Agenda packet — Safety and Communities Committee, January 22, 2024

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www.modestogov.com
AGENDA
City of Modesto

SAFETY AND COMMUNITIES COMMITTEE

COUNCIL WORKSHOP
2001-40 Del Puerto Room.

Tenth Street Place, 1010 10th Street
Modesto, California
Monday, January 22, 2024 at 4:00 PM
Roll Call: Rosa Escutia-Braaton, Chair
Jeremiah Williams, Vice-Chair
Chris Ricci, Member
Alternates: Eric Alvarez, Nick Bavaro, David Wright, Sue Zwahlen Council has not delegated directive or final approval authority to the Committees.

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

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

THE MEETING CAN BE VIEWED BY ZOOM VIDEO

CONFERENCING OR TELEPHONE
Joining the Committee meeting via Zoom
The City of Modesto is now offering the ability to view Committee meetings via telephonic conferencing via “Zoom” video conferencing computer technology. The meeting may be accessed through the use of Zoom using the following options:
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Joining the Committee meeting via Telephone
If you don’t have a smart phone or computer to access the meeting via Zoom, you can listen by phone, by calling 1-877-853-5257 (Toll Free) or 1-888-475-4499 (Toll Free) and enter the Webinar ID 869 4597 0570 Passcode 84326

PUBLIC COMMENTS IN PERSON
Three-minute time limit per speaker.

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

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

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

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

CONSENT ITEMS – ROLL CALL VOTE REQUIRED:

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

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

Consent

1. Consider the application and issuance of a Permit to operate as a Non-Emergency Medical Transport Company to Active Transport Medical Services, LLC in the City of Modesto and forwarding to Council for approval. (Funding Source: General Fund)  Motion recommending the application and issuance of a Permit to operate as a Non-Emergency Medical Transport Company to Active Transport Medical Services, LLC in the City of Modesto and forwarding to Council for approval.

POLICE DEPARTMENT; Kalani Souza, 209-572-9500, [email protected] - 3 -
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Consent

2. Consider the application and issuance of a Permit to operate as a Non-Emergency Medical Transport Company to Remedy Medical Transportation in the City of Modesto and forwarding to Council for approval. (Funding Source: General Fund)  Motion recommending the application and issuance of a Permit to operate as a Non-Emergency Medical Transport Company to Remedy Medical Transportation in the City of Modesto and forwarding to Council for approval.

POLICE DEPARTMENT; Kalani Souza, 209-572-9500, [email protected] Consent

3. Consider the Third Amendment with PerfectMind for the use and maintenance of the recreation and facility management software to a revised total amount of $205,560 and extending the term of the Agreement from January 26, 2024, to January 26, 2029, and forwarding to Council for approval. (Funding Source: General Fund)  Motion recommending the Third Amendment with PerfectMind for the use and maintenance of the recreation and facility management software to a revised total amount of $205,560 and extending the term of the Agreement from January 26, 2024, to January 26, 2029, and forwarding to Council for approval.

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

4. Consider accepting specified Grant Funds from the State of California Budget Act of 2023 in the amount of $400,000 for The Awesome Spot Playground and recommending the submittal of a grant application and forwarding to Council for approval. (Funding Source: State of California Budget Act of 2023)  Motion recommending acceptance of specified Grant Funds from the State of California Budget Act of 2023 in the amount of $400,000 for The Awesome Spot Playground and recommending the submittal of a grant application and forwarding to Council for approval.
 Motion recommending amending the FY 23-24 Capital Improvement Program Budget to fund Project #100984 (The Awesome Spot Playground) in an amount of $400,000 in transfers, revenue and to budget expenditures, and forwarding to the Council for approval.

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

NEW BUSINESS

5. Consider a First Amendment to the Agreement with Mark Thomas and Company, Inc., for additional tasks related to Construction Documentation and Bidding & Construction Support for the Virginia Corridor Phase 7 Project, for a new amount not to exceed $646,305 and forwarding to Council for approval. (Funding Source: NonMotorized Local Transportation Funds, Parks & Air Quality CFF, and Various Grants)  Motion recommending a First Amendment to the Agreement with Mark Thomas and Company, Inc., for additional tasks related to Construction Documentation and Bidding & Construction Support for the Virginia Corridor - 4 -
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Phase 7 Project, increasing the Agreement amount from $576,288 to a new total amount of $646,305 and forwarding to Council for approval.

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

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

COMMITTEE AGENDA REPORT
DATE OF MEETING:

January 22, 2024
Date: December 18, 2023
TO: Safety & Communities Committee
Rosa Escutia-Braaton, Chair
Jeremiah Williams, Vice-Chair
Chris Ricci, Member
THROUGH: Joseph P. Lopez, City Manager
FROM: Brandon Gillespie, Chief of Police
SUBJECT: Non-Emergency Transport Application for Active Transport Medical Services, LLC CONTACT: Kalani Souza, Lieutenant, [email protected], 209-572-9500 DESCRIPTION:

Consider the application and issuance of a Permit to operate as a Non-Emergency Medical Transport Company to Active Transport Medical Services, LLC in the City of Modesto and forwarding to Council for approval. (Funding Source: General Fund) STRATEGIC PLAN ELEMENT:

This 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. (Goal A of Quality of Life Goals and Strategies) BACKGROUND:

The City of Modesto allows non-emergency medical transport companies to apply for a nonemergency transport permit. In addition to the application, the transport company is required to pay a filing fee of $1,000 and provide all the necessary documents and information as outlined in Modesto Municipal Code 3-9.01 to 3-9.20. Once the application, documentation, and necessary fees have been received by the Modesto Police Department (MPD), a background investigation must be completed by the department. Upon a successful completion of the background investigation, the application proceeds to a hearing before the City Council to determine whether the public convenience and necessity require the proposed service. The Council must grant the applicant a permit upon making the following findings:
(a) That the vehicles described in the application and proposed to be used are appropriate for the purpose of nonemergency transport;
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Safety & Communities Committee, January 22, 2024
Non-Emergency Transport Application for Active Transport Medical Services, LLC

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(b) That the color scheme, insignia, name, monogram or other distinguishing characteristics proposed to be used upon such nonemergency transport vehicles is not in conflict with and do not imitate any color scheme, insignia, name, monogram or other distinguishing characteristics used by any other person, in such manner as to mislead or tend to mislead, deceive, or defraud the public;
(c) That the applicant is fit, willing and able to perform nonemergency transport service and to conform to the provisions of this chapter, and such rules and regulations as may be promulgated by the Council. In making such findings, the Council shall take into consideration the character, experience, and responsibility of the applicant; (d) That the proposed nonemergency transport service is required by the public convenience and necessity. In making such finding, the Council shall take into consideration the number of nonemergency transport vehicles already in operation, whether existing nonemergency transport service is adequate to meet public need, and the probable effect of increased nonemergency transport service on local traffic conditions; and (e) None of the factors enumerated in Section 3-9.07 of the Modesto Municipal Code exist, such as misleading color schemes, disqualifying background factors, and proof of insurance.

After approval from Council has been provided, the permit will be issued by the Modesto Police Department.

Currently there are twelve permitted ambulance companies in Modesto to provide non-emergency transport: America West, Amwest Ambulance, Bay Medic Transportation, Citizens Medical Transport, Heavenly Medical Transport LLC, MacIntosh Transport LLC, Medics Plus, NorCal Ambulance, Provident Senior Solutions, Inc, Quality Care Transport Inc, Rose Medical Transportation and Star Nonemergent Transportation.

DISCUSSION:

Active Transport Medical Services LLC., has applied to operate a non-emergency medical transportation service in the City of Modesto. Active Transport Medical Services, LLC has paid the $1,000 filing fee to cover administrative, investigative, and other incidental costs associated with the application and have provided all necessary information as outlined in Sections 3-9.01 to 3-9.20 of the Modesto Municipal Code. Photos of the proposed vehicles are provided. They depict vehicles that are appropriate for their intended use, and the vehicle color and markings are not misleading. In reviewing the application and subsequent background, it appears the applicant can perform the proposed services, and these services benefit the public convenience and necessity based on the number of licensed providers currently operating in the city. There are no disqualifying factors at this time. The MPD concluded the required background investigation on Active Transport Medical Services, LLC indicating the applicant has complied with the requirements contained in the Modesto Municipal Code 3-9.01 through 3-9.20 and recommended to staff to proceed with Council approval to issue the operational permit. #1..
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Safety & Communities Committee, January 22, 2024
Non-Emergency Transport Application for Active Transport Medical Services, LLC

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FISCAL IMPACT:

Active Transport Medical Services, LLC will be required to obtain a City Business license and renew it annually – which currently costs $75 and includes a $4 fee to the State of California for Disability Act AB1379. Additionally, Active Transport Medical Services, LLC will be required to pay mill tax, which is currently at a rate of 0.002, on their gross receipts while operating in the city.

