR systems and ALPR camera trailers:

In 2014, the MPD began an exhaustive search for industry-leading ALPR software and corresponding hardware to combat the City’s propensity for being in the top ten nationally for auto theft, per capita. ALPR technologies routinely result in the location of stolen vehicles, identifying suspects of criminal activity, and the arrest of suspects. Furthermore, ALPR #23..
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City Council, December 12, 2023
Organized Retail Theft Prevention Grant Equipment and Services Purchases

technology is utilized to locate other felony offenders wanted for serious crimes, as well as assist in the location of at-risk missing persons.

RFP No. 1718-23 was initiated for ALPR hardware and software and the award was made to Vigilant Solutions. Vigilant Solutions is an internationally recognized company currently owned by Motorola Solutions. Over subsequent years, MPD has continued to expand its ALPR program with Vigilant, investing several hundred thousand dollars and the results speak for themselves. In 2016, Modesto ranked 4th in auto thefts on the National Insurance Crime Bureau (NICB) Hot Spots Report; since then, Modesto has been off the top 10 list for the last two years.

Vigilant provides features and investigative information not available by other vendors, as evidenced in the aforementioned RFP. Vigilant utilizes a proprietary camera system (hardware) in coordination with a robust, proprietary software system and therefore it is not interchangeable with other infrastructure or software platforms. Staff recommends the selection of Vigilant Solutions LLC in the amount of $2,939,812 in equipment, software, installation, and warranty to outfit intersections with ALPR as well as ALPR camera trailers.

Special Services Group – Covert cameras, trackers, and bait car surveillance system:

The MPD has a long-standing contract and relationship with Special Services Group (SSG) which is a local company and a leader in the field of developing covert systems. The systems proposed are designed, built, and are patented by SSG and are not manufactured by any other company. While there are other companies who sell covert camera systems and each has their own style of cameras; SSG remains a leader in the industry related to warranty work, replacement products, and loaner products when items are being repaired, in addition to being a local company and a longtime partner of the MPD. The extended warranty designed for their cameras ensures these items will be repaired in the event they stop working and as previously stated, the local aspect and relationship allows for us to pick up and deliver items without shipping and extended wait times for repair which can negatively impact the outcome of an investigation. Staff recommends the selection of Special Services Group (SSG) in the amount of $122,366 in equipment, software, installation, and warranty to outfit lamp head cameras, pole cameras, covert trackers, and a bait car camera and recording system.

Dotworkz – Pan Tilt Zoom cameras:

There is a need to provide 360-degree surveillance and Pan Tilt Zoom (PTZ) observation to the Real Time Crime Center for each of the intersections that will also be outfitted with ALPR cameras. Dotworkz is a company that manufactures camera pod systems with five cameras in one device. Unique to Dotworkz is their systems ability to provide cool air to the devices to prevent overheating in the Central Valley’s hot summers. Most vendors build devices that merely have a fan, only circulating hot air around. Dotworkz is a Sole Source provider for these BOB Camera boxes as they are an exclusive engineering design, client customized assembly designed specifically for MPD.

Additionally, MPD has met with Dotworkz and discussed a full build option with their desired components and cameras built into their enclosures. This would allow for the MPD to receive complete camera systems (minus cradle points for internet connectivity) ready to deploy right from Dotworkz once configured. This would allow for the camera team to take immediate action in configuring each camera system into the video viewing and access software and placing them at intersections, rather than managing component orders, arrival times, and build times.

This will equate to a faster deployment of resources which will in turn lead to faster crime #23..
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City Council, December 12, 2023
Organized Retail Theft Prevention Grant Equipment and Services Purchases

deterring and solving ability. Staff recommends the selection of Dotworkz in the amount of $357,528 for equipment, software, and warranty to outfit “quad/PTZ situational camera” systems.

Vorp Energy – boom camera trailers:

Lastly, MPD’s grant strategy asserts boom trailers with surveillance camera systems will be utilized in and around retail shopping locations to deter criminal activity and aid investigators in identifying and locating offenders. The MPD currently has one Vorp Energy trailer which is deployed regularly and has proven to run without electrical depletion due to the solar setup and upgraded battery system. MPD believes that based on their extensive research, this product is rare for camera systems, and has not been able to find another vendor who is building systems on trailers that not only meets the department’s requirements but is not requiring an annual monitoring and maintenance business model. This removes annual costs of monitoring and maintenance and gives the MPD the ability to manage and monitor its own systems in a manner that best fits the needs of the city. Staff recommends the selection of Vorp Energy in the amount of $218,882 for equipment, software, and warranty for boom camera trailers.

MPD staff have conducted a thorough analysis of existing and available systems. Based on this analysis and evidence from the deployment of existing MPD resources and technology that is proprietary to its manufacturers, bid waiver forms for formal bid exemptions have been completed for the above detailed items/vendors.

Modesto Municipal Code Section 8-3.203 generally requires all purchases, which meet or exceed $100,000 for material, equipment, or contractual services to follow formal bid procedures. However, exceptions to the formal bidding process are granted in MMC 8-3.204(d) ”Where the Purchasing Manager, in his or her discretion, determines that a process other than the formal bid procedure set forth in Section 8-3.203 will result in procurement for the City at the lowest possible cost commensurate with the desired quality.” Here, the specific equipment is unique to each vendor and while there may be similar available vendors, the specified equipment cannot be exactly replicated by other vendors, existing infrastructure is not interchangeable with other vendors (original equipment manufacturer/distributor) and/or demonstrated quality, durability and service are unmatched in the industry. Therefore, staff recommends the following purchase orders should be exempt from the formal bidding procedures in accordance with Modesto Municipal Code 8-3.204(d):
 Vigilant Solutions LLC in the amount of $2,939,812 for equipment, software, installation, and warranty to outfit intersections with ALPRS as well as ALPR camera trailers; and  Special Services Group (SSG) in the amount of $122,366 for equipment, software, installation, and warranty to outfit lamp head cameras, pole cameras, covert trackers, and a bait car camera and recording system; and
 Dotworkz in the amount of $357,528 for equipment, software, and warranty to outfit “quad/PTZ situational camera” systems; and
 Vorp Energy in the amount of $218,882 for equipment, software, and warranty for boom camera trailers.

FISCAL IMPACT:

Funding for the purchase of equipment and software, and any associated licensing and installation not to exceed $3,638,589 will come from the 2023-2026 BSCC Organized Retail #23..
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City Council, December 12, 2023
Organized Retail Theft Prevention Grant Equipment and Services Purchases

Theft Prevention Grant Program. There is no General Fund impact for the three years of the grant.

Equipment Expenditures Grant Funds
Vigilant Solutions $2,939,812
Special Services Group $122,366
Dotworkz $357,528
Vorp Energy $218,883
Total $3,638,589
In the fourth and subsequent years, the Police Department will incur annual licensing and cellular fees. These costs will be incorporated in the Police Department annual operating budget at the conclusion of the grant.

Vendor Annual Expense
AT&T (cradle points; iPads; Trailers) $40,248
Special Services Group (mapping services &
support and trackers)
$3,740
Vigilant (L6Q – qty 30 licenses) $7,500
Total $51,488
COMMITTEE RECOMMENDATION:

Due to time constraints this item was not presented to a committee.

RECOMMENDED COUNCIL ACTION:

Staff Recommendations:

Resolution approving a Purchase Order with Vigilant Solutions, LLC, Dallas, TX, for the update and expansion of the Modesto Police Department’s Automated License Plate Reader Program, for an amount not to exceed $2,939,812; and authorizing the Purchasing Manager, or her designee, to issue the Purchase Order.

Resolution approving a Purchase Order with Special Services Group (SSG), Marina, CA, for the purchase of equipment, software, installation, and warranty for cameras and trackers for an amount not to exceed $122,366; and authorizing the Purchasing Manager, or her designee, to issue the Purchase Order.

Resolution approving a Purchase Order with Dotworkz, San Diego, CA, for the purchase of equipment, software, and warranty for quad/PTZ camera systems, for an amount not to exceed $357,528; and authorizing the Purchasing Manager, or her designee, to issue the Purchase Order.

Resolution approving a Purchase Order with Vorp Energy, Rexburg, ID, for the purchase of equipment, software, and warranty for camera trailers, for an amount not to exceed $218,883; and authorizing the Purchasing Manager, or her designee, to issue the Purchase Order.

Approved by:

Brandon Gillespie, Chief of Police
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City Council, December 12, 2023
Organized Retail Theft Prevention Grant Equipment and Services Purchases

Joseph P. Lopez, City Manager
Attachments:

1. Resolution – Vigilant Solutions, LLC

2. Resolution – Special Services Group

3. Resolution – Dotworkz

4. Resolution – Vorp Energy

5. Quote from Vigilant Solutions, LLC

6. Quote from Special Services Group

7. Quote from Dotworkz

8. Quote from Vorp Energy

9. Bid Waiver – Vigilant Solutions, LLC

10. Bid Waiver – Special Services Group

11. Bid Waiver – Dotworkz

12. Bid Waiver – Vorp Energy

13. Financial Disclosure – Vigilant Solutions, LLC

14. Financial Disclosure – Special Services Group

15. Financial Disclosure – Dotworkz

16. Financial Disclosure – Vorp Energy
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1 MODESTO CITY COUNCIL
RESOLUTION NO. 2023-?

