Economic Development Committee
May 6, 2024

- 1 -
5/6/2024 4:00:00 PM
www.modestogov.com
AGENDA
City of Modesto

ECONOMIC DEVELOPMENT COMMITTEE

COUNCIL WORKSHOP
2001-40 Del Puerto Room.

Tenth Street Place, 1010 10th Street
Modesto, California
Monday, May 06, 2024 at 4:00 PM
Roll Call: Chris Ricci, Chair
Eric Alvarez, Vice-Chair
Sue Zwahlen, Member
Alternates: Nick Bavaro, Rosa Escutia-Braaton, Jeremiah Williams, David Wright Council has not delegated directive or final approval authority to the Committees.

Committee actions are recommendations to the full City Council, not final decisions on an issue. * Public Comment will only be in-person. Members of the public who wish to address the Committee, by providing public comment, during the meeting must do so in-person in the 2001-40 Del Puerto Room. As an alternative, members of the public may also provide written public comment submitted via email as indicated in the Submitting Comments by Email instructions on this agenda. Zoom will still be available for viewing and Wordly translation. *Members of the public will be allowed to provide public comment through Zoom if a Committee Member is participating remotely pursuant to the provisions of Assembly Bill 2449. *Effective March 1, 2023, if a technical issue arises with Zoom or the phone dial-in option, the Committee meeting will continue unless the meeting is being held pursuant to the provisions of Assembly Bill 2449. Alternative viewing options are listed below, and the meeting is physically open to the public.
“Wordly” can translate into 25+ different languages! To access written translation during the meeting, please scan the QR Code or click this link https://attend.wordly.ai/join/RJDY-6364.
- 1 -
5/6/2024
- 2 -
5/6/2024 4:00:00 PM
"Wordly" puede traducir a más de 25 idiomas diferentes! Para acceder a la traducción durante la reunión, por favor escanee el código QR o haga clic en el enlace https://attend.wordly.ai/join/RJDY-6364.

THE MEETING CAN BE VIEWED BY ZOOM VIDEO

CONFERENCING OR TELEPHONE
Joining the Committee meeting via Zoom
The City of Modesto is now offering the ability to view Committee meetings via telephonic conferencing via “Zoom” video conferencing computer technology. The meeting may be accessed through the use of Zoom using the following options:
 Enter the following link into an Internet Browser
https://us02web.zoom.us/j/86945970570,
 Enter the following link into an Internet Browser https://zoom.us/ and using the Webinar ID 869 4597 0570
 Passcode 84326
To use Zoom, please visit: https://zoom.us/ and either sign-up for a free Zoom account or continue as a guest. Once you have downloaded the app onto your mobile device, joined from your web browser, or downloaded the Zoom software on your computer you will be ready for the upcoming Committee meeting.

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

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

Only interested persons in the audience may present these matters.

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

SUBMITTING COMMENTS BY E-MAIL
Written comments may be submitted via email to: [email protected] (include Agenda Item Number in the subject line). All comments will be shared with the Committee - 2 -
5/6/2024
- 3 -
5/6/2024 4:00:00 PM
Members and placed in the record but will not be read aloud during the meeting. Written comments must be received two hours before the meeting.

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

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

CONSENT ITEMS – ROLL CALL VOTE REQUIRED:

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

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

Consent

1. Consider a Cooperative Agreement with Caltrans for the Project Approval and Environmental Document (PA&ED) Phase of the Standiford Avenue at State Route 99 and forwarding to Council for approval. (Funding Source: Measure L and Capital Facilities Fee)
 Motion recommending a Cooperative Agreement with Caltrans for the Project Approval and Environmental Document (PA&ED) Phase of the Standiford Avenue at State Route 99 and forwarding to Council for approval. - 3 -
5/6/2024
- 4 -
5/6/2024 4:00:00 PM
ENGINEERING SERVICES; Toby Wells, 209-571-5542, [email protected] Consent

2. Consider Agreements for the purchase and delivery of chemicals for wastewater treatment with Thatcher Company of California, Sacramento, CA, Northstar Chemical, Modesto, CA, and Univar Solutions, Kent, WA, for a total amount not to exceed $1,221,021, over five years and forwarding to Council for approval. (Funding Source:

Sewer Operations Fund)
 Motion recommending the Award of Bid and Agreements for the purchase and delivery of chemicals for wastewater treatment to Thatcher Company of California, Sacramento, CA, Northstar Chemical, Modesto, CA, and Univar Solutions, Kent, WA, for a one (1) year Agreement with four (4) one-year extension options, for an annual estimated amount of $200,000 and a total combined amount not to exceed $1,221,021 over five years and forwarding to Council for approval.

