Modesto City Council
April 9, 2024

DISCUSSION:

The treatment of roots within the sewer system is an on-going process. Sewer lines are treated for roots on a three-year cycle due to the effectiveness of treatment and rate of root regrowth.

Once Staff identifies roots within a sewer pipeline, these locations are placed on regular root treatment preventative maintenance (PM) schedules. Over the years, staff have continued to identify new locations within the system requiring treatment. As the number of sewer lines with active root treatment PMs continues to grow, the agreement amount is no longer enough to treat all of sewer lines according to the schedule. As a result, sewer root control has often been delayed or rolled over to the next year to stay within Agreement constraints. This has created a compounding effect over time and requires an increase to the agreement to ensure all lines receive root treatment in a timely manner.

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, to increase efficiency and avoid delays or disruptions to City projects or services.” It was determined that the overall need for this service, in terms of PM work orders, has increased since the establishment of the original agreement. Due to this increase, it is necessary to increase the annual spend limits and the resulting five-year spend limit to avoid postponing maintenance within the City’s collection system. Deferred maintenance will result in an increase in SSOs which must be reported to the State and could result in heavy fines.

FISCAL IMPACT:

The anticipated annual cost of $120,000, with an additional 25% included in years four (4) and five (5), will be absorbed within the current Fiscal Year (FY) 2023-24 and FY 2024-25 operating budget, (Wastewater Fund, Sewer Collections, Repair and Maintenance Account (4210-44211- 53100).

EXPENDITURES TO DATE
AY Pipe
Treated (Ft.)
Original Amount
Agreed
Increase
To
Additional
25%
New Annual
Agreed Expended
1 50,863 $65,879 $0 $65,879 $57,877
2 59,088 $65,879 $0 $65,879 $64,406
3 99,437 $65,879 $120,000 $120,000 $110,096

ANTICIPATED AGREEMENT EXPENDITURES
AY Est. Pipe
Treated (Ft.)
Original Amount
Agreed Increase Additional25%
New Annual
Agreed Est. Cost
4 105,903 $65,879 $120,000 $30,000 $150,000 $118,627
5 80,397 $65,879 $120,000 $30,000 $150,000 $87,974

ESTIMATED
TOTALS 395,688 $329,395 $360,000 $60,000 $551,758 $438,980 #26..
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City Council, April 09, 2024
First Amendment to the Agreement with Duke’s Root Control Service, Inc. for Sewer Root Control Services

COMMITTEE RECOMMENDATION:

This item was presented to the Economic Development Committee on March 04, 2024, and was recommended to forward to Council for approval.

RECOMMENDED COUNCIL ACTION:

Staff Recommendations:

Resolution approving the First Amendment increasing the Agreement amount with Duke’s Root Control Service, for Sewer Root Control Services by $54,121 from $65,879 to a revised annual estimated amount of $120,000, to be applied to agreement years three (3), four (4), and five (5), and an additional 25% to be included in agreement years four (4) and five (5), and a new total amount not to exceed $551,758 over five years; and authorizing the City Manager, or his designee to execute the Amendment.

Approved by:

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

1. Resolution

2. First Amendment

3. Original Agreement
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04/09/2024/Utilities/JDaniels/Item # 1 2024-XXX

MODESTO CITY COUNCIL
RESOLUTION NO. 2024-XX

RESOLUTION APPROVING THE FIRST AMENDMENT INCREASING THE AGREEMENT AMOUNT WITH DUKE’S ROOT CONTROL SERVICE, FOR
SEWER ROOT CONTROL SERVICES BY $54,121 FROM $65,879 TO A REVISED ANNUAL ESTIMATED AMOUNT OF $120,000, TO BE APPLIED TO AGREEMENT YEARS THREE (3), FOUR (4), AND FIVE (5), AND AN ADDITIONAL 25% TO BE INCLUDED IN AGREEMENT YEARS FOUR (4) AND FIVE (5), AND A NEW TOTAL AMOUNT NOT TO EXCEED $551,758 OVER FIVE YEARS; AND AUTHORIZING THE CITY MANAGER, OR HIS

DESIGNEE TO EXECUTE THE AMENDMENT
WHEREAS, the Utilities Department, Wastewater Division requires services to control and prevent root intrusion in the sewer pipes. As tree roots enter the sewer system pipes through cracks and joints, they create blockages and impede normal system flows.

This often results in a sanitary system overflow (SSO). In addition, damage to the pipes lead to significant repair costs and the risk of hefty fines from the State and exposure to lawsuits from Environmental groups in the event SSOs occur; and WHEREAS, chemical root control is the most efficient and effective method of managing root intrusion into the sewer pipes due to it requiring less time, labor, and equipment while not adversely affecting the trees. The City has successfully used this method of root control for several years; and
WHEREAS, on July 06, 2021, by Resolution No. 2021-266, Council approved an agreement for the furnishing of root control services with Duke’s Root Control, Inc., for an estimated annual amount of $65,879, and a total amount not to exceed $329,395 over five (5) years; and
WHEREAS, sewer lines requiring root treatment are identified and indefinitely scheduled through regular preventative maintenance work orders and over the years, staff has continued to identify new locations within the system requiring treatment; and #26..
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04/09/2024/Utilities/JDaniels/Item # 2 2024-XXX
WHEREAS, as the number of sewer lines with active root PMs continues to grow, the agreement amount is no longer enough to treat all of the sewer lines according to schedule; and
WHEREAS, sewer root control has often been delayed or rolled over to the next year to stay within Agreement constraints, resulting in a compounding effect over time and required an increase to the agreement to ensure all lines are maintained properly; 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 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.

NOW, THEREFORE, BE IT RESOLVED, by the Council of the City of Modesto that it hereby approves the first amendment increasing the agreement amount with Duke’s Root Control Service, for sewer root control services by $54,121 from $65,879 to a revised annual estimated amount of $120,000, to be applied to agreement years three (3), four (4), and five (5), and an additional 25% to be included in agreement years four (4) and five (5), and a new total amount not to exceed $551,758 over five years.

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

The foregoing resolution was introduced at a regular meeting of the Council of the #26..
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04/09/2024/Utilities/JDaniels/Item # 3 2024-XXX
City of Modesto held on the 9th day of April, 2024, by __________________, who moved its adoption, which motion being duly seconded by _________________ 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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FIRST AMENDMENT FOR SEWER AND ROOT CONTROL SERVICES
WITH DUKE’S ROOT CONTROL, INC.

This First Amendment to the Sewer and Root Control Services Agreement (the “First Amendment”) is entered into between the CITY OF MODESTO, a municipal corporation of the State of California hereinafter referred to as “CITY” and Duke’s Root Control, Inc., hereinafter referred to as “CONTRACTOR” entered into by the parties on the _____ day of _________________ , 2024.

RECITALS
This First Amendment is made with regard to the following recitals:

WHEREAS, CITY and CONTRACTOR previously entered into an Agreement for Sewer and Root Control Services dated July 6, 2021 (the “Original Agreement”), and WHEREAS, CITY and CONTRACTOR desire to amend the Original Agreement by increasing the previously approved estimated annual amount from $65,879 to an estimated annual amount of $120,000. All other provisions of the Original Agreement shall remain in effect.

NOW, THEREFORE, in consideration of this First Amendment, and the mutual promises, covenants, and stipulations contained in the Original Agreement for Sewer and Root Control Services and this First Amendment to the Original Agreement, the parties agree as follows:

1. Section 1e “Scope of Work”, paragraph 1, the following is removed and replaced with:
“CONTRACTOR shall furnish said services at the follow agreement rates, for an estimated annual amount of $120,000 and a total amount not to exceed $551,758.”

2. Except as provided for in this First Amendment, all other terms and conditions of the Original Agreement, as previously amended, shall remain in full force and effect.

IN WITNESS WHEREOF, the City of Modesto, a municipal corporation, has authorized the execution of this First Amendment to Original Agreement for Sewer and Root Control Services 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 Duke’s Root Control, Inc. has caused this First Amendment to be duly executed as of the Effective Date. #26..
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1 AGREEMENT
This Agreement, made and entered into in the City of Modesto, State of California, this 6th day of July, 2021, by and between the City of Modesto, a municipal corporation of the State of California, hereinafter called CITY, and Control, Inc., hereinafter called CONTRACTOR, W I T N E S S E T H:

WHEREAS, the Modesto City Council adopted Resolution No. 2021-____ authorizing the award of bid and agreement for the SEWER ROOT CONTROL SERVICES to CONTRACTOR, attached hereto as Exhibit and made a part hereof, and
WHEREAS, the CONTRACTOR provided a responsive and responsible bid submittal that best meets the CITY needs, , and
WHEREAS, the CITY and CONTRACTOR shall enter into an agreement for the SEWER ROOT CONTROL SERVICES as described in RFB 2021-32,
hereof, and
NOW, THEREFORE, the parties hereto mutually agree as follows:

1. SCOPE OF WORK:
a) CONTRACTOR shall furnish all labor, materials, equipment, fuel, tools, licenses, and insurance necessary to perform and complete the required work as specified in Exhibit B and in strict accordance with the conditions of the complete agreement. b) CONTRACTOR shall do and perform the work contemplated hereby in a good and workmanlike manner under the direction of and to the satisfaction of the City Representative. c) CONTRACTOR shall maintain proper insurance with the CITY for the duration of the agreement.
d) CONTRACTOR shall maintain a CITY business license for the duration of the agreement. e) CONTRACTOR shall furnish said services at the following agreement rates, for an estimated annual cost of $65,879.

AGREEMENT PRICING
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2 Description
Pipe Size Unit
Payment of Prevailing Wages
Required
Unit Price
4" Linear Foot $0.99/LF
6" Linear Foot $1.09/LF
8" Linear Foot $1.09/LF
10" Linear Foot $1.23/LF
12" Linear Foot $1.32/LF
Linear Foot $1.84/LF
Linear Foot $2.65/LF

2. PREVAILING WAGES:

The payment of prevailing wages is required for maintenance under this agreement and all provisions of Section 7.04 of the General Provisions contained with the CITY standards shall apply.

DIR Project ID#: 371146

3. CITY REPRESENTATIVE:

City Representative: Robert Englent, (209) 577-6222
Purchasing: Carol Wattle, Buyer (209) 577-5406
The CITY Representative is not authorized to commit the CITY to changes in specifications, requirements, or scope of work, changes in price(s), period of performance or delivery date(s) or method of shipment. Changes of a contractual or business nature shall be effective only by written change to the agreement, issued by the City of Modesto, Purchasing Division.

4. TERM OF AGREEMENT:

The term of the agreement shall be for a period of two (2) years, with three (3) one-year extension options at the sole discretion of CITY, for a total of up to five (5) years.

Year 1: July 6, 2021 through July 5, 2022
Year 2: July 6, 2022 through July 5, 2023
Year 3: July 6, 2023 through July 5, 2024
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3 Year 4: July 6, 2024 through July 5, 2025
Year 5: July 6, 2025 through July 5, 2026
Pricing as set forth in Section 1.e. above shall remain firm for the first two (2) years of the agreement.

Price increases for subsequent agreement years, three (3), four (4) and five (5), shall not exceed the Consumer Price Index (CPI) for West Urban Area in any one agreement year, and shall be negotiated through the Purchasing Division. Requests for price increases shall be submitted by CONTRACTOR in writing, ninety (90) days prior to the annual anniversary date of the agreement to be effective for the subsequent year.

5. LIABILITY INSURANCE:

The CONTRACTOR shall provide, at its own expense, and maintain at all times the following insurance with insurance companies licensed in the State of California and shall provide evidence of such insurance to the CITY as may be required by the City Clerk of the CITY. The policies or certificates thereof shall provide that, 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 registered mail, return receipt requested, for all of the following stated insurance policies.
a) General Liability - insurance with a minimum limit of liability per occurrence of $2,000,000 for bodily injury and property damage. The insurance shall indicate on the certificate of insurance the following coverage and indicate the policy aggregate limit applying to: premises and operations; broad form contractual; independent and subcontractors; products and completed operations; and/or professional liability.
b) Automobile Liability insurance with a minimum limit of liability per occurrence of $1,000,000 for bodily injury and property damage. This insurance shall cover any automobile for bodily injury and property damage.
c) Workers' Compensation - in compliance with the statutes of the State of California, plus employer's liability with a minimum limit of liability of $1,000,000. #26..
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4 d) Pollution Liability - insurance with a minimum limit of $1,000,000 per claim and $2,000,000 policy aggregate.

If at any time any of said policies shall be unsatisfactory to the CITY, as to form or substance or if a company issuing such policy shall be unsatisfactory to the CITY, the CONTRACTOR shall promptly obtain a new policy, submit the same to Risk Manager via PINS for approval and submit a certificate thereof as hereinabove provided. Upon failure of the CONTRACTOR to furnish, deliver or maintain such insurance and certificates as above provided, this agreement, at the election of the CITY, may be forthwith declared suspended, or terminated. Failure of the CONTRACTOR to obtain and/or maintain any required insurance shall not relieve the CONTRACTOR from any liability under this agreement, nor shall the insurance requirements be construed to conflict with or otherwise limit the obligations of the CONTRACTOR concerning indemnification. The CITY, its agents, officers, employees, and volunteers shall be named as an additional insured on all insurance policies required herein, except Workers' Compensation.

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

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

S insurance coverage shall be primary
insurance as respects the Entity, its officers, officials, employees, and volunteers. Any insurance or self-insurance insurance and shall not contribute with it.

6. PAYMENT:
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5 CONTRACTOR shall invoice CITY after time of service. All invoices shall be paid in full within thirty (30) days after completion and acceptance of the services by the CITY, and receipt of a properly prepared invoice, subject to cash discounts allowed and stated in this agreement. The CITY is exempt from payment of Federal Excise Tax, and all invoices shall be exclusive of such excise tax.

Invoice to: City of Modesto
Attn: Accounts Payable
P.O. Box 642
Modesto, CA 95353
Email to: [email protected]
At a minimum, invoices shall state the following:

Reference Annual Agreement #: 201869
CITY department/division name and address
Billing period
Service hours worked day and week
Service Location
Unit price, extended price, sales tax and total

7. INDEMNITY:

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

S obligation to defend, indemnify, and hold the CITY, its agents, officials, officers, and employees harmless under the provisions of this paragraph is not limited to or restricted by any requirement in this agreement for CONTRACTOR to procure and maintain a policy of insurance. #26..
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6 8. 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 a
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 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.

9. GOVERNING LAW:

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

10. COMMENCEMENT AND COMPLETION OF THE WORK:

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

Proofs of insurance (approved by Risk Management); and
#26..
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7 Business License; and
Executed Agreement and all exhibits thereto.

11. 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.

Termination by CITY for Convenience
The CITY may also terminate the CONTRACTOR'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 day 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, subcontractors and agents are notified of such #26..
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8 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 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 may have 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.
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9 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 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 decision to the
City Council. The CONTRACTOR shall appeal by notifying the City Clerk in writing within ten (10) calendar days after 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.

12. 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 which may be applicable to the work herein contracted for, whether now in existence or hereafter adopted.

13. AGREEMENT DOCUMENTS:
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10 The complete agreement between the parties hereto consists of this agreement and the following documents which are incorporated herein by this reference:
a. Resolution No. 2021-_______;
b. CONTRACTOR submittal;
c. 2021-32
d. Insurance Certificates,
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.

14. NOTICES:

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

CONTRACTOR:
1020 Hiawatha Blvd W
Syracuse, NY 13204

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.

15. SIGNATOR (IES) FOR CONTRACTOR:
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11 The undersigned signature (ies) for CONTRACTOR warrant(s) and represent(s) those he/she/they is/are legally competent to execute the agreement and has/have full authority to execute this agreement.

16. 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.

17. 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.

18. HEADINGS NOT CONTROLLING:

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

19. MISCELLANEOUS:

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

20. ENTIRE AGREEMENT:

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

21. PARTIAL INVALIDITY:
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12 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.

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. 2021-_______, adopted by the Council of the City of Modesto on the 6th day of July, 2021 and Dukes Root Control, Inc., as caused this agreement to be duly executed. #26..
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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
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
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CITY OF MODESTO

COUNCIL AGENDA REPORT
DATE OF MEETING:

April 9, 2024
Date: March 18, 2024
TO: Mayor and City Council
THROUGH: Joseph P. Lopez, City Manager
FROM: William Wong, Director of Utilities
SUBJECT: Fourth Amendment to Bay City Electric Works Agreement CONTACT: Jeff Daniels, Acting Wastewater Division Manager, [email protected], 209-577-6255
DESCRIPTION:

Consider approving the Fourth Amendment with Bay City Electric Works, Livermore, CA for the Generator Repair Service and Preventative Maintenance Agreement for a revised total amount of $935,000, and extending the term of the Agreement from May 10, 2024, to August 31, 2024. (Funding Source: Various Funds)
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:

On May 9, 2017, by Resolution 2017-188, Council approved the award of bid for generator preventative maintenance and repairs services for the Water and Wastewater Divisions for a twoyear agreement to Central California Generator of Riverbank, California, with three (3) one-year extension options for an estimated annual cost of $115,000 and a total combined cost not to exceed $575,000 over five years, through May 10, 2022.

In October 2020, a new Agreement with the same terms and conditions was issued to Bay City Electric Works of Livermore, California (“Bay City”) due to the acquisition of Central California Generator and assumption of their contracts. The balance of the previous agreement was $124,850.60, leaving $450,149.40 remaining on the agreement with Bay City.

On December 14, 2021, by Resolution 2021-492, Council approved the First Amendment to the Agreement with Bay City, extending the termination date from May 10, 2022, to November 10, 2022, with no increase in spending authority.
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City Council, April 9, 2024
Fourth Amendment to Bay City Electric Works Agreement

On November 17, 2022, the Director of Finance approved the Second Amendment to the Agreement with Bay City, extending the termination date from November 10, 2022, to November 10, 2023, with no increase in spending authority.

On October 5, 2023, the Director of Finance approved the Third Amendment to the Agreement with Bay City, extending the termination date from November 10, 2023, to May 10, 2024, with no increase in spending authority.

DISCUSSION:

The City of Modesto Utilities Department, Public Works Department, Fire Department, and Police Department operate several facilities that require generator maintenance and repair services. The Wastewater Division provides preventive maintenance for generators at a Treatment Plant and multiple lift stations, but also require additional services for troubleshooting and repairs. The Water Division requires preventive maintenance services for approximately 36 generators located at well and tank sites. Police, Fire, and Public Works have generators that require biannual maintenance and emergency repairs.

The current agreement was awarded to Central California Generator in 2017, and the company was subsequently acquired by Bay City in 2020. City staff experienced challenges in the first two years of the contract with Bay City, primarily difficulties with scheduling repair work and establishing ongoing preventive maintenance. There were also some concerns that the City may need to revise the original agreement’s terms and conditions and scope of work in order to accurately reflect the needs of all departments seeking generator repair services.

In January 2022, Purchasing Division staff were able to successfully negotiate a price increase requested by Bay City. Work increased over the following months as Bay City technicians began addressing the large backlog of repair and maintenance for City generators, as shown in the table below. City staff and the Purchasing Division began developing a new, more comprehensive scope of work with the assistance of several departments. In order to allow the City to continue to receive services, three term extensions were approved. During this process, the Purchasing Division experienced a turnover of staff which caused a delay in finalizing and posting the new bid. On January 17, 2024, the Purchasing Division posted the project on the City’s bidding website; however, due to staff receiving a large number of questions, Purchasing staff determined it more appropriate to pull the bid and better define the scope of work.