Fees and mill tax paid to the City are revenue to the General Fund.

RECOMMENDED COMMITTEE ACTION:

Staff Recommendations:

Motion recommending the application and issuance of a Permit to operate as a Non-Emergency Medical Transport Company to Active Transport Medical Services, LLC in the City of Modesto and forwarding to Council for approval.

Approved by:

Brandon Gillespie, Chief of Police
Joseph P. Lopez, City Manager
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CITY OF MODESTO

COMMITTEE AGENDA REPORT
DATE OF MEETING:

January 22, 2024
Date: December 18, 2023
TO: Safety & Communities Committee
Rosa Escutia-Braaton, Chair
Jeremiah Williams, Vice-Chair
Chris Ricci, Member
THROUGH: Joseph P. Lopez, City Manager
FROM: Brandon Gillespie, Chief of Police
SUBJECT: Non-Emergency Transport Application for Remedy Medical Transportation CONTACT: Kalani Souza, Lieutenant, [email protected], 209-572-9500 DESCRIPTION:

Consider the application and issuance of a Permit to operate as a Non-Emergency Medical Transport Company to Remedy Medical Transportation in the City of Modesto and forwarding to Council for approval. (Funding Source: General Fund)
STRATEGIC PLAN ELEMENT:

The City of Modesto allows non-emergency medical transport companies to apply for a nonemergency transport permit. In addition to the application, the transport company is required to pay a filing fee of $1,000 and provide all the necessary documents and information as outlined in Modesto Municipal Code 3-9.01 to 3-9.20. Once the application, documentation, and necessary fees have been received by the Modesto Police Department (MPD), a background investigation must be completed by the department. Upon a successful completion of the background investigation, the application proceeds to a hearing before the City Council to determine whether the public convenience and necessity require the proposed service. The Council must grant the applicant a permit upon making the following findings:
(a) That the vehicles described in the application and proposed to be used are appropriate for the purpose of nonemergency transport;
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Safety & Communities Committee, January 22, 2024
Non-Emergency Transport Application for Remedy Medical Transportation

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After approval from Council has been provided, the permit will be issued by the Modesto Police Department.

DISCUSSION:

Remedy Medical Transportation has applied to operate a non-emergency medical transportation service in the City of Modesto. Remedy Medical Transportation has paid the $1,000 filing fee to cover administrative, investigative, and other incidental costs associated with the application and have provided all necessary information as outlined in Sections 3-9.01 to 3-9.20 of the Modesto Municipal Code. Photos of the proposed vehicles are provided. They depict vehicles that are appropriate for their intended use, and the vehicle color and markings are not misleading. In reviewing the application and subsequent background, it appears the applicant can perform the proposed services, and these services benefit the public convenience and necessity based on the number of licensed providers currently operating in the city. There are no disqualifying factors at this time. The MPD concluded the required background investigation on Remedy Medical Transportation indicating the applicant has complied with the requirements contained in the Modesto Municipal Code 3-9.01 through 3-9.20 and recommended to staff to proceed with Council approval to issue the operational permit.
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Safety & Communities Committee, January 22, 2024
Non-Emergency Transport Application for Remedy Medical Transportation

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FISCAL IMPACT:

Remedy Medical Transportation will be required to obtain a City Business license and renew it annually – which currently costs $75 and includes a $4 fee to the State of California for Disability Act AB1379. Additionally, Remedy Medical Transportation will be required to pay mill tax, which is currently at a rate of 0.002, on their gross receipts while operating in the city. Fees and mill tax paid to the City are revenue to the General Fund.

RECOMMENDED COMMITTEE ACTION:

Staff Recommendations:

Motion recommending the application and issuance of a Permit to operate as a Non-Emergency Medical Transport Company to Remedy Medical Transportation in the City of Modesto and forwarding to Council for approval.

Approved by:

Brandon Gillespie, Chief of Police
Joseph P. Lopez, City Manager
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CITY OF MODESTO

COMMITTEE AGENDA REPORT
DATE OF MEETING:

January 22, 2024
Date: December 18, 2023
TO: Safety and Communities Committee
Rosa Escutia-Braaton, Chair
Jeremiah Williams, Vice-Chair
Chris Ricci, Member
THROUGH: Joseph P. Lopez, City Manager
FROM: Nathan Houx, Acting Director of Parks, Recreation and Neighborhoods SUBJECT: Third Amendment with PerfectMind for Recreation and Facility Management Software
CONTACT: Nathan Houx, Acting Director of Parks, Recreation and Neighborhoods, [email protected], 209-571-5526
DESCRIPTION:

Consider the Third Amendment with PerfectMind for the use and maintenance of the recreation and facility management software to a revised total amount of $205,560 and extending the term of the Agreement from January 26, 2024, to January 26, 2029, and forwarding to Council for approval. (Funding Source: General Fund)
STRATEGIC PLAN ELEMENT:

The recommended action supports the City’s 2020-2025 Strategic Plan Initiatives: build and promote a recognizable and desirable identity for the City of Modesto.

BACKGROUND:

The City of Modesto’s Parks, Recreation and Neighborhoods Department (PRND) offers a wide variety of recreational programming and use of its parks and facilities to the community. Each year, staff register thousands in recreation courses and make nearly 1,500 reservations for parks and recreation facilities each year. Recreation courses enhance each participant’s quality of life, and the facility and park reservations create a positive impact in our neighborhoods.

In 2001, PRND upgraded an aging recreation support system with a then state-of-the-art recreation management solution called CLASS. Staff used the software to register 64,433 participants in recreation courses and made 160,537 bookings in recreation facilities, receipting more than $9.3 million in revenue from 2001 through 2017. CLASS required participants to call or go to the PRN customer service desk to complete registrations and rentals. In 2017, CLASS was discontinued and no longer provided maintenance or technical support to its customers. #3..
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Safety and Communities Committee, January 22, 2024
Third Amendment with PerfectMind for Recreation and Facility Management Software

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In 2017, by Resolution No. 2017-243, Council approved and awarded the Recreation and Facility Management Software agreement to PerfectMind. The five-year maintenance contract, through June 26, 2022, was an amount not to exceed $100,210 including an additional cost for hardware upgrades and software integration costs in the amount of $22,758 for an overall total cost of $122,968. The PerfectMind software has numerous features that have streamlined reservation and registration processes including a user friendly and intuitive interface, compatibility with City finance software, and extractable data with customizable reports. Staff build courses directly into the software and manage registration, occupancy, and participant communications.

In 2018, the City Manager approved the first amendment to the PerfectMind Agreement extending the term an additional 6 months to January 26, 2023, and reducing the overall cost to $96,210. In 2022, by Resolution No. 2022-256, Council approved the payment of hardware and software maintenance support agreements for fiscal year 2022-2023, authorizing the City Manager to approve the second amendment to the PerfectMind Agreement extending the term one additional year to January 26, 2024, and increasing the agreement amount $16,550 with an updated overall cost of $112,760.

DISCUSSION:

Staff use the current PerfectMind recreation course registration and facility management software system for its recreational program registrations and park and facility reservations.

PerfectMind is utilized by the PRN Department at the PRN customer service desk, recreation facilities and the City website for reservations and registration on a daily basis. Since its inception, PerfectMind has been used to register over 15,000 recreation program participants, 150,000 member visits, and 10,000 rental contracts.

Staff reviewed the efficiency and interface of the PerfectMind system and have determined that it meets the department needs for park, recreation and facility administrative services, course development services, and instructional/training/troubleshooting support. Upcoming features of online facility rentals and insurance approvals are under development. These capabilities will streamline the reservation process and reduce staff time required for reservations.