UTILITIES; Jeff Daniels, 209-577-6255, [email protected] Consent

3. Consider an Engineering Services Agreement with BKF Engineers, of Modesto, CA, for the Final Design of the Highway 99 Water Main Crossings Improvements Project, in the amount of $491,321, plus $49,132 in additional services, if needed, for an Agreement total not to exceed $540,453 and forwarding to Council for approval. (Funding Source: Water Fund)
 Motion recommending an Engineering Services Agreement with BKF Engineers, of Salida, CA, for the Final Design of the Highway 99 Water Main Crossings Improvements Project in the amount of $491,321, plus $49,132 in additional services, if needed, for an Agreement total amount not to exceed $540,453, and forwarding to Council for approval.
 Motion recommending amending the Fiscal Year 2023-24 Capital Improvement Program Budget in the amount of $3,047,541 to be transferred into the Project from Water Fund Reserves to fund the Highway 99 Water Main Crossings Improvements Project and forwarding to Council for approval.

UTILITIES; Edgar Vargas, 209-577-5424, [email protected]

NEW BUSINESS

4. Consider the submittal of a State of California grant application for Active Transportation Program (ATP) – Cycle 7 funds in the amount of $11,500,000, with a local match of $3,480,000 in Local Measure L funds, for a total project amount of $14,980,000 for the Encina Avenue and Lincoln Avenue Pedestrian/Bicycle Trail Corridor Project and forwarding to Council for approval. (Funding Source: State of California ATP grant funds and Local Measure L funds)
 Motion recommending the submittal of a State of California grant application for Active Transportation Program (ATP) funds in the amount of $11,500,000, with a local match of $3,480,000 in Local Measure L funds, for a total amount - 4 -
5/6/2024
- 5 -
5/6/2024 4:00:00 PM
of $14,980,000 for the Encina Avenue and Lincoln Avenue Pedestrian/Bicycle Trail Corridor Project and forwarding to Council for approval.

ENGINEERING SERVICES; Michael Sacuskie, 209-571-5552,
[email protected]

5. Consider an Engineering Services Agreement with Carollo Engineers, Inc., of Sacramento, CA, for the Regional Water Recycling Facility - Sutter Campus Master Plan Relocation Project, in an amount not to exceed $1,966,703 and forwarding to Council for approval. (Funding Source: Wastewater Fund)  Motion recommending an Engineering Services Agreement with Carollo Engineers, of Sacramento, CA, for the Regional Water Recycling Facility - Sutter Campus Master Plan Relocation Project in the amount of $1,787,912, plus $178,791 in additional services, if needed, for an Agreement total amount not to exceed $1,966,703 and forwarding to Council for approval.  Motion recommending an amendment to the Fiscal Year 2023-24 Multi-Year Program Budget in the amount of $2,045,000 to be transferred into the Project from Wastewater Reserves to fund the Regional Water Recycling Facility - Sutter Campus Master Plan Relocation Project and forwarding to Council for approval.

UTILITIES; Juan Ochoa, 209-577-5423, [email protected]

ADJOURNMENT
Posted pursuant to Government Code Section 54954.2 on the bulletin board at Tenth Street Place on at by
date time signature
- 5 -
5/6/2024

CITY OF MODESTO

COMMITTEE AGENDA REPORT
DATE OF MEETING:

May 6, 2024
Date: April 17, 2024
TO: Economic Development Committee
Chris Ricci, Chair
Eric Alvarez, Vice-Chair
Mayor Zwahlen, Member
THROUGH: Joseph P. Lopez, City Manager
FROM: Toby Wells, Director of Engineering Services/City Engineer SUBJECT: Cooperative Agreement with Caltrans for the Standiford Interchange Project CONTACT: Toby Wells, Director of Engineering Services/City Engineer, [email protected], 209-571-5542
DESCRIPTION:

Consider a Cooperative Agreement with Caltrans for the Project Approval and Environmental Document (PA&ED) Phase of the Standiford Avenue at State Route 99 and forwarding to Council for approval. (Funding Source: Measure L and Capital Facilities Fee) STRATEGIC PLAN ELEMENT:

This action for the Standiford Avenue at State Route 99 (SR99) Interchange Project is consistent with the Council’s 2020-2025 Strategic Plan Goal D, Ensure Safe, Efficient and Reliable Infrastructure. Specifically, this item supports the City’s goal to expand alternative modes of travel, improve transportation flow, and drive economic vitality.