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(e) where the Purchasing Manager, in his or her discretion, determines that the term of an existing agreement should be extended for a period of no greater than one (1) 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.

Staff are requesting one additional term extension, as well as an increase in spending authority of $360,000 through the term of the agreement, for a new not to exceed amount of $935,000 through August 31, 2024. This will allow staff to complete the competitive bidding process and select a vendor for a new five-year agreement.
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City Council, April 9, 2024
Fourth Amendment to Bay City Electric Works Agreement

FISCAL IMPACT:

Actual expenditures for the generator agreement over the previous contract years are listed below:

Contract Year Total
CY1 (2017-18) $43,202
CY2 (2018-19) 33,909
CY3 (2019-20) 32,037
CY4 (2020-21) 19,128
CY5 (2021-22) 14,571
Amendment 1 28,320
Amendment 2 333,570
Amendment 3 68,575
Grand Total $573,312
The significant increase in expenditures during the term of Amendment 2 was due to the completion of a large backlog of repair and maintenance work.

Funds are budgeted in Fiscal Year 2023-24 current operating budget in the Water Fund (4100), Sewer Operations Fund (4210), and General Fund (0100).

COMMITTEE RECOMMENDATION:

This item was considered by the Economic Development Committee at the March 4, 2024, meeting where it was recommended that it be forwarded to Council.

RECOMMENDED COUNCIL ACTION:

Staff Recommendation:

Resolution approving the Fourth Amendment increasing the Agreement amount with Bay City Electric Works, Livermore, CA for the Generator Repair Service and Preventative Maintenance Services by $360,000 from $575,000 for a new total amount of $935,000 and extending the term of the Agreement from May 10, 2024, to August 31, 2024; and authorizing the City Manager, or his designee to execute the Fourth Amendment.

Approved by:

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

1. Resolution

2. Fourth Amendment

3. Original Agreement

4. First Amendment – Bay City Electric Works

5. Second Amendment – Bay City Electric Works

6. Third Amendment – Bay City Electric Works

7. Bid Waiver
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XXX 1 2024-XXX

MODESTO CITY COUNCIL
RESOLUTION NO. 2024-XXX

RESOLUTION APPROVING THE FOURTH AMENDMENT INCREASING THE

AGREEMENT AMOUNT WITH BAY CITY ELECTRIC WORKS,

LIVERMORE, CA FOR THE GENERATOR REPAIR SERVICE AND
PREVENTATIVE MAINTENANCE SERVICES BY $360,000 FROM $575,000 FOR A NEW TOTAL AMOUNT OF $935,000 AND EXTENDING THE TERM OF THE AGREEMENT FROM MAY 10, 2024, TO AUGUST 31, 2024, AND

AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO EXECUTE

THE FOURTH AMENDMENT
WHEREAS, on May 9, 2017, by Resolution 2017-188, Council approved the award of bid for generator preventative maintenance and repairs services for the Water and Wastewater Divisions for a two-year agreement to Central California Generator of Riverbank, California, with three (3) one-year extension options for an estimated annual cost of $115,000 and a total combined cost not to exceed $575,000 over five years, through May 10, 2022; and
WHEREAS, in October 2020, a new Agreement with the same terms and conditions was issued to Bay City Electric Works of Livermore, California (“Bay City”) due to the acquisition of Central California Generator and assumption of their contracts.

The balance of the previous agreement was $124,850.60, leaving $450,149.40 remaining on the agreement with Bay City; and
WHEREAS, on December 14, 2021, by Resolution 2021-492, Council approved the First Amendment to the Agreement with Bay City, extending the termination date from May 10, 2022, to November 10, 2022, with no increase in spending authority; and WHEREAS, on November 17, 2022, the Director of Finance approved the Second Amendment to the Agreement with Bay City, extending the termination date from November 10, 2022, to November 10, 2023, with no increase in spending authority; and #27..
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XXX 2 2024-XXX
WHEREAS, on October 5, 2023, the Director of Finance approved the Third Amendment to the Agreement with Bay City, extending the termination date from November 10, 2023, to May 10, 2024, with no increase in spending authority; and WHEREAS, the City of Modesto Utilities Department, Public Works Department, Fire Department, and Police Department operate several facilities that require generator maintenance and repair services; and
WHEREAS, staff are requesting one additional term extension, as well as an increase in spending authority of $360,000 through the term of the agreement, for a new not to exceed amount of $935,000 through August 31, 2024.; 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 be formally bid. However, exceptions to the formal bidding process are granted in MMC 8-3.204(e) where the Purchasing Manager, in his or her discretion, determines that the term of an existing agreement should be extended for a period of no greater than one (1) 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.

NOW, THEREFORE BE IT RESOLVED, by the Council of the City of Modesto that it hereby approves the Fourth Amendment increasing the Agreement amount with Bay City Electric Works, Livermore, CA for the Generator Repair Service and Preventative Maintenance Services by $360,000 from $575,000 for a new total amount of $935,000 and extending the term of the Agreement from May 10, 2024, to August 31, 2024.
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XXX 3 2024-XXX
BE IT FURTHER RESOLVED that the City Manager, or his designee, is hereby authorized to execute the fourth 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 9th day of April 2024, by Councilmember XXX who moved its adoption, which motion being duly seconded by Councilmember XXX, 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 FOURTH AMENDMENT TO PURCHASE AGREEMENT

FOR GENERATOR REPAIR SERVICE AND PREVENTATIVE MAINTENANCE, BAY CITY ELECTRIC WORKS.

This FOURTH AMENDMENT to the Purchase Agreement, made and entered into in the City of Modesto, State of California, this _____ day of _______________, 2024, by and between the City of Modesto, a Charter city and municipal corporation of the State of California, hereinafter called CITY, and Bay City Electric Works, Livermore, CA hereinafter collectively referred to as CONTRACTOR.

This FOURTH AMENDMENT to the Purchase Agreement is made with reference to the following recitals:

A. A Purchase Agreement NO. 190028, hereinafter referred to as AGREEMENT was entered into by and between CITY and CONTRACTOR on the 9th day of May 2017, for generator repair service and preventative maintenance.

B. CITY and CONTRACTOR approved a First Amendment to the AGREEMENT on the 14th day of December 2021, to amend the termination date from May 10, 2022, to November 10, 2022.

C. CITY and CONTRACTOR approved a Second Amendment to the Agreement on the 17th day of November 2022, to amend the termination date from November 10, 2022, to November 10, 2023.

D. CITY and CONTRACTOR approved a Third Amendment to the Agreement on the 5 th day of October 2023, to amend the termination date from November 10, 2023, to May 10, 2024.

E. CITY and CONTRACTOR desire to amend the AGREEMENT by extending the termination date from May 10, 2024, to August 31, 2024, to the AGREEMENT. #27..
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2 F. CITY and CONTRACTOR desire to amend the AGREEMENT by increasing in previously approve amount by $360,000 from $575,000 and a new not to exceed amount of $935,000 to the AGREEMENT.

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

1. Section 1, “TERM OF THE CONTRACT” termination date shall be amended from May 10, 2024, to August 31, 2024.

2. CITY and CONTRACTOR mutually agree to increase the previously approved amount by $360,000 and a new not to exceed amount $935,000.

3. Except as modified and amended by this FOURTH 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 FOURTH AMENDMENT to the AGREEMENT by its Director of Finance, under the authority of Resolution No. 2024-_________on the _____ day of ___________, 2024, and Bay City Electric Work, has caused this FOURTH AMENDMENT to the AGREEMENT to be duly executed.
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1 FIRST AMENDMENT TO PURCHASE AGREEMENT

FOR GENERATOR REPAIR SERVICE AND PREVENTATIVE MAINTENANCE, BAY CITY ELECTRIC WORKS.

This FIRST AMENDMENT to the PURCHASE 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 Bay City Electric Work, Livermore, CA hereinafter collectively referred to as CONTRACTOR.

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

A. A PURCHASE AGREEMENT NO. 190028, hereinafter referred to as AGREEMENT was entered into by and between CITY and CONTRACTOR on the 9th day of May, 2017 for generator repair service and preventative maintenance.

B. CITY and CONTRACTOR desire to amend the AGREEMENT by extending the termination date from May 10, 2022 to November 10, 2022.

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

1. Section 1 TERM OF THE CONTRACT termination date shall be amended from May 10, 2022 to November 10, 2022.

2. Except as modified and amended by this FIRST 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 FIRST AMENDMENT to the AGREEMENT in duplicate by its Purchasing Manager and attested by its City Clerk under authority of Resolution No. , adopted by the Council of the City of Modesto on the ___ day of ___________, 2021, and Bay City #27..
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2 Electric Work, has caused this FIRST AMENDMENT to the AGREEMENT to be duly executed. #27..
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BY: ________________________________________ BY: ________________________________________ VENDOR

NAME/TITLE -DATE

CITY OF MODESTO

PURCHASING DIVISION -DATE
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1 SECOND AMENDMENT TO PURCHASE AGREEMENT

FOR GENERATOR REPAIR SERVICE AND PREVENTATIVE MAINTENANCE, BAY CITY ELECTRIC WORKS.

This SECOND AMENDMENT to the Purchase Agreement, made and entered into in the City of Modesto, State of California, this _____ day of _______________, 2022, by and between the City of Modesto, a Charter city and municipal corporation of the State of California, hereinafter called CITY, and Bay City Electric Works, Livermore, CA hereinafter collectively referred to as CONTRACTOR.

This SECOND AMENDMENT to the Purchase Agreement is made with reference to the following recitals:

A. A Purchase Agreement NO. 190028, hereinafter referred to as AGREEMENT was entered into by and between CITY and CONTRACTOR on the 9 th day of May, 2017, for generator
repair service and preventative maintenance.

B. CITY and CONTRACTOR approved a First Amendment to the AGREEMENT on the 14th day of December, 2021, to amend the termination date from May 10, 2022 to November 10, 2022.

B. CITY and CONTRACTOR desire to amend the AGREEMENT by extending the termination date from November 10, 2022 to November 10, 2023 to the AGREEMENT.

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

1. Section 1, “TERM OF THE CONTRACT” termination date shall be amended from November 10, 2022 to November 10, 2023.

2. 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.

DocuSign Envelope ID: E5BFE200-C5E1-47FD-8327-CF4BC85F3A04 17th November
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2 IN WITNESS WHEREOF, the CITY OF MODESTO, a Municipal Corporation, has authorized the execution of this SECOND AMENDMENT to the AGREEMENT in duplicate by its Director of Finance, on the ___ day of ___________, 2022, and Bay City Electric Work, has caused this SECOND AMENDMENT to the AGREEMENT to be duly executed.

DocuSign Envelope ID: E5BFE200-C5E1-47FD-8327-CF4BC85F3A04 17th November
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BY: ________________________________________ BY: ________________________________________ VENDOR –

NAME/TITLE -DATE
CITY OF MODESTO –

PURCHASING DIVISION -DATE
DocuSign Envelope ID: E5BFE200-C5E1-47FD-8327-CF4BC85F3A04 Bay City electric works service sales executive
11/17/2022
11/17/2022
Director of Finance
11/17/22
11/17/2022
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1 THIRD AMENDMENT TO PURCHASE AGREEMENT

FOR GENERATOR REPAIR SERVICE AND PREVENTATIVE MAINTENANCE, BAY CITY ELECTRIC WORKS.

This THIRD AMENDMENT to the Purchase Agreement, made and entered into in the City of Modesto, State of California, this _____ day of _______________, 2023, by and between the City of Modesto, a Charter city and municipal corporation of the State of California, hereinafter called CITY, and Bay City Electric Works, Livermore, CA hereinafter collectively referred to as CONTRACTOR.

This THIRD AMENDMENT to the Purchase Agreement is made with reference to the following recitals:

A. A Purchase Agreement NO. 190028, hereinafter referred to as AGREEMENT was entered into by and between CITY and CONTRACTOR on the 9 th day of May 2017, for
generator repair service and preventative maintenance.

B. CITY and CONTRACTOR approved a First Amendment to the AGREEMENT on the 14th day of December 2021, to amend the termination date from May 10, 2022, to November 10, 2022.

C. CITY and CONTRACTOR approved a Second Amendment to the Agreement on the 17th day of November 2022, to amend the termination date from November 10, 2022, to November 10, 2023.

D. CITY and CONTRACTOR desire to amend the AGREEMENT by extending the termination date from November 10, 2023, to May 10, 2024, to the AGREEMENT.

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

1. Section 1, “TERM OF THE CONTRACT” termination date shall be amended from November 10, 2023, to May 10, 2024.

DocuSign Envelope ID: 86F840A4-F154-4CFE-8436-720B449809C4 5th October
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2 2. Except as modified and amended by this THIRD 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 the AGREEMENT by its Director of Finance, on the ______ day of _____________, 2023, and Bay City Electric Work, has caused this THIRD AMENDMENT to the AGREEMENT to be duly executed.

DocuSign Envelope ID: 86F840A4-F154-4CFE-8436-720B449809C4 5th October
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BY: ________________________________________ BY: ________________________________________ VENDOR –

NAME/TITLE -DATE
DEANNA CHRISTENSEN –

DIRECTOR OF FINANCE -DATE
DocuSign Envelope ID: 86F840A4-F154-4CFE-8436-720B449809C4 10/5/2023
service sales executive
ed doty
City of Modesto
Finance Department
10/5/23
10/5/2023
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Bid Waiver - 4th Amend. Bay City Electric
Final Audit Report 2024-02-29
Created: 2024-02-28
By: Juana Lynch ([email protected])
Status: Signed
Transaction ID: CBJCHBCAABAAbbrraj2I3E5jaOGeDVlP0KPHc-mH057x "Bid Waiver - 4th Amend. Bay City Electric" History
Document created by Juana Lynch ([email protected]) 2024-02-28 - 7:41:03 PM GMT
Document emailed to Melvin Rosal ([email protected]) for signature 2024-02-28 - 7:42:08 PM GMT
Email viewed by Melvin Rosal ([email protected])
2024-02-28 - 10:25:18 PM GMT
Document e-signed by Melvin Rosal ([email protected]) Signature Date: 2024-02-28 - 10:25:28 PM GMT - Time Source: server Document emailed to [email protected] for signature 2024-02-28 - 10:25:29 PM GMT
Email viewed by [email protected]
2024-02-29 - 4:53:24 PM GMT
Signer [email protected] entered name at signing as Dianne Love 2024-02-29 - 4:54:01 PM GMT
Document e-signed by Dianne Love ([email protected]) Signature Date: 2024-02-29 - 4:54:03 PM GMT - Time Source: server Document emailed to DeAnna Christensen ([email protected]) for signature 2024-02-29 - 4:54:04 PM GMT
Email viewed by DeAnna Christensen ([email protected]) 2024-02-29 - 8:06:38 PM GMT
Document e-signed by DeAnna Christensen ([email protected]) Signature Date: 2024-02-29 - 8:07:03 PM GMT - Time Source: server #27..
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Agreement completed.
2024-02-29 - 8:07:03 PM GMT
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CITY OF MODESTO

COUNCIL AGENDA REPORT
DATE OF MEETING:

April 9, 2024
Date: March 18, 2024
TO: Mayor and City Council
THROUGH: Joseph P. Lopez, City Manager
FROM: Jessica Hill, Director of Community and Economic Development SUBJECT: Business Modification Request for Medallion Wellness-Relocation CONTACT: Sean Rando, Business Analyst,
[email protected], 209-577-5473
DESCRIPTION:

Hearing to consider approving a relocation request of Medallion Wellness from 1313 McHenry Avenue to 408 Paradise Road with the granting of a Residential Proximity Waiver. (Funding Source: Cannabis Permit Application Fee and Annual Permit Fee) STRATEGIC PLAN ELEMENT:

This item is consistent with the City Council 2020-2025 Strategic Plan Goal E, Drive Economy Vitality.

BACKGROUND:

In December 2017, the City Council adopted Ordinance 3684-C.S. legalizing certain commercial cannabis business operations in particular zoning districts. The City Council was the approving body regarding all cannabis businesses operating in the City. On April 13, 2021, by Resolution No. 2021-132, Council established the Cannabis Permit Review Committee (Committee) and delegated the authority to approve non-dispensary and non-delivery cannabis businesses to that Committee. On March 1, 2022, by Resolution No. 2022-109, the Council expanded the role of the Committee to advise the Council on all cannabis-related issues and renamed the Committee, the Cannabis Program and Permit Review Committee. City Council remains the approval authority for all matters regarding retail dispensaries.

On December 19, 2018, by Resolution 2018-566, the City Council approved and issued eight (8) cannabis retail permits, which were valid for a two (2) year period from that date. On December 19, 2020, by Resolution 2020-485-489, City Council approved the initial renewal applications for the eight (8) retail locations. This renewal period was set to expire on December 19, 2022.

On November 1, 2022, by Resolution No. 2022-442, Council approved the extension of the eight (8) issued commercial cannabis retail permits from December 19, 2022, to June 30, 2023, #28..
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City Council, April 9, 2024
Business Modification Request for Medallion Wellness-Relocation

and adjusted the two-year renewal period from a calendar year to a fiscal year which runs from July to June. On June 27, 2023, by Resolution No. 2023-297, Council approved the renewal of the eight (8) commercial cannabis retail permits for dispensaries in the City for a further twoyear period ending June 30, 2025.

Business Modifications-Relocation:

Relocation requests follow the process detailed below:

1. The business making the request provides the following to the City:
a. Narrative explanation of the reason for the relocation. b. Updated security plans for the intended location.
c. Proposed site and floor plans.
d. Copy of a lease agreement (if applicable).
e. Payment of a commercial cannabis permit application fee of $6,380.

2. The review process follows the steps outlined below:
a. City Staff alongside the City’s cannabis consultant reviews updated security plans for compliance with State and Local regulations.
b. The Planning Division performs a zoning analysis to determine compliance with Modesto Municipal Code section 10-3.703.
i. Proximity issues noted will need to be addressed by the applicant to satisfy waiver requirements which could include installing impassable barriers such as an eight (8) foot-high wrought iron fence or showing proof of the presence of a major highway.
c. Cannabis program admin staff also reviews the reason for change in location to determine if further research is necessary.
d. The Finance department provides confirmation that all applicant related taxes and fees are current.
e. Other conditions to be considered during the review process if applicable:
i. Compliance with annual inspections and audits.
ii. Stakeholder interviews and site inspections.

DISCUSSION:

A completed application was submitted on September 8, 2023, by the legal counsel for Phenos Collective Inc. to initiate the City approval process for a relocation of the Medallion Wellness dispensary located at 1313 McHenry Avenue to 408 Paradise Road. In addition to the relocation, a change in ownership where the owners of Phenos Collective would acquire a controlling interest in Medallion Wellness, was also requested which will be addressed in a separate agenda report.

Modesto Municipal Code section 10-3.703(a) allows retailer type 10 businesses to operate in commercial zone C-2, C-3, C-M, as well as industrial zone M-1 and M-2 only. The proposed location of 408 Paradise Road is in a C-2 zone intended for general commercial purposes. #28..
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City Council, April 9, 2024
Business Modification Request for Medallion Wellness-Relocation

The application fee totaling $6,380 was paid in a timely manner. Cannabis Program Administrative Staff reviewed the application for completeness and noted that documentation for the relocation request was complete.

The Finance department also verified that both Medallion Wellness and Phenos were both current on all City taxes and fees as of September 8, 2023.