This amendment will extend the term of the agreement for two years, with three one-year options for extension. During this amendment period, staff will continue to evaluate the effectiveness of the PerfectMind Software and submit a Request for Proposal with ample time for review, selection and implementation should a new software be selected.

Modesto Municipal Code Section 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(f) where the Purchasing Manager, in his or her discretion, determines that it is appropriate to amend the services or goods provided under an existing agreement to include additional similar goods or services, of limited quantity or scope, in order to increase efficiency and avoid delays or disruptions to City projects or services. The renewal terms in the original agreement limits pricing increases to a maximum of 30% for subsequent extensions resulting in significant cost savings.

FISCAL IMPACT:

The anticipated cost of $92,800 will be absorbed within the current and subsequent PRND General Fund operating budgets.
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Safety and Communities Committee, January 22, 2024
Third Amendment with PerfectMind for Recreation and Facility Management Software

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Third Amendment Breakdown Price
Year 7: January 27, 2024 – January 26, 2025 $16,550
Year 8: January 27, 2025 – January 26, 2026 $16,550
Year 9: January 27, 2026 – January 26, 2027* $19,900
Year 10: January 27, 2027 – January 26, 2028* $19,900
Year 11: January 27, 2028 – January 26, 2029* $19,900
Total $92,800
* Optional extensions
Agreement Summary Price
Initial Agreement: June 27, 2018 – June 26, 2022 $100,210 First Amendment: June 27, 2022 – January 26, 2023** ($4,000) Second Amendment: January 27, 2023 – January 26, 2024 $16,550 Third Amendment: January 27, 2024 – January 26, 2029 $92,800 Overall Total: $205,560
** First Amendment reduced contract amount
RECOMMENDED COMMITTEE ACTION:

Staff Recommendations:

Motion recommending the Third Amendment with PerfectMind for the use and maintenance of the recreation and facility management software to a revised total amount of $205,560 and extending the term of the Agreement from January 26, 2024, to January 26, 2029, and forwarding to Council for approval.

Approved by:

Nathan Houx, Acting Parks, Recreation and
Neighborhoods Director
Joseph P. Lopez, City Manager
Attachments:

1. Third Amendment

2. Second Amendment

3. First Amendment

4. Original Agreement
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THIRD AMENDMENT
B E T W E E N:

PERFECTMIND INC. (DBA XPLOR RECREATION)
(“PerfectMind”)
– and –

CITY OF MODESTO
(the “Customer”)
WHEREAS:

A. The Customer and PerfectMind entered into an agreement dated June 27, 2017 (the “Original Agreement”) for the provision of PerfectMind Software as a Service; and Amendment #1 to Agreement between City and PerfectMind for Recreation Course Registration and Facility Management Software dated July 04, 2018; and entered into an extension agreement (the “Extended Term”) dated January 26, 2023, together, the “Original Agreement”.

B. The parties hereby agree to extend the term of the Original Agreement in accordance with the terms set out herein the “Third Amendment”.

NOW THEREFORE, in consideration of the mutual covenants contained in this Extension Agreement and other consideration (the receipt and sufficiency of which are acknowledged), the parties agree as follows:

1. Definitions

1.1. Any capitalized term not expressly defined in this Third Amendment shall have the meaning ascribed to it in the Original Agreement.

2. Extension
The Original Agreement will expire on January 26, 2024 (“Original Term”). Except to the extent otherwise provided in this Third Amendment, the Original Agreement will be extended on the same terms and conditions for an additional two (2) year period (such period, the “Extended Term” and together with the Original Term, the “Term”), which will begin immediately on the expiry of the Original Term. At the expiration of the Extended Term, the Term will be automatically renewed for an additional one (1) year period (“Additional Term”), up to three (3) successive one year periods unless a party provides written notice to the other party of the first party’s intention not to renew, at least ninety days before the expiry of the then-current Term.
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2 3. Fees
The Platform use fee during the Extended Term will be as set out in the payment schedule attached hereto in Exhibit A, payable by Customer in advance at the beginning of each 12- month period. The Platform use fee payable by Customer during any Additional Term will be the same as the fees for the last year during the prior term unless PerfectMind has given Customer written notice of a pricing change at least 90 days before the end of such prior term, in which case the new fee will be effective upon renewal and thereafter.

4. Conflict
The provision of this Third Amendment shall form part of the Original Agreement. Except to the extent otherwise amended in this Third Amendment, all other terms and conditions of the Original Agreement shall remain the same, provided that in the event of a conflict between the provisions of this Third Amendment and those of the balance of the Original Agreement, the terms and provisions of this Third Amendment shall supersede those provisions of the balance of the Original Agreement with which they conflict.

TO WITNESS THEIR AGREEMENT, the parties have duly executed this Third Amendment as of the date first above written.
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3 EXHIBIT A
Extended Term
Year Seven (January 27, 2024 to January 26, 2025): $16,550 Year Eight (January 27, 2025 to January 26, 2026): $16,550 Additional Successive One (1) Year Term
Year Nine (January 27, 2026 to January 26, 2027): $19,900 Year Ten (January 27, 2027 to January 26, 2028): $19,900 Year Eleven (January 27, 2028 to January 26, 2029): $19,900 5486812.1
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Xplor Technologies - CONFIDENTIAL

CONTRACT EXTENSION AGREEMENT
B E T W E E N:

PERFECTMIND INC.
(“PerfectMind”)

– and –

CITY OF MODESTO
(the “Customer”)
WHEREAS:

B. The parties hereby agree to extend the term of the Original Agreement in accordance with the terms set out herein (the “Extension Agreement”).

1. Definitions

1.1. Any capitalized term not expressly defined in this Extension Agreement shall have the meaning ascribed to it in the Original Agreement.

2. Extension
The Original Agreement will expire on January 26, 2023 (“Original Term”). Except to the extent otherwise provided in this Extension Agreement, the Original Agreement will be extended on the same terms and conditions for an additional one (1) year period (such period, the “Extended Term” and together with the Original Term, the “Term”), which will begin immediately on the expiration of the Original Term, unless a party provides thirty (30) days written notice to the other party of the first party’s intention to terminate the Original Agreement or Additional Term, and at least thirty (30) days before the expiry of the thencurrent Term.

3. Fees
The Platform use fee during the Extended Term will be as set out in the payment schedule attached hereto in Exhibit A, payable by Customer in advance at the beginning of the 12-month #3..
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Xplor Technologies - CONFIDENTIAL
period. The Platform use fee payable by Customer during any Additional Term will be the same as the fees for the last year during the prior term unless PerfectMind has given Customer written notice of a pricing change at least ninety (90) days before the end of such prior term, in which case the new fee will be effective upon renewal and thereafter

4. Conflict
The provision of this Extension Agreement shall form part of the Original Agreement. Except to the extent otherwise amended in this Extension Agreement, all other terms and conditions of the Original Agreement shall remain the same, provided that in the event of a conflict between the provisions of this Extension Agreement and those of the balance of the Original Agreement, the terms and provisions of this Extension Agreement shall supersede those provisions of the balance of the Original Agreement with which they conflict.

TO WITNESS THEIR AGREEMENT, the parties have duly executed this Extension Agreement as of the date first above written.

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Xplor Technologies - CONFIDENTIAL
2 EXHIBIT A Extended Term
Year Six (January 27, 2023 to January 26, 2024): $16,550 #3..
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CITY OF MODESTO,
a municipal corporation
___________________________________
BY: _________________________
JOSEPH P. LOPEZ, City Manager BY:________________________________ BY:________________________________
ATTEST: Name Title
(SEAL)
BY:________________________ (SEAL)
DIANE NAYARES_PEREZ, CMC,
City Clerk
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CITY OF MODESTO

COMMITTEE AGENDA REPORT
DATE OF MEETING:

January 22, 2024
Date: December 27, 2023
TO: Safety and Communities Committee
Rosa Escutia-Braaton, Chair
Jeremiah Williams, Vice-Chair
Chris Ricci, Member
THROUGH: Joseph P. Lopez, City Manager
FROM: Nathan Houx, Acting Director of Parks, Recreation and Neighborhoods SUBJECT: Accept Specified Grant Funds for The Awesome Spot Playground CONTACT: Nathan Houx, Acting Director of Parks Recreation and Neighborhoods, [email protected], 209-571-5526
DESCRIPTION:

Consider accepting specified Grant Funds from the State of California Budget Act of 2023 in the amount of $400,000 for The Awesome Spot Playground and recommending the submittal of a grant application and forwarding to Council for approval. (Funding Source: State of California Budget Act of 2023)
STRATEGIC PLAN ELEMENT:

This item is consistent with the following 2020-2025 Strategic Plan Areas of Focus: Quality of Life and Governance and Service Delivery.