BACKGROUND:

The Standiford Avenue at SR99 Interchange was constructed incrementally in response to changing demands and available funding over time. Current deficiencies are such that a complete overhaul is necessary to maintain traffic flows into the future. As such, an analysis must be performed to understand the regional traffic impacts first and then look for ways to make improvements. Staff anticipates that this could result in significant changes to local roadways, resulting in increased safety and efficiency for movement of goods and services throughout the vicinity of Standiford Avenue and SR99.

The initial direction from Caltrans to staff is the need to reconstruct the SR99 overcrossing to accommodate 8 lanes of traffic on the SR99 mainline. This work is complicated by the presence of traffic signals at less than ideal spacing in the immediate vicinity of the interchange. Interchange reconstruction and roadway realignment will be further complicated by the presence of a major electrical substation and drainage facility in the northeast quadrant of the existing facility. This #1..
- 6 -
Economic Development Committee, May 6, 2024
Cooperative Agreement with Caltrans for the Standiford Interchange Project

interchange also serves as a grade separated crossing of the Union Pacific Railroad and future expansion of the ACE Rail System.

On September 1, 2020, by Resolution No. 2020-340, Council approved amending the Capital Improvement Program (CIP) budget in the amount of $1,098,000 for Project Initiation Document and Project Approval and Environmental Document phases for the Standiford Avenue at SR99 Interchange Improvement Project.

On September 1, 2020, by Resolution No. 2020-339, Council approved a Measure L Cooperative Agreement with Stanislaus Council of Governments (StanCOG) funding up to $1,098,000 of Measure L funds for the Project Initiation Document and Project Approval and Environmental Document phases for the Standiford Avenue at SR99 Interchange Improvement Project.

On April 6, 2021, by Resolution No. 2021-127, Council approved Cooperative Agreement with Caltrans for Project Initiation Document and Project Approval Environmental Document Phases of the Standiford Avenue at SR99 Interchange Improvement Project.

On April 4, 2023, by Resolution No. 2023-128, Council approved a Design Services Agreement with WMH Corporation of San Jose, CA for the Standiford Avenue at State Route 99 Interchange Project in the amount of $6,450,665, plus $645,066 for additional services, if needed, for a total amount not to exceed $7,095,731.

DISCUSSION:

The purpose of this project is to reduce traffic congestion, improve regional and interregional traffic operation, and enhance safety on the SR99 highway and within the vicinity of the local transportation network of the Standiford Avenue at SR99 interchange through reconstruction.

StanCOG is the designated Regional Transportation Planning Agency, the designated Metropolitan Planning Organization, and the designated Council of Governments for Stanislaus County. StanCOG has designated the Standiford at SR99 Interchange as a priority project for delivery in Measure L’s first 10 years. As a Measure L regional funding priority, this project is designated to receive up to $1,098,000 of the regional project share of Measure L funds for this phase of the project. StanCOG will reimburse the City of Modesto for identified costs associated with development of this project. Per the StanCOG adopted 2022 Measure L Update, the project is allocated an additional $6,948,000 for the future Plans, Specifications and Estimate (PSE) phase.

The first project phase is termed the Project Initiation Document (PID) phase. This is the first formal project phase in developing a solution for a specific transportation problem. The outcome of the project initiation process is a document that establishes a well-defined purpose-and-need statement, proposed project scope tied to a reliable cost estimate, and a schedule. Additionally, the use of State funds for capital improvements on the State Highway System (SHS) requires an approved PID. Any major work on the State Highway System regardless of how it is funded requires an approved PID.

The PID is a technical engineering report that documents the scope, cost, and schedule of a project. The PID is the product of the project scoping effort, becomes the record of the purposeand-need for the project, and it defines the approach that will be taken to meet or reduce transportation deficiencies. The PID is a record of the existing information, initial assumptions, #1..
- 7 -
Economic Development Committee, May 6, 2024
Cooperative Agreement with Caltrans for the Standiford Interchange Project

identified risks, and constraints that generated the development of the project work plan. The PID is used to obtain approval for inclusion of a project into a programming document or to get conceptual approval by Caltrans as a project-funded-by-others.