Planning staff confirmed that the proposed location is properly zoned in a commercial C-2 area.

They also performed a proximity analysis to determine if there were any locations of sensitive use near the proposed dispensary. Section 10-3.703 of the Modesto Municipal Code establishes minimum proximity requirements for commercial cannabis land uses including being six hundred (600) feet from schools, childcare centers, or youth centers, one hundred (100) feet from residential properties, and two hundred (200) feet from parks or libraries.

Modesto High School and James Marshall Elementary were found to be over 1,000 feet away from the dispensary site which complies with the Municipal Code’s distance requirement of six hundred (600) feet away from schools. The dispensary is also properly distanced from James Marshall Park and the Stanislaus County Library which are both beyond the two hundred (200) feet requirement.

Two (2) separate locations were identified as potential areas of sensitive use that would require Council approved proximity waivers. A residence at 315 Sutter Ave was found to be within approximately ninety-five (95) feet of the dispensary and the Neighborhood Center at Marshall Park (NCAMP) would be within three hundred and fifty-three (353) feet of the relocated business.

Staff initially highlighted NCAMP as a potential youth center within the minimum six hundred (600) feet buffer from commercial cannabis locations required by section 10-3.703(b)(1) of the Modesto Municipal Code. NCAMP offers a variety of after school youth programs ranging from expanded learning opportunities to summer day camps. However, the center also serves as a joint service facility which includes office space for City departments.

The facility is comprised of approximately 11,202 square feet of space. Seventy percent (70%), or 7,750 square feet, is dedicated to Fire Station 2 with the remaining thirty percent (30%), 3,452 square feet, allocated to City offices and a shared conference room area that hosts the community and youth events. Modesto Municipal Code Section 10-3.702(II) defines a youth center as a public or private facility that is primarily used to host recreational or social activities for minors. City Staff determined that NCAMP would not meet the definition of a youth center according to the provisions of the Modesto Municipal Code because its primary use is not for recreational or social activities for minors. Since the NCAMP does not qualify as a youth center, there is no prohibition on a commercial cannabis business being located within 600 feet. The nearest land use that would qualify as a youth or childcare center was noted as Tuolumne Christan, located at 133 Tuolumne Blvd., which is 4,621 feet away from the dispensary exceeding the six hundred (600) feet requirement.

Pursuant to section 10-3.703(b)(2), commercial cannabis businesses are required to be one hundred (100) feet away from residential areas. The proposed location of 408 Paradise Rd. will require the issuance of a proximity waiver for the residence located at 315 Sutter Ave. Section 10-3.704(c) of the Modesto Municipal code allows proximity requirements to be waived by the #28..
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decision-maker when the applicant can show that an actual impassible physical separation exists between land uses or parcels, such as a building, sound wall, major street, or highway.

To request the granting of this waiver the applicant submitted a memo indicating their intent to install an eight (8) foot impassible wrought iron fence between the dispensary and the Sutter Avenue residence. Section 10-4.406 (b)(1) of the Modesto Municipal Code states that no wall or fence shall exceed eight (8) feet in height, unless additional height is required as a condition of a zone, variance, use permit, development plan review, parcel map, subdivision map, noise mitigation, or other similar action. The planned additional fencing complies with the general development standards of the Modesto Municipal code and it allows the applicant to be eligible for the approval of a proximity waiver at the discretion of the decision maker which in this case would be the Modesto City Council.

Staff also reviewed locations that are not currently subject to the commercial cannabis proximity requirements of the Modesto Municipal code but may cause concerns of public safety issues within the community. Land uses comprising this search were places of religious service, addiction treatment facilities, other dispensaries, and non-dispensaries. The nearest place of religious service was found to be the Westside Neighborhood Church at 821 California Ave. which is approximately over 2,300 feet away from the proposed dispensary, the nearest addiction treatment site is BreakThroughs Outpatient Treatment at 704 I St. which is 4,700 feet away from the proposed location. The nearest dispensary is Modesto Cannabis Collective at 439 Maze Blvd. which is 4,100 feet away, and the nearest non-dispensary Exclusive VIP at 1404 N Carpenter Road is 11,500 feet away.

The City’s current cannabis consultant, HDL Companies, Inc., concurrently conducted a thorough evaluation of the Security and site plan provided by the applicant for the proposed cannabis retail facility. The Applicant’s Security Plan was prepared by an in-house security team in cooperation with licensed industry professional Knight Surveillance Group, Nor-Cal Security & Low Voltage Services, and Next Level Protection. The provisions of the plan including perimeter security, video monitoring systems, alarm system, access control, secure storage, theft prevention, operational security, cash management, and employee trainings were found to be in compliance with the regulatory requirements of the California Department of Cannabis Control and the City of Modesto.

An additional condition that is regularly placed on the approval of commercial cannabis retail businesses is a requirement to contribute back to the communities in which they operate. The applicant has met with several community advocacy organizations to determine what community benefit contributions would be impactful for the area. This open dialogue resulted in the development of the following proposed community benefits package:

1. Contributing to charitable organizations supporting mental Health, homeless prevention, and child services specifically to organizations primarily supporting the residents of West Modesto.

2. Establishing a paid community volunteer program.

3. Hiring a majority of their workforce from the City of Modesto.

4. Implementing a Good Neighbor Policy.

5. Providing litter removal services for businesses within at least one hundred (100) from the facility.

6. Hosting regular open houses at the facility for community members, residents, neighbors, and customers to provide information about our operation, and field their concerns. #28..
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City Council, April 9, 2024
Business Modification Request for Medallion Wellness-Relocation

FISCAL IMPACT:

On November 14, 2023, by Resolution No. 2023-504, Council approved two separate annual commercial cannabis permit fees which covers costs related to the administration and monitoring of the cannabis permit program. Operational businesses remit a fee of $18,732 while non-operational businesses are required to pay a lower fee of $4,307. The annual permit fee is reviewed and reconciled annually to capture increases or decreases related to administrative oversight of the cannabis permit program. The commercial cannabis permit application fee of $6,380 pays for the services provided by the Planning Division and the City’s Cannabis Consultant through the review of security, site plans, and zoning.

COMMITTEE RECOMMENDATION:

The relocation request of Medallion Wellness from 1313 McHenry Avenue to 408 Paradise Road with the granting of a residential proximity waiver was presented to the Cannabis Program and Permit Review Committee on January 10, 2024, and a recommendation was made to forward to Council for approval.

RECOMMENDED COUNCIL ACTION:

Staff Recommendations:

Resolution approving the relocation request for Medallion Wellness from 1313 McHenry Avenue to 408 Paradise Road with the granting of a Residential Proximity Waiver.

Approved by:

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

1. Resolution

2. Business Modification Request Form-Change in Location

3. Final Modesto Proximity Waiver Memo 9.27.23

4. 408 Paradise Rd Proximity Map
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1 MODESTO CITY COUNCIL
RESOLUTION NO. 2024-

RESOLUTION APPROVING THE RELOCATION REQUEST FOR
MEDALLION WELLNESS FROM 1313 MCHENRY AVENUE TO 408

PARADISE ROAD WITH THE GRANTING OF A RESIDENTIAL PROXIMITY WAIVER
WHEREAS, on December 19, 2018, by Resolution 2018-566, the City Council issued a commercial cannabis permit to the following commercial cannabis retail business, Medallion Wellness, located at 1313 McHenry Ave.; and WHEREAS, legal counsel for Phenos Collective Inc. and Medallion Wellness requested a relocation of Medallion Wellness from 1313 McHenry Avenue to 408 Paradise Road on September 8, 2023; and
WHEREAS, City staff along with the current cannabis consultant, HDL, conducted a thorough review of the relocation application which included a review of zoning, proximity requirements, security and site plans, lease agreements, tax payments, as well as an initial site visit; and
WHEREAS, the application was found to be complete with the proposed new location being properly zoned in a commercial type C-2 zone. The security and site plans were found to be compliant with both California Department of Cannabis Control regulations and the requirements of the Modesto Municipal Code. A lease agreement was provided showing that the property will be secured during the permit period, and the business was found to be current on all City taxes and fees; and WHEREAS, City Staff noted no unpermitted cannabis activities during an initial site visit on October 19, 2023; and
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2 WHEREAS, commercial cannabis land uses are required to comply with minimum proximity requirements pursuant to section 10-3.703 of the Modesto Municipal code including distances of:
 Six hundred (600) feet from schools, childcare centers, or youth centers  One hundred (100) feet from residential properties
 Two hundred (200) feet from parks or libraries; and
WHEREAS, during the application review process it was noted that the only proximity issue with the 408 Paradise Road location was its proximity to a residential property located at 315 Sutter Avenue. This residence was noted as being approximately ninety-three (93) to ninety-six (96) feet away; and
WHEREAS, the applicant subsequently requested a waiver of the residential proximity requirements pursuant to section 10-3.703 (c) of the Modesto Municipal Code which allows for the granting of a proximity waiver at the discretion of the decision maker when the applicant can show that an actual impassible physical barrier exists between the land uses or parcels. The applicant has agreed to construct an eight (8) foot wrought iron fence around the east side of the dispensary between the facility and the residence. This fence qualifies for the consideration of a proximity waiver; and WHEREAS, the relocation request was heard at a properly noticed public hearing of the Cannabis Program and Permit Review Committee on January 10, 2024 with the committee recommending to forward the relocation request of Medallion Wellness from 1313 McHenry Avenue to 408 Paradise Road with the granting of a residential proximity waiver to Council.
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3 NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Modesto that it hereby approves the relocation request for Medallion Wellness from 1313 McHenry Avenue to 408 Paradise Road with the granting of a Residential Proximity Waiver.

The foregoing resolution was introduced at a regular meeting of the Council of the City of Modesto held on the 9th day of April, 2024 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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EXHIBIT A:

Site Plan w Proposed Eastern Perimeter
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EXHIBIT B:
408 Paradise-NCAMP Context Map(s)
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CITY OF MODESTO

COUNCIL AGENDA REPORT
DATE OF MEETING:

April 9, 2024
Date: March 18, 2024
TO: Mayor and City Council
THROUGH: Joseph P. Lopez, City Manager
FROM: William Wong, Director of Utilities
SUBJECT: Agreement for Hot Patch Services
CONTACT: Jeremy Parnell, Acting Water Division Manager, [email protected], 209- 342-4599
DESCRIPTION:

Consider an Agreement for Hot Patch Services with Adams Underground III of Waterford, CA, and United Pavement Maintenance, Inc. of Hughson, CA, for a total combined amount not to exceed $20,570,000 over five years. (Funding Source: Various Funds) STRATEGIC PLAN ELEMENT:

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

BACKGROUND:

City Departments request contractual assistance to perform hot patch work throughout Modesto, as well as outlying areas in the City’s regional water systems, including Salida, Del Rio, Grayson, Empire, and sections within Ceres and Turlock. Hot patch work consists of permanent asphalt repairs when street cuts are made to complete repairs and improvements to City infrastructure.

Due to the unpredictable nature of the work, it is not always possible for staff to know what their immediate need will be. Departments assume the highest-need scenarios when estimating annual amounts for hot patch work. Divisions utilizing the current Agreement include Water, Wastewater, and Storm Drain from the Utilities Department, the Streets Division from the Public Works Department, and Park Operations from the Parks, Recreation, and Neighborhoods Department.

On May 22, 2018, by Resolution 2018-188, Council approved the award of bids for furnishing of hot patch work for the Utilities Department’s Water and Wastewater Divisions, to two firms:

Garrett Thompson Construction, Inc. of Modesto, CA (“Garrett Thompson”), for an annual cost not to exceed $4,106,500; and United Pavement Maintenance of Hughson, CA (“United Pavement”), for an annual cost not to exceed $200,000.
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City Council Meeting, April 9, 2024
Agreement for Hot Patch Services

Both were awarded two-year agreements with three one-year extension options, with each oneyear extension requiring approval by City Council, for a total combined annual cost not to exceed $4,306,500.

On December 4, 2018, staff provided Council with an informational report on the hot patch agreements. The report included information on the Utilities Department’s progress on hot patch work, on-site job inspections, invoice review, certified payroll review, and contractor status review. The results of this review identified that all the work being performed by Garrett Thompson and United Pavement met all agreement obligations at that time.

However, in May 2019, the City terminated the agreement with Garrett Thompson for failure to maintain insurance coverage as required by the agreement, resulting in United Pavement being designated the primary vendor and generating the need for a secondary provider to maintain primary and back-up contractor support for the agreement.

On July 9, 2019, by Resolution 2019-344, Council authorized the agreement with Patch Crew of Modesto, CA for an annual estimated amount of $400,000, and a total annual combined amount of $4,306,500 between United Pavement and Patch Crew, making Patch Crew the secondary service provider.

On March 10, 2020, by Resolution 2020-128, Council authorized the first one-year extension option with both United Pavement and Patch Crew without exceeding a total annual combined amount of $4,306,500 between both providers.

On April 6, 2021, by Resolution 2021-106, Council authorized the second one-year extension option with both United Pavement and Patch Crew without exceeding a total annual combined amount of $4,306,500 between both providers.

On April 5, 2022, by Resolution 2022-155, Council authorized the third one-year extension option with United Pavement without exceeding a total annual amount of $3,906,500. During this extension option, Patch Crew declined to execute the final extension option because City Staff had not utilized the agreement.

On April 4, 2023, by Resolution 2023-133, Council authorized the First Amendment to the Agreement with United Pavement to amend the estimated annual amount from $200,000 to a revised estimated annual amount of $3,906,500 and to extend the term of the Agreement from May 21, 2023, to May 21, 2024.

DISCUSSION:

On July 31, 2023, the City Manager authorized the Purchasing Manager to solicit the procurement for Hot Patch Services. On October 06, 2023, the Purchasing Division issued Invitation for Bids (IFB) No. 2324-16, Hot Patch Services, on the City’s Planetbids public bidding website under various commodity codes.1 Prospective bidders were notified online and via email of the bid opportunity. Nineteen (19) downloaded the IFB document from PlanetBids. 1 74500 Road and Highway Building Materials (Asphaltic) 75500 Road and Highway, Asphalt and Concrete Handling and Processing Equipment 91200 Construction Services, General (Incl. Maintenance and Repair Services 91336 Construction, Parking Lot and Alley
91371 Maintenance and Repair, Highway and Road (To Include the Removal of Asphalt, Concrete, Bitumens, etc.) 91396 Paving/Resurfacing, Street (Major and Residential) #29..
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City Council Meeting, April 9, 2024
Agreement for Hot Patch Services

On November 14, 2023, bids were formally opened in the City Clerk’s Office and broadcast via Microsoft Teams Livestream. Four (4) chose to respond, all were found to be responsive, and there were no local bids received. Based on providing the lowest responsive and responsible bids, City staff recommends the award of bids for the furnishing of hot patch services to Adams Underground III of Waterford, CA, as primary contractor, and to the second lowest bidder, United Pavement Maintenance, Inc. of Hughson, CA, as secondary contractor for a two (2) year agreement with three (3) one-year extension options for an estimated annual amount of $3,500,000 and a total amount not to exceed $20,570,000 over five years. Staff is requesting to give the Director of Finance, or her designee, the approval to adjust agreement totals between vendors based on availability and department needs.

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. An Award of Bid and Agreement for hot patch services for the Utilities and Public Works Departments to Adams Underground III of Waterford, CA, and United Pavement Maintenance, Inc. of Hughson, CA, conforms to the Modesto Municipal Code because the City complied with formal bid procedures, and Adams Underground III and United Pavement Maintenance, Inc. were the lowest responsive and responsible bidders.

FISCAL IMPACT:

Actual expenditures for the current hot patch asphalt repair agreement are listed below:

Contract Year Total
CY 1 1,787,052
CY 2 2,195,746
CY 3 1,654,218
CY 4 1,898,325
CY 5 1,218,219
Ext Yr. 1 1,314,914
Grand Total 10,068,474
Compared to current pricing, Adam’s Underground submitted a 33.01% price increase and United Pavement submitted a 39.22% increase for linear and spot repairs.

Adam's
Underground United Pavement
Current Agreement Current
Price
New Price
Primary
Increase
%
New Price
Secondary
Increase
%
Hot Mix Asphalt -
Linear $ 8.95 $ 11.25 25.70% $ 10.00 11.73%
Hot Mix Asphalt -
Spot $ 10.95 $ 11.75 7.31% $ 13.96 27.49%

33.01% 39.22%
Staff anticipates that the need for hot patch asphalt repair services will increase over the next several years due to aging infrastructure and an increasing number of “Strengthen and Replace” projects planned across multiple departments. With the increased pricing per IFB No. 2324-16 and accounting for potential Consumer Price Index (CPI) increases and diesel fuel fluctuations over the next five years, staff estimates an annual estimated cost of $3,500,000 between both vendors, and a total amount not to exceed $20,570,000 over five years. #29..
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City Council Meeting, April 9, 2024
Agreement for Hot Patch Services

Funds are allocated in the following accounts:

Fund Name Account Number Amount
Water Fund 4100-45040-53150 $2,000,000
Storm Drain Fund 4480-44222-53100 $ 500,000
Sewer Operations Fund 4210-44211-53100 $ 350,000
Surface Transportation Fund - Streets 1700-59998-53150 $ 100,000 General Fund - Park Operations 0100-35220-53150 $ 50,000 Citywide Fund Varies $ 500,000
Total estimated Year 1: $3,500,000
Agreement Year Term Period Amount
Year 1 05/22/24 – 05/21/25 $ 3,500,000
Year 2 05/22/25 – 05/21/26 $ 3,780,000
Year 3 05/22/26 – 05/21/27 $ 4,090,000
Year 4 05/22/27 – 05/21/28 $ 4,420,000
Year 5 05/22/28 – 05/21/29 $ 4,780,000
Total Not to Exceed over Five Years: $20,570,000
COMMITTEE RECOMMENDATION:

This item was considered by the Finance Committee at the March 18, 2024, meeting, where it was recommended that it be forwarded to Council.

RECOMMENDED COMMITTEE ACTION:

Staff Recommendations:

Resolution approving the Award of Bid and Agreements for Hot Patch Services to Adams Underground III of Waterford, CA as Primary Contractor, and United Pavement Maintenance, Inc. of Hughson, CA as Secondary Contractor, for a two (2) year agreement with three (3) oneyear extension options, for an annual estimated amount of $3,500,000 and a total combined amount not to exceed $20,570,000 over five years; and authorizing the Director of Finance to adjust agreement totals between vendors based on contractor’s availability and department’s needs, ensuring the combined total amount does not change and authorizing the City Manager, or his designee, to execute the Agreements.