BACKGROUND:

In 2015, the community rallied together in support of designing an all-inclusive playground at Beyer Park. The desire was to build a playground that would be the first of its kind in the region, providing accessibility to people of all ages with a wide range of physical abilities to be able to play together side-by-side. Since that time, the project has been officially titled “The Awesome Spot Playground” (TASP) and construction documents were completed with the help of local design professionals. On July 14, 2022, the TASP team held a groundbreaking event for Phase 1 of construction. TASP team asked the City of Modesto to purchase play equipment elements for phase 1 of the playground. On September 27, 2022, by Resolution No. 2022-397, and on July 11, 2023, by Resolution No. 2023-350, Council approved the purchases of various playground equipment for TASP with American Rescue Plan Act funds.

The total estimated project budget is approximately $5.7 Million. To date, the TASP Team has received donations or pledges totaling approximately $2.3 Million. During the 2022-2023 State of California budget process the City of Modesto requested that our state lobbyist discuss TASP with State legislators with the goal of obtaining funding to assist with construction of the project. #4..
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Safety and Communities Committee, January 22, 2024
Accept Specified Grant Funds for The Awesome Spot Playground

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During the State of California Budget Act of 2023, the State approved a line item in the budget to allocate $400,000 to the City of Modesto for TASP.

DISCUSSION:

With the passage of the State of California Budget Act of 2023, Section 19.561(b)(1) of the budget allocates $400,000 for TASP. Staff believes it is in the best interest of the City and it’s residents to accept this grant funding to assist with the purchase of additional play equipment and other elements of construction for the project.

If this grant is accepted, these funds will go a long way toward fully funding the first phase of TASP. Staff will bring the purchase of additional play equipment and other elements back to the Council for approval at a later date.

Once State Grant funds are used in a park, a deed restriction will be required ensuring that specific park stays open to the public and is properly maintained in perpetuity. This restriction is a standard requirement of any park-related grant from the State or Federal Government.

FISCAL IMPACT:

This grant opportunity has no matching fund requirements and it is anticipated that no General Fund support will be needed. Accepting the grant will result in amending the Fiscal Year 2023- 2024 Capital Improvement Project (CIP) Budget to add $400,000 to Project #100984 – Awesome Spot Playground.

CEQA/NEPA REQUIREMENTS:

Accepting grant funds is an administrative action and therefore is not subject to a CEQA review.

City staff prepared a Notice of Exemption No. EA/PR&N 2022-01 and determined TASP is categorically exempt from CEQA because it is a replacement of an existing facility which has substantially the same purpose, is located at the same site and is not anticipated to significantly increase the use of the park.

RECOMMENDED COMMITTEE ACTION:

Staff Recommendations:

Motion recommending acceptance of specified Grant Funds from the State of California Budget Act of 2023 in the amount of $400,000 for The Awesome Spot Playground and recommending the submittal of a grant application and forwarding to Council for approval.

Motion recommending amending the FY 23-24 Capital Improvement Program Budget to fund Project #100984 (The Awesome Spot Playground) in an amount of $400,000 in transfers, revenue and to budget expenditures, and forwarding to the Council for approval.

Approved by:

Nathan Houx, Acting Director of Parks, Recreation
and Neighborhoods Department
Joseph P. Lopez, City Manager
Attachments:

1. Sample Grant Contract
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19 IV. CONTRACT SECTION
The following section contains a sample CONTRACT, CONTRACT provisions, and a sample status report form.

State of California – The Resources Agency

DEPARTMENT OF PARKS AND RECREATION
Grant Contract
Specified Grants
GRANTEE: Grantee
GRANT PERFORMANCE PERIOD is from July 1, 2022 through June 30, 2026 CONTRACT PERFORMANCE PERIOD is from July 1, 2022 through June 30, 2026 The GRANTEE agrees to the terms and conditions of this Contract, and the State of California, acting through its Director of Parks and Recreation, pursuant to the State of California, agrees to fund the total State grant amount indicated below.

The GRANTEE agrees to complete the PROJECT SCOPE(s) as defined in the PROJECT SCOPE /Cost Estimate Form of the application(s) filed with the State of California.

Total State grant amount not to exceed $ Grant amount
The General and Special Provisions attached are made a part of and incorporated into the Contract.

STATE OF CALIFORNIA

DEPARTMENT OF PARKS AND RECREATION
By______________________________________
Date____________________________________
_______________________________________________

GRANTEE
By _________________________________________
(Typed or printed name of Authorized
Representative)

________________________________________
(Signature of AUTHORIZED REPRESENTATIVE)
Title _________________________________________
Date _________________________________________

CERTIFICATION OF FUNDING (FOR STATE USE ONLY)
AMOUNT OF ESTIMATE $ CONTRACT NUMBER FUND
ADJ. INCREASING ENCUMBRANCE $ APPROPRIATION
ADJ. DECREASING ENCUMBRANCE $ ITEM VENDOR NUMBER
UNENCUMBERED BALANCE $ LINE ITEM ALLOTMENT CHAPTER STATUTE FISCAL YEAR T.B.A. NO. B.R. NO. INDEX PCA OBJ. EXPEND
I hereby certify upon my personal knowledge that budgeted funds are available for this encumbrance.

SIGNATURE OF ACCOUNTING OFFICER DATE
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20 I. RECITALS
This AGREEMENT is entered into between the California Department of Parks and Recreation (hereinafter referred to as “GRANTOR,” “DEPARTMENT” or “STATE”) and [Name of grantee] (hereinafter referred to as “grantee”).

The DEPARTMENT hereby grants to GRANTEE a sum (also referred to as “GRANT MONIES”) not to exceed $[grant amount], subject to the terms and conditions of this AGREEMENT and the [2022- 2023 California State Budget, AB 178, Chapter 45, Statutes of 2022, as amended by AB 179, Chapter 249, Section 19.56 Item number – 3790-493-0001] (appropriation chapter and budget item number hereinafter referred to as “SPECIFIED GRANT”). These funds shall be used for completion of the GRANT SCOPE(S).

The Grant Performance Period is from July 1, 2022 to June 30, 2026.

II. GENERAL PROVISIONS
A. Definitions
As used in this CONTRACT, the following words shall have the following meanings:

1. The term “APPLICATION” means the individual project APPLICATION packet for a project pursuant to the enabling legislation and/or grant program PROCEDURAL GUIDE requirements.

2. The term “CONTRACT PERFORMANCE PERIOD” means the duration of time during which this CONTRACT is in effect.

3. The term “DEPARTMENT” or “STATE” means the California Department of Parks and Recreation.

4. The term “DEVELOPMENT” means capital improvements to real property by means of, but not limited to, construction, expansion, and/or renovation, of permanent or fixed features of the property.

5. The term “GRANTEE” means the party described as the GRANTEE in Section I of this AGREEMENT.

6. The term “GRANT PERFORMANCE PERIOD” means the period of time during which eligible costs may be incurred by the GRANTEE and paid for by the DEPARTMENT, as specified in the fully executed CONTRACT.

7. The term “GRANT PROJECT” means all real estate, leases, subleases, buildings, and other property acquired or developed with GRANT monies.

8. The term “PROJECT SCOPE” means the items listed in the PROJECT SCOPE/Cost Estimate Form found in each of the APPLICATIONS submitted pursuant to this grant.

9. The term “PROCEDURAL GUIDE” means the document identified as the “2022-23 Procedural Guide for Specified Grants.” The PROCEDURAL GUIDE provides the procedures and policies controlling the administration of the grant.

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21 B. Project Execution

1. Subject to the availability of GRANT MONIES, the STATE hereby grants to the GRANTEE a sum of money not to exceed the amount stated in Section I of this CONTRACT, in consideration of, and on condition that, the sum be expended in carrying out the purposes as set forth in the scope described in the enabling legislation and referenced in the APPLICATION, Section I of this CONTRACT, and under the terms and conditions set forth in this CONTRACT.

The GRANTEE shall assume any obligation to furnish any additional funds that may be necessary to complete the GRANT SCOPE(S).