RESOLUTION APPROVING A PURCHASE ORDER WITH VIGILANT

SOLUTIONS, LLC, DALLAS, TX, FOR THE UPDATE AND EXPANSION OF THE MODESTO POLICE DEPARTMENT’S AUTOMATED LICENSE PLATE READER PROGRAM, FOR AN AMOUNT NOT TO EXCEED $2,939,812; AND

AUTHORIZING THE PURCHASING MANAGER, OR HER DESIGNEE, TO

ISSUE THE PURCHASE ORDER
WHEREAS, the Modesto Police Department has been awarded a grant in the amount of $6,003,419 from the Board of State and Community Corrections (BSCC) for the Organized Retail Theft Prevention Grant program; and WHERAS, the Modesto Police Department has partnered with Stanislaus County District Attorney’s office, as well as retailers through out the City of Modesto, to implement this grant; and
WHERAS, Vigilant Solutions has provided the current Automated License Plate Reader program, equipment, software installation and warranty to Modesto Police Department, and
WHEREAS, Modesto Municipal Code Section 8-3.203 generally requires all purchases, which meet or exceed $100,000 for material, equipment, or contractual services to follow formal bid procedures. However, exceptions to the formal bidding process area granted in MMC 8-3.204(d) “Where the Purchasing Manager, in his or her discretion, determines that a process other than the formal bid procedure set forth in Section 8-3.203 will result in a procurement for the City at the lowest possible cost commensurate with the desired quality.” Here, the specific equipment is unique to each vendor and while there may be similar available vendors, the specified equipment cannot be exactly replicated by other vendors, existing infrastructure is not interchangeable with #23..
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2 other vendors (original equipment manufacturer/distributor) and/or demonstrated quality, durability and service are unmatched in the industry. Therefore, staff recommends the purchase with Vigilant Solutions, LLC for equipment, software, installation, and warranty for ALPR camera systems and ALPR camera trailers be exempt from the formal bidding procedures in accordance with Modesto Municipal Code 8-3.204(d).

NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Modesto approves a Purchase Order with Vigilant Solutions, LLC, Dallas, TX, for the update and expansion of the Modesto Police Department’s Automated License Plate Reader program, for the amount not to exceed $2,939,812 over the grant period.

BE IT FURTHER RESOLVED that the Purchasing Manager, or her designee, is authorized to issue the Purchase Order.
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3 The foregoing resolution was introduced at a regular meeting of the Council of the City of Modesto held on the 12th day of December, 2023, by Councilmember ?, who moved its adoption, which motion being duly seconded by Councilmember ?, was upon roll call carried and the resolution adopted by the following vote:

AYES: Councilmembers:

NOES: Councilmembers:

ABSENT: Councilmembers:

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

BY: _____________________________________
JOSE M. SANCHEZ, City Attorney
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1 MODESTO CITY COUNCIL
RESOLUTION NO. 2023-?

RESOLUTION APPROVING A PURCHASE ORDER WITH SPECIAL

SERVICES GROUP (SSG), MARINA, CA, FOR THE PURCHASE OF

EQUIPMENT, SOFTWARE, INSTALLATION AND WARRANTY FOR
CAMERAS AND TRACKERS FOR AN AMOUNT NOT TO EXCEED $122,366;

AND AUTHORIZING THE PURCHASING MANAGER, OR HER DESIGNEE

TO ISSUE THE PURCHASE ORDER
WHEREAS, the Modesto Police Department has been awarded a grant in the amount of $6,003,419 from the Board of State and Community Corrections (BSCC) for the Organized Retail Theft Prevention Grant program; and WHERAS, the Modesto Police Department has partnered with Stanislaus County District Attorney’s office, as well as retailers through out the City of Modesto, to implement this grant; and
WHEREAS, Modesto Municipal Code Section 8-3.203 generally requires all purchases, which meet or exceed $100,000 for material, equipment, or contractual services to follow formal bid procedures. However, exceptions to the formal bidding process area granted in MMC 8-3.204(d) “Where the Purchasing Manager, in his or her discretion, determines that a process other than the formal bid procedure set forth in Section 8-3.203 will result in a procurement for the City at the lowest possible cost commensurate with the desired quality.” Here, the specific equipment is unique to each vendor and while there may be similar available vendors, the specified equipment cannot be exactly replicated by other vendors, existing infrastructure is not interchangeable with other vendors (original equipment manufacturer/distributor) and/or demonstrated quality, durability and service are unmatched in the industry. Therefore, staff recommends the purchase with Special Services Group for equipment, software, installation, and warranty #23..
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2 for lamp head cameras, pole cameras, covert trackers, and a bait car camera and recording system be exempt from the formal bidding procedures in accordance with Modesto Municipal Code 8-3.204(d).

NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Modesto approves a Purchase Order with Special Services Group for the purchase of equipment, software, installation, and warranty for cameras and trackers, in an amount not to exceed $122,366.

BE IT FURTHER RESOLVED that the Purchasing Manager, or her designee, is authorized to issue the Purchase Order.
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3 The foregoing resolution was introduced at a regular meeting of the Council of the City of Modesto held on the 12th day of December, 2023, by Councilmember ?, who moved its adoption, which motion being duly seconded by Councilmember ?, was upon roll call carried and the resolution adopted by the following vote:

AYES: Councilmembers:

NOES: Councilmembers:

ABSENT: Councilmembers:

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

BY: _____________________________________
JOSE M. SANCHEZ, City Attorney
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1 MODESTO CITY COUNCIL
RESOLUTION NO. 2023-?

RESOLUTION APPROVING A PURCHASE ORDER WITH DOTWORKZ, SAN

DIEGO, CA, FOR THE PURCHASE OF EQUIPMENT, SOFTWARE AND

WARRANTY FOR QUAD/PTZ CAMERA SYSTEMS, FOR AN AMOUNT NOT TO EXCEED $357,528, AND AUTHORIZING THE PURCHASING MANAGER,

OR HER DESIGNEE TO ISSUE THE PURCHASE ORDER
WHEREAS, the Modesto Police Department has been awarded a grant in the amount of $6,003,419 from the Board of State and Community Corrections (BSCC) for the Organized Retail Theft Prevention Grant program; and WHERAS, the Modesto Police Department has partnered with Stanislaus County District Attorney’s office, as well as retailers through out the City of Modesto, to implement this grant; and
WHEREAS, Modesto Municipal Code Section 8-3.203 generally requires all purchases, which meet or exceed $100,000 for material, equipment, or contractual services to follow formal bid procedures. However, exceptions to the formal bidding process area granted in MMC 8-3.204(d) “Where the Purchasing Manager, in his or her discretion, determines that a process other than the formal bid procedure set forth in Section 8-3.203 will result in a procurement for the City at the lowest possible cost commensurate with the desired quality.” Here, the specific equipment is unique to each vendor and while there may be similar available vendors, the specified equipment cannot be exactly replicated by other vendors, existing infrastructure is not interchangeable with other vendors (original equipment manufacturer/distributor) and/or demonstrated quality, durability and service are unmatched in the industry. Therefore, staff recommends the purchase with Dotworkz for equipment, software and warranty for quad/PTZ camera #23..
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2 systems be exempt from the formal bidding procedures in accordance with Modesto Municipal Code 8-3.204(d).

NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Modesto approves a Purchase Order with Dotworkz for the purchase of equipment, software, and warranty for quad/PTZ camera systems, for an amount not to exceed $357,528.

BE IT FURTHER RESOLVED that the Purchasing Manager, or her designee, is authorized to issue the Purchase Order.
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3 The foregoing resolution was introduced at a regular meeting of the Council of the City of Modesto held on the 12th day of December, 2023, by Councilmember ?, who moved its adoption, which motion being duly seconded by Councilmember ?, was upon roll call carried and the resolution adopted by the following vote:

AYES: Councilmembers:

NOES: Councilmembers:

ABSENT: Councilmembers:

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

BY: _____________________________________
JOSE M. SANCHEZ, City Attorney
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1 MODESTO CITY COUNCIL
RESOLUTION NO. 2023-?

RESOLUTION APPROVING A PURCHASE ORDER WITH VORP ENERGY,

REXBURG, ID, FOR THE PURCHASE OF EQUIPMENT, SOFTWARE, AND

WARRANTY FOR CAMERA TRAILERS, FOR AN AMOUNT NOT TO
EXCEED $218,883, AND AUTHORIZING THE PURCHASING MANAGER, OR

HER DESIGNEE, TO ISSUE THE PURCHASE ORDER
WHEREAS, the Modesto Police Department has been awarded a grant in the amount of $6,003,419 from the Board of State and Community Corrections (BSCC) for the Organized Retail Theft Prevention Grant program; and WHERAS, the Modesto Police Department has partnered with Stanislaus County District Attorney’s office, as well as retailers through out the City of Modesto, to implement this grant; and
WHEREAS, Modesto Municipal Code Section 8-3.203 generally requires all purchases, which meet or exceed $100,000 for material, equipment, or contractual services to follow formal bid procedures. However, exceptions to the formal bidding process area granted in MMC 8-3.204(d) “Where the Purchasing Manager, in his or her discretion, determines that a process other than the formal bid procedure set forth in Section 8-3.203 will result in a procurement for the City at the lowest possible cost commensurate with the desired quality.” Here, the specific equipment is unique to each vendor and while there may be similar available vendors, the specified equipment cannot be exactly replicated by other vendors, existing infrastructure is not interchangeable with other vendors (original equipment manufacturer/distributor) and/or demonstrated quality, durability and service are unmatched in the industry. Therefore, staff recommends the purchase with Vorp Energy for equipment, software and warranty for boom camera #23..
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2 trailers be exempt from the formal bidding procedures in accordance with Modesto Municipal Code 8-3.204(d).

NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Modesto approves a Purchase Order with Vorp Energy, Rexburg, ID, for the purchase of equipment, software, and warranty for camera trailers, for an amount not to exceed $218,883.

BE IT FURTHER RESOLVED that the Purchasing Manager, or her designee, is authorized to issue the Purchase Order.
#23..
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3 The foregoing resolution was introduced at a regular meeting of the Council of the City of Modesto held on the 12th day of December, 2023, by Councilmember ?, who moved its adoption, which motion being duly seconded by Councilmember ?, was upon roll call carried and the resolution adopted by the following vote:

AYES: Councilmembers:

NOES: Councilmembers:

ABSENT: Councilmembers:

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

BY: _____________________________________
JOSE M. SANCHEZ, City Attorney
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Pricing Proposal
Quote prepared for:

Doug Ridenour Jr
209-595-5693
[email protected]
Quote Number: 11
Rev 2
Quote Submission Date: November 30th, 2023
Quote Expiration Date: January 31st, 2024
QUOTE REFERENCE: Sept Addition per Doug - TAX ADDED on 11/30/23 Assumptions/Notes:

Dotworkz is not covering the shipping costs.

Non-Dotworkz equipment does not have a leadtime at the time of this quote.

Dotworkz will integrate, mount, and provide layout directions on where to mount equipment within the housing.

Dotworkz is not going to configure any equipment or cameras.

Dotworkz warranty applies to the BOB-CD only. Any warranty issues relating to Items 2-10 is the responsibility of the end user.

No Wireless Antenna is specified in this build as Dotworkz is not providing the cradlepoint units Item Quantity Product(s) Price Per Unit Price for 25 Units 1 1
BOB-CD (Actively COOLED BI-Ocular Box) includes oversized dessicant canisters, drip pans, 120V power outlet, LED lights, and elevated metal floor
$4,500.00
2 1 Axis Q6100-E Camera $1,500.00
3 1 Axis Q6135-LE Camera $2,200.00
4 1 Aix Q1700-LE LPR Camera $1,089.00
5 1 Axis C1310-E Network Horn $525.00
6 1 Ubiquiti UISP Wave Nano (Wave-Nano-US) 60 GHz PtMP $308.00 7 1 Dell Optiplex 3080 Micro Desktop - 512GB NVMe SSD, 2TB M.2 NVMe Additional Drive, 16GB RAM, w/ Windows 10 PRO $1,985.00 8 1 Western Digital Black P10 - 5TB Portable Drive $175.00 10 1 Ubiquiti - Edge Switch 8 Port 150W (ES-8-150W) $219.00 11 1 Integration Of Camera, Connectivity Equipment and Creation Of Mounting Equipment for BOB-CD $600.00 Subtotal $13,101.00 $327,525.00
Shipping Shipping for 25 units via Fedex Freight w/ Liftgate Delivery (it is the same cost for 1 unit or 25 units) ~ $935.00 TAX Tax Cost in Modesto, CA (8.875%) for 1 unit and for 25 units $1,162.71 $29,067.84 TOTAL $14,263.71 $357,527.84
#23..
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Quote Total $ 218,882.30
Quote Valid Unl Jan 31, 2024
Equipment to be powered - Any changes made to this Equipment List will require a new quote.

System Quote
www.vorpenergy.com
208.904.0424
[email protected]
Prepared For
Douglas Ridenour
Company .

Modesto P.D.

Project Name / Locaon
Modesto
Prepared By
Rich Normand1
Date of Quote
Nov 2, 2023
Payment Terms
Pre-Pay
Manufacture Part# Voltage Wa.s Qty per Pole Total Wa.s
Axis
Axis
Axis
Ubiquity
TBD
6135
6100
C1310
Switch
Strobes
POE++
POE
POE
110 A/C
12VDC
45 15
9 20
6 1
1 1
1 1
45 15
9 20
6 Solar Zone 2 Total Wa.s Needed 95
Part Number Descripon Quote Price Qty Amount
MDT-1200 "G4 Vorp Energy MDT Solar Surveillance Trailer with 1200W Solar Array Includes:

Rugged Bedliner Texture
(2) 200Ah 12v SLA Ba=eries
18> Telescopic Mast w/ (1) 18-2 Power Cable
Remote Monitor and Power Cycle features
*Requires Forkli> for delivery*
$ 21,411.00 5 $ 107,055.00
M-ACC-2CAT5 Coiled cable upgrade for MDT solar surveillance trailer replaces standard coiled cable with advanced cable, which has: (2) CAT5e data cable & (1) 18-2 power cable $ 490.00 5 $ 2,450.00
CV-24DC-12DC DC to DC Converter.

Input: 18-36VDC Output: 12VDC
Max Wa=age: 120W
$ 42.00 5 $ 210.00
M-ACC-Ba=ery
Removal
removal of (2) 200ah ba=eries $ -700.00 5 $ -3,500.00
M-ACC-Lith
Ba= 250Ah
Lithium ba=ery pack upgrade for trailers 500Ah total $ 6,300.00 5 $ 31,500.00 Custom Order Ba=ery Charger Upgrade for Lithium. $ 475.00 5 $ 2,375.00 Custom Order Wiring and InstallaFon. Customer Supplied Equipment. $ 1,190.00 5 $ 5,950.00 Shipping Shipping to Cal. $ 5,000.00 1 $ 5,000.00
Custom Order 3-Axis Cameras Per Spec. $ 10,000.00 5 $ 50,000.00 Custom Order Tax @ 8.875% Customer to pay. $ 17,842.30 1 $ 17,842.30 System Quote: Modesto-110223-Trailer
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All Vorp Energy Plug & Play Power Kits require an Assembly Time of 5 Business Days. Large quan&ty orders, trailers, or custom kits will have longer Assembly Times.

All Voltage Converters, PoE Injector, PoE Switches, etc. boxed separately within the kit as it ships. They will include the hardware needed to mount and wire them with the Power Assembly. Wiring guides and instruc$ons are provided within the kit. If more copies are required, they are available upon request.

Power Kits are warran$ed for 2 Years. Any tampering, modifying, removing, or re-wiring of components in ki+ed solu$ons will void the 2 Year Warranty.

Ba+eries are warran$ed for 45 days.

Failure to follow the provided Installa$on Guides will also void the 2 Year Warranty.

Unless otherwise specified, a shipping cost is not provided on the quote. Shipping is calculated at the point of sale. Shipping is included on the invoice.

Outdoor Plug & Play Power Solu$ons for IoT, M2M, and Wireless Surveillance Equipment All quotes Valid for 30 Days
Notes
System Quote: Modesto-110223-Trailer
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1 Juana Lynch
From: Doug Ridenour Jr
Sent: Tuesday, November 21, 2023 9:10 AM
To: Aurelia Harris
Cc: Brandon Gillespie; Jessica Smart; Bob Meredith
Subject: FW: Question regarding purchasing options
Regarding the difference between the cooperation agreement and the existing quote we built with Vigilant which has built in a substantial discount.

Jr.

From: Kelly Bluth <[email protected]>
Sent: Tuesday, November 21, 2023 9:02 AM
To: Doug Ridenour Jr <[email protected]>; Sean Heieck <[email protected]>; Louis Wershaw <[email protected]>
Subject: Question regarding purchasing options
External Email: Please use caution when clicking links and/or opening attachments.

Doug - Regarding your inquiry into the available purchasing options for Vigilant LPR hardware and services. I want to let you know that your agency has the capability to purchase through an existing cooperation agreement such as the HGAC. However, I would want to bring to your attention a couple of points of interest that should be considered first:
1- Purchasing agreements such as the one listed above have limited product offerings. In this case, your agency is seeking to procure a variety of products including fixed cameras, mobile cameras, trailer solutions, quick-deploy cameras, etc. products. We cannot guarantee your ability to procure everything included on your existing quote if not procuring directly through the manufacturer (Motorola Solutions). Items that would be impacted and potentially not available for purchase may include:
- Installation
- The L6Q promotional offer including the free installation - Trailers
2- Installation was included on the existing quote. The installation component could be impacted and or have to be procured separately if using one of those purchasing agreements. 3- The quote that you were provided directly from the manufacturer included significant discounting attributed to the fact that you are a legacy customer with a history of purchasing directly from us. Those discounts are greater than discounts available through a purchasing agreement. Additionally, those discounts were applied to the installation component too. In the event you were to purchase through an agreement, the installation costs could increase.
4- Since large discounts were applied to your existing quote, it's possible that the pricing would be greater by not going direct.

Please let me know if you have any questions.

Respectfully,
Kelly Bluth License Plate Recognition &
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2 Mobile Video Solutions
Mobile: 702-539-0579
Support: 925-398-2079 option 8
[email protected]
Motorola - Vigilant Solutions
Vigilant Solutions Law Enforcement Training To help protect y our privacy , Micro so ft Office prev ented automatic dow nload of this picture from the Internet. This email and any attachments are for the authorized recipient's use only. If you receive this email in error, please immediately delete it from your system and notify the sender. You must not disclose, print, re-transmit, store, copy or rely on any part of this email and any attachments if you are not the authorized recipient.