Approved by:

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

1. Resolution

2. Agreement – Adams Underground

3. Agreement – United Pavement

4. Exhibit B, Bid Submittal – Adams Underground

5. Exhibit B, Bid Submittal – United Pavement

6. Exhibit C, IFB 2324-16 – Hot Patch Services

7. Cost Abstract, IFB 2324-16
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MODESTO CITY COUNCIL
RESOLUTION NO. 2024-XXX

RESOLUTION APPROVING THE AWARD OF BID AND AGREEMENTS FOR

HOT PATCH SERVICES TO ADAMS UNDERGROUND III OF WATERFORD,

CA AS PRIMARY CONTRACTOR, AND UNITED PAVEMENT
MAINTENANCE, INC. OF HUGHSON, CA AS SECONDARY CONTRACTOR, FOR A TWO (2) YEAR AGREEMENT WITH THREE (3) ONE-YEAR

EXTENSION OPTIONS, FOR AN ANNUAL ESTIMATED AMOUNT OF
$3,500,000 AND A TOTAL COMBINED AMOUNT NOT TO EXCEED
$20,570,000 OVER FIVE YEARS; AND AUTHORIZING THE DIRECTOR OF

FINANCE TO ADJUST AGREEMENT TOTALS BETWEEN VENDORS BASED ON CONTRACTOR’S AVAILABILITY AND DEPARTMENT’S NEEDS,

ENSURING THE COMBINED TOTAL AMOUNT DOES NOT CHANGE AND

AUTHORIZING THE CITY MANAGER, OR HIS DESIGNEE, TO EXECUTE

THE AGREEMENTS
WHEREAS, City Departments require contractual assistance to perform hot patch work throughout Modesto as well as outlying areas in the City’s regional water systems, including Salida, Del Rio, Grayson, Empire, and sections within Ceres and Turlock. Hot patchwork consists of permanent asphalt repairs when street cuts are made to complete repairs and improvements to City infrastructure; and
WHEREAS, on July 31, 2023, the City Manager authorized the Purchasing Manager to solicit the procurement for Hot Patch Services, and WHEREAS, on October 6, 2023, the Purchasing Division issued Invitation for Bids (IFB) No. 2324-16, Hot Patch Services, on the City’s Planetbids public bidding website under various commodity codes, and nineteen (19) bidders downloaded the IFB document; and
WHEREAS, on November 14, 2023, bids were formally opened in the City Clerk’s Office and broadcast via Microsoft Teams Livestream, and #29..
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WHEREAS, four (4) vendors chose to respond, all four were found to be responsive, and there were no local bids received; and
WHEREAS, based on providing the lowest responsive and responsible bids, City staff recommends the award of bid for the furnishing of hot patch services to Adams Underground III of Waterford, CA, as primary contractor, and to the second lowest bidder, United Pavement Maintenance, Inc. of Hughson, CA; 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. An Award of Bid and Agreement for hot patch services to Adams Underground III of Waterford, CA, and United Pavement Maintenance, Inc. of Hughson, CA, conforms to the Modesto Municipal Code because the City complied with formal bid procedures, and Adams Underground III and United Pavement Maintenance, Inc. were the lowest responsive and responsible bidders.

NOW, THEREFORE BE IT RESOLVED, by the Council of the City of Modesto that it hereby approves the Award of Bid and Agreements for Hot Patch Services to Adams Underground III of Waterford, CA as primary contractor, and United Pavement Maintenance, Inc. of Hughson, CA as secondary contractor, for a two (2) year agreement with three (3) one-year extension options, for an annual estimated amount of $3,500,000 and a total combined amount not to exceed $20,570,000 over five years; and authorizing the Director of Finance to adjust agreement totals between vendors based on contractor’s availability and department’s needs, ensuring the combined total amount does not change.
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BE IT FURTHER RESOLVED that the City Manager, or his designee, is hereby authorized to execute the agreements 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 9th day of April 2024, by Councilmember XXX who moved its adoption, which motion being duly seconded by Councilmember XXX, 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 ANNUAL AGREEMENT NO 264948

FOR HOT PATCH SERVICES

ADAMS UNDERGROUND III
This agreement, hereinafter called AGREEMENT, made and entered into in the City of Modesto, State of California, this ____________ day of _______________, 2024, by and between the City of Modesto, a municipal corporation of the State of California, hereinafter called CITY, and Adams Underground III of Waterford, CA, a corporation, hereinafter called CONTRACTOR.

W I T N E S S E T H:

WHEREAS, the Modesto City Council adopted Resolution No. 2024-________ authorizing the Award of Bid and agreement for Hot Patch Services to CONTRACTOR, attached hereto as Exhibit “A” and made a part hereof, and
WHEREAS, the CONTRACTOR provided a responsive and responsible submittal that best meets the CITY needs, attached hereto as Exhibit “B” and made a part hereof, and WHEREAS, the CITY and CONTRACTOR shall enter into an agreement for Hot Patch Services as described in IFB 2324-16, attached hereto as Exhibit “C” and made a part hereof (hereinafter called IFB).

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

1. THE WORK:
a. CONTRACTOR shall furnish all labor, materials, equipment, fuel, tools, licenses, bonds and insurance necessary to perform and complete the required work as specified in Exhibit “C”, and in strict accordance with the conditions of the complete AGREEMENT. #29..
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2 b. CONTRACTOR shall do and perform the work contemplated hereby in a good workmanlike manner under the direction of and to the satisfaction of the CITY Representative. c. CONTRACTOR shall maintain proper insurance with the CITY for the duration of the AGREEMENT.
d. CONTRACTOR shall maintain a CITY business license for the duration of the AGREEMENT.
e. CONTRACTOR shall furnish said services at the following AGREEMENT rates for an estimated annual amount $3,500,000. The total amount paid by CITY to CONTRACTOR over the full term of the AGREEMENT shall not exceed $20,559,000. Unless the services provided are for a lump sum or flat fee, fees for work performed by CONTRACTOR on an hourly basis shall not exceed the amounts shown on Bid attached hereto as Exhibit B.

AGREEMENT PRICING
Description Unit Multiplier Extended Price
Hot Mix Asphalt (4-in Lift) Linear Sq. Ft 1.00 $11.25
Hot Mix Asphalt (4-in Lift) Spot Sq. Ft 1.00 $11.75
Per Square Foot
depth, in cf ton
Base Multiplier (per sq
ft)
1 0.08 0.0060 0.4375
2 0.17 0.0121 0.6250
3 0.25 0.0181 0.8125
4 0.33 0.0242 1.0000
5 0.42 0.0302 1.1875
6 0.50 0.0363 1.3750
7 0.58 0.0423 1.5625
8 0.67 0.0483 1.7500
9 0.75 0.0544 1.9375
10 0.83 0.0604 2.1250
11 0.92 0.0665 2.3125
12 1.00 0.0725 2.5000
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3 2. PREVAILING WAGES:

In accordance with California Labor Code Section 1771, CONTRACTOR shall pay all workers, and shall ensure its subcontractors pay all of their workers, engaged in performing the services described in Exhibit “C” not less than the general prevailing rate of per diem wages for work of a similar character in the locality in which the services described in Exhibit “C” are to be performed, and not less than the general prevailing rate of per diem wages for holiday and overtime work as provided in the California Labor Code. In accordance with California Labor Code Section 1773.2, the City has obtained the general prevailing wages in the locality in which the services described in Exhibit A are to be performed for each craft or type of work needed to be as published by the State of California Department of Industrial Relations, Division of Labor Statistics and Research, a copy of which is on file in the CITY’s Purchasing Department and shall be made available on request. Contractor must comply with all applicable laws and regulations that apply to wages earned in performance of the services described in Exhibit “C”, including those set forth in Labor Code section 1770 et. seq. and in the IFB.

DIR Project ID#: 507504

3. CITY REPRESENTATIVE:

CITY Representative is:

Jeremy Parnell, Water Superindendent, (209) 342-4599 [email protected] Purchasing Contact is:

Melvin Rosal, Buyer, (209) 577-5420, [email protected] The CITY Representative is not authorized to commit the CITY to changes in specifications, requirements, or scope of work, changes in price(s), period of performance or delivery date(s) or method of shipment. Changes of a contractual or business nature shall be effective only by written change to the AGREEMENT, issued by the City of Modesto, Purchasing Division. #29..
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4 4. TERM OF AGREEMENT:

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

Year 1: May 22, 2024 through May 21, 2025
Year 2: May 22, 2025 through May 21, 2026
Year 3: May 22, 2026 through May 21, 2027
Year 4: May 22, 2027 through May 21, 2028
Year 5: May 22, 2028 through May 21, 2029
Pricing as set forth in Section 1.e. above shall remain firm for the first two years of the AGREEMENT.

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

5. LIABILITY INSURANCE:

The CONTRACTOR shall provide, at its own expense, and maintain at all times the following insurance with insurance companies licensed in the State of California and shall provide evidence of such insurance to the CITY as may be required by the City Clerk of the CITY. The policies or certificates thereof shall provide that, at least 30 days prior to cancellation or material change in the policy, notices of same shall be given to the Risk Manager of the CITY via PINS Advantage Insurance Program, for all of the following stated insurance policies.
a. General Liability – insurance with a minimum limit of liability per occurrence of $1,000,000 for bodily injury and property damage. 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. The insurance shall indicate on the certificate of insurance the following coverage and indicate the policy aggregate limit applying to: premises and operations; #29..
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5 broad form contractual; independent contractors and subcontractors; products and completed operations; and/or professional liability.
b. Automobile Liability – insurance with a minimum limit of liability per occurrence of $1,000,000 for bodily injury and property damage and transportation related pollution liability. This insurance shall cover any automobile for bodily injury and property damage.
c. Workers' Compensation – in compliance with the statutes of the State of California, plus employer's liability with a minimum limit of liability of $1,000,000 per accident for bodily injury or disease.

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

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

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

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

For any claims related to this AGREEMENT, the CONTRACTOR’s insurance coverage shall be primary insurance as respects CITY, its officers, officials, employees, agents, and volunteers. Any insurance or #29..
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6 self-insurance maintained by CITY, its officers, officials, employees, agents, and volunteers shall be excess of the CONTRACTOR’s insurance and shall not contribute with it.

6. PAYMENT:

CONTRACTOR shall invoice CITY not less than once per month based on the cost for services performed and reimbursable costs incurred prior to the invoice date. All invoices shall be paid in full the following payment terms within thirty days after completion and acceptance of the Services by the CITY, and receipt of a properly prepared invoice, CITY will pay CONTRACTOR Net 30 terms via CITY’s ePay Program.

The CITY is exempt from payment of Federal Excise Tax, and all invoices shall be exclusive of such excise tax.

Invoice to: City of Modesto
Attn: Accounts Payable
P.O. Box 642
Modesto, CA 95353
Email to: [email protected]
At a minimum, invoices shall state the following:
 This AGREEMENT number 264948
 CITY department/division name and address
 Billing period
 Service hours worked day and week
 Unit price, extended price, sales tax and total

7. INDEMNITY:

The CONTRACTOR shall hold the CITY, its officers, officials, employees, agents, and volunteers, harmless from and save, defend and indemnify them against any and all claims, losses, liabilities, judgments or damages from every cause, including but not limited to injury to person or property or wrongful death, including reasonable costs and expenses of defense of any judicial or administrative action, arising directly or indirectly out of any negligent or intentional act or omission of CONTRACTOR, or its officers, officials, employees, agents, and volunteers relating to or during the performance of its obligations under this AGREEMENT. CONTRACTOR’s obligation to defend, indemnify, and hold the CITY, its agents, officiers, #29..
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7 officials, and employees harmless under the provisions of this paragraph is not limited to or restricted by any requirement in this AGREEMENT for CONTRACTOR to procure and maintain a policy of insurance.

8. VENUE & GOVERNING LAW:

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

9. ATTORNEYS’ FEES:

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

10. COMMENCEMENT AND COMPLETION OF THE WORK:

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

Proofs of insurance (approved by CITY Risk Manager); and Executed Agreement;
a. Resolution No.2024-_______;
b. CONTRACTOR Bid submittal;
c. IFB No. 2324-16;
d. Contractor’s City of Modesto business license

11. TERMINATION OF SERVICES:

Termination for Default: In the event either party fails to perform under this AGREEMENT or breaches any condition contained herein, the other party shall notify in writing the breaching party of the non- #29..
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8 performance. Within 10 days after receipt of notification, the breaching party shall correct any non-performance to the reasonable satisfaction of the non-breaching party, or such other time as may be identified in the notice.

Failure to correct any non-performance shall allow the non-breaching party to terminate this AGREEMENT for cause.

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

Post-Termination Procedure
Upon receipt of a written notice of termination pursuant to either of the foregoing paragraphs, the CONTRACTOR shall:
a. Cease its work as directed in the notice of termination as of the termination date and see to it that its employees, subcontractors and agents are notified of such termination and act as specified in the notice of termination;
b. Terminate all orders and subcontracts except as necessary to complete any portion of the SERVICES that are not terminated;
c. If directed in writing by the CITY to do so, assign all right, title and interest in subcontracts and materials in progress to CITY, in which case the CITY will have the right at its discretion to settle, or pay any or all claims arising out of the termination of such, but in no event shall recovery by any CONTRACTOR or subcontractor include lost profits for portions of the SERVICES not completed or undertaken, including materials not delivered;
d. Deliver or otherwise make available to the CITY all data, drawings, specifications, reports, estimates, summaries and such other information and material as may have been accumulated by the CONTRACTOR in performing the SERVICES whether completed or in process;
e. Settle outstanding liabilities and claims, subject to the approval of CITY; f. Complete performance of such part of the SERVICES as has not been terminated; #29..
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9 g. Take such other actions as may be necessary, or as may be directed by the CITY for the protection and preservation of the SERVICES and/or property related to the SERVICES;
h. If CITY so requests, and at CITY's cost, CONTRACTOR shall provide sufficient oral or written status reports to make CITY reasonably aware of the status of CONTRACTOR’s work on the SERVICES.
i. CONTRACTOR understands and agrees that CITY may, in CITY’s sole discretion, refuse to pay CONTRACTOR for that portion of CONTRACTOR's SERVICES which were performed by CONTRACTOR on the project prior to the termination date and which remain unacceptable and/or not useful to CONTRACTOR as of the termination date.

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

12. COMPLIANCE WITH ALL LAWS:

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

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

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

14. ASSIGNMENT OF RIGHTS:

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

15. CITY PROCESS/PROCEDURE APPROVALS:

CITY approval of any process or procedure shall not relieve CONTRACTOR of its responsibility to furnish the required SERVICES meeting all specifications contained herein. #29..
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11 16. DIR REGISTRATION:

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

17. CONTRACTOR'S RESPONSIBILITY FOR DAMAGES:

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

18. NOTICES:

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

CONTRACTOR: Adams Underground III
Edmond Adams III – Owner
407 S. Reinway Ave.

Waterford, CA 95386
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.
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12 19. SIGNATORY(IES) FOR CONTRACTOR:

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

20. QUANTITIES:

No minimum or maximum is guaranteed or implied.

21. FUNDING:

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

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

22. OTHER GOVERNMENT/PUBLICLY FUNDED AGENCIES:

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

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

The CONTRACTOR and any allowed subcontractors shall comply with the provisions of the Fair Employment and Housing Act (Government Code, Section 12900 et seq.) and the applicable regulations promulgated thereunder (California Administrative Code, Title 2, and Section 7285.0 et seq.). The applicable regulations of the Fair Employment and Housing Commission implementing Government Code, Section 12900, set forth in #29..
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13 Chapter 5 of Division 4 of Title 2 of the California Administrative Code are incorporated into this contract by reference and made a part hereof as if set forth in full. b. The CONTRACTOR and any allowed subcontractors shall give written notice of their obligations under this clause to labor organizations with which they have a collective bargaining or other agreement. c. The CONTRACTOR shall include the nondiscrimination and compliance provisions of this clause in any allowed subcontracts to perform SERVICES.
d. The Contractor shall permit access by representatives of the Department of Fair Employment and Housing and the CITY upon reasonable notice at any time during the normal business hours, but in no case less than 24 hours notice, to such of its books, records, accounts, other sources of information and its facilities as said Department or CITY shall require to ascertain compliance with this AGREEMENT. e. By executing this AGREEMENT, CONTRACTOR certifies that it shall follow and be in compliance with the Americans with Disabilities Act of 1990, the applicable administrative requirements promulgated in response thereto, and any other applicable Federal laws and regulations relating to handicap discrimination and participation, and will continue to do so for at least the duration of the AGREEMENT and any extensions thereof.

24. CONTRACTOR LICENSES & PERMITS:

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

25. RECORDS:

All final versions of reports, data, maps, models, charts, studies, surveys, photographs, memoranda, plans, studies, specifications, records, files, or any other documents or materials, in electronic or any other form, that CONTRACTOR prepares or obtains pursuant to this Agreement and that relate to the matters covered hereunder shall be the property of the CITY. CONTRACTOR hereby agrees to deliver those documents to the CITY upon termination of the AGREEMENT, and the CITY may use, reuse or otherwise dispose of the documents without CONTRACTOR’s permission. It is understood and agreed that the documents #29..
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14 and other materials, including but not limited to those described above, prepared pursuant to this AGREEMENT are prepared specifically for the City and are not necessarily suitable for any future or other use.

26. FACILITIES AND EQUIPMENT:

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

27. INDEPENDENT CONTRACTOR; NOT AGENT:

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

28. DRUG FREE WORKPLACE:

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

29. ASSIGNMENT:

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

30. WAIVER:

The waiver by any party to this AGREEMENT of a breach of any provision hereof shall be in writing and shall not operate or be construed as a waiver of any other or subsequent breach hereof unless specifically stated in writing.
#29..
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15 31. HEADINGS NOT CONTROLLING:

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

32. MISCELLANEOUS:

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

33. ENTIRE AGREEMENT:

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

34. PARTIAL INVALIDITY:

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.
#29..
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16 IN WITNESS WHEREOF, the CITY OF MODESTO, a municipal corporation, has authorized the execution of this Agreement by its City Manager and attested by its City Clerk under authority of Resolution No. 2024-_______, adopted by the Council of the City of Modesto on the _____________ day of _____________________, 2024 and _____________________has caused this Agreement to be duly executed.
#29..
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1 ANNUAL AGREEMENT NO 264949

FOR HOT PATCH SERVICES
UNITED PAVEMENT MAINTENANCE, INC.

This agreement, hereinafter called AGREEMENT, made and entered into in the City of Modesto, State of California, this ____________ day of _______________, 2024, by and between the City of Modesto, a municipal corporation of the State of California, hereinafter called CITY, and United Pavement Maintenance, Inc. of Hughson, CA, a corporation, hereinafter called CONTRACTOR.

W I T N E S S E T H:

WHEREAS, the Modesto City Council adopted Resolution No. 2024-________ authorizing the Award of Bid and agreement for Hot Patch Services to CONTRACTOR, attached hereto as Exhibit “A” and made a part hereof, and
WHEREAS, the CONTRACTOR provided a responsive and responsible submittal that best meets the CITY needs, attached hereto as Exhibit “B” and made a part hereof, and WHEREAS, the CITY and CONTRACTOR shall enter into an agreement for Hot Patch Services as described in IFB 2324-16, attached hereto as Exhibit “C” and made a part hereof (hereinafter called IFB).

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

1. THE WORK:
a. CONTRACTOR shall furnish all labor, materials, equipment, fuel, tools, licenses, bonds and insurance necessary to perform and complete the required work as specified in Exhibit “C”, and in strict accordance with the conditions of the complete AGREEMENT. #29..
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2 b. CONTRACTOR shall do and perform the work contemplated hereby in a good workmanlike manner under the direction of and to the satisfaction of the CITY Representative. c. CONTRACTOR shall maintain proper insurance with the CITY for the duration of the AGREEMENT.
d. CONTRACTOR shall maintain a CITY business license for the duration of the AGREEMENT.
e. CONTRACTOR shall furnish said services at the following AGREEMENT rates for an estimated annual amount of $1,500,000. The total amount paid by CITY to CONTRACTOR over the full term of the AGREEMENT shall not exceed $8,811,000. Unless the services provided are for a lump sum or flat fee, fees for work performed by CONTRACTOR on an hourly basis shall not exceed the amounts shown on Bid attached hereto as Exhibit B.