During the CONTRACT PERFORMANCE PERIOD, the GRANTEE agrees to submit any proposed change or alteration from the original GRANT SCOPE(S) in writing to the STATE for prior approval. This applies to any and all proposed changes that will occur after STATE has approved the APPLICATION. Changes in the GRANT SCOPE(S) must first be approved in writing by the STATE.

2. The GRANTEE shall complete the GRANT SCOPE(S) in accordance with the time of the Performance Period set forth in Section I of this CONTRACT, and under the terms and conditions of this contract.

3. The GRANTEE shall comply with the California Environmental Quality Act (Public Resources Code, Section 21000, et seq., Title 14, California Code of Regulations, Section 15000 et seq.).

4. The GRANTEE shall comply with all applicable current laws and regulations affecting DEVELOPMENT projects, including, but not limited to, legal requirements for construction contracts, building codes, health and safety codes, and laws and codes pertaining to individuals with disabilities, including but not limited to the Americans with Disabilities Act of 1990 (42 U.S.C. §12101 et seq.) and the California Unruh Act (California Civil Code §51 et seq.) C. Project Costs

1. GRANTEE agrees to abide by the PROCEDURAL GUIDE.

2. GRANTEE acknowledges that STATE may make reasonable changes to its procedures as set forth in the PROCEDURAL GUIDE. If STATE makes any changes to its procedures and guidelines, STATE agrees to notify GRANTEE within a reasonable time.

D. Project Administration

1. If GRANT MONIES are advanced for DEVELOPMENT projects, the advanced funds may be placed in an interest-bearing account until expended. Interest earned on the advanced funds shall be used on the project as approved by the STATE. If grant monies are advanced and not expended, the unused portion of the grant and any interest earned shall be returned to the STATE within 60 days after project completion or end of the GRANT PERFORMANCE PERIOD, whichever is earlier.

2. During the GRANT PERFORMANCE PERIOD, the GRANTEE shall submit written project status reports within 30 calendar days after the STATE has made a specific request. All such project status reports shall be signed and certified as complete and accurate by the authorized representative of the GRANTEE. In any event, the GRANTEE shall provide the STATE a report showing total final project expenditures within 60 days of project completion or the end of the #4..
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22 GRANT PERFORMANCE PERIOD, whichever is earlier. The GRANT PERFORMANCE PERIOD is identified in Section I of this CONTRACT.

3. The GRANTEE shall make property or facilities acquired and/or developed pursuant to this contract available for inspection upon request by the STATE.

E. Project Termination

1. Project Termination refers to the non-completion of a GRANT SCOPE. Any grant funds that have not been expended by the GRANTEE shall revert to the STATE.

2. The GRANTEE may unilaterally rescind this contract at any time prior to the commencement of the project. The commencement of the project means the date of the letter notifying GRANTEE of the award or when the funds are appropriated, whichever is later. After project commencement, this contract may be rescinded, modified or amended only by mutual CONTRACT in writing between the GRANTEE and the STATE, unless the provisions of this contract provide that mutual CONTRACT is not required.

3. Failure by the GRANTEE to comply with the terms of the (a) PROCEDURAL GUIDE, (b) any legislation applicable to the ACT, (c) this CONTRACT or any other grant contracts, specified or general, that GRANTEE has entered into with STATE or any other department, agency, commission or other subdivision of California State government, may be cause for suspension of all obligations of the STATE unless the STATE determines that such failure was due to no fault of the GRANTEE. In such case, STATE may reimburse GRANTEE for eligible costs properly incurred in performance of this CONTRACT despite non-performance of the GRANTEE. To qualify for such reimbursement, GRANTEE agrees to mitigate its losses to the best of its ability.

4. Any breach of any term, provision, obligation, or requirement of this CONTRACT by the GRANTEE shall be a default of this CONTRACT. In the case of any default by GRANTEE, STATE shall be entitled to all remedies available under law and equity, including but not limited to: a) Specific Performance; b) Return of all GRANT MONIES; c) Payment to the STATE of the fair market value of the project property or the actual sales price, whichever is higher; and d) Payment to the STATE of the costs of enforcement of this CONTRACT, including but not limited to court and arbitration costs, fees, expenses of litigation, and reasonable attorney fees.

5. The GRANTEE and the STATE agree that if the GRANT SCOPE includes DEVELOPMENT, final payment may not be made until the work described in the GRANT SCOPE is complete and the GRANT PROJECT is open to the public.

F. Budget Contingency Clause
If funding for any fiscal year is reduced or deleted by the budget act for purposes of this program, the STATE shall have the option to either cancel this contract with no liability occurring to the STATE or offer a contract amendment to GRANTEE to reflect the reduced grant amount. This Paragraph shall not require the mutual CONTRACT as addressed in Paragraph E, subsection 2 of this CONTRACT

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23 G. Hold Harmless

1. The GRANTEE shall waive all claims and recourse against the STATE including the right to contribution for loss or damage to persons or property arising from, growing out of or in any way connected with or incident to this CONTRACT except claims arising from the concurrent or sole negligence of the STATE, its officers, agents, and employees.

2. The GRANTEE shall indemnify, hold harmless and defend the STATE, its officers, agents and employees against any and all claims, demands, damages, costs, expenses or liability costs arising out of the ACQUISITION, DEVELOPMENT, construction, operation or maintenance of the property described as the project which claims, demands or causes of action arise under California Government Code Section 895.2 or otherwise except for liability arising out of the concurrent or sole negligence of the STATE, its officers, agents, or employees.

3. The GRANTEE agrees that in the event the STATE is named as codefendant under the provisions of California Government Code Section 895 et seq., the GRANTEE shall notify the STATE of such fact and shall represent the STATE in the legal action unless the STATE undertakes to represent itself as codefendant in such legal action in which event the GRANTEE agrees to pay the STATE’s litigation costs, expenses, and reasonable attorney fees.

4. The GRANTEE and the STATE agree that in the event of judgment entered against the STATE and the GRANTEE because of the concurrent negligence of the STATE and the GRANTEE, their officers, agents, or employees, an apportionment of liability to pay such judgment shall be made by a court of competent jurisdiction. Neither party shall request a jury apportionment.

5. The GRANTEE shall indemnify, hold harmless and defend the STATE, its officers, agents and employees against any and all claims, demands, costs, expenses or liability costs arising out of legal actions pursuant to items to which the GRANTEE has certified. The GRANTEE acknowledges that it is solely responsible for compliance with items to which it has certified.

H. Financial Records

1. The GRANTEE shall maintain satisfactory financial accounts, documents, including loan documents, and all other records for the project and shall make them available to the STATE for auditing at reasonable times. The GRANTEE also agrees to retain such financial accounts, documents and records for five years following project termination or final payment.

2. The GRANTEE shall keep such records as the STATE shall prescribe, including records which fully disclose (a) the disposition of the proceeds of STATE funding assistance, (b) the total cost of the project in connection with such assistance that is given or used, (c) the amount, source and nature of that portion of the project cost supplied by other sources, and (d) any other such records that will facilitate an effective audit.

3. The GRANTEE agrees that the STATE shall have the right to inspect and make copies of any books, records or reports pertaining to this contract or matters related thereto during regular office hours. The GRANTEE shall maintain and make available for inspection by the STATE accurate records of all of its costs, disbursements and receipts with respect to its activities under this contract, and shall provide copies of all such records to STATE in its certified status reports upon request by the STATE. Such accounts, documents, and records shall be retained by the GRANTEE for at least five years following final payment.

4. The GRANTEE shall use a generally accepted accounting system.

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24 I. Use of Facilities

1. The GRANTEE agrees that the GRANTEE shall operate and maintain and retain full control of the property acquired or developed with the GRANT MONIES, for the duration of the CONTRACT PERFORMANCE PERIOD.

2. The GRANTEE agrees that, during the CONTRACT PERFORMANCE PERIOD, the GRANTEE shall use the property acquired or developed with grant funds under this contract only for the purposes of this grant and no other use, sale, assignment, transfer, mortgage, or other disposition or change of the control or use of the property or of any interest in the property to one not consistent with the grant purpose shall be permitted except as authorized by the DEPARTMENT and the property shall be replaced with property of equivalent value and usefulness as determined by the STATE.