Caltrans requires development of a PID prior to approval to begin the environmental project phase or PA&ED. The Project Approval and Environmental Document (PA&ED) phase develops and establishes the State and Federal approvals necessary for the project to move to the final PS&E project phase. Approval of the PID, PA&ED, and PS&E phases are all milestone events that provide the basis for funding of subsequent phases concluding with the construction phase.

The PID phase is nearing completion with a draft report currently under review by Caltrans.

Therefore, the project is now ready to move to the second phase of development, PA&ED. In order to proceed, a Cooperative Agreement with Caltrans is required.

The Cooperative Agreement provides the framework and delineates the respective responsibilities of Caltrans and City of Modesto for the PA&ED phase of the project. This agreement is required for the City to take the lead on the project development for improvements that will be located on the State Highway system. Staff recommends authorization to execute the Cooperative Agreement to continue the project development for the Standiford Avenue at State Route 99 Interchange Project.

FISCAL IMPACT:

This project is included in the City’s Capital Facilities Fee (CFF) program, and it is also included in the Regional Measure L Strategic Plan managed by StanCOG. These initial phases of the project are supported by a combination of funding from both Measure L and CFF and already budgeted.

The Cooperative Agreement with Caltrans for the PA&ED phase doesn’t not require any additional payment to Caltrans therefore no additional funding is required for this agreement.

CEQA/NEPA REQUIREMENTS:

The environmental review of the project will be included in the PA&ED phase of the project and will be completed under the terms of the WMH agreement.

RECOMMENDED COMMITTEE ACTION:

Staff Recommendations:

Motion recommending a Cooperative Agreement with Caltrans for the Project Approval and Environmental Document (PA&ED) Phase of the Standiford Avenue at State Route 99 and forwarding to Council for approval.

Approved by:

Toby Wells, Director of Engineering Services
Joseph P. Lopez, City Manager
Attachments:

1. Cooperative Agreement with Caltrans for Standiford/SR-99 #1..
- 8 -
DRAFT Agreement No. 10-0583
Project No.: 1020000195
EA: 10-1M500
10-STA-99-R19.80/R20.60
Agreement No. 10-0583 | 10-STA-99 | EA: 10-1M500
Page | 1
DRAFT

COOPERATIVE AGREEMENT COVER SHEET
Work Description

IMPROVE ACCESS AND SAFETY FOR ALL TRAVEL MODES IN THE AREA INCLUDING BICYCLES, PEDESTRIANS AND TRANSIT. ALSO, IMPROVE THE ECONOMIC VITALITY OF LOCAL COMMERCIAL

CENTERS AND CITY OF MODESTO
Contact Information
The information provided below indicates the primary contact information for each PARTY to this AGREEMENT. PARTIES will notify each other in writing of any personnel or location changes. Contact information changes do not require an amendment to this AGREEMENT.

CALTRANS
Mimi Huie, Project Manager
1976 E. Martin Luther King Blvd
Modesto, CA 95205
Office Phone: (209) 607-3170
Email: [email protected]