AGREEMENT PRICING
Description Unit Multiplier Extended Price
Hot Mix Asphalt (4-in Lift) Linear Sq. Ft 1.00 $10.00
Hot Mix Asphalt (4-in Lift) Spot Sq. Ft 1.00 $13.96
Per Square Foot
depth, in cf ton Base Multiplier (per sq ft)
1 0.08 0.0060 0.4375
2 0.17 0.0121 0.6250
3 0.25 0.0181 0.8125
4 0.33 0.0242 1.0000
5 0.42 0.0302 1.1875
6 0.50 0.0363 1.3750
7 0.58 0.0423 1.5625
8 0.67 0.0483 1.7500
9 0.75 0.0544 1.9375
10 0.83 0.0604 2.1250
11 0.92 0.0665 2.3125
12 1.00 0.0725 2.5000
#29..
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3 2. PREVAILING WAGES:

In accordance with California Labor Code Section 1771, CONTRACTOR shall pay all workers, and shall ensure its subcontractors pay all of their workers, engaged in performing the services described in Exhibit “C” not less than the general prevailing rate of per diem wages for work of a similar character in the locality in which the services described in Exhibit “C” are to be performed, and not less than the general prevailing rate of per diem wages for holiday and overtime work as provided in the California Labor Code. In accordance with California Labor Code Section 1773.2, the City has obtained the general prevailing wages in the locality in which the services described in Exhibit A are to be performed for each craft or type of work needed to be as published by the State of California Department of Industrial Relations, Division of Labor Statistics and Research, a copy of which is on file in the CITY’s Purchasing Department and shall be made available on request. Contractor must comply with all applicable laws and regulations that apply to wages earned in performance of the services described in Exhibit “C”, including those set forth in Labor Code section 1770 et. seq. and in the IFB.

DIR Project ID#: 507507

3. CITY REPRESENTATIVE:

CITY Representative:

Jeremy Parnell, Water Superintendent, (209) 342-4599, [email protected] Purchasing Contact:

Melvin Rosal, Buyer, (209) 577-5420, [email protected] The CITY Representative is not authorized to commit the CITY to changes in specifications, requirements, or scope of work, changes in price(s), period of performance or delivery date(s) or method of shipment. Changes of a contractual or business nature shall be effective only by written change to the AGREEMENT, issued by the City of Modesto, Purchasing Division. #29..
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4 4. TERM OF AGREEMENT:

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

Year 1: May 22, 2024 through May 21, 2025
Year 2: May 22, 2025 through May 21, 2026
Year 3: May 22, 2026 through May 21, 2027
Year 4: May 22, 2027 through May 21, 2028
Year 5: May 22, 2028 through May 21, 2029
Pricing as set forth in Section 1.e. above shall remain firm for the first two years of the AGREEMENT.

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

5. LIABILITY INSURANCE:

The CONTRACTOR shall provide, at its own expense, and maintain at all times the following insurance with insurance companies licensed in the State of California and shall provide evidence of such insurance to the CITY as may be required by the City Clerk of the CITY. The policies or certificates thereof shall provide that, at least 30 days prior to cancellation or material change in the policy, notices of same shall be given to the Risk Manager of the CITY via PINS Advantage Insurance Program, for all of the following stated insurance policies.
a. General Liability – insurance with a minimum limit of liability per occurrence of $1,000,000 for bodily injury and property damage. 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. The insurance shall indicate on the certificate of insurance the following coverage and indicate the policy aggregate limit applying to: premises and operations; #29..
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5 broad form contractual; independent contractors and subcontractors; products and completed operations; and/or professional liability.
b. Automobile Liability – insurance with a minimum limit of liability per occurrence of $1,000,000 for bodily injury and property damage and transportation related pollution liability. This insurance shall cover any automobile for bodily injury and property damage.
c. Workers' Compensation – in compliance with the statutes of the State of California, plus employer's liability with a minimum limit of liability of $1,000,000 per accident for bodily injury or disease.

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

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

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

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

For any claims related to this AGREEMENT, the CONTRACTOR’s insurance coverage shall be primary insurance as respects CITY, its officers, officials, employees, agents, and volunteers. Any insurance or #29..
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6 self-insurance maintained by CITY, its officers, officials, employees, agents, and volunteers shall be excess of the CONTRACTOR’s insurance and shall not contribute with it.

6. PAYMENT:

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

Invoice to: City of Modesto
Attn: Accounts Payable
P.O. Box 642
Modesto, CA 95353
Email to: [email protected]
At a minimum, invoices shall state the following:
 This AGREEMENT number 264949
 CITY department/division name and address
 Billing period
 Service hours worked, day and week
 Unit price, extended price, sales tax and total

7. INDEMNITY:

The CONTRACTOR shall hold the CITY, its officers, officials, employees, agents, and volunteers, harmless from and save, defend and indemnify them against any and all claims, losses, liabilities, judgments or damages from every cause, including but not limited to injury to person or property or wrongful death, including reasonable costs and expenses of defense of any judicial or administrative action, arising directly or indirectly out of any negligent or intentional act or omission of CONTRACTOR, or its officers, officials, employees, agents, and volunteers relating to or during the performance of its obligations under this AGREEMENT. CONTRACTOR’s obligation to defend, indemnify, and hold the CITY, its agents, officers, #29..
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7 officials, and employees harmless under the provisions of this paragraph is not limited to or restricted by any requirement in this AGREEMENT for CONTRACTOR to procure and maintain a policy of insurance.

8. VENUE & GOVERNING LAW:

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

9. ATTORNEYS’ FEES:

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

10. COMMENCEMENT AND COMPLETION OF THE WORK:

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

Proofs of insurance (approved by CITY Risk Manager); and Executed Agreement;
a. Resolution No.2024-_______;
b. CONTRACTOR Bid submittal;
c. IFB No. 2324-16;
d. Contractor’s City of Modesto business license

11. TERMINATION OF SERVICES:

Termination for Default: In the event either party fails to perform under this AGREEMENT or breaches any condition contained herein, the other party shall notify in writing the breaching party of the non- #29..
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8 performance. Within 10 days after receipt of notification, the breaching party shall correct any non-performance to the reasonable satisfaction of the non-breaching party, or such other time as may be identified in the notice.

Failure to correct any non-performance shall allow the non-breaching party to terminate this AGREEMENT for cause.

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

Post-Termination Procedure
Upon receipt of a written notice of termination pursuant to either of the foregoing paragraphs, the CONTRACTOR shall:
a. Cease its work as directed in the notice of termination as of the termination date and see to it that its employees, subcontractors and agents are notified of such termination and act as specified in the notice of termination;
b. Terminate all orders and subcontracts except as necessary to complete any portion of the SERVICES that are not terminated;
c. If directed in writing by the CITY to do so, assign all right, title and interest in subcontracts and materials in progress to CITY, in which case the CITY will have the right at its discretion to settle, or pay any or all claims arising out of the termination of such, but in no event shall recovery by any CONTRACTOR or subcontractor include lost profits for portions of the SERVICES not completed or undertaken, including materials not delivered;
d. Deliver or otherwise make available to the CITY all data, drawings, specifications, reports, estimates, summaries and such other information and material as may have been accumulated by the CONTRACTOR in performing the SERVICES whether completed or in process;
e. Settle outstanding liabilities and claims, subject to the approval of CITY; f. Complete performance of such part of the SERVICES as has not been terminated; #29..
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9 g. Take such other actions as may be necessary, or as may be directed by the CITY for the protection and preservation of the SERVICES and/or property related to the SERVICES;
h. If CITY so requests, and at CITY's cost, CONTRACTOR shall provide sufficient oral or written status reports to make CITY reasonably aware of the status of CONTRACTOR’s work on the SERVICES.
i. CONTRACTOR understands and agrees that CITY may, in CITY’s sole discretion, refuse to pay CONTRACTOR for that portion of CONTRACTOR's SERVICES which were performed by CONTRACTOR on the project prior to the termination date and which remain unacceptable and/or not useful to CONTRACTOR as of the termination date.

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

12. COMPLIANCE WITH ALL LAWS:

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

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

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

14. ASSIGNMENT OF RIGHTS:

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

15. CITY PROCESS/PROCEDURE APPROVALS:

CITY approval of any process or procedure shall not relieve CONTRACTOR of its responsibility to furnish the required SERVICES meeting all specifications contained herein. #29..
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11 16. DIR REGISTRATION:

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

17. CONTRACTOR'S RESPONSIBILITY FOR DAMAGES:

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

18. NOTICES:

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

CONTRACTOR: United Pavement Maintenance, Inc.

Rodolfo Ruvalcaba - President
P.O. Box 1017
Hughson, CA 95326
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.
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12 19. SIGNATORY(IES) FOR CONTRACTOR:

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

20. QUANTITIES:

No minimum or maximum is guaranteed or implied.

21. FUNDING:

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

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

22. OTHER GOVERNMENT/PUBLICLY FUNDED AGENCIES:

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

23. NON-DISCRIMINATION:
a. During the performance of this AGREEMENT, CONTRACTOR and any allowed subcontractors shall not unlawfully discriminate against any employee or applicant for employment because of race, color, ancestry, religion, sex, national origin, marital status, age, medical condition (cancer related), physical handicap (including AIDS), sexual orientation, or any other basis prohibited by Federal or California law. Equal employment opportunity extends, but is not limited to recruitment, compensation, benefits, layoff, termination, and all other conditions of employment. The CONTRACTOR and any allowed subcontractors shall ensure that the evaluation and treatment of their employees and applicants for employment are free of such discrimination. The CONTRACTOR and any allowed subcontractors shall comply with the provisions of the Fair Employment and Housing Act (Government Code, Section 12900 et seq.) and the applicable regulations promulgated thereunder (California Administrative Code, Title 2, and Section 7285.0 et seq.). The applicable regulations of the Fair Employment and Housing Commission implementing Government Code, Section 12900, #29..
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13 set forth in Chapter 5 of Division 4 of Title 2 of the California Administrative Code are incorporated into this contract by reference and made a part hereof as if set forth in full. b. The CONTRACTOR and any allowed subcontractors shall give written notice of their obligations under this clause to labor organizations with which they have a collective bargaining or other agreement.
c. The CONTRACTOR shall include the nondiscrimination and compliance provisions of this clause in any allowed subcontracts to perform SERVICES. d. The Contractor shall permit access by representatives of the Department of Fair Employment and Housing and the CITY upon reasonable notice at any time during the normal business hours, but in no case less than 24 hours notice, to such of its books, records, accounts, other sources of information and its facilities as said Department or CITY shall require to ascertain compliance with this AGREEMENT. e. By executing this AGREEMENT, CONTRACTOR certifies that it shall follow and be in compliance with the Americans with Disabilities Act of 1990, the applicable administrative requirements promulgated in response thereto, and any other applicable Federal laws and regulations relating to handicap discrimination and participation, and will continue to do so for at least the duration of the AGREEMENT and any extensions thereof.

24. CONTRACTOR LICENSES & PERMITS:

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

25. RECORDS:

All final versions of reports, data, maps, models, charts, studies, surveys, photographs, memoranda, plans, studies, specifications, records, files, or any other documents or materials, in electronic or any other form, that CONTRACTOR prepares or obtains pursuant to this Agreement and that relate to the matters covered hereunder shall be the property of the CITY. CONTRACTOR hereby agrees to deliver those documents to the CITY upon termination of the AGREEMENT, and the CITY may use, reuse or otherwise dispose of the documents without CONTRACTOR’s permission. It is understood and agreed that the documents #29..
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14 and other materials, including but not limited to those described above, prepared pursuant to this AGREEMENT are prepared specifically for the City and are not necessarily suitable for any future or other use.

26. FACILITIES AND EQUIPMENT:

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

27. INDEPENDENT CONTRACTOR; NOT AGENT:

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

28. DRUG FREE WORKPLACE:

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

29. ASSIGNMENT:

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

30. WAIVER:

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

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

32. MISCELLANEOUS:

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

33. ENTIRE AGREEMENT:

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

34. PARTIAL INVALIDITY:

If any provision in this AGREEMENT is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions shall nevertheless continue in full force without being impaired or invalidated in any way.
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16 IN WITNESS WHEREOF, the CITY OF MODESTO, a municipal corporation, has authorized the execution of this Agreement by its City Manager and attested by its City Clerk under authority of Resolution No. 2024-_______, adopted by the Council of the City of Modesto on the _____________ day of _____________________, 2024 and _____________________has caused this Agreement to be duly executed.
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1 INVITATION FOR BIDS (“IFB”) NO. 2324-16
FOR

HOT PATCH SERVICES

THE PAYMENT OF PREVAILING WAGES IS REQUIRED
BID OPENING: NOVEMBER 14, 2023 at 11:00 A.M.

CITY OF MODESTO CONTACT: Melvin Rosal, Buyer
E-MAIL ADDRESS: [email protected]
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INVITATION FOR BIDS # 2324-16

HOT PATCH SERVICES
2 Table of Contents PAGE
NOTICE TO BIDDERS ............................................................................................................................. 3 CALENDAR OF EVENTS ........................................................................................................................ 5 CITY CONTACT ....................................................................................................................................... 5 PRECEDENCE........................................................................................................................................... 5 VIRTUAL BID OPENING......................................................................................................................... 6 GENERAL BID REQUIREMENTS .......................................................................................................... 7 A. BID SUBMITTAL....................................................................................................................... 7 E. CITY ACCEPTANCE/REJECTION OF IRREGULAR BIDS:.................................................. 7 F. COMPLETE BID DOCUMENT:.................................................................................................... 7 G. COMPLIANCE/NON-COMPLIANCE:...................................................................................... 8 K. PREVAILING WAGE:................................................................................................................ 9 M. BID PROTEST AND APPEAL PROCEDURES:..................................................................... 10 BID SUBMITTAL CHECKLIST............................................................................................................. 15 BID FORM A - IFB ACKNOWLEDGEMENT .................................................................................. 16 BID FORM B – BIDDER COMPANY INFORMATION................................................................... 19 BID FORM C - PRICING SCHEDULE .............................................................................................. 21 BID FORM D – BIDDER EXCEPTIONS, CLARIFICATIONS, AMENDMENTS.......................... 24 BID FORM E – BIDDER CUSTOMER REFERENCES .................................................................... 25 BID FORM F - FINANCIAL INTEREST DISCLOSURE.................................................................. 27 BID FORM G – SUPPORT OF LOCAL VENDORS.......................................................................... 29 BID FORM H - BIDDER COMPANY HISTORY STATEMENT..................................................... 30 BID FORM I - ADDENDA ACKNOWLEDGEMENT ...................................................................... 31 BID FORM J – BIDDER WARRANTY STATEMENTS................................................................... 32 BID FORM K – BIDDER EXPERIENCE AND CERTIFICATIONS................................................ 33 BID FORM L - SUBCONTRACTOR LIST ........................................................................................ 34 TECHNICAL SPECIFICATIONS AND REQUIREMENTS ................................................................. 35

1.1 SCOPE OF WORK:........................................................................................................................ 35

1.2 TECHNICAL SPECIFICATIONS:................................................................................................ 35 SAMPLE ANNUAL AGREEMENT – HOT PATCH SERVICES......................................................... 40 #29..
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INVITATION FOR BIDS # 2324-16

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

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

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

Each Bid shall be sealed and filed with the City Clerk’s office, 1010 Tenth Street, Suite 6600, Modesto, CA 95354 prior to Tuesday, November 14, 2023 at 11:00 A.M., at which time Bids will be opened, read and recorded. The opening of bids will not be physically open to the public, but may be viewed simultaneously via video conferencing in the manner provided for herein. All Bids shall be available for review following City Council award approval at the Purchasing Division, 1010 Tenth Street, 5th Floor, Suite 5300, Modesto, CA 95354.

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

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

The City Clerk’s time stamp shall be considered the official timepiece for the purpose of establishing the actual receipt of Bids. Bids will not be accepted by email or facsimile. The City of Modesto assumes no responsibility for delay in the delivery of the Bid. #29..
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INVITATION FOR BIDS # 2324-16

HOT PATCH SERVICES
4 On the outside of the Bid envelope and courier envelope, if any, the Bidder shall indicate the following:
“NAME AND ADDRESS OF BIDDER
BID IN RESPONSE TO INVITATION FOR BIDS # 2324-16
BID OPENING DATE: NOVEMBER 14, 2023 AT 11:00 A.M.”
Bidder must deliver your Bid by a preferred method to the appropriate location below:

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

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

No Bidder may withdraw its Bid for a period of 90 days after the date set for the opening thereof. #29..
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INVITATION FOR BIDS # 2324-16

HOT PATCH SERVICES
5 CALENDAR OF EVENTS
Event Date
IFB Issued OCTOBER 6, 2023
Written Questions Due via Email OCTOBER 13, 2023
Addendum Issued (if required) OCTOBER 20, 2023 (approximate date) Bid Due Date & Time PRIOR 11:00 A.M. on Tuesday, NOVEMBER 14, 2023 Agreement Award Approximately NOVEMBER, 2023

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

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

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

PRECEDENCE
Bidder agrees that any agreement resulting from City’s acceptance of its Bid, together with the terms in any City purchase order and associated specifications provided by the City to Bidder therewith, shall comprise the entire agreement between City and Bidder. Moreover, Bidder agrees that any additional or contrary terms contained in Bidder’s acknowledgement of, shall be null and void. #29..
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INVITATION FOR BIDS # 2324-16

HOT PATCH SERVICES
6 VIRTUAL BID OPENING
The City of Modesto will be broadcasting Bid openings live electronically via Microsoft Teams at 11:00 a.m. (Pacific Time) on Tuesday, NOVEMBER 14, 2023 the City Clerk Record of Bid document should be available on Planet Bids by the end of the same day.

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

URL: https://teams.microsoft.com/l/meetup
join/19%3ameeting_NTI0YzBiMDMtNDQ0Yi00YjNlLWIwZjYtYzg4ZDVjMDdkM2Mz%40thread.v2 /0?context=%7b%22Tid%22%3a%22125ccacf-fc61-463c-9976-
189f876ff90b%22%2c%22Oid%22%3a%229715c333-c997-4dd7-8984-12cd4deaa705%22%7d Join Microsoft Teams Meeting (Click here to join the meeting) • +1 (469)-998-7409
• Conference ID: 961 656 049#
Should you have any questions regarding this, please do not hesitate to contact the Purchasing Department Contact listed on the Cover Page.
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HOT PATCH SERVICES
7 GENERAL BID REQUIREMENTS
A. BID SUBMITTAL: Bidders should submit two “inked” (preferably blue ink) signed original Bid document, plus three copies of the signed original Bid document, and one electronic copy submitted via USB. The original Bid document shall be clearly marked. Photocopies do not constitute an original Bid. FAILURE TO FURNISH AT LEAST ONE “INKED” SIGNED ORIGINAL BID DOCUMENT MAY RESULT IN DISQUALIFICATION.

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

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

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

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

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

F. COMPLETE BID DOCUMENT: The following forms constitute the makeup of a complete Bid document and shall be signed wherever indicated and submitted to the City in the order listed ):
• Bid Form A - IFB Acknowledgement
• Bid Form B – Bidder Company Information
• Bid Form C - Pricing Schedule
• Bid Form D – Bidder Exceptions, Clarifications, Amendments • Bid Form E – Bidder Customer References
• Bid Form F - Financial Interest Disclosure
• Bid Form G – Support of Local Vendors
• Bid Form H – Bidder Company History Statement
• Bid Form I - Addenda Acknowledgement Page (if applicable) #29..
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INVITATION FOR BIDS # 2324-16

HOT PATCH SERVICES
8 • Bid Form J – Bidder Warranty Statements
• Bid Form K– Bidder Experience and Certifications
• Bid Form L - Subcontractor List
Failure to furnish any of these documents may result in disqualification.