This email and any attachments are confidential and may contain confidential information and/or copyright material of Motorola Solutions, Inc.

For more information on how and why we collect your personal information, please visit our Privacy Policy. #23..
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Bid Waiver Approval Form - Vigilant Solutions
Final Audit Report 2023-11-27
Created: 2023-11-22
By: Juana Lynch ([email protected])
Status: Signed
Transaction ID: CBJCHBCAABAAq_9CVl1aIgIYYBvOiseZ3GsBhEMejdrF "Bid Waiver Approval Form - Vigilant Solutions" History Document created by Juana Lynch ([email protected]) 2023-11-22 - 8:53:14 PM GMT
Document emailed to Scott Conn ([email protected]) for signature 2023-11-22 - 8:54:19 PM GMT
Email viewed by Scott Conn ([email protected])
2023-11-22 - 11:27:21 PM GMT
Document e-signed by Scott Conn ([email protected])
Signature Date: 2023-11-22 - 11:27:40 PM GMT - Time Source: server Document emailed to [email protected] for signature 2023-11-22 - 11:27:43 PM GMT
Email viewed by [email protected]
2023-11-27 - 10:59:43 PM GMT
Signer [email protected] entered name at signing as Dianne Love 2023-11-27 - 11:00:32 PM GMT
Document e-signed by Dianne Love ([email protected]) Signature Date: 2023-11-27 - 11:00:34 PM GMT - Time Source: server Document emailed to DeAnna Christensen ([email protected]) for signature 2023-11-27 - 11:00:37 PM GMT
Email viewed by DeAnna Christensen ([email protected]) 2023-11-27 - 11:27:52 PM GMT
Document e-signed by DeAnna Christensen ([email protected]) Signature Date: 2023-11-27 - 11:29:13 PM GMT - Time Source: server #23..
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Agreement completed.
2023-11-27 - 11:29:13 PM GMT
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Bid Waiver Approval Form - Special Services
Group
Final Audit Report 2023-11-27
Created: 2023-11-22
By: Juana Lynch ([email protected])
Status: Signed
Transaction ID: CBJCHBCAABAAs5HSvJrMgmLo8wdq6pv4ja7vm87r0agE "Bid Waiver Approval Form - Special Services Group" History Document created by Juana Lynch ([email protected]) 2023-11-22 - 8:50:32 PM GMT
Document emailed to Scott Conn ([email protected]) for signature 2023-11-22 - 8:51:26 PM GMT
Email viewed by Scott Conn ([email protected])
2023-11-22 - 11:26:03 PM GMT
Document e-signed by Scott Conn ([email protected])
Signature Date: 2023-11-22 - 11:27:02 PM GMT - Time Source: server Document emailed to [email protected] for signature 2023-11-22 - 11:27:04 PM GMT
Email viewed by [email protected]
2023-11-27 - 10:58:04 PM GMT
Signer [email protected] entered name at signing as Dianne Love 2023-11-27 - 10:59:22 PM GMT
Document e-signed by Dianne Love ([email protected]) Signature Date: 2023-11-27 - 10:59:24 PM GMT - Time Source: server Document emailed to DeAnna Christensen ([email protected]) for signature 2023-11-27 - 10:59:26 PM GMT
Email viewed by DeAnna Christensen ([email protected]) 2023-11-27 - 11:27:09 PM GMT
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Document e-signed by DeAnna Christensen ([email protected]) Signature Date: 2023-11-27 - 11:27:45 PM GMT - Time Source: server Agreement completed. 2023-11-27 - 11:27:45 PM GMT
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[RUSH] Bid Waiver Approval Form - Vorp
Energy (pcc)
Final Audit Report 2023-12-08
Created: 2023-12-08
By: Juana Lynch ([email protected])
Status: Signed
Transaction ID: CBJCHBCAABAAgkxmgIMQMZRRCT2nVINyOdkNVLStg44k "[RUSH] Bid Waiver Approval Form - Vorp Energy (pcc)" History Document created by Juana Lynch ([email protected]) 2023-12-08 - 5:52:19 PM GMT
Document emailed to Tia Parker ([email protected]) for signature 2023-12-08 - 5:54:27 PM GMT
Email viewed by Tia Parker ([email protected])
2023-12-08 - 6:19:29 PM GMT
Document e-signed by Tia Parker ([email protected]) Signature Date: 2023-12-08 - 6:31:41 PM GMT - Time Source: server Document emailed to [email protected] for signature 2023-12-08 - 6:31:43 PM GMT
Email viewed by [email protected]
2023-12-08 - 7:58:24 PM GMT
Signer [email protected] entered name at signing as Dianne Love 2023-12-08 - 8:00:34 PM GMT
Document e-signed by Dianne Love ([email protected]) Signature Date: 2023-12-08 - 8:00:36 PM GMT - Time Source: server Document emailed to DeAnna Christensen ([email protected]) for signature 2023-12-08 - 8:00:37 PM GMT
Email viewed by DeAnna Christensen ([email protected]) 2023-12-08 - 8:50:46 PM GMT
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Document e-signed by DeAnna Christensen ([email protected]) Signature Date: 2023-12-08 - 8:51:40 PM GMT - Time Source: server Agreement completed. 2023-12-08 - 8:51:40 PM GMT
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FINANCIAL INTEREST DISCLOSURE (only required if agreement is over $100K) Any contract award to result from this IFB process and Bidder’s submission of a Bid therewith will require approval by a majority vote of the City of Modesto’s City Council. In order to have full transparency in any City of Modesto commercial actions, the City Council may not approve an agreement between the City and the Bidder until all persons with a direct or indirect financial interest of greater than $2,000 in the Bidder are identified by name.

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

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

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

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

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

Notwithstanding the foregoing, a Financial Interest Disclosure is not required for a Bidder meeting the financial criteria for listing on the New York or the Pacific Stock exchanges unless it is reasonably foreseeable that a City Council decision will increase or decrease that entity's gross revenues or expenses by one million dollars ($1,000,000) or more and the requirements of Modesto Municipal Code Section 2-10.03(h) are satisfied.

It is the legal obligation of all applicants for approval of an agreement or of an application for development rights to verify in writing, under penalty of perjury, that the identity of each person having a material financial interest in the Bidder is true, correct and complete. By signing below, the applicant understands that this information is provided under penalty of perjury, and that intentionally supplying misinformation or deception may result in either invalidation of the agreement or application, or criminal prosecution for misdemeanor violation of the Modesto Municipal Code, or both. Negligent provision of misinformation shall be grounds for invalidation.

In accordance with the Modesto Municipal Code, each applicant has a continuing obligation to maintain the truth, accuracy and completeness of the financial interest disclosure information provided below until after final consideration by the City Council of any matter arising out of or relating to the agreement or application.
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Print Names of Persons Having a Financial Interest in Bidder Receiving this Agreement:

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

Bidder Company Name:

Name of Bidder Signatory:

Signature of Bidder Representative:

Motorola Solutions is a large publicly traded company on the New York Stock Exchange with multiple business lines. We do not have access to individual shareholder information on a daily basis, nor their share value at any given time. We are therefore unable to provide the names of individual stockholders that may have a financial interest in the company. We have attached our annual shareholder proxy statement and a list of all shareholders with over 5% stake in company, as well as board members and officers of the company. #23..
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FINANCIAL INTEREST DISCLOSURE (only required if agreement is over $100K) Any contract award to result from this IFB process and Bidder’s submission of a Bid therewith will require approval by a majority vote of the City of Modesto’s City Council. In order to have full transparency in any City of Modesto commercial actions, the City Council may not approve an agreement between the City and the Bidder until all persons with a direct or indirect financial interest of greater than $2,000 in the Bidder are identified by name.

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

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

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

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

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

Notwithstanding the foregoing, a Financial Interest Disclosure is not required for a Bidder meeting the financial criteria for listing on the New York or the Pacific Stock exchanges unless it is reasonably foreseeable that a City Council decision will increase or decrease that entity's gross revenues or expenses by one million dollars ($1,000,000) or more and the requirements of Modesto Municipal Code Section 2-10.03(h) are satisfied.

It is the legal obligation of all applicants for approval of an agreement or of an application for development rights to verify in writing, under penalty of perjury, that the identity of each person having a material financial interest in the Bidder is true, correct and complete. By signing below, the applicant understands that this information is provided under penalty of perjury, and that intentionally supplying misinformation or deception may result in either invalidation of the agreement or application, or criminal prosecution for misdemeanor violation of the Modesto Municipal Code, or both. Negligent provision of misinformation shall be grounds for invalidation.

In accordance with the Modesto Municipal Code, each applicant has a continuing obligation to maintain the truth, accuracy and completeness of the financial interest disclosure information provided below until after final consideration by the City Council of any matter arising out of or relating to the agreement or application.
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Print Names of Persons Having a Financial Interest in Bidder Receiving this Agreement:

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

Bidder Company Name:

Name of Bidder Signatory:

Signature of Bidder Representative:
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FINANCIAL INTEREST DISCLOSURE (only required if agreement is over $100K) Any contract award to result from this IFB process and Bidder’s submission of a Bid therewith will require approval by a majority vote of the City of Modesto’s City Council. In order to have full transparency in any City of Modesto commercial actions, the City Council may not approve an agreement between the City and the Bidder until all persons with a direct or indirect financial interest of greater than $2,000 in the Bidder are identified by name.