3. The property acquired or developed may be transferred or assigned to another entity only if the successor entity assumes the obligations imposed under this contract and only with the prior approval of STATE.

4. Any real Property (including any portion of it or any interest in it, including any leases) may not be used as security or collateral for any debt, loan or mitigation, without the prior written approval of the STATE, provided that such approval shall not be unreasonably withheld as long as the purposes for which the grant was awarded are maintained. Any such permission that is granted does not make STATE a guarantor or a surety for any debt, loan or mitigation, nor does it waive STATE’s rights to enforce performance under the CONTRACT.

5. All real property (including any portion or interest in it, including any leases), or rights thereto, acquired with GRANT MONIES shall be subject to an appropriate form of restrictive title, rights, or covenants approved by the STATE. If the project property is taken by use of eminent domain, GRANTEE shall reimburse STATE an amount at least equal to the amount of grant monies received from STATE or the pro-rated full market value of the real property, including improvements, at the time of sale, whichever is higher.

6. If eminent domain proceedings are initiated against GRANTEE, GRANTEE shall notify STATE within 10 days of receiving the complaint.

J. Nondiscrimination

1. The GRANTEE shall not discriminate against any person on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status in the administration and in the use of any property or facility developed pursuant to this contract.

2. The GRANTEE shall not discriminate against any person on the basis of residence except to the extent that reasonable differences in admission or other fees may be maintained on the basis of residence and pursuant to law.

3. All facilities shall be open to members of the public generally, except as noted under the special provisions of this project contract or under provisions of the enabling legislation and/or grant program.

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25 K. Severability
If any provision of this CONTRACT or the application thereof is held invalid, that invalidity shall not affect other provisions or applications of the CONTRACT which can be given effect without the invalid provision or application, and to this end the provisions of this CONTRACT are severable.

L. Liability

1. STATE assumes no responsibility for assuring the safety or standards of construction, site improvements or programs related to the GRANT SCOPE. The STATE’S rights under this CONTRACT to review, inspect and approve the GRANT SCOPE and any final plans of implementation shall not give rise to any warranty or representation that the GRANT SCOPE and any plans or improvements are free from hazards or defects.

2. GRANTEE shall ensure that any contractor hired has adequate liability insurance, performance bond, or other security necessary to protect the GRANTEE interest and the STATE’s interest against poor workmanship, fraud, or other potential loss associated with the completion of the grant project.

M. Assignability
Without the written consent of the STATE, the GRANTEE’S interest in and control of any portion of the GRANT PROJECT and responsibilities under this CONTRACT shall not be assignable or transferable by the GRANTEE either in whole or in part.

N. Use of Grant Monies
GRANTEE shall not use any grant funds (including any portion thereof) for the purpose of making any leverage loan, pledge, promissory note or similar financial device or transaction, without: 1) the prior written approval of the STATE; and 2) any financial or legal interests created by any such leverage loan, pledge, promissory note or similar financial device or transaction in the project property shall be completely subordinated to this CONTRACT through a Subordination Agreement provided and approved by the STATE, signed by all parties involved in the transaction, and recorded in the County Records against the fee title of the project property.

O. Section Headings
The headings and captions of the various sections of this CONTRACT have been inserted only for the purpose of convenience and are not a part of this CONTRACT and shall not be deemed in any manner to modify, explain, or restrict any of the provisions of this CONTRACT P. Waiver
Any failure by a party to enforce its rights under this CONTRACT, in the event of a breach or default, shall not be construed as a waiver of said rights; and the waiver of any breach or default under this CONTRACT shall not be construed as a waiver of any subsequent breach.

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26 III. SPECIAL PROVISIONS
On March 4, 2022, Governor Gavin Newsom issued Executive Order N-6-22 (the EO) regarding Economic Sanctions against Russia and Russian entities and individuals. “Economic Sanctions” refers to sanctions imposed by the U.S. government in response to Russia’s actions in Ukraine, as well as any sanctions imposed under state law. The EO directs state agencies to terminate contracts with, and to refrain from entering any new contracts with, individuals or entities that are determined to be a target of Economic Sanctions. This Executive order extends to recipients of any State Grants (Grantee). Grantees include those who have contracted or will contract to receive State grants funds. Accordingly, should the State determine that a Grantee is a target of Economic Sanctions or is conducting prohibited transactions with sanctioned individuals or entities, that shall be grounds for termination of this agreement. The State shall provide the Grantee advance written notice of such termination, allowing the Grantee at least 30 calendar days to provide a written response. Termination of any contract found to be in violation of this Executive Order shall be at the sole discretion of the State. _____________________________________

GRANTEE
By:__________________________________
Signature of Authorized Representative
Title: _________________________________
Date: _________________________________

STATE OF CALIFORNIA

DEPARTMENT OF PARKS AND RECREATION
By: _________________________________
Date: _________________________________
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CITY OF MODESTO

COMMITTEE AGENDA REPORT
DATE OF MEETING:

January 22, 2024
Date: December 26, 2023
TO: Safety and Communities Committee
Rosa Escutia-Braaton, Chair
Jeremiah Williams, Vice-Chair
Chris Ricci, Member
THROUGH: Joseph P. Lopez, City Manager
FROM: Nathan Houx, Acting Director of Parks, Recreation and Neighborhoods SUBJECT: First Amendment to the Agreement with Mark Thomas and Company, Inc. for the Design of Virginia Corridor Phase 7 Project
CONTACT: Nathan Houx, Acting Director of Parks Recreation and Neighborhoods, [email protected], 209-571-5526
DESCRIPTION:

Consider a First Amendment to the Agreement with Mark Thomas and Company, Inc., for additional tasks related to Construction Documentation and Bidding & Construction Support for the Virginia Corridor Phase 7 Project, for a new amount not to exceed $646,305 and forwarding to Council for approval. (Funding Source: Non-Motorized Local Transportation Funds, Parks & Air Qualify CFF, and Various Grants)
STRATEGIC PLAN ELEMENT:

This item is consistent with the following 2020-2025 Strategic Plan Areas of Focus: Quality of Life and Governance and Service Delivery.

BACKGROUND:

The Virginia Corridor Trail is the result of conversion of the original Tidewater Southern/Union Pacific Railroad Corridor into a Class I bicycle and pedestrian trail. The long-term plan for the corridor is to provide a Class I trail extending from Modesto Junior College’s East Campus at the southern terminus to Kiernan Ave at the northern terminus (approximately 5 miles). It consists of a 10’ wide pathway flanked by landscaping, benches, lighting, and site amenities. Phases 1 through 6 are complete and the trail now crosses over Briggsmore Avenue and reaches to Woodrow Avenue.

On June 5, 2018, by Resolution No. 2018-211, Council accepted $3,193,401 from the California Urban Greening Grant Program to fund construction of the Virginia Corridor Phase 7 Trail. The Urban Greening Grant Program is funded by the California Climate Investments Fund (Carbon Cap and Trade tax dollars), which have been awarded to environmentally beneficial projects. #5..
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Safety and Communities Committee, January 22, 2024
First Amendment to the Agreement with Mark Thomas and Company, Inc. for Design of the Virginia Corridor Phase 7 Project

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The Virginia Corridor trail has become a well-loved addition to Modesto, receiving a very high rate of use year-round. The Parks, Recreation and Neighborhoods Department’s customer service staff regularly receive calls and questions regarding the trail, its future, and compliments on the value that it brings to their neighborhood.

On February 26, 2019, by Resolution No. 2019-80, Council approved an Agreement with Mark Thomas and Company, Inc., in an amount not to exceed $576,288, for the preparation of construction documentation for the Virginia Corridor Phase 7 Project, continuing the corridor from Woodrow Avenue to the Hetch-Hetchy right of way at Semallon Drive.

DISCUSSION:

The project has progressed to 100% design, but it has been on hold due to ongoing delays obtaining a joint-use agreement with the San Francisco Public Utility Commission (SFPUC) which owns the adjacent Hetch-Hetchy corridor. In order to proceed immediately and deliver on the project, staff would like to revise the current plans by eliminating the portion of the improvements north of West Union Avenue and Semallon Drive. Phase 7 of the project will be broken into two sub-phases, the first section (from Woodward Avenue to West Union Avenue) will be bid for construction spring 2024 and the second section (from West Union Avenue to Semallon Drive) will be completed once the agreement with SFPUC is completed.