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

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

I. AWARD OF BID:
• The City may award one or more agreements to one or more Bidder in order to provide for backup, or in case the “primary” contractor is unable to meet the City’s needs. • The City reserves the right to decline to award any agreement if it is determined that the proposed pricing is not competitively priced based on similar agreements with public agencies within the State of California or if the bids received fail to meet the City’s requirements.
• The City reserves the right to select that Bid, which best suits the City’s needs. In addition to price, consideration will be given to the quality and performance of the #29..
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HOT PATCH SERVICES
9 service to be purchased, and the criteria listed in Modesto Municipal Code Section 8-

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

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

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

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

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

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

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

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

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

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

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

Further protest appeals shall either be delivered to:

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

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

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

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

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

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

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

The costs of the hearing officer and expenses of the protest shall be borne by the protestor. The sums deposited with the request for hearing shall be credited to the costs of the hearing officer and other hearing expenses. #29..
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14 f. Mandatory Alternative Process for Protests of Procurements Obtained with Federal Funds: If the protested procurement involves federal funds, the Deputy City Manager, City Council, or hearing officer shall give notice, accompanying their respective decisions, to the protestor that he or she has the right to appeal to the appropriate federal agency, for which an agency name, contact (where available) and address shall be provided by City staff. Such an appeal shall be filed with the appropriate agency within seven business days of the dispatch or rejection notices to the protestor. Federal agencies may entertain protests alleging that the City has failed to adopt written protest procedures or has failed to follow such procedures. The City Council is the highest authority of the City of Modesto and its decisions are final. A disappointed Bidder for a contract involving expenditures of Federal funds shall have the right to appeal the City Council decision directly to the federal agency as described herein. #29..
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15 BID SUBMITTAL CHECKLIST

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

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

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

Bidder’s submission should include all City of Modesto forms. If any form is not applicable, Bidder should write or type “Not Applicable” on it but still include the form in your submission. #29..
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16 BID FORM A - IFB ACKNOWLEDGEMENT
The City is soliciting Bids from qualified firms (each a “Bidder” to fulfill the City’s requirements per the specifications, terms and conditions contained in this Invitation for Bids (“Invitation for Bids” or “IFB”).

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

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

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

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

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

5. Patent Indemnity: Bidders who do business with the City shall hold the City, its officers, agents and employees, harmless from liability of any nature or kind, including cost and expenses, for infringement or use of any patent, copyright or other proprietary right, secret process, patented or unpatented invention, article or appliance furnished or used in connection with the contract or purchase order.
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17 6. Samples: Samples of items, when required, shall be furnished free of expense to the City and if not destroyed by test may upon request (made when the sample is furnished), be returned at the Bidder’s expense.

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

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

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

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

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

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

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

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

Bidder Company Name:

Bidder Headquarters Address:

City/State/Zip:

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

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

Title:

Phone (Office):

Phone (Mobile):

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

Fax Number:

Email:

G. Federal Taxpayer
Identification Number
(TIN):

H. Dun & Bradstreet
(DUNS) Number:

I. Names and Titles of
Top Three Bidder
Officers:

J. Years in Business:

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

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

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

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

Pricing shall include traffic control work within City or County right-of-way which includes lane closures but does not involve an intersection.

Bid pricing is based on a square foot unit cost per 4-inch lift. For depths less than or greater than 4 inches, the City-specified fixed multiplier will be used for basis of payment. The fixed multipliers for each depth is:

Per Square Foot
depth, in cf ton Base Multiplier (per sq ft)
1 0.08 0.0060 0.4375
2 0.17 0.0121 0.6250
3 0.25 0.0181 0.8125
4 0.33 0.0242 1.0000
5 0.42 0.0302 1.1875
6 0.50 0.0363 1.3750
7 0.58 0.0423 1.5625
8 0.67 0.0483 1.7500
9 0.75 0.0544 1.9375
10 0.83 0.0604 2.1250
11 0.92 0.0665 2.3125
12 1.00 0.0725 2.5000
For example, if your Unit Price is $4.00 per square foot, and the raw asphalt material cost is $1.00 of the $4.00 unit price, your ratio (percent) would be 0.25 or 25 percent.

Description Est. Annual
Quantity
Unit Multiplier Unit Price Extended Price
Hot Mix Asphalt (4-in
Lift) Linear
96,350 Sq. Ft 1.00 $ $
Hot Mix Asphalt (4-in
Lift) Spot 435,450 Sq. Ft 1.00 $ $
TOTAL PRICE $
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22 Formula for calculating invoice pricing:

Base Unit Price x Depth Multiplier x Total Square Feet = Total Price For future price adjustments, Raw Material cost versus Unit Price:

Ratio Percent
Raw Material/Unit Price x 100 =
The payment of Prevailing Wages is required for this project.

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

Check which of the following payment terms/methodology Bidder accepts (a description of each can be found in Bid Form A – IFB Acknowledgement):

Choose One:
• Option A (Preferred): City of Modesto ePay Payment on Net 30 Day Timing: ___ Choose by checking () here. If selected, for bid comparison purposes, Bidder’s pricing will be reduced by the City of Modesto’s average ePay card program rebate percentage; or ePay Email Address: _____________________________
• Manual Check Payment Mailed by US Postal Service First Class Mail Only on Net 45 Day Timing:
___ Choose by checking () here.

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

Bidder Company Name:

Name of Bidder Signatory:

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

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

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

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

Name of Bidder Signatory:

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

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

Company Name:

Address:

City, State, Zip Code:

Contact Person:

Email Address:

Telephone Number:

Type of Business or
Governmental
Agency:

Date Range of
Service:

Annual Contract Value $
Company Name:

Address:

City, State, Zip Code:

Contact Person:

Email Address:

Telephone Number:

Type of Business or
Governmental
Agency:

Date Range of
Services:

Annual Contract Value $
Company Name:

Address:

City, State, Zip Code
Contact Person:

Email Address:

Telephone Number:
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26 Type of Business or
Governmental
Agency:

Date Range of
Services:

Annual Contract Value $
Company Name:

Address:

City, State, Zip Code
Contact Person:

Email Address:

Telephone Number:

Type of Business or
Governmental
Agency:

Date Range of
Services:

Annual Contract Value $
Company Name:

Address:

City, State, Zip Code
Contact Person:

Email Address:

Telephone Number:

Type of Business or
Governmental
Agency:

Date Range of
Services:

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

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

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

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

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

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

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

10.03(h) are satisfied.

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

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

First Name, Last Name
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28 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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29 BID FORM G – SUPPORT OF LOCAL VENDORS
Notice Pursuant to Modesto Municipal Code section 8.3-206 - Should the Bidder which submits the lowest responsive Bid (and would otherwise normally qualify to receive the Bid pursuant to Sections 8-3.203 and 8-

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

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

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

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

Check here:

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

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

City of Modesto Business License
Number:

Under penalty of perjury, the undersigned declares that the foregoing information is true and correct:

Print/Type Name:

Title:

Signature:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

B. Certifications: Bidder shall provide copies of all relevant certifications held for both company and any individuals required to perform the services requested herein.

C. Required Licenses: The successful bidder shall provide proof of valid State of California contractor’s license of one of the following types; General Engineering, Class A; Earthwork and Paving, class C-12; or Pipeline Contractor, C-34. The Contractor shall maintain a valid State of California contractor’s license of one of the preceding types for the duration of the contract. If at any time, the Contractor no longer possesses a valid State of California contractor’s license of one of the preceding types, the City of Modesto can terminate the agreement without notice or compensation.

Prior to beginning any service that shall be furnished under this specification, the bidder shall secure the appropriate Business/Delivery license from the City of Modesto. Business/Delivery license information may be obtained by calling (209) 577-5389.

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

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

1.1 SCOPE OF WORK:

The City of Modesto is requesting contractual assistance to perform hot patch work throughout Modesto and the outlying areas included in the City of Modesto’s regional water system including Salida, Del Rio, parts of Ceres, parts of Turlock, Grayson, Empire and other County areas just outside the City limits. Hot patch work consists of asphalt repairs when street cuts are made in order to make repairs and improvements to City Utilities. The Scope-of-Work is for ongoing annual services not for a specific job.

The successful Contractor will receive an ongoing assignment list for the requesting division. The assignment list will include ten (10) to twenty (20) geographically located addresses requiring work. There may be times, due to emergency circumstances, where the Contractor will be required to stop work in a geographical area to perform hot patch work within the City’s regional water system. Occasionally, there may be times where the contractor will be required to work after hours, nights, and/or weekends as needed.

The successful bidder shall furnish all labor, materials, equipment, tools, licenses and insurance necessary to perform the work described in this IFB.

Water meter installation is approximately 50% of the total patching. A typical size cut is 30 sq. ft. (SPOT), approximately 5' x 6'. Some cuts may be larger or smaller. Cuts may also include trench repair (LINEAR). The City of Modesto anticipates an estimated total of 500,000 sq. ft. annually.

1.2 TECHNICAL SPECIFICATIONS:

A. Hot patch work shall meet all current City of Modesto and current Stanislaus County Standard Specifications. All hot patch work shall be authorized by the using Department, and shall be completed by the Contractor within thirty (30) calendar days from the date the Contractor receives the assignment list of work. Some work will need to be timed according to construction being done by sub-developer and other contractors. The Contractor shall complete all “emergency” work within forty-eight (48) hours of receiving the assignment.

B. Bidders shall refer to current City of Modesto and Stanislaus County Standard Specifications.

C. Pave street patching-asphalt 4" minimum or to existing, whichever is greater, 2" lift for each layer.

D. Pave alley patching-asphalt 3" minimum, 2" lifts.

E. For work within Stanislaus County right-of-way, Contractor can work under City’s encroachment permit with the county.

F. Existing concrete and asphalt surfaces must be prepared and tack coat (Asphaltic Emulsion, Grade SS1) applied prior to new asphalt paving. Contractor is responsible for Tack Coat material and application rate per Caltrans Standard Specifications. No slurry/sand seal.

G. Stanislaus County and City of Modesto Standard Specifications requires neat and clean saw cuts for hot patch work.
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36 H. Valve boxes, manholes, and all other utility boxes shall be set to finished grade. The City estimates twenty percent (20%) of sites will have valve boxes or manholes. Contractor is not required to pour concrete around collar.

I. Contractor is required to maintain work sites to be free of debris and sediment while utilizing best management practices (BMPs).

J. Settling or poor workmanship shall be redone by Contractor at Contractor expense within a 12 month period from job completion.

K. The Contractor shall be responsible for providing all run off and storm protection (aka water pollution control), traffic control equipment, and personnel while performing hot patch work. Traffic control will vary. Hot patch work will be associated with various street classifications: local streets, minor/major collectors, minor/principal arterial and multiple lane expressways.

Flagger requirements will vary, depending on traffic control, type of street and location of assigned work. A typical flagging situation will require two (2) flaggers, some situations may require more.

For traffic control requirements, the Contractor shall conform to the latest California Manual of Uniform Traffic Control Devices (CA MUTCD).

L. The material for hot patch work shall meet all Stanislaus County and City of Modesto Standard Specifications. Asphalt concrete shall be 1/2-inch gradation, Type A Hot Mix Aspalt with a maximum of 15 percent Reclaimed Asphalt Pavement (RAP). A paint binder of asphaltic emulsion (prime coat) shall be applied to all surfaces in conformance with Section 39-4 of State Standards. For Caltrans sites, the Contractor is required to meet their standards. The City does not anticipate more than twelve (12) per year in Caltrans right of ways.

M. Temporary pavement or “cutback” will be present and shall be removed by the Hot Patch Contractor. If specifications are followed, settling will not be held against the contractor. (Removed materials will be hauled by Contractor to a City-designated spoils dump site).

N. Bid pricing is based on a square foot unit cost per 4-inch lift. For depths less than or greater than 4 inches, the City-specified fixed multiplier will be used for basis of payment. The fixed multipliers for each depth is:

Per Square Foot
depth, in cf ton
Base Multiplier (per sq
ft)
1 0.08 0.0060 0.4375
2 0.17 0.0121 0.6250
3 0.25 0.0181 0.8125
4 0.33 0.0242 1.0000
5 0.42 0.0302 1.1875
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37 6 0.50 0.0363 1.3750
7 0.58 0.0423 1.5625
8 0.67 0.0483 1.7500
9 0.75 0.0544 1.9375
10 0.83 0.0604 2.1250
11 0.92 0.0665 2.3125
12 1.00 0.0725 2.5000
O. Contractor shall set valve boxes to grade. Stand 1/32-inch above asphalt grade.

P. City is responsible for replacement of permanent traffic striping, markings and devices.

Q. Contractor is not required to do base work, except re-compaction of finished top of base material where disturbed during removal of temporary patchwork/cutback.

R. Contractor is responsible for full depth saw cuts (and/or grinding when specified in the work order) at all sites. Slot cutting is not acceptable.

S. Contractor will be provided with a work order schedule of locations in a geographical area.

T. The City estimates ninety-five percent (95%) of the work in streets, five percent (5%) alleyways.

U. The City of Modesto and Stanislaus County Standard Specifications in Attachment B

1.3 CITY REPRESENTATIVE:

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

1.4 CHARACTER OF WORKERS:

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

1.5 BARRICADES:

The Contractor shall place barricades and/or safety ribbon as necessary to restrict access to the work areas. The Contractor shall be responsible for maintaining access control of the work areas from the time construction starts until the time the work site is returned to its pre-project condition, including paving and cleanup.

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

1.7 CLEANUP:

Prior to requesting a final inspection, the Contractor shall carefully cleanup and remove all surplus materials and/or debris of any type resulting from the Contractors’ work from the work site, and shall dispose of all of the materials and debris in a proper manner. The work site shall be left clean and neat.

1.8 DISPOSAL OF MATERIALS:

The Contractor shall certify that any materials and debris removed from the site shall be disposed of in accordance with applicable Federal, State and Local laws, regulations or ordinances. If requested by the City, Contractor shall furnish proof of disposal.

1.9 CONTRACTOR’S RESPONSIBILITY FOR WORK:

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

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

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

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

1.10 DELAY BY THE CITY:

Any act or omission of any kind by the City of Modesto, its officers, agents or employees, which causes the Contractor delay in the completion of the work shall be grounds for extension of time on the part of the Contractor to complete the work, but shall give the Contractor no damages for such delay. #29..
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39 TERM OF AGREEMENT
The term of the agreement shall be for a period of two (2) years, with (3) one-year extension options at the sole discretion of City, for a total up to (5) years.

A. Pricing shall remain firm for the first two (2) years of the agreement, which may be awarded pursuant to this IFB.

B. During the course of any subsequent agreement (or amendments thereto) in years 3, 4, or 5, oil price fluctuations may be a cause to adjust prices. Any adjustment in pricing shall be based upon Caltrans Asphalt Price Index located at:
http://www.dot.ca.gov/hq/construc/crudeoilindex/
The California Statewide Crude Oil Price Index is determined each month on a or about the third business day of the month by the Department using the average of the posted crude oil prices in effect for the previous month as posted by Cheveron, Exxon Mobile and ConocoPhillips for the Buena Vista and Midway Sunset fields. A thirty (30) day written notice of a request for an adjusted price is required in writing. Any price adjustment shall be negotiated by the Purchasing Division.

No price increase shall be effective until accepted by the City. Until the change has been accepted, the Contractor must continue to accept order with the original Bid price, terms and conditions. Unless otherwise stated, the bidder agrees that, in the event of a price decline, the benefit of such lower pricing shall be extended to the City.
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40 SAMPLE AGREEMENT
SAMPLE ANNUAL AGREEMENT – HOT PATCH SERVICES
This agreement, hereinafter called AGREEMENT, made and entered into in the City of Modesto, State of California, this ____ day of ____________________ , 2023, by and between the City of Modesto, a municipal corporation of the State of California, hereinafter called CITY, and _________________, a ______ _______, hereinafter called CONTRACTOR.

W I T N E S E T H:

WHEREAS, the Modesto City Council adopted Resolution No. 2023-xx authorizing the Award of Bid and agreement for the HOT PATCH WORK to CONTRACTOR, attached hereto as Exhibit “A” and made a part hereof, and
WHEREAS, the CONTRACTOR provided a responsive and responsible submittal that best meets the CITY needs, attached hereto as Exhibit “B” and made a part hereof, and WHEREAS, the CITY and CONTRACTOR shall enter into an agreement for the HOT PATCH WORK as described in IFB 2324-16 attached hereto as Exhibit “C” and made a part hereof (hereinafter called IFB).
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41 NOW, THEREFORE, the parties hereto mutually agree as follows:

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

AGREEMENT PRICING
Description Unit Multiplier Extended Price
Hot Mix Asphalt (4-in Lift)
Linear
Sq. Ft 1.00 $
Hot Mix Asphalt (4-in Lift)
Spot Sq. Ft 1.00
$
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42 Per Square Foot
depth, in cf ton
Base Multiplier (per sq
ft)
1 0.08 0.0060 0.4375
2 0.17 0.0121 0.6250
3 0.25 0.0181 0.8125
4 0.33 0.0242 1.0000
5 0.42 0.0302 1.1875
6 0.50 0.0363 1.3750
7 0.58 0.0423 1.5625
8 0.67 0.0483 1.7500
9 0.75 0.0544 1.9375
10 0.83 0.0604 2.1250
11 0.92 0.0665 2.3125
12 1.00 0.0725 2.5000

2. PREVAILING WAGES:

In accordance with California Labor Code Section 1771, CONTRACTOR shall pay all workers, and shall ensure its subcontractors pay all of their workers, engaged in performing the services described in Exhibit “C” not less than the general prevailing rate of per diem wages for work of a similar character in the locality in which the services described in Exhibit “C” are to be performed, and not less than the general prevailing rate of per diem wages for holiday and overtime work as provided in the California Labor Code. In accordance with California Labor Code Section 1773.2, the City has obtained the general prevailing wages in the locality in which the services described in Exhibit A are to be performed for each craft or type of work needed to be as published by the State of California Department of Industrial Relations, Division of Labor Statistics and Research, a copy of which is on file in the CITY’s Purchasing Department and shall be made available on request. Contractor must comply with all applicable laws and regulations that apply to wages earned in performance of the services described in Exhibit “C”, including those set forth in Labor Code section 1770 et. seq. and in the IFB.
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43 DIR Project ID#: _________________

3. CITY REPRESENTATIVE:

CITY Representative is:

Jeremy Parnell, Water Superintendent, (209) 342-4599. [email protected] Purchasing Contact: Melvin Rosal, Buyer, (209) 577-5420 , [email protected] The CITY Representative is not authorized to commit the CITY to changes in specifications, requirements, or scope of work, changes in price(s), period of performance or delivery date(s) or method of shipment. Changes of a contractual or business nature shall be effective only by written change to the AGREEMENT, issued by the City of Modesto, Purchasing Division.

4. TERM OF AGREEMENT:

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

Year 1: May 22, 2024 through May 21, 2025
Year 2: May 22, 2025 through May 21, 2026
Year 3: May 22, 2026 through May 21, 2027
Year 4: May 22, 2027 through May 21, 2028
Year 5: May 22, 2028 through May 21, 2029
Pricing as set forth in Section 1.e. above shall remain firm for the first two years of the AGREEMENT.