CITY OF MODESTO
Toby Wells, Engineering Services Development Director/City Engineer 1010 10th Street
Modesto, CA 95354
Office Phone: (209) 571-5542
Email: [email protected]
#1..
- 9 -
DRAFT Agreement No. 10-0583
Project No.: 1020000195
EA: 10-1M500
10-STA-99-R19.80/R20.60
Agreement No. 10-0583 | 10-STA-99 | EA: 10-1M500
Page | 2
DRAFT
Table of Contents
COOPERATIVE AGREEMENT COVER SHEET ..................................................................................................1 Work Description .....................................................................................................................................1 Contact Information.................................................................................................................................1 CALTRANS ............................................................................................................................................1 CITY OF MODESTO ...............................................................................................................................1 COOPERATIVE AGREEMENT .........................................................................................................................4 RECITALS.......................................................................................................................................................4 RESPONSIBILITIES .........................................................................................................................................5 Sponsorship..............................................................................................................................................5 Implementing Agency ..............................................................................................................................5 Funding.....................................................................................................................................................6 CALTRANS' Quality Management.............................................................................................................6 CEQA/NEPA Lead Agency .........................................................................................................................7 Environmental Permits, Approvals and Agreements ...............................................................................7 Project Approval and Environmental Document (PA&ED).......................................................................7 California Environmental Quality Act (CEQA) ......................................................................................8 National Environmental Policy Act (NEPA) ..........................................................................................9 Schedule.................................................................................................................................................10 Additional Provisions..............................................................................................................................10 Standards ...........................................................................................................................................10 Noncompliant Work...........................................................................................................................11 Qualifications .....................................................................................................................................11 Consultant Selection ..........................................................................................................................11 Encroachment Permits.......................................................................................................................11 Protected Resources ..........................................................................................................................11 Disclosures .........................................................................................................................................12 Hazardous Materials ..........................................................................................................................12 Claims.................................................................................................................................................13 Accounting and Audits .......................................................................................................................13 #1..
- 10 -
DRAFT Agreement No. 10-0583
Project No.: 1020000195
EA: 10-1M500
10-STA-99-R19.80/R20.60
Agreement No. 10-0583 | 10-STA-99 | EA: 10-1M500
Page | 3
DRAFT
Interruption of Work..........................................................................................................................14 Penalties, Judgments and Settlements ..............................................................................................14 Project Files........................................................................................................................................14 GENERAL CONDITIONS ...............................................................................................................................14 Venue .....................................................................................................................................................14 Exemptions.............................................................................................................................................15 Indemnification ......................................................................................................................................15 Non-parties ............................................................................................................................................15 Ambiguity and Performance ..................................................................................................................15 Defaults ..................................................................................................................................................16 Dispute Resolution .................................................................................................................................16 Prevailing Wage......................................................................................................................................16 SIGNATURES .................................................................................................................................................1 #1..
- 11 -
DRAFT Agreement No. 10-0583
Project No.: 1020000195
EA: 10-1M500
10-STA-99-R19.80/R20.60
Agreement No. 10-0583 | 10-STA-99 | EA: 10-1M500
Page | 4
DRAFT

COOPERATIVE AGREEMENT
This AGREEMENT, executed on and effective from __________________________, is between the State of California, acting through its Department of Transportation, referred to as CALTRANS, and:

City of Modesto, a body politic and municipal corporation or chartered city of the State of California, referred to hereinafter as CITY.

An individual signatory agency in this AGREEMENT is referred to as a PARTY. Collectively, the signatory agencies in this AGREEMENT are referred to as PARTIES.

RECITALS

1. PARTIES are authorized to enter into a cooperative agreement for improvements to the State Highway System (SHS) per the California Streets and Highways Code, Sections 114 and 130.

2. For the purpose of this AGREEMENT, Improve access and safety for all travel modes in the area including bicycles, pedestrians and transit. Also, improve the economic vitality of local commercial centers and City of Modesto, will be referred to hereinafter as PROJECT. The PROJECT scope of work is defined in the project initiation and approval documents (e.g. Project Study Report, Design Engineering Evaluation Report, or Project Report).

3. All obligations and responsibilities assigned in this AGREEMENT to complete the following PROJECT COMPONENT will be referred to hereinafter as WORK:
 PROJECT APPROVAL AND ENVIRONMENTAL DOCUMENT (PA&ED)
Each PROJECT COMPONENT is defined in the CALTRANS Workplan Standards Guide as a distinct group of activities/products in the project planning and development process.

4. The term AGREEMENT, as used herein, includes this document and any attachments, exhibits, and amendments.

This AGREEMENT is separate from and does not modify or replace any other cooperative agreement or memorandum of understanding between the PARTIES regarding the PROJECT.

PARTIES intend this AGREEMENT to be their final expression that supersedes any oral understanding or writings pertaining to the WORK. The requirements of this AGREEMENT will preside over any conflicting requirements in any documents that are made an express part of this AGREEMENT.
#1..
- 12 -
DRAFT Agreement No. 10-0583
Project No.: 1020000195
EA: 10-1M500
10-STA-99-R19.80/R20.60
Agreement No. 10-0583 | 10-STA-99 | EA: 10-1M500
Page | 5
DRAFT
If any provisions in this AGREEMENT are found by a court of competent jurisdiction to be, or are in fact, illegal, inoperative, or unenforceable, those provisions do not render any or all other AGREEMENT provisions invalid, inoperative, or unenforceable, and those provisions will be automatically severed from this AGREEMENT.

Except as otherwise provided in the AGREEMENT, PARTIES will execute a written amendment if there are any changes to the terms of this AGREEMENT.