The original Agreement amount with Mark Thomas and Company, Inc., is for $523,899. Since the start of design in 2019, there has been one additional services request that was approved by the Department Director, as allowed in the Agreement, in an amount of $30,000. The additional services request was for engineering services necessary to design the profile change to West Union Ave and a 16" diameter watermain at Standiford Avenue.

On November 16, 2023, at the City’s request, Mark Thomas and Company, Inc. submitted a budget augmentation for additional tasks in excess of the $576,288 authorized in the Original Agreement. There remains $22,838 in the original Agreement and the total additional tasks request is $92,855, therefore the estimated additional tasks result in increased costs totaling $70,017, as follows:

1. Additional Construction Documentation focused on revising the plans and construction estimate to remove the work north of West Union Avenue

2. Additional cost for Bidding and Construction Support beyond what was anticipated in the original Agreement

3. Other Direct Costs
Staff reviewed the proposal and recommends approving a First Amendment to the Agreement with Mark Thomas and Company, Inc.
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Safety and Communities Committee, January 22, 2024
First Amendment to the Agreement with Mark Thomas and Company, Inc. for Design of the Virginia Corridor Phase 7 Project

Page 3 of 3 ends

FISCAL IMPACT:

Funding for the First Amendment is budgeted in CIP Project 100813 - Virginia Corridor Phase 7.

ANTICIPATED AGREEMENT EXPENDITURES
Design Agreement – Mark Thomas and Company, Inc. $ 523,899 10% Additional Services $ 52,389
Proposed First Amendment to Agreement $ 70,017
TOTAL $ 646,305
CEQA/NEPA REQUIREMENTS:

A Programmatic Categorical Exclusion (PCE) was approved by Caltrans on July 23, 2005, which covered the entire Virginia Corridor Rails-to-Trails project along the former Union Pacific Railroad right-of-way, for 4.2-miles from the Needham/9th Street to Bangs Avenue. The project description and elements that were assessed for the entire project have not changed, and a re-validation of the PCE was approved by Caltrans on September 21, 2009.

RECOMMENDED COMMITTEE ACTION:

Staff Recommendations:

Motion recommending a First Amendment to the Agreement with Mark Thomas and Company, Inc., for additional tasks related to Construction Documentation and Bidding & Construction Support for the Virginia Corridor Phase 7 Project, increasing the Agreement amount from $576,288 to a new total amount of $646,305 and forwarding to Council for approval.

Approved by:

Nathan Houx, Acting Director of Parks, Recreation
and Neighborhoods Department
Joseph P. Lopez, City Manager
Attachments:

1. First Amendment to Agreement with Mark Thomas and Company, Inc.

2. Exhibits A-1 & B-1

3. Original Agreement with Mark Thomas and Company, Inc. #5..
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FIRST AMENDMENT TO AGREEMENT FOR CONSULTANT SERVICES WITH MARK THOMAS AND COMPANY, INC. FOR VIRGINIA CORRIDOR PHASE VII This First Amendment to Agreement for Consultant Services (“First Amendment”) is made with reference to the contractual agreement between the CITY OF MODESTO (“City”) and MARK THOMAS AND COMPANY, INC., (“Consultant”) entered into by the parties on the 26th day of February 2019, hereinafter referred to as the “Original Agreement”.

RECITALS
This First Amendment to Agreement for Consultant Services is made with regard to the following recitals:
a. The Original Agreement between City and Consultant was approved via Council Resolution No. 2019-80.
b. Paragraph no. 9 “AMENDMENTS” on page 7 of the Original Agreement for Design Services states “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”.
c. Paragraph no. 3 “COMPENSATION” on pages 2-4 of the Original Agreement for Consultant Services specifies the sum of FIVE HUNDRED

TWENTY THREE THOUSAND EIGHT HUNDRED NINETY-NINE
AND 00/100 DOLLARS ($523,899) as the total compensation Consultant agrees to accept for performing all services and furnishing all staffing and #5..
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materials for the project as well as performance by Consultant of all of its duties and obligations required in the Original Agreement. Additional Services may be authorized by the Department Director in an amount up to, but not to exceed, FIFTY TWO THOUSAND THREE HUNDRED
EIGHTY-NINE AND 00/100 DOLLARS ($52,389). In that event, the new total compensation shall not exceed FIVE HUNDRED SEVENTY SIX THOUSAND TWO HUNDRED EIGHTY-EIGHT AND 00/100
DOLLARS ($576,288).
d. On November 16, 2023, at the City’s request, Consultant submitted to City a budget augmentation for additional tasks in excess of the $576,288 authorized in the Original Agreement, attached hereto as Exhibit “A-1” to this First Amendment to Agreement.
e. The estimated additional tasks result in increased costs as follows:

1. Additional Construction Documentation focused on revising the plans and construction estimate to remove the work north of West Union Avenue - $36,918

2. Additional cost for Bidding and Construction Support beyond was what anticipated in the original Agreement - $55,543

3. Other Direct Costs - $393
f. The aforementioned estimated additional tasks increase the amount of the Original Agreement by SEVENTY THOUSAND SEVENTEEN AND 00/100 DOLLARS ($70,017), as there remains TWENTY-TWO THOUSAND EIGHT HUNDRED THIRTY-EIGHT ($22,838) in the Original Agreement. #5..
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The amounts listed above are the estimated level of effort for each task. In no case shall the total fee exceed the total contract amount under the Original Agreement and this First Amendment to Agreement without memorializing an additional written amendment to the original contract and must be signed by both parties.
g. The parties to the Original Agreement and to this First Amendment to Agreement now understand and agree that it is necessary to modify paragraph no. 1 entitled “SCOPE OF SERVICES” on page 1 of the Original Agreement. h. The parties to the Original Agreement and to this First Amendment to Agreement now understand and agree it is necessary to modify paragraph no. 3 entitled “COMPENSATION” on pages 2-4 of the Original Agreement. i. The parties to the Original Agreement and to this First Amendment to Agreement further understand and agree the Original Agreement is modified solely by the modifications contained in this First Amendment to Agreement and in no other way whatsoever. All other terms and conditions contained in the Original Agreement remain the same.

NOW, THEREFORE, in consideration of the mutual covenants, promises and agreements contained herein, the parties mutually agree and covenant as follows:

1. The parties agree that each of the recitals set out above is factually true and correct.

2. Paragraph 1 entitled “SCOPE OF SERVICES” on page 1 of the Original Agreement shall be deleted in its entirety and the parties agree to and hereby do substitute the following in its place:
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SCOPE OF SERVICES.

Consultant shall undertake and complete the preparation of the scope of work as set forth and described in the documents attached to the Original Agreement and referred to therein as Exhibit “A” or “Project”. In addition, Consultant shall undertake and complete the preparation of the scope of work as set forth and described in the documents attached to the First Amendment to Agreement and referred to herein as Exhibit “A-1”.

The Consultant shall perform the services as described in the aforementioned Exhibit “A” and Exhibit “A-1” in a manner compatible with the standards of its profession and shall produce a complete project as described in Exhibit “A” and Exhibit “A-1” that is acceptable to City.

3. Paragraph no. 3 entitled “COMPENSATION” on pages 2-4 of the Original Agreement between the parties shall be deleted in its entirety and the parties agree to and hereby do substitute the following in its place:

COMPENSATION.

Consultant agrees to accept a sum not to exceed FIVE

HUNDRED NINETY-THREE THOUSAND, NINE HUNDRED
SIXTEEN AND 00/100 DOLLARS ($593,916) (maximum
compensation) as full remuneration for performing all services and furnishing all staffing and materials called for in Exhibit “A” to the Original Agreement and in Exhibit “A-1” to this First Amendment to Agreement attached hereto as well as for performance by Consultant of all of its duties and obligations under the Original Agreement and the First #5..
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Amendment to Agreement, except that additional services may be compensated as described below.

The compensation shall be paid pursuant to and 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 the Original Agreement and Exhibit “A-1” of this First Amendment to Agreement. All future work to be performed under this Agreement shall be billed at the hourly rates set forth in Exhibit "B-1" of this First Amendment to Agreement. State of California Prevailing Wage Rates are required for the work described within the project Scope of Services.

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.