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

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

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

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

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

Notwithstanding the foregoing, a Financial Interest Disclosure is not required for a Bidder meeting the financial criteria for listing on the New York or the Pacific Stock exchanges unless it is reasonably foreseeable that a City Council decision will increase or decrease that entity's gross revenues or expenses by one million dollars ($1,000,000) or more and the requirements of Modesto Municipal Code Section 2-10.03(h) are satisfied.

It is the legal obligation of all applicants for approval of an agreement or of an application for development rights to verify in writing, under penalty of perjury, that the identity of each person having a material financial interest in the Bidder is true, correct and complete. By signing below, the applicant understands that this information is provided under penalty of perjury, and that intentionally supplying misinformation or deception may result in either invalidation of the agreement or application, or criminal prosecution for misdemeanor violation of the Modesto Municipal Code, or both. Negligent provision of misinformation shall be grounds for invalidation.

In accordance with the Modesto Municipal Code, each applicant has a continuing obligation to maintain the truth, accuracy and completeness of the financial interest disclosure information provided below until after final consideration by the City Council of any matter arising out of or relating to the agreement or application.
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Print Names of Persons Having a Financial Interest in Bidder Receiving this Agreement:

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

Bidder Company Name:

Name of Bidder Signatory:

Signature of Bidder Representative:
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CITY OF MODESTO

COUNCIL AGENDA REPORT
DATE OF MEETING:

December 12, 2023
Date: November 15, 2023
TO: Mayor and City Council
THROUGH: Joseph P. Lopez, City Manager
FROM: William Wong, Director of Utilities
SUBJECT: Engineering Services Agreement with Black Water Consulting Engineers Paradise-Grimes-Ohio Area Strengthen and Replace Water Mains Project CONTACT: Edgar Vargas, Senior Civil Engineer, [email protected], 209-577-5424 DESCRIPTION:

Consider an Engineering Services Agreement with Black Water Consulting Engineers, of Modesto, CA, for the Paradise-Grimes-Ohio Area Strengthen and Replace Water Mains Project, in an amount not to exceed $489,500. (Funding Source: Water Fund) STRATEGIC PLAN ELEMENT:

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

BACKGROUND:

The Paradise-Grimes-Ohio Area Strengthen and Replace (S&R) Water Mains Project is located within a Stanislaus County pocket area bounded by Pauline Avenue to the West, California Avenue and Houser Lane to the North, Ohio Avenue to the East, and Paradise Road to the South. This area has deficient water mains that are undersized, lack pressure, and are prone to leaks. This project will replace and upgrade water mains, associated water valves, services, and fire hydrants to increase service reliability, flows, and pressures.

DISCUSSION:

To increase efficiencies, staff is requesting the use of a consultant to provide Engineering Services for the Paradise-Grimes-Ohio Area S&R Water Mains Project.

On April 12, 2022, by Resolution No. 2022-191, Council approved a prequalified list of local consultants for Civil Engineering Services, for various Capital Improvement Program Projects.

In accordance with Administrative Directive 3.1, Selection Procedures for Professional Consultants Who Provide Architectural and Engineering Services for Capital Projects, a #24..
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City Council, December 12, 2023
Engineering Services Agreement with Black Water Consulting Engineers Paradise-Grimes-Ohio Area Strengthen and Replace Water Mains Project

Request for Proposal (RFP) was sent to four (4) pre-qualified local consultants for Civil Engineering Services for various Capital Improvement Program Projects.

On September 26, 2023, staff received and distributed three (3) proposals to a selection committee consisting of Utilities Engineering staff. The selection committee evaluated the proposals and determined Black Water Consulting Engineers to be the most qualified and responsive. Black Water’s sealed cost proposal was opened, reviewed, and negotiated after the selection ranking had been finalized.

The scope of services to be provided under this Agreement include:
 Construction Documents
 Project Management
 Permitting
 Environmental Clearance
 Bid Period Services
 Engineering Services During Construction
In accordance with Modesto Municipal Code 8-3.204(a) agreements for professional services are exempt from formal bidding as long as competitive quotations or proposals have been sought informally from at least three qualified entities. Staff proceeded with the RFP process pursuant to Administrative Directive 3.1 that complied with the requirements of Section 8-

3.204(a).

FISCAL IMPACT:

Expenses associated with this effort will be housed in the following Capital Improvement Project:
100804 – Paradise Water Main
ANTICIPATED PROJECT EXPENDITURES:

Construction $7,900,000
Construction Contingency (10%) $790,000
Construction Administration – City Staff (10%) $790,000 Engineering Services Agreement – Black Water $445,000
Additional Services, if Needed (10%) $44,500
City Construction Forces $50,000
Engineering/Design/Administration – City Staff $150,000 TOTAL: $10,169,500

COMMITTEE RECOMMENDATION
This item was considered by the Finance Committee at the November 13, 2023 meeting where it was recommended that it be forwarded to Council.

CEQA/NEPA REQUIREMENTS:

Black Water Consulting Engineers will be responsible for preparing the necessary documentation for the Project to gain environmental clearance. #24..
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City Council, December 12, 2023
Engineering Services Agreement with Black Water Consulting Engineers Paradise-Grimes-Ohio Area Strengthen and Replace Water Mains Project

RECOMMENDED COUNCIL ACTION:

Staff Recommendations:

Resolution approving an Engineering Services Agreement with Black Water Consulting Engineers, of Modesto, CA, for the Paradise-Grimes-Ohio Area Strengthen and Replace Water Mains Project in the amount of $445,000, plus $44,500 in additional services, if needed, for a total amount not to exceed $489,500 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. Resolution

2. Black Water Consulting Engineers – Agreement & Exhibits #24..
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1 2023-

MODESTO CITY COUNCIL
RESOLUTION NO. 2023-

RESOLUTION APPROVING AN ENGINEERING SERVICES AGREEMENT

WITH BLACK WATER CONSULTING ENGINEERS, OF MODESTO, CA, FOR

THE PARADISE-GRIMES-OHIO AREA STRENGTHEN AND REPLACE
WATER MAINS PROJECT IN THE AMOUNT OF $445,000, PLUS $44,500 IN

ADDITIONAL SERVICES, IF NEEDED, FOR A TOTAL AMOUNT NOT TO EXCEED $489,500 AND AUTHORIZING THE CITY MANAGER, OR HIS

DESIGNEE, TO EXECUTE THE AGREEMENT
WHEREAS, the Paradise-Grimes-Ohio Area has deficient water mains that are undersized, lack pressure, and are prone to leaks, and
WHEREAS, the Paradise-Grimes-Ohio Area Strengthen and Replace Water Mains Project will replace and upgrade water mains, associated water valves, services, and fire hydrants to increase service reliability, flows, and pressures, and WHEREAS, in accordance with Administrative Directive 3.1, Selection Procedures for Professional Consultants Who Provide Architectural and Engineering Services for Capital Projects, a Request for Proposal (RFP) was sent to four (4) prequalified local consultants for Civil Engineering Services for various Capital Improvement Program Projects, and
WHEREAS, staff received and distributed three (3) proposals to a selection committee consisting of Utilities Engineering staff, and WHEREAS, the selection committee evaluated the proposals and determined Black Water Consulting Engineers to be the most qualified and responsive, and WHEREAS, in accordance with Modesto Municipal Code 8-3.204(a) agreements for professional services are exempt from formal bidding as long as competitive quotations or proposals have been sought informally from at least three qualified entities, and
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WHEREAS, staff proceeded with the RFP process pursuant to Administrative Directive 3.1 that complied with the requirements of Section 8-3.204(a), and WHEREAS, staff recommends approval of an Engineering Services Agreement with Black Water Consulting Engineers for the Paradise-Grimes-Ohio Area Strengthen and Replace Water Mains Project.

NOW, THEREFORE BE IT RESOLVED, by the Council of the City of Modesto that it hereby approves an Agreement with Black Water Consulting Engineers, in the amount of $445,000, plus $44,500 in additional services (if needed), for a total amount not to exceed $489,500 for the Paradise-Grimes-Ohio Area Strengthen and Replace Water Mains Project.

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.

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

AYES: Councilmembers:

NOES: Councilmembers:

ABSENT: Councilmembers:

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

BY: ____________________________________
JOSE M. SANCHEZ, City Attorney
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ENGINEERING SERVICES AGREEMENT

PARADISE-GRIMES-OHIO AREA

STRENGTHEN & REPLACE WATER MAINS 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 BLACK WATER CONSULTING ENGINEERS, INC., 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 Services are necessary for the Paradies-Grimes-Ohio Area Strengthen & Replace Water Mains Project.

B. Consultant represents that it is qualified, willing and able to provide the services to prepare said document(s).

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 continue in effect until City's acceptance of and payment for all services authorized by City and #24..
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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 FOUR HUNDRED FORTY-FIVE THOUSAND AND 00/100 DOLLARS ($445,000) (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. #24..
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Additional services may be authorized by the City Manager in an amount up to, but not to exceed 10% of the agreed maximum compensation, or FORTY-FOUR THOUSAND FIVE HUNDRED AND 00/100 DOLLARS ($44,500). 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 FOUR HUNDRED EIGHTY-NINE THOUSAND FIVE HUNDRED AND 00/100 DOLLARS ($489,500). 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 warrants that it has all of the necessary professional capabilities and experience, as well as all tools, instrumentalities, facilities and other resources necessary to provide the City with the services contemplated by this Agreement. Consultant further warrants 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.