Price increases for any subsequent AGREEMENT years following the second year, shall not exceed the percentage change in the Consumer Price Index (CPI) for West Urban Area in any one AGREEMENT year, and shall be negotiated through the Purchasing Division. Requests for price increases #29..
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44 shall be submitted by CONTRACTOR in writing, 90 days prior to the annual anniversary date of the AGREEMENT to be effective for the subsequent year.

5. LIABILITY INSURANCE:

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

If at any time any of said policies shall be unsatisfactory to the CITY, as to form or substance or if a company issuing such policy shall be unsatisfactory to the CITY, the CONTRACTOR shall promptly obtain a new policy, submit the same to the CITY’s Risk Manager for approval and submit a certificate thereof as hereinabove provided. Upon failure of the CONTRACTOR to furnish, deliver or maintain such insurance and certificates as above provided, this AGREEMENT, at the election of the CITY, may be forthwith declared #29..
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45 suspended, or terminated. Failure of the CONTRACTOR to obtain and/or maintain any required insurance shall not relieve the CONTRACTOR from any liability under this Agreement, nor shall the insurance requirements be construed to conflict with or otherwise limit the obligations of the CONTRACTOR concerning indemnification.

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

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

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

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

6. PAYMENT:

CONTRACTOR shall invoice CITY not less than once per month based on the cost for services performed and reimbursable costs incurred prior to the invoice date. All invoices shall be paid in full the following payment terms within thirty days after completion and acceptance of the Services by the CITY, and receipt of a properly prepared invoice, CITY will pay CONTRACTOR [TO BE DETERMINED BY IFB RESPONSE IN FINAL AGREEMENT, EITHER “Net 30 terms via CITY’s ePay Program” or “Net 45 Days #29..
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46 via manual check”.]. The CITY is exempt from payment of Federal Excise Tax, and all invoices shall be exclusive of such excise tax.

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

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

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

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

10. COMMENCEMENT AND COMPLETION OF THE WORK:

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

Proofs of insurance (approved by CITY Risk Manager); and Executed Agreement;
a. Resolution No.2023-_______;
b. CONTRACTOR Bid submittal;
c. IFB No. 2324-16
d. Contractor’s City of Modesto business license

11. TERMINATION OF SERVICES:

Termination for Default: In the event either party fails to perform under this AGREEMENT or breaches any condition contained herein, the other party shall notify in writing the breaching party of the nonperformance. Within 10 days after receipt of notification, the breaching party shall correct any non- #29..
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48 performance to the reasonable satisfaction of the non-breaching party, or such other time as may be identified in the notice. Failure to correct any non-performance shall allow the non-breaching party to terminate this AGREEMENT for cause.

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

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

CITY will pay CONTRACTOR for SERVICES actually completed prior to the receipt of the termination notice or otherwise completed in accordance with the notice of termination. The final payment to the CONTRACTOR after termination for convenience shall be limited to amounts due and owing under the AGREEMENT at time of termination, including the following:
a. The cost of settling and paying valid claims arising out of the termination of the SERVICES such as subcontractor agreements or contracts for materials; b. The AGREEMENT price allocable to the portion of the SERVICES properly performed or goods supplied to the work site by the CONTRACTOR as of the date of termination, as determined in accordance with the notice of termination, reduced by any sums previously paid to the CONTRACTOR for such #29..
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HOT PATCH SERVICES
50 SERVICES.

12. COMPLIANCE WITH ALL LAWS:

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

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

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

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

14. ASSIGNMENT OF RIGHTS: The CONTRACTOR offers and agrees, and will require all subcontractors and suppliers to agree, to assign to the CITY all rights, title, and interest in and to all causes of action it and they may have under Section 4 of the Clayton Act (15 United States code, Section 15) or under the Cartwright Act (Business and Professions Code, Section 16700 et seq.), arising from #29..
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HOT PATCH SERVICES
51 the acquisition of goods, services, or materials pursuant to this AGREEMENT or any allowed subcontract. The assignment made by CONTRACTOR and all assignments made by subcontractors and suppliers shall be made and become effective at the time the CITY makes final payment to The CONTRACTOR, without further acknowledgment by the parties (Government Code, Sections 4550- 4554).

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

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

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

18. NOTICES:

Any notice, payment or instrument required or permitted by this AGREEMENT to be given or delivered to either party shall be deemed to have been received when personally delivered, or one calendar #29..
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HOT PATCH SERVICES
52 week following deposit of the same in any United States Post Office, registered or certified mail, postage prepaid, addressed as follows:

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

19. SIGNATORY(IES) FOR CONTRACTOR:

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

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

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

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

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

The CONTRACTOR and any allowed subcontractors shall comply with the provisions of the Fair Employment and Housing Act (Government Code, Section 12900 et seq.) and the applicable regulations promulgated thereunder (California Administrative Code, Title 2, and Section 7285.0 et seq.). The applicable regulations of the Fair Employment and Housing Commission implementing Government Code, Section 12900, set forth in Chapter 5 of Division 4 of Title 2 of the California Administrative Code are incorporated into this contract by reference and made a part hereof as if set forth in full. b. The CONTRACTOR and any allowed subcontractors shall give written notice of their obligations under this clause to labor organizations with which they have a collective bargaining or other agreement.
c. The CONTRACTOR shall include the nondiscrimination and compliance provisions of this clause in any allowed subcontracts to perform SERVICES. d. The Contractor shall permit access by representatives of the Department of Fair Employment and Housing and the CITY upon reasonable notice at any time during the normal business hours, but in no case less than 24 hours notice, to such of its books, records, accounts, other sources of information and its facilities as said Department or CITY shall require to ascertain compliance with this AGREEMENT. #29..
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54 e. By executing this AGREEMENT, CONTRACTOR certifies that it shall follow and be in compliance with the Americans with Disabilities Act of 1990, the applicable administrative requirements promulgated in response thereto, and any other applicable Federal laws and regulations relating to handicap discrimination and participation, and will continue to do so for at least the duration of the AGREEMENT and any extensions thereof.

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

25. RECORDS: All final versions of reports, data, maps, models, charts, studies, surveys, photographs, memoranda, plans, studies, specifications, records, files, or any other documents or materials, in electronic or any other form, that CONTRACTOR prepares or obtains pursuant to this Agreement and that relate to the matters covered hereunder shall be the property of the CITY.

CONTRACTOR hereby agrees to deliver those documents to the CITY upon termination of the AGREEMENT, and the CITY may use, reuse or otherwise dispose of the documents without CONTRACTOR’s permission. It is understood and agreed that the documents and other materials, including but not limited to those described above, prepared pursuant to this AGREEMENT are prepared specifically for the City and are not necessarily suitable for any future or other use.

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

27. INDEPENDENT CONTRACTOR; NOT AGENT: At all times during the term of this #29..
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55 AGREEMENT, CONTRACTOR shall be an independent contractor and shall not be an employee of CITY. CITY shall have the right to control CONTRACTOR only insofar as the results of CONTRACTOR’s services rendered pursuant to this AGREEMENT. Except as City may specify in writing, CONTRACTOR shall have no authority, express or implied, to act on behalf of CITY in any capacity whatsoever as an agent. CONTRACTOR shall have no authority, express or implied, pursuant to this AGREEMENT to bind City to any obligation whatsoever.

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

29. ASSIGNMENT:

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

30. WAIVER:

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

31. HEADINGS NOT CONTROLLING:
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HOT PATCH SERVICES
56 Headings used in the Agreement are for reference purposes only and shall not be considered in construing this AGREEMENT.

32. MISCELLANEOUS:

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

33. ENTIRE AGREEMENT:

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

34. PARTIAL INVALIDITY:

If any provision in this AGREEMENT is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions shall nevertheless continue in full force without being impaired or invalidated in any way.
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57 IN WITNESS WHEREOF, the CITY OF MODESTO, a municipal corporation, has authorized the execution of this Agreement in duplicate by its City Manager and attested by its City Clerk under authority of Resolution No. 2023- _________ adopted by the Council of the City of Modesto on the _____________ day of _____________________, 2023 and _____________________has caused this Agreement to be duly executed.

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

DIANE NAYARES-PEREZ, CMC,
City Clerk

(SEAL)

APPROVED AS TO FORM:

By: ____________________________
JOSE M. SANCHEZ,
City Attorney
By: ____________________________
JOE F. RODRIQUEZ,
Risk Manager
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DESCRIPTION

EST ANNUAL

QUANTITY

UNIT OF

MEASURE MULTIPLIER UNIT PRICE
UNIT
PRICE
UNIT
PRICE

B & M BUILDERS,
INC.

UNIT
PRICE
Hot Mix Asphalt (4-in
Lift) Linear 96,350 Sq Ft 1 $11.25 $15.00 $16.00 $1,541,600.00 $10.00 Hot Mix Asphalt (4-in
Lift) Spot 435,450 Sq Ft 1 $11.75 $30.00 $17.00 $7,402,650.00 $13.96 $8,944,250.00
Payment of Prevailing Wages
Adams
Underground
III
Arrow
Construction
B & M
Builders, Inc.

United
Pavement
Maintenance
Laboror
Direct Labor Rate $36.20 /HR $35.35 /HR $38.10 /HR $40.99 /HR Fringe Benefit Rate $25.56 /HR $28.56 /HR $25.81 /HR $28.56 /HR Labor Markup (percent) 20% 170% 65% 35%
Price Per Service $77.71 /HR $108.65 /HR $105.45 /HR $93.89 /HR Operator
Direct Labor Rate $60.72 /HR $56.33 /HR $56.33 /HR $64.36 /HR Fringe Benefit Rate $32.93 /HR $32.93 /HR $32.93 /HR $32.93 /HR Labor Markup (percent) 20% 170% 65% 35%
Price Per Service $112.38 /HR $151.74 /HR $147.28 /HR $131.34 /HR Teamster
Direct Labor Rate - $40.23 /HR - -
Fringe Benefit Rate - $33.29 /HR - -
Labor Markup (percent) - 170% - -
Price Per Service - $124.98 /HR - -
Foreman
Direct Labor Rate - - $94.00 /HR -
Fringe Benefit Rate - - $0 -
Labor Markup (percent) - - 65% -
Price Per Service - - $155.10 /HR -
Truck Driver
Direct Labor Rate - - $40.23 /HR -
Fringe Benefit Rate - - $33.39 /HR -
Labor Markup (percent) - - 65% -
Price Per Service - $121.4 /HR -
Mason
Direct Labor Rate - - - $51.47 /HR
Fringe Benefit Rate - - - $28.71 /HR
Labor Markup (percent) - - - 35%
Price Per Service - - - $108.24 /HR
$1,083,937.50
$5,116,537.50
20%
Lowest Bid

SACRAMENTO, CA RANCHO CORDOVA, CA HUGHSON, CA
X
ARROW

CONSTRUCTION

CITY OF MODESTO
PO BOX 642 MODESTO CA 95353
IFB NO. 2324-16 HOT PATCH SERVICES
UNITED

PAVEMENT

MAINTENANCE
ADAMS

UNDERGROUND
III

WATERFORD, CA
Total Price $6,200,475.00
Raw material price vesus unit cost 25%
$963,500.00
$13,063,500.00 $6,078,882.00
$14,508,750.00 $7,042,382.00
$1,445,250.00
25% 15%
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CITY OF MODESTO

COUNCIL AGENDA REPORT
DATE OF MEETING:

April 9, 2024
Date: March 20, 2024
TO: Mayor and City Council
THROUGH: Joseph Lopez, City Manager
FROM: Diane Nayares-Perez, CMC, City Clerk
SUBJECT: Certification of Canvass of Votes from the March 5, 2024 Election CONTACT: Diane Nayares-Perez, City Clerk, [email protected], 209-577-5398
DESCRIPTION:

Consider approving the Certificate of Canvass of Votes from the March 5, 2024 Election. (Funding Source: General Fund)
STRATEGIC PLAN ELEMENT:

The recommended action supports the City of Modesto’s 2020-2025 Strategic Plan Initiative:

Service and Delivery Goal I: Promote trust and engagement between the community and the City; and Goal J: Build a high-performance organization.

BACKGROUND:

On March 5, 2024, a Municipal Election was held in the City of Modesto and consolidated with the County of Stanislaus Primary Election for the purpose of electing a Mayor.

Pursuant to Article III, Section 300 of the Charter, “Regular municipal elections for the elective office of Mayor shall coincide with the date of the statewide primary election in even-numbered years. If, at said regular municipal election for the Office of Mayor, held on the date of the statewide primary election, no candidate for the elective office of Mayor for the City of Modesto receives a majority of the valid votes cast for said office, a run-off election shall be held for said office on the first Tuesday after the first Monday in November of that year to coincide with the regular municipal election of the elective offices of the other members of Council. At said run-off election, the two (2) candidates for the elective office of Mayor receiving the highest number of votes at the prior municipal election shall have their names placed on the ballot for election to said office.”
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City Council, April 9, 2024
Certification of Canvass of Votes from the March 5, 2024 Election

DISCUSSION:

Mayor Sue Zwahlen received a majority of valid votes cast and as a result a run-off election is not required. Pursuant to Section 600 of the Charter “The Mayor shall hold office for a term of four (4) years, from and after the first Tuesday following the election of members of the Council in November, regardless of whether or not a run-off election for the office of Mayor occurs.” Per Election Code 10263(b), the City Council must declare the results of the election no later than the next regularly scheduled City Council meeting following presentation of the 28-day canvass of the returns, or at a special meeting called for this purpose.

The County of Stanislaus Registrar of Voters conducted the election on behalf of the City of Modesto. The Registrar of Voters is required to provide the City a Certification of Election Results. The Registrar of Voters has completed its count and has released the official results, a copy of which is attached.

FISCAL IMPACT:

None.

COMMITTEE RECOMMENDATION:

Not Applicable.

RECOMMENDED COUNCIL ACTION:

Resolution of the Council of the City of Modesto Confirming the Canvass of the Municipal Election which was held in the City of Modesto on March 5, 2024 and Declaring the Results of Said Election and such other matters as provided by law.

Approved by:

Diane Nayares-Perez, City Clerk
Joseph Lopez, City Manager
Attachment:

1. Resolution

2. Certificate of Canvass and Statement of Vote (Exhibit A)

3. Stanislaus County Registrar of Voters Statement of Vote #30..
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04/09/2024/CCO/DNPerez/Item X 1 2024-XX

MODESTO CITY COUNCIL
RESOLUTION NO. 2024-XX

RESOLUTION OF THE COUNCIL OF THE CITY OF MODESTO

CONFIRMING THE CANVASS OF THE MUNICIPAL ELECTION WHICH
WAS HELD IN THE CITY OF MODESTO ON MARCH 5, 2024, AND

DECLARING THE RESULTS OF SAID ELECTION AND SUCH OTHER

MATTERS AS PROVIDED BY LAW
WHEREAS, on Tuesday, March 5, 2024, a Municipal Election was held in the City of Modesto (herein called “City”) to elect the following:

1. One City Mayor for a four-year term,
WHEREAS, said election was held on Tuesday, March 5, 2024, in accordance with law and the proceedings of this Council, and the votes thereat received and canvassed, and the returns thereof ascertained, determined, and declared in all respects as required by law, and
WHEREAS, the Stanislaus County Registrar of Voters, at the request of the City Council, canvassed the returns of said regular municipal election in accordance with law, and reported the results of the election to the City Clerk, which the City Clerk certified to the Council by a Certificate of Canvass and Statement of Votes dated March 21, 2024, a copy of which is attached hereto marked Exhibit “A” and made a part hereof.

NOW, THEREFORE, BE IT RESOLVED, by the Council of the City of Modesto as follows:

1. Said election results as shown on the Certificate of Canvass and Statement of Votes and the results of the election are hereby ratified, confirmed, approved, and declared.
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04/09/2024/CCO/DNPerez/Item X 2 2024-XX

2. That in accordance with Section 10264 of the Elections Code, a copy of said Certificate of Canvass and Statement of Votes, which is attached hereto marked as Exhibit “A” and made a part hereof, shows a complete tabulation of the following:
(A) The whole number of votes cast for the City of Modesto Mayor. (B) The names of the persons voted for.
(C) For what office each person was voted for.
(D) The number of votes given in the City to each person.

3. That, at said Regular Municipal Election, the following named person having received a majority of the votes cast for the elective office, as designated on Exhibit “A”, are hereby declared to be duly and regularly elected to such office, and the City Clerk is hereby directed to issue a Certificate of election to each such persons, certifying his/her election to the office appearing after his/her name, and to administer to each of said persons the oath of office prescribed by the Constitution and laws of the State of California and the Charter of the City, to wit:

Sue Zwahlen Mayor, for a term of four (4) years, City of Modesto

4. The City Clerk shall enter on the records of the City Council of the City, a statement of the result of the election, showing: (1) The whole number of "votes (ballots) cast in the City; (2) The names of the persons voted for; (3) For what office each person was voted for; (4) The number of votes given in the City for each person.

5. That the City Clerk shall certify to the passage and adoption of this resolution and enter it into the book of original resolutions.
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04/09/2024/CCO/DNPerez/Item X 3 2024-XX
The foregoing resolution was introduced at a regular meeting of the Council of the City of Modesto held on the 9th day of April, 2024 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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EXHIBIT A

CERTIFICATE OF CANVASS
AND

STATEMENT OF VOTE

CITY OF MODESTO REGULAR MUNICIPAL ELECTION
March 5, 2024
I, Diane Nayares-Perez, City Clerk of the City of Modesto, do hereby certify that I caused the Stanislaus County Clerk-Recorder’s Office, on March 5, 2024, to publicly canvass the returns of the City of Modesto Municipal Election held on March 5, 2024 in accordance with the law. The following are the results of said election:

CANDIDATES NUMBER OF VOTES PERCENTAGE OF VOTE
Mayor, City of Modesto
Sue Zwahlen 25,954 81.52%
Sebastian Jones 3,266 10.26%
Dewey L. Bedford, Jr. 2,617 8.22%
Total Votes Cast for Mayor 31,837 100%
Non-Qualified Write-Ins: 454

TOTAL TOTAL TURNOUT

REGISTERED VOTERS TURNOUT PERCENTAGE
City of Modesto 115,190 35,413 30.74%
The number of votes given at each precinct is set forth in the attached Stanislaus County Registrar of Voters Statement of Vote for the March 5, 2024 Primary Election March 29, 2024 ______________________

DIANE NAYARES-PEREZ, CMC
City Clerk
City of Modesto
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STATEMENT OF THE VOTE
FOR

STANISLAUS COUNTY

STATE OF CALIFORNIA
-CAST AT THEPRESIDENTIAL PRIMARY ELECTION
-HELDTUESDAY, MARCH 5, 2024

STATE OF CALIFORNIA

COUNTY OF STANISLAUS
I, DONNA LINDER, County Clerk-Recorder & Registrar of Voters for the County of Stanislaus, State of California, in accordance with the provisions of Section 15301 of the California Elections Code, do hereby certify that the within is a true and correct statement of result of the votes cast in this county at the Presidential Primary Election as determined by the official canvass of the returns of said election.

I hereby set my hand and official seal this 21 st day of March 2024 at the County of Stanislaus.