No retainage will be withheld by City from progress payments due the Consultant. Retainage by the Consultant or subconsultants is prohibited, and no retainage will be held by the Consultant from progress due subconsultants. Any violation of this provision shall subject the violating Consultant or subconsultants to the penalties, sanctions, and other remedies specified in Section 7108.5 of the California Business and Professions Code. This requirement shall not be construed to limit or impair any contractual, administrative, or judicial remedies, otherwise #5..
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available to the Consultant or subconsultant in the event of a dispute involving late payment or nonpayment by the Consultant or deficient subconsultant performance, or noncompliance by a subconsultant. This provision applies to both DBE and non-DBE Consultants and subconsultants.

Additional services may be authorized by the Department Director in an amount up to, but not to exceed 10% of the original agreed maximum compensation, or FIFTY-TWO THOUSAND, THREE
HUNDRED EIGHTY-NINE AND 00/100 DOLLARS ($52,389). In the event that additional services are deemed necessary, the Consultant shall provide a written request to the Department Director, or designee, indicating the reason for additional work, scope and cost of such work.

The Department Director, or designee, shall provide a written response to the request, either approving or denying the additional expenditure. If future additional services are requested and approved, they will be billed at the hourly rates set forth in Exhibit “B-1” to this First Amendment to Agreement and may not exceed the amount requested and approved in writing by the Department Director. In that event, the new total compensation shall not exceed SIX HUNDRED FORTY-SIX
THOUSAND, THREE HUNDRED FIVE AND 00/100 DOLLARS
($646,305). If additional services in excess of this amount are deemed necessary by City Staff, an amendment to this Agreement will be required #5..
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and must be approved by the City Council prior to commencing the work, as provided in Paragraph 9 of the Original Agreement.

4. Paragraph 2 entitled “TERM OF AGREEMENT”, on page 2 of the Original Agreement shall be deleted in its entirety and the parties agree to and herby do substitute the following in its place:

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 performed by Consultant, unless terminated earlier in accordance with the provisions of the termination clause in this Agreement.

Consultant shall undertake and complete the scope of work as set forth and described in the documents commonly referred to as “project” attached hereto as Exhibit "A" and Exhibit “A-1” and made a part hereof. City hereby gives Consultant notice to proceed with the project in the manner described in Exhibit "A" and Exhibit “A-1”, as of the Effective Date of this agreement. Consultant shall diligently proceed with the Bidding and Construction Support services of the Project until the completion of items shown in Exhibit “A”. and Exhibit “A-1”.

5. Except as herein amended or modified, the provisions of the Original Agreement are expressly reaffirmed and remain in full force and effect to the extent they are not in conflict with this First Amendment. #5..
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IN WITNESS WHEREOF, CITY OF MODESTO, a municipal corporation, has authorized the execution of this First Amendment to Original Agreement for Consultant Services in duplicate by its City Manager and attestation by its City Clerk under authority of Resolution No. , adopted by the Council of the City of Modesto on the ___ day of ___________, 2024, and MARK THOMAS & COMPANY, INC., has caused this Agreement to be duly executed as of the Effective date.
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November 16, 2023
Mr. Ken Peterson
Associate Landscape Architect
1010 Tenth St, Suite 4400
P.O. Box 642, Modesto, CA 95353
RE: Virginia Corridor Phase VII: Extra Work 2
Dear Mr. Peterson,
The Virginia Trail Phase VII project connects the Virginia Trail to the Hetch-Hetchy Trail within the Hetch-Hetchy utility corridor, owned by the San Francisco Public Utility Commission (SFPUC). The project has progressed beyond 100% design phase; however, it has been on hold for approximately 3 years due to ongoing delays obtaining a joint-use agreement with SFPUC. To deliver the project, the City would like to revise the current plans by eliminating the portion of improvements north of West Union Ave and Semallon Dr.

Mark Thomas is pleased to submit our proposal to perform the following engineering services:

Task #2 - Construction Documentation – We propose one (1) submittal to finalize the plans. The submittal is focused on the removal quantities from the engineers estimate of the work north of West Union Ave. Linework from the current plans north of West Union Ave to Semallon Dr will not be removed from the plans; the plans will be annotated to clearly show that the improvements are not intended to be constructed.

Below are the items that are included in this task:
• This task will include ongoing general project coordination with the City and other applicable agencies. This task will include preparing memos, letters, e-mail, and phone calls necessary to manage the project.
• Rendering will be updated to reflect the current proposed bridge and include additional detailing.
• Final PS&E - Based on the scope revision request as outlined above and the constructability comments received from the City on 11/7/23 a "Bid Set" construction documents including plans, specifications, and detailed estimate will be submitted to the City. #5..
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November 16, 2023
Task #3 - Bidding and Construction Support – Mark Thomas will assist the City during the construction of the project. This work may include attendance of the pre-construction meeting, interpretation of contract documents, review of shop drawings, review of falsework structural calculations, responses to RFIs, attending construction meetings and field visits, preparing contract change orders (CCOs), and preparation of As-Built drawings. It is assumed that the City will retain a Construction Manager to administer the construction project. For the purpose of this scope, Mark Thomas assumed no more than 287 hours of construction support will be needed.

Proposed Compensation
The following summarizes the costs associated with the scope of work described above. The following tasks will be billed on time and materials and not to exceed the amount below.

Task #2 - Construction Documentation $ 36,918
Task #3 - Bidding and Construction Support $ 55,543
Other Direct Costs $ 393
Total $ 92,855
Remaining from Current Contract ($22,838)
Additional Services Work $70,017
Assumptions
• Notice to Proceed in January 2024.
• MID utility relocations are complete and no other utility coordination is required. • This scope assumes one (1) submittal.
o Civil: Outline the portion of work to be removed and update estimate. o Landscape: Outline the portion of work to be removed and update estimate. o Structures: Update estimate unit costs.
o Electrical: Outline the portion of work to be removed and update estimate. • Unit costs have significantly increased since the last time a Construction Estimate was provided to the City. We assume the City has secured enough funding for the project without having to change/eliminate more than what is outlined in the scope above. • Specifications will be reviewed for completeness, however updating the specifications to a new version is not included in this scope.
• The lighting fixtures previously approved will not change.

Please provide authorization to proceed with these items. If you have any questions or would like to discuss the level of the effort, please contact me at 530-848-1222. Thank you for the opportunity to continue to work with you.

Sincerely,

MARK THOMAS
Ed Noriega, PE
Division Manager
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Parks, Recreation and
Neighborhoods Department
Parks Planning and
Development Division
P.O. Box 642
Modesto, California 95354
209.577.5344
EXHIBIT ‘B-1’

AMENDED HOURLY RATES

CONSTRUCTION DOCUMENTATION
FOR PHASE 7 OF THE VIRGINIA CORRIDOR TRAIL
The following hourly rates will be used for billable hours within this Agreement and for additional work requested and approved. In addition, monthly progress payment invoices shall include the minimum attachments: Detailed description or itemization of work completed for the time period, task billing summary, hourly rates from all consultants.

Mark Thomas & Company, Inc.

Landscape Engineer / Architect
Engineering Manager $311 - $361
Senior Engineering Manager $331 - $472
Project Engineer $148 - $198
Civil Engineering Designer $118 - $215
Design Engineer II $112 - $189
Design Engineer I $89 - $156
Engineering Manger $311 - $361
Project Manager $183 - $270
Technical Lead $183 – $270
LAUD Division Manager $251 – $423
LAUD Project Manager $183 – $270
Landscape Architect $112 – $202
Landscape Designer II $98 – $150
Intern $50 – $90
Senior Project Accountant $106 - $189
Senior Project Coordinator $98 - $179
Senior Graphic Manager $148 - $218
Graphic/Sr. Graphic Designer $104 - $195
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JLB
Traffic Engineering
Project Manager $181.64
Engineering I/II $ 78.55 - $98.18
Crawford & Associates
Geotechnical Engineering
Principal $67.95
Senior Project Manager $57.12
Project Manager $49.00
Senior Engineer $47.14
Senior Geologist $43.08
Project Engineer II $40.92
Project Engineer I $36.24
Staff Engineering/Drafting $30.69
Project Assistant $25.31
ESP
Surveying
Survey Manager $65
Project Manager $45
2-Man Survey Crew $78.41
Administration $29
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Safety and Communities CommitteeJanuary 22, 2024

Safety and Communities Committee
January 22, 2024