5. PERFORMANCE BY KEY EMPLOYEE.
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Consultant has represented to City that Aja Verburg, 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, 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.

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 direct or indirect use by Consultant after termination of this Agreement without written consent of the City.
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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. #24..
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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. 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.
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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 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.
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13. NOTICES.

Notice required by this Agreement shall be given in writing and shall be deemed given and effective upon receipt provided that such are delivered in accordance with the provisions of this Section. Notices shall be delivered either by: (a) personal delivery (including delivery by an overnight courier service which obtains confirmation of receipt); or (b) 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: Black Water Consulting Engineers, Inc.

Address: 602 Lyell Drive
Modesto, CA 95356
Attention: Aja Verburg
Phone: (209) 322-1820
Email: [email protected]
FOR CITY: Name: City of Modesto
Address: 1010 10th Street
Suite 4600
Modesto, CA 95354
Attention: Edgar Vargas
Phone: (209) 577-5424
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 #24..
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City. The policies or certificates thereof shall provide that, thirty (30) days prior to cancellation or material change in the policy, notices of same shall be given to the Risk Manager of the City by certified mail, return receipt requested, for all of the following stated insurance policies.

In the event the certificates of insurance required hereunder do not provide for notice of cancellation to the certificate holder and/or additional insureds, the 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 #24..
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and operations; broad form contractual; independent consultants and subcontractors; products and completed operations as applicable.
(c) Automobile Liability insurance with a minimum limit of liability per occurrence of $1,000,000 for bodily injury and property damage. This insurance shall cover any automobile for bodily injury and property damage.
(d) Professional Liability insurance with a minimum limit of $1,000,000 per claim and policy aggregate. If coverage is on a claims made basis it shall be maintained for at least three (3) years following completion of the work.

If at any time any of said policies shall be unsatisfactory to the City, as to form or substance, or if a company issuing such policy shall be unsatisfactory to the City, the 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 #24..
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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 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. #24..
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Termination by City 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 City is prevented from proceeding with the Agreement by act of God, by law, or by official action of a public authority, or upon a determination by the City that such termination is in the best interest and convenience of the City, or whenever the City is prohibited from completing the Work for any reason. The City shall provide no less than ten (10) calendar 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 #24..
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subconsultants, but in no event shall recovery by any Consultant or subconsultant include lost profits for portions of the Work not completed or undertaken, including materials not delivered; d. Deliver or otherwise make available to the City all data, drawings, specifications, reports, estimates, summaries and such other information and material as may have been accumulated by the 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. #24..
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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 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.
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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, arising directly or indirectly out of any negligent or intentional act or omission of Consultant, or its agents, officers, employees, or volunteers relating to or during the performance of its obligations under this Agreement.

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 #24..
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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.
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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 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.
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The parties hereby waive any rights provided by Title 9.2 of the California Code of Civil Procedure, Section 1296. The arbitrator’s award shall be deemed final, conclusive and binding to the fullest extent allowed by California law.

19. ENTIRE AGREEMENT.

This Agreement and its exhibits contain the entire understanding between 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. #24..
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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 insure compliance with all safety and hourly requirements for employees, in accordance with federal, state, and county safety and health regulations and laws. Consultant shall fully 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. #24..
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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 Black Water Consulting Engineers, Inc. has caused this agreement to be duly executed as of the Effective Date. #24..
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City of Modesto | Final Design of the Paradise-Grimes-Ohio Area Strengthen & Replace Water Mains 11 Proposed Scope of Services
Understanding and Approach
Black Water is excited to submit our proposal to the
City of Modesto (City) which includes a detailed
response to the RFP and a description of tasks to be
completed to deliver a successful project. Black Water has extensive experience with similar water main replacement projects and the preparation of engineering plans, specifications, and estimates for City water improvement projects of similar size and scope. Several of these are listed as reference projects in our proposal. This section of our proposal highlights our understanding of the project needs and our approach to providing comprehensive services and exceptional deliverables to help make this project successful.

PROJECT OVERVIEW
The City has requested proposals for engineering final design services for the replacement of approximately 19,350 linear feet (LF) of aging water distribution pipes with new water mains in the Paradise-Grimes-Ohio area. Black Water is responding to the City’s request with this proposal, which includes a detailed response to the RFP and a description of tasks to be completed to deliver a successful project.

The project area is in the unincorporated area of Stanislaus County and entirely outside of the Modesto city limits. It is primarily rural residential with numerous agricultural parcels fronting the project alignments.

Paradise Road is a main transit corridor for the area and is heavily used for commuting, access to schools, and seasonal farming operations. An estimated 180 water service lines may need to be reconnected as part of the project. For those services that are currently connected to a water main located outside of the rightof-way, a new service line and alignment will be required for connection to the new water main located in the street. The project will also replace existing valves, hydrants, and other system appurtenances in the project area.

The new water main will cross MID’s Lateral No. 5
at two locations, Ohio Avenue and Grimes Avenue.

On the west side of the project, MID’s canal crosses
beneath Grimes via a submerged culvert. Crossing
underneath the culvert will require trenchless
construction. On the east side, the canal crosses
beneath a road bridge on Ohio Avenue. PG&E gas
lines are attached to the west side of the bridge at
this location. As part of the Basis of Design Report, Black Water will evaluate the alternatives of attaching the new water main to the east side of the bridge and alternatively boring beneath the canal using the same method as the Grimes crossing.

Key elements of Black Water’s approach to delivering a complete set of contract documents are individually addressed in the following sub sections. A description of our Quality Assurance / Quality Control process, which is a key component of Black Water’s “Proven Process” is also provided in this section.

Environmental Document – CEQA Categorical Exemption. The project is subject to CEQA review and it is anticipated that the level of document will be a CEQA Categorical or other Exemption. Our subconsultant, Augustine Planning, will direct the CEQA work for the project. Key elements that Augustine has identified and included in their proposed scope of work include:

1. Early CEQA Consultation (notifying adjoining landowners, advisory agencies and coordination with lead agencies).

2. Prepare technical studies: A cultural and biological resources study (assuming there is not a need to do consultation for elderberry longhorn beetle and shrubs will NOT be removed and can provide adequate buffers), and limited cultural resources study in support of a CEQA Categorical or other Exemption will PG&E Gas Line is attached to Ohio Avenue Bridge

EXHIBIT A
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City of Modesto | Final Design of the Paradise-Grimes-Ohio Area Strengthen & Replace Water Mains 12 be prepared. Prepare admin draft initial study/mitigated negative declaration (IS/MND) for review by Lead Agencies (one round) with Mitigation Monitoring and Reporting Plan (MMRP).

3. An NOE will be prepared and Black Water will assist in filing the document.

ASSUMPTIONS
○ No state or federal funding involved
○ Wetlands would be avoided (i.e., do not get any
closer to the Tuolumne River than they already
are)
○ Elderberry shrubs will be avoided
○ Biological studies will occur March - July
○ No more than two cultural resources to be
documented
○ The City of Modesto is the lead agency
○ Lead Agency to file NOD with State
Clearinghouse and Stanislaus County
Geotechnical Study. A geotechnical investigation is typically necessary if the underground conditions are not known and information is needed to ensure the stability of the soil after improvements are complete.

The water main replacement improvements are not anticipated to be more than 5 feet below ground surface, and it is not anticipated that this will affect the construction of the proposed project as over the years many improvements have previously been made for existing utilities. Any existing geotechnical information for the area will be requested from the City. Furthermore, Black Water has contacted MID regarding the necessity of conducting geotechnical borings where the proposed water line will cross MID Lateral No. 5, and determined that geotechnical borings will not be required by MID for those crossings.

Utility Research. Typically, potholing is a responsibility assigned to the Contractor to verify the location of utilities shown on the plans. Our scope of work includes extensive utility research, including potholing conducted by Mozingo Construction (a local sub) to identify the types and locations of underground utilities in the project area during the design phase before construction begins. Because the project area is actively farmed and irrigated, we anticipate a variety of known and currently unknown MID and private irrigation pipes are crossing the City’s water lines. Furthermore, we believe that the information collected through this effort, combined with a detailed review of City records will avoid costly change orders frequently associated with utility conflicts. A summary of Mozingo’s scope/fee is included in our proposal.

Agency Coordination. This task covers a broad range of contacts and coordination to identify utilities, permits, activities in the County right-of-way, CEQA requirements, and consistent updates to the City of Modesto. Black Water has developed a “Proven Process” over our years of experience that we rigorously adhere to because we believe that regular and clear communication with our clients and stakeholders is not just something we can control, but is key to the success of every project.

Private Irrigation
standpipe adjacent to
Paradise Road.

EXHIBIT A
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City of Modesto | Final Design of the Paradise-Grimes-Ohio Area Strengthen & Replace Water Mains 13 Preliminary list of Agency Coordination and Permits

COORDINATION ITEM AGENCY
PERMIT
REQUIRED?
Client updates, meeting agendas and minutes,
monthly invoices, progress approvals, project
water and sewer utility information.

City of Modesto Yes
Right-of-way Encroachment Permit, Traffic
Control, and Paving.

Stanislaus County Yes
Irrigation crossings, buried and overhead
power, and right-of-way.