Donna Linlter
County Clerk-Recorder & Registrar of Voters
County of Stanislaus
State of California
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OFFICE OF COUNTY CLERK-RECORDER
Donna Linde r COUNTY CLE RK-RECORDER

R EGIST RAR O F VOTE RS &

COMMISSION E R O F CIVI L MARR IAG E

REGISTRAR OF VOTERS
ELECTIONS DIVISION:
7027 "I" STREET, SU ITE 707, Modesto, CA 95354
Telepho n e: (209) 525 -5200, ES PANOL: (209) 525-5230
TOLL-FREE: (833 ) 772-2260, TTY: (833) 646 -2736
Facsimile: (209) 525-5802

CERTIFICATION OF

STANISLAUS COUNTY CLERK-RECORDER
& REGISTRAR OF VOTERS

OF THE RES UL TS OF THE CANVASS OF THE
MARCH 5, 2024

PRESIDENTIAL PRIMARY ELECTION

STATE OF CALIFORNIA

COUNTY OF STANISLAUS
I, DONNA LINDER, County Clerk-Recorder & Registrar of Voters for the County of Stanislaus, State of California, do hereby certify that, in pursuance to the provisions of Elections Code Section 15300, et seq., I did canvass the results of the votes cast in the Presidential Primary Election held in said County on March 5, 2024, for measures and contests that were submitted to the vote of the voters, and that the Statement of Votes Cast to which this certificate is attached, is full, true and correct.

I hereby set my hand and official seal this 2P1 day of March 2024 at the County of Stanislaus.

Donna Linder
County Clerk-Recorder & Registrar of Voters
County of Stanislaus
State of California
County Seal
WE BUILD COMMUNITY WWW.STANCOUNTY COM
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OFFICE OF COUNTY CLERK-RECORDER
Donna Linder

COUNTY CLE RK-R ECORD ER

RE GIST RA R O F VOTE RS &

COMMISSION E R O F CIVIL MARRIAG E

REGISTRAR OF VOTERS
ELECT IONS DIVISION:
7021 "I" STRE ET, SU ITE 101, Modesto, CA 9S35 4
Telep h one: (209) 525 - 5200, ESPANOL: (209) 525 -5230 TOL L- F REE : (833) 772 -2260. TTY: (833) 646 -2136
Facsimile: (209) 5 25- 5802
HELP AMERICA VOTE ACT OF 2002

CERTIFICATION OF ELECTIONS OFFICIAL

STATE OF CALIFORNIA

COUNTY OF STANISLAUS
Pursuant to the statewide voter registration list requirements set forth in the Help America Vote Act of 2002 (HAVA) 52 U.S.C. § 21083), I, DONNA LINDER, County Clerk-Recorder & Registrar of Voters for the County of Stanislaus, State of California, hereby certify that I complied with all provisions of Chapter 2 of Division 7 of Title 2 of the California Code of Regulations for the Presidential Primary Election held on March 5, 2024, in the County of Stanislaus, State of California, and all elections consolidated therewith.

I hereby set my hand and official seal this 21 st day of March 2024, at the County of Stanislaus.

Donna Linder '
County Clerk-Recorder & Registrar of Voters
County of Stanislaus
State of California

WE BUILD COMMUNITY
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INDEX
SUMMARY REPORT OF VOTES CAST ... .. ... ...... ... .... ......... ...... ...... .......... ........ ................. .

CERTIFIED WRITE-IN CANDIDATE INFORMATION... .. ......... ..... .. ...... .. ..... .. ....................... .. . W1 1% POST ELECTION MANUAL TALLY REPORT.... .... ...................... .. ... ...... .. .... ...... .. .... .. .... W2 LOCAL MEASURE BALLOT QUESTION/ PASSAGE REQUIREMENT. ..... ........ ......... .......... ... W3 CERTIFICATE OF FACTS - MEASURE N - Riverbank Unified School District......... .. .............. .. . W4

PARTY NOMINATED OFFICES - PRECINCT LEVEL RESULTS
UNITED STATES PRESIDENT - DEMOCRATIC PARTY. ............... .. ........ .................. ..................... 1 UNITED STATES PRESIDENT - REPUBLICAN PARTY.......... ......... ...... ..... ........................... 13 UNITED STATES PRESIDENT -AMERICAN INDEPENDENT PARTY... ...... .............. ......... .... .. 25 UNITED STATES PRESIDENT- GREEN PARTY....... .... .... .. .. .. .......... ..... ........... .... ........... ... 31 UNITED STATES PRESIDENT- LIBERTARIAN PARTY.... .... .. ..... ..... .. ..... .. .. ...... ................... 37 UNITED STATES PRESIDENT - PEACE AND FREEDOM PARTY. .... .... ... ... ............ ......... ....... 43 DEMOCRATIC COUNTY CENTRAL COMMITTEE- DISTRICT 2 .... ........ ...................... ................ 49 REPUBLICAN COUNTY CENTRAL COMMITTEE - DISTRICT 1... ................................................ 53 REPUBLICAN COUNTY CENTRAL COMMITTEE - DISTRICT 2 . . . . . . . . . . . . . . . . . . . . . . . . . .. ..... ... ..... ....... .. 57 REPUBLICAN COUNTY CENTRAL COMMITTEE - DISTRICT 3 . . . . .. .... ..... ............... .. .................... 61 REPUBLICAN COUNTY CENTRAL COMMITTEE - DISTRICT 4 . . . .. . .. ............ ................................ 65

VOTER NOMINATED OFFICES - PRECINCT LEVEL RESULTS
UNITED STATES SENATE- FULL TERM.... ....... .. .............. ........... ........................ .............. 69 UNITED STATES SENATE- PARTIAL/ UNEXPIRED TERM...... ........ ... ..... ...... .. .. ..... ............ 93 U.S. REPRESENTATIVE- DISTRICT 5... ......... .. ... . ... ........ . ..... .... .. .. .. ... ...... ......... ... ...... ...... 99 U.S. REPRESENTATIVE - DISTRICT 9... ... ...... ..... .. .. ......... ......... ............ ... ... ...... ...... ... ...... 104 U.S. REPRESENTATIVE- DISTRICT 13 ... ... ... .... .. ... ...... ....... .... . ... ... ... ... ... ...... ..... ....... ...... 108 STATE ASSEMBLY - DISTRICT 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . 113 STATE ASSEMBLY - DISTRICT 22 ... ... ... ... ... ... ... ... ... ... ... .. . ... ... ... .... .. ... ... ... .. .... .. ...... ... ..... 117

COUNTY I MUNICIPAL OFFICES - PRECINCT LEVEL RESULTS
COUNTY SUPERVISOR - DISTRICT 1. .. ... ... ... ... ... ... .. . ... ... ... ... ... .. . .. . ... ... .... .. ... ... ... ...... ... ... 123 COUNTY SUPERVISOR - DISTRICT 2 ... ... ... .. . ... ... ... ..... .. . ... ... .. . ... ... .. . ... ... ... ... ... ... .. . .. . ... ... 127 COUNTY SUPERVISOR - DISTRICT 5... .. . .. .. .. ... .. ... ... .. . ... ... .. . .. . ... ... .. . ... ... ....... ... ... .. . ... ... ... 131 CITY OF MODESTO - MAYOR.. .... .. .... ..... .... .. ... ....... ............ ... ..... ..... .... ... ........ ........... ..... 135 #30..
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MEASURES SUBMITTED TO THE VOTERS - PRECINCT LEVEL RESULTS PROPOSITION 1 ... .. . ... .. . .. . .. ....... ... ... ... ... .. . .. . ... ... ... ... ... ... ... ... ..... . .. . .. ... . ......... ... .. ... ...... 140 MEASURE N - RIVERBANK UNIFIED SCHOOL DISTRICT... ......... ... ... .... ..... .. ..... ........ ...... ... 146

CERTIFIED WRITE-IN CANDIDATES - PRECINCT LEVEL RESULTS
UNITED STATES PRESIDENT - DEMOCRATIC PARTY ... ... .. ... ........ .. ... .......... ............ ............ ....... 150 UNITED STATES PRESIDENT - REPUBLICAN PARTY. ......... .... .. ...... ..... ... .. .. .. .... .... ....... ...... 153 UNITED STATES PRESIDENT -AMERICAN INDEPENDENT PARTY.. .... ...... .................. ...... .. 156 UNITED STATES PRESIDENT - GREEN PARTY...... ............ ... .... .... .. ... ........ ........ ...... ... ...... 159 UNITED STATES PRESIDENT - LIBERTARIAN PARTY...... ....... ......... ..... ..... ..... .. ........ ......... 162 UNITED STATES SENATE- FULL TERM..... ... ... ........ .. .... ........... ..... .................. .... .. ... .... ... . 165 UNITED STATES SENATE- PARTIAL/ UNEXPIRED TERM... ...... ........ ......... .... .. .... .. .......... . 168 STATE ASSEMBLY - DISTRICT 9 ... ... ... ... ... ... ... .. . .. . ... .. . ... ... ... ... ... ... ... ... ... ... . .. . ... ... .. .. ..... 171 #30..
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City of Modesto Mayor - NONPARTISAN - Vote for ONE
Precincts
Counted Total Percent
60 60 100.00%
Voters
Ballots Registered Percent
35,413 115,190 30.74%
Choice Party Vote Center Vote By Mail Total
SUE ZWAHLEN 1,130 67.46% 24,824 82.30% 25,954 81.52%
SEBASTIAN JONES 299 17.85% 2,967 9.84% 3,266 10.26%
DEWEY L BEDFORD JR. 246 14.69% 2,371 7.86% 2,617 8.22%
Cast Votes: 1,675 100.00% 30,162 100.00% 31,837 100.00% Undervotes: 223 2,934 3,157
Overvotes: 2 5 7
Rejected write-in votes: 39 415 454
Unresolved write-in votes: 0 0 0
Proposition 1 - NONPARTISAN
Precincts
Counted Total Percent
161 161 100.00%
Voters
Ballots Registered Percent
85,934 285,977 30.05%
Choice Party Vote Center Vote By Mail Total
NO 3,662 67.66% 43,217 56.80% 46,879 57.52%
YES 1,750 32.34% 32,867 43.20% 34,617 42.48%
Cast Votes: 5,412 100.00% 76,084 100.00% 81,496 100.00% Undervotes: 195 4,098 4,293
Overvotes: 6 6 12
Rejected write-in votes: 0 0 0
Unresolved write-in votes: 0 0 0
Cumulative Results Report
**OFFICIAL BALLOTS**
Run Time
Run Date
10:18 AM
03/21/2024

STANISLAUS COUNTY, CALIFORNIA

PRESIDENTIAL PRIMARY ELECTION
3/5/2024

Official Results
Registered Voters
85934 of 285977 = 30.05%
Precincts Reporting
161 of 161 = 100.00%
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Cumulative Totals
Precinct Party Member Registration Party Member Ballots Cast Turnout (%) SEBASTIAN JONES DEWEY L BEDFORD JR. SUE ZWAHLEN 117001 2,089 478 22.9 50 37 340
117002 2,183 970 44.4 62 39 747
117003 1,030 156 15.1 28 14 101
117004 2,371 301 12.7 53 42 184
117005 1,744 232 13.3 50 27 134
117007 2,201 808 36.7 64 58 620
117008 1,877 438 23.3 83 41 274
117009 2,184 653 29.9 48 46 483
117010 1,828 759 41.5 45 38 620
117011 2,122 540 25.4 56 44 388
117012 1,902 637 33.5 59 60 447
117014 2,387 573 24.0 63 47 424
117015 2,397 795 33.2 71 79 567
117021 1,773 688 38.8 54 54 515
117023 602 65 10.8 4 12 47
117027 2,270 854 37.6 58 49 692
117028 2,162 743 34.4 53 56 558
117030 1,782 521 29.2 47 57 368
117036 2,192 721 32.9 51 52 544
117039 1,953 666 34.1 31 40 530
117042 2,043 925 45.3 61 42 738
117043 1,913 647 33.8 73 43 467
117044 2,221 790 35.6 65 65 564
117046 2,192 616 28.1 69 51 443
117047 2,138 958 44.8 68 48 731
117049 1,550 200 12.9 39 18 135
117052 1,856 732 39.4 68 46 552
117053 1,737 365 21.0 56 26 247
117054 1,175 373 31.7 26 20 298
117059 1,591 543 34.1 42 52 392
117062 2,665 657 24.7 86 55 461
117063 2,492 300 12.0 48 27 201
117064 2,135 514 24.1 58 51 354
117069 1,823 540 29.6 64 54 374
117070 2,120 849 40.0 71 53 639
117072 2,229 729 32.7 75 64 491
117074 2,325 946 40.7 63 43 718
117076 2,091 658 31.5 58 57 472
117083 2,275 879 38.6 72 49 653
117084 1,439 435 30.2 30 34 337
117085 1,723 493 28.6 48 47 349
117086 1,774 449 25.3 59 39 298
117088 1,806 616 34.1 59 35 440
117090 1,846 811 43.9 41 50 637
117091 2,222 853 38.4 76 68 611
117093 2,163 843 39.0 77 56 609
117095 2,090 641 30.7 62 49 466
117096 1,870 491 26.3 41 49 357
117101 2,325 700 30.1 66 44 532
117104 1,960 456 23.3 36 37 340
117107 2,244 831 37.0 64 54 626
117111 1,521 499 32.8 65 33 344
117112 2,030 549 27.0 45 53 396
117114 629 89 14.1 10 15 62
117121 1,822 407 22.3 53 38 293
117136 2,233 655 29.3 61 54 461
117154 2,213 622 28.1 76 39 436
3/21/2024 10:21 AM District Results Report - March 05, 2024 Page 135 City of Modesto Mayor - NONPARTISAN
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Cumulative Totals
Precinct Party Member Registration Party Member Ballots Cast Turnout (%) SEBASTIAN JONES DEWEY L BEDFORD JR. SUE ZWAHLEN 117165 1,549 500 32.3 43 33 359
117174 2,111 654 31.0 62 34 488
117196 0 0 0.0 0 0 0 Vote Center Totals 115,190 1,941 1.7 299 246 1,130 Vote By Mail Totals 115,190 33,472 29.1 2,967 2,371 24,824 Grand Totals 115,190 35,413 30.7 3,266 2,617 25,954
3/21/2024 10:21 AM District Results Report - March 05, 2024 Page 136 City of Modesto Mayor - NONPARTISAN
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Vote Center Totals
District Party Member Registration Party Member Ballots Cast Turnout (%) SEBASTIAN JONES DEWEY L BEDFORD JR. SUE ZWAHLEN STANISLAUS COUNTY, CALIFORNIA115,190 1,941 1.7 299 246 1,130 STATEWIDE DISTRICT 115,190 1,941 1.7 299 246 1,130 COUNTYWIDE DISTRICT 115,190 1,941 1.7 299 246 1,130 5TH CONGRESSIONAL DISTRICT 95,287 1,730 1.8 250 209 1,025 13TH CONGRESSIONAL DISTRICT 19,903 211 1.1 49 37 105
STATE BOARD OF EQUALIZATION DISTRICT 1115,190 1,941 1.7 299 246 1,130 4TH SENATORIAL DISTRICT 115,190 1,941 1.7 299 246 1,130 22ND ASSEMBLY DISTRICT 115,190 1,941 1.7 299 246 1,130
1ST SUPERVISORIAL DISTRICT 26,328 451 1.7 53 47 270
2ND SUPERVISORIAL DISTRICT 0 0 0.0 0 0 0
3RD SUPERVISORIAL DISTRICT 39,331 633 1.6 120 72 369
4TH SUPERVISORIAL DISTRICT 46,322 835 1.8 117 121 485
5TH SUPERVISORIAL DISTRICT 3,209 22 0.7 9 6 6 CITY OF MODESTO 115,190 1,941 1.7 299 246 1,130 Vote Center Totals 115,190 1,941 1.7 299 246 1,130
3/21/2024 10:21 AM District Results Report - March 05, 2024 Page 137 City of Modesto Mayor - NONPARTISAN
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Vote By Mail
Totals
District Party Member Registration Party Member Ballots Cast Turnout (%) SEBASTIAN JONES DEWEY L BEDFORD JR. SUE ZWAHLEN STANISLAUS COUNTY, CALIFORNIA115,190 33,472 29.1 2967 2371 24824 STATEWIDE DISTRICT 115,190 33,472 29.1 2967 2371 24824 COUNTYWIDE DISTRICT 115,190 33,472 29.1 2967 2371 24824 5TH CONGRESSIONAL DISTRICT 95,287 30,196 31.7 2506 2074 22571 13TH CONGRESSIONAL DISTRICT 19,903 3,276 16.5 461 297 2253 STATE BOARD OF EQUALIZATION DISTRICT 1115,190 33,472 29.1 2967 2371 24824 4TH SENATORIAL DISTRICT 115,190 33,472 29.1 2967 2371 24824 22ND ASSEMBLY DISTRICT 115,190 33,472 29.1 2967 2371 24824 1ST SUPERVISORIAL DISTRICT 26,328 8,290 31.5 747 539 6079 2ND SUPERVISORIAL DISTRICT 0 0 0.0 0 0 0
3RD SUPERVISORIAL DISTRICT 39,331 10,269 26.1 962 855 7469 4TH SUPERVISORIAL DISTRICT 46,322 14,490 31.3 1190 936 10984 5TH SUPERVISORIAL DISTRICT 3,209 423 13.2 68 41 292 CITY OF MODESTO 115,190 33,472 29.1 2967 2371 24824 Vote By Mail Totals 115,190 33,472 29.1 2,967 2,371 24,824 3/21/2024 10:21 AM District Results Report - March 05, 2024 Page 138 City of Modesto Mayor - NONPARTISAN
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Grand Totals
District Party Member Registration Party Member Ballots Cast Turnout (%) SEBASTIAN JONES DEWEY L BEDFORD JR. SUE ZWAHLEN STANISLAUS COUNTY, CALIFORNIA115,190 35,413 30.7 3266 2617 25954 STATEWIDE DISTRICT 115,190 35,413 30.7 3266 2617 25954 COUNTYWIDE DISTRICT 115,190 35,413 30.7 3266 2617 25954 5TH CONGRESSIONAL DISTRICT 95,287 31,926 33.5 2756 2283 23596 13TH CONGRESSIONAL DISTRICT 19,903 3,487 17.5 510 334 2358 STATE BOARD OF EQUALIZATION DISTRICT 1115,190 35,413 30.7 3266 2617 25954 4TH SENATORIAL DISTRICT 115,190 35,413 30.7 3266 2617 25954 22ND ASSEMBLY DISTRICT 115,190 35,413 30.7 3266 2617 25954 1ST SUPERVISORIAL DISTRICT 26,328 8,741 33.2 800 586 6349 2ND SUPERVISORIAL DISTRICT 0 0 0.0 0 0 0
3RD SUPERVISORIAL DISTRICT 39,331 10,902 27.7 1082 927 7838 4TH SUPERVISORIAL DISTRICT 46,322 15,325 33.1 1307 1057 11469 5TH SUPERVISORIAL DISTRICT 3,209 445 13.9 77 47 298 CITY OF MODESTO 115,190 35,413 30.7 3266 2617 25954 Vote Center Totals 115,190 1,941 1.7 299 246 1,130 Vote By Mail Totals 115,190 33,472 29.1 2,967 2,371 24,824 Grand Totals 115,190 35,413 30.7 3,266 2,617 25,954
3/21/2024 10:21 AM District Results Report - March 05, 2024 Page 139 City of Modesto Mayor - NONPARTISAN
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