Modesto Irrigation District Yes
Buried Gas PG&E No
Buried Communication AT&T and Williams Companies No
Notice of Intent Construction General Permit
for Stormwater
State Water
Resources Control Board
Yes
Authority to Construct/Permit to Operate for
Construction Activities
San Joaquin Valley
Air Pollution Control District
Yes
Stormwater Pollution Prevention Plan (SWPPP). The project contract documents require that the Contractor prepare the project-specific Stormwater Pollution Prevention Plan (SWPPP) and Best Management Practices (BMPs) to comply with the Construction General Permit and City requirements.

Black Water will assist the City with the electronic submittal of the SWPPP to the State’s Storm Water Monitoring and Report Tracking System (SMARTS), certified by the City, to obtain a valid WDID number by the State. Black Water will coordinate review of the contractor SWPPP submittal and assistance with City for submittal of the SWPPP to the State.

PROJECT MANAGEMENT AND COST-CONTAINMENT
THE BLACK WATER PROVEN PROCESS. “Consistency transforms average into excellence.” The author to credit this quote to is unknown, but it is a statement that reflects a core belief at Black Water. Consistency allows us to practice our practice, to improve each step of the process with every opportunity, and it provides clarity at decision points where the timing and selection are critical to the goal of delivering a successful project. Black Water’s “Proven Process” illustrated below, outlines our approach to keeping projects on-track and efficient for us and our clients. This process will be followed for the completion of each task outlined in the project’s Scope of Work.

EXHIBIT A
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City of Modesto | Final Design of the Paradise-Grimes-Ohio Area Strengthen & Replace Water Mains 14 Successful projects are a result of successful project management and skilled teams. The Black Water project managers meet weekly to review the company’s workload, personnel requirements, and projections. In this way, we have developed a reporting system that assigns accountability to those individuals who are responsible for each of our projects. This effort takes time each week, but we recognize that the results of this management style translate to:

1. Professional staff that are familiar with their project roles and responsibilities.

2. Project managers that are empowered to make decisions that keep their projects on schedule and within budget.

3. Company Principals that are keenly aware of the status of each project and take responsibility for the firm’s designs, performance, and client service.

4. Very satisfied clients that are informed and part of a team effort.

Key Cost-Control measures that we employ include:

Developing a complete and thorough scope of work – Black Water will work with the City to establish consensus on a comprehensive scope of work. The scope will include details that thoroughly define the project tasks and deliverables and accurately represent the City’s expectations for this project.

Staying on schedule – History confirms that projects completed on schedule have a much smaller risk of budget overrun. Our approach is to make rigorous use of the schedule to keep the team on track and within budget during design and construction phases.

Consistent Project Team – Black Water’s Project Manager and core group of our team will be maintained throughout the duration of the project. We have long established relationships with our subconsultants.

Our ability to efficiently include these specialists on our team expands our firm’s overall capabilities and ultimately benefits our clients.

Planning – We will integrate the basic elements of the scope of work, budget, and schedule, and manage them to help ensure that the contractual requirements are met. This system of project management allows us to monitor planned progress against actual progress thus ensuring we continue to operate within the limits of the agreement.

Monitoring and Reporting – Project updates are consistently reported to the Black Water Project Manager, providing an accurate status of the project for billing purposes. By the fifth working day of each month, a detailed analysis is performed to determine the percent complete of each project task. This information can be utilized to determine what changes, if any, are required in the management of the project. Finally, the concepts of contractor coordination, providing accurate cost estimates, maintaining schedules, and avoiding budget overruns cannot solely be credited to the Project Manager. Each member of our team is experienced and experts at providing this level of service and commitment to the City of Modesto.

QUALITY ASSURANCE/QUALITY CONTROL. Black Water utilizes a comprehensive approach to quality assurance and quality control (QA/QC). Providing this level of service requires that QA/QC measures be in place and enforced throughout the project duration.

The purpose of QA activities are to provide a product where mistakes should be eliminated and is suitable for its intended purpose.

QA activities will be determined before the project begins and will be implemented as deliverables are being developed. QC measures will be used to verify that the deliverables are of acceptable quality. A systematic process of monitoring and evaluation of the various aspects of the project will be used to ensure the quality of the final project. QC will be used at every stage of the project to ensure that deliverables are complete and correct. QC will ensure that QA principles were adhered to and will be performed by an independent reviewer within Black Water prior to the submittal of final deliverables to the City.

EXHIBIT A
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City of Modesto | Final Design of the Paradise-Grimes-Ohio Area Strengthen & Replace Water Mains 15

SCOPE OF WORK
The scope of services for this project will include engineering design and project management required for the preparation of final design documents, including plans, specifications, and estimates. The scope also includes engineering support during construction after the project is bid and awarded.

1. CONSTRUCTION DOCUMENTS
A. Topographic Survey: The City has completed a topographic survey of the project area. The City will be responsible for providing any additional topographic survey, if required. The City will provide existing utility information and the acquisition of construction easements if identified as required by Black Water. Preparation of lot line adjustments, legal descriptions, parcel maps or other similar mapping documents are not within the consultant’s scope of services.

B. Design Drawings: Black Water will prepare final design drawings to clearly illustrate the intent of the project design, as well as to provide an accurate estimate of cost. Plans to meet all applicable Caltrans, County, and City standards for improvement plan submittal.

C. Specifications: The City of Modesto will prepare the Special Provisions Specifications that define materials, quality, and workmanship by referencing the current City of Modesto Standard Specifications. Black Water will provide support in providing specification documents for materials, quality, and workmanship not available or defined in the City of Modesto Standard Specifications (i.e., MID crossings, etc.). Black Water will review and stamp the final Special Provisions Specifications.

D. Construction Cost Estimate: Black Water will prepare an accurate and detailed construction cost estimate based on the design. The cost estimate will be itemized, include quantities, unit costs and/ or lump sum costs for the items.

E. Supporting Documentation: As a first step, a Basis of Design Report (10% design level) will be prepared by Black Water to provide documentation, as appropriate, to support the design such as project description, calculations, agency coordination, surveying and utility investigation, permits, and traffic control.

2. PROJECT MANAGEMENT
A. Black Water will provide project management as necessary to ensure the efficient completion of the project. Project management duties will include, but not be limited to: coordination of subconsultant activities; providing updates and seeking input from City staff, as appropriate; monitoring of project budget and schedule; and preparation for and attendance at meetings as directed by City staff.

B. Black Water will frequently communicate with City staff, both through informal discussions and formal meetings, to obtain input and provide updates for the project. Black Water will keep comprehensive minutes from formal meetings and shall provide copies for reference. It is anticipated that biweekly meetings will be held during the design of the project via teleconference, video meeting, or in person unless otherwise directed by the City’s project manager, all correspondence to City staff will be directed to the City’s project manager. The City’s project manager will initiate any contact with outside agencies and the public. Black Water will attend and present at public outreach meetings as directed by the City.

3. PERMITTING
Black Water will be responsible for coordinating and submitting applications, plan submittals/reviews for all permitting necessary for design, including any necessary traffic control design. The Contractor will be ultimately responsible to obtain and pay all fees necessary.

EXHIBIT A
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City of Modesto | Final Design of the Paradise-Grimes-Ohio Area Strengthen & Replace Water Mains 16 Permitting not limited to obtaining and coordinating permitting with the following:
○ City of Modesto
○ Stanislaus County
○ Modesto Irrigation District (MID)
○ Additional permits and agency coordination as
shown in the preceding table.

4. ENVIRONMENTAL CLEARANCE
Black Water will be responsible for preparing the necessary documentation for the project to gain environmental clearance.

5. ENGINEERING SUPPORT DURING CONSTRUCTION
Black Water will provide support during bid services and engineering support during the construction phase of the project. Expected work includes coordination with Construction Manager, reviewing RFI’s, providing input on change orders, site visits, bi-weekly construction meetings including pre-construction meeting, providing input on final acceptance, reviewing as-builts, and preparing record drawings.

DELIVERABLES:

Black Water will provide the following deliverables as required by the project RFP.

A. Monthly progress payment invoices shall include the minimum attachments:
○ Detailed description or itemization of work completed for the time period. ○ Meeting Minutes for all formal project meetings.

B. The following minimum submittals of the design documents will be submitted at stages indicated; unless noted otherwise submittals shall include (3) hard copies and a PDF copy:
○ 10% Basis of Design Report
○ 35% Construction Drawings and Engineer’s Estimate.
○ 70% Construction Drawings, Specifications, and Engineer’s Estimate. ○ 90% Construction Drawings Specifications and Engineer’s Estimate. ○ Final Construction Drawings, Specifications, Engineer’s Estimate and CAD files.

C. Format Requirements:
○ CAD files shall be compatible with AutoCAD Civil 3D 2018 or newer. Files shall be exported using Etransmit command including all fonts, textures, references and pen settings. All sheets are to be included in one zip files.
○ 24x36 plan sheet size and use the City of Modesto’s title block – to be provided by the City.

EXHIBIT A
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City of Modesto | Final Design of the Paradise-Grimes-Ohio Area Strengthen & Replace Water Mains 17 Project Schedule
Black Water Consulting Engineers, Inc.

TASK Task Activity
Duration
(Weeks) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 1 Construction Documents

1.1 Information Collection and Review 5

1.2 35%, 70%, 90%, and Final Drawings 22

1.3 Specifications (Progress and Final) 7

1.4 Cost Estimates (Progress and Final) 5

1.5 Basis of Design Report 5
2 Project Management

2.1 Budget, Schedule, and Resources Daily

2.2 Client Coordination and Updates Monthly

2.3 Meeting Agendas, Minutes, Attendance Bi-Weekly ◊ ◊ ◊ ◊ ◊ ◊ ◊ ◊ ◊ ◊ ◊ ◊ 3 Permitting

3.1 Identify and Prepare Applications 6

3.2 Agency Coordination (Pre-Construction) 8
4 Environmental Clearance

4.1 Project Description and Exhibits 2

4.2 Prepare ISMND 24

4.3 Document Filing 4
5 ESDC

5.1 Meetings (Biweekly - assumes 18 Weeks) 10d ◊ ◊ ◊ ◊ ◊ ◊ ◊ ◊ ◊

5.2 Bidding Assistance 8

5.3 Respond to RFI's (Qty 40) 16

5.4 Review Submittals (Qty 80) 14

5.5 Record Drawings 3
Notes:

City Review
◊ Bi-weekly Meeting
Project Meeting
Design Bidding and Award Construction

CITY OF MODESTO
Final Design of the Paridse-Grimes-Ohio Area
Strengthen & Replace Water Mains

PRELIMINARY SCHEDULE
9/25/2023

EXHIBIT A
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City of Modesto | Final Design of the Paradise-Grimes-Ohio Area Strengthen & Replace Water Mains 18 Level of Effort The table below illustrates the level of effort and distribution of costs as percentages of the total project budget required to successfully execute the scope of services for the Project. The table corresponds directly to the outlined scope of services and the separately sealed Fee Proposal. All design work by Black Water will be completed locally in the Modesto office.

TASK Task Activity Principal
Project
Manager
Associate
Engineer
Assistant
Engineer
Engineer
Technician
Design/
Drafting
QAQC/
Admin.

BlackWater
Total Hours
BlackWater
Cost %
Subs
Cost %
1 Construction Documents

1.1 Information Collection and Review 2 4 8 8 22 0.8% 43.3%

1.2 35%, 70%, 90%, and Final Drawings 4 12 24 64 95 164 363 13.1% 0.0%

1.3 Specifications (Progress and Final) 8 8 12 24 12 64 2.3% 0.0%

1.4 Cost Estimates (Progress and Final) 1 2 8 28 39 1.4% 0.0%

1.5 Basis of Design Report 1 4 4 12 16 8 4 49 1.8% 0.0% Total Task 1 5 27 42 104 163 180 16 537 19.4% 43.3%
2 Project Management

2.1 Budget, Schedule, and Resources 5 10 5 20 0.9% 0.0%

2.2 Client Coordination and Updates 10 10 5 25 1.1% 0.0%

2.3 Meeting Agendas, Minutes, Attendance 4 12 18 18 6 58 2.4% 0.0% Total Task 2 9 32 28 18 0 0 16 103 4.4% 0.0%
3 Permitting

3.1 Identify and Prepare Applications 1 4 4 9 0.3% 0.0%

3.2 Agency Coordination (Pre-Construction) 4 2 6 0.2% 0.0% Total Task 3 0 1 0 0 8 0 6 15 0.5% 0.0%
4 Environmental Clearance

4.1 Project Description and Exhibits 1 2 8 11 0.4% 1.5%

4.2 Prepare ISMND 0 0.0% 10.5%

4.3 Document Filing 0 0.0% 0.4%
Total Task 4 0 1 0 0 2 8 0 11 0.4% 12.3%
5 Engineering Support During Construction

5.1 Meetings (Biweekly - assumes 18 Weeks) 10 30 20 60 2.0% 0.0%

5.2 Bidding Assistance 1 4 4 9 0.4% 0.0%

5.3 Respond to RFI's (Qty 40) 10 80 80 16 10 196 7.7% 0.0%

5.4 Review Submittals (Qty 80) 20 40 160 40 260 8.7% 0.0%

5.5 Record Drawings 2 4 16 4 26 0.9% 0.0%
Total Task 5 0 43 88 154 160 32 74 551 19.8% 0.0%
TOTALS 14 104 158 276 333 220 112 1,217 44.4% 55.6%
10/19/2023

EXHIBIT A
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Billing Rates $/hr 250 228 198 160 150 155 98
TASK Task Activity Principal
Project
Manager
Associate
Engineer
Assistant
Engineer
Engineer
Technician
Design/
Drafting
QAQC/
Admin.

BlackWater
Total Hours
BlackWater
Fee CEQA
Utility
Research
Subconsultants
Total Fees Total Fee
3 1 Construction Documents

1.1 Information Collection and Review 2 4 8 8 22 $3,768 $175,000 $175,000 $196,268

1.2 35%, 70%, 90%, and Final Drawings 4 12 24 64 95 164 363 $58,398 $0 $58,398

1.3 Specifications (Progress and Final) 8 8 12 24 12 64 $10,104 $0 $10,104

1.4 Cost Estimates (Progress and Final) 1 2 8 28 39 $6,104 $0 $6,104

1.5 Basis of Design Report 1 4 4 12 16 8 4 49 $7,906 $0 $7,906 Total Task 1 5 27 42 104 163 180 16 537 $86,280 $0 $175,000 $175,000 $278,780 2 Project Management

2.1 Budget, Schedule, and Resources 5 10 5 20 $4,020 $0 $4,020

2.2 Client Coordination and Updates 10 10 5 25 $4,750 $0 $4,750

2.3 Meeting Agendas, Minutes, Attendance 4 12 18 18 6 58 $10,768 $0 $10,768 Total Task 2 9 32 28 18 0 0 16 103 $19,538 $0 $0 $0 $19,538 3 Permitting

3.1 Identify and Prepare Applications 1 4 4 9 $1,220 $0 $1,220

3.2 Agency Coordination (Pre-Construction) 4 2 6 $796 $0 $796 Total Task 3 0 1 0 0 8 0 6 15 $2,016 $0 $0 $0 $2,016
4 Environmental Clearance

4.1 Project Description and Exhibits 1 2 8 11 $1,768 $ 6,000 $6,000 $8,368

4.2 Prepare ISMND 0 $0 $ 39,835 $39,835 $43,818

4.3 Document Filing 0 $0 $ 4,000 $4,000 $4,400
Total Task 4 0 1 0 0 2 8 0 11 $1,768 $49,835 $0 $49,835 $56,586 5 Engineering Support During Construction

5.1 Meetings (Biweekly - assumes 18 Weeks) 10 30 20 60 $9,040 $0 $9,040

5.2 Bidding Assistance 1 4 4 9 $1,660 $0 $1,660

5.3 Respond to RFI's (Qty 40) 10 80 80 16 10 196 $34,380 $0 $34,380

5.4 Review Submittals (Qty 80) 20 40 160 40 260 $38,880 $0 $38,880

5.5 Record Drawings 2 4 16 4 26 $4,120 $0 $4,120
Total Task 5 0 43 88 154 160 32 74 551 $88,080 $0 $0 $0 $88,080 14 104 158 276 333 220 112 1,217 197,682 49,835 175,000 224,835 445,000 $445,000
Notes:

1. All scope items and associated fees are based on the best approximation we can make given the current level of information we have.

2. Black Water will discuss and/or negotiate with the Client any scope or fee item shown on this Proposal.

3. Subconsultant work is charged at cost plus 10 percent.

4. Potholing charged at $1,750 each. Assumes 100 potholes.

CITY OF MODESTO
Strengthen & Replace Water Mains
level of effort - staff time
Subconsultants Totals
Final Design of the Paradise-Grimes-Ohio Area

TOTAL FEE
TOTALS
10/17/2023

EXHIBIT B
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CITY OF MODESTO

COUNCIL AGENDA REPORT
DATE OF MEETING:

December 12, 2023
Date: November 15, 2023
TO: Mayor and City Council
THROUGH: Joseph P. Lopez, City Manager
FROM: William Wong, Director of Utilities
SUBJECT: City of Modesto Grant of Easement Rights to Sacramento and San Joaquin Drainage District and Land Grant to Reclamation District 2091 CONTACT: Jeff Daniels, Acting Wastewater Division Manager, [email protected], 209-577-6255
DESCRIPTION:

Consider approving a Grant of Easement Rights to the Sacramento and San Joaquin Drainage District, and a Land Grant to Reclamation District 2091. (Funding Source: Not Applicable) STRATEGIC PLAN ELEMENT:

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

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

BACKGROUND:

Reclamation District (RD) 2091 is comprised of 26 landowners, representing approximately 7,015 acres. The City of Modesto owns approximately 4,500 of the associated acres, or 64% of RD 2091, as part of the City’s Regional Water Recycling Facility-Jennings Campus. This district is governed by the RD 2091 Board of Trustees, which is comprised of three (3) landowner members, including a representative of the City of Modesto.

In 2012, RD 2091 and Department of Water Resources (DWR) performed inspections on the RD 2091 levee system where stability issues were identified at five (5) damaged levee site locations, totaling approximately 11,038 feet.

Consultants were hired by RD 2091 to evaluate and develop the scope of work necessary to address the identified levee damages and coordinate the construction efforts to repair and stabilize the levee along the San Joaquin River and adhere to all Federal and State mandated requirements.
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City Council, December 12, 2023
City of Modesto Grant of Easement Rights to Sacramento and San Joaquin Drainage District and Land Grant to Reclamation District 2091