PARTIES agree to sign a CLOSURE STATEMENT to terminate this AGREEMENT. However, all indemnification, document retention, audit, claims, environmental commitment, legal challenge, maintenance and ownership articles will remain in effect until terminated or modified in writing by mutual agreement or expire by the statute of limitations.

5. No PROJECT deliverables have been completed prior to this AGREEMENT.

6. In this AGREEMENT capitalized words represent defined terms, initialisms, or acronyms.

7. PARTIES hereby set forth the terms, covenants, and conditions of this AGREEMENT.

RESPONSIBILITIES
Sponsorship

8. A SPONSOR is responsible for establishing the scope of the PROJECT and securing the financial resources to fund the WORK. A SPONSOR is responsible for securing additional funds when necessary or implementing PROJECT changes to ensure the WORK can be completed with the funds committed in this AGREEMENT.

PROJECT changes, as described in the CALTRANS Project Development Procedures Manual, will be approved by CALTRANS as the owner/operator of the State Highway System.

9. CITY is the SPONSOR for the WORK in this AGREEMENT.

Implementing Agency

10. The IMPLEMENTING AGENCY is the PARTY responsible for managing the scope, cost, schedule, and quality of the work activities and products of a PROJECT COMPONENT.  CITY is the Project Approval and Environmental Document (PA&ED) IMPLEMENTING AGENCY.

PA&ED includes the completion of the Final Environmental Document and the Project Report (documenting the project alternative selection).
#1..
- 13 -
DRAFT Agreement No. 10-0583
Project No.: 1020000195
EA: 10-1M500
10-STA-99-R19.80/R20.60
Agreement No. 10-0583 | 10-STA-99 | EA: 10-1M500
Page | 6
DRAFT

11. CITY will provide a Quality Management Plan (QMP) for the WORK in every PROJECT COMPONENT that they are implementing. The QMP describes the IMPLEMENTING AGENCY's quality policy and how it will be used. The QMP will include a process for resolving disputes between the PARTIES at the team level. The QMP is subject to CALTRANS review and concurrence.

12. Any PARTY responsible for completing WORK will make its personnel and consultants that prepare WORK available to help resolve WORK-related problems and changes for the entire duration of the PROJECT including PROJECT work that may occur under separate agreements.

Funding

13. The WORK does not use funds administered by CALTRANS. PARTIES will amend this AGREEMENT should this condition change.

14. Each PARTY is responsible for the costs they incur in performing the WORK.

CALTRANS' Quality Management

15. CALTRANS, as the owner/operator of the State Highway System (SHS), will perform quality management work including Quality Management Assessment (QMA), environmental document quality control, and owner/operator approvals for the portions of WORK within the existing and proposed SHS right-of-way.

16. CALTRANS' Quality Management Assessment (QMA) efforts are to ensure that CITY's quality assurance results in WORK that is in accordance with the applicable standards and the PROJECT's quality management plan (QMP). QMA does not include any efforts necessary to develop or deliver WORK or any validation by verifying or rechecking WORK.

When CALTRANS performs QMA, it does so for its own benefit. No one can assign liability to CALTRANS due to its QMA.

17. CALTRANS, as the owner/operator of the State Highway System, will approve WORK products in accordance with CALTRANS policies and guidance and as indicated in this AGREEMENT.

18. Per National Environmental Policy Act (NEPA) assignment and California Environmental Quality Act (CEQA) statutes, CALTRANS will perform environmental document quality control and NEPA assignment review procedures for environmental documentation. CALTRANS quality control and quality assurance procedures for all environmental documents are described in Chapter 38 of the Standard Environmental Reference (SER), available at https://dot.ca.gov/programs/environmental-analysis/standard-environmental-referenceser/volume-1-guidance-for-compliance/ch-38-nepa-assignment. This also includes the independent judgement analysis and determination under CEQA that the environmental documentation meets CEQA requirements.
#1..
- 14 -
DRAFT Agreement No. 10-0583
Project No.: 1020000195
EA: 10-1M500
10-STA-99-R19.80/R20.60
Agreement No. 10-0583 | 10-STA-99 | EA: 10-1M500
Page | 7
DRAFT

19. CITY will provide WORK-related products and supporting documentation upon CALTRANS' request for the purpose of CALTRANS' quality management work.

20. The cost of CALTRANS’ quality management work is to be borne by CALTRANS.

CEQA/NEPA Lead Agency

21. CALTRANS is the CEQA Lead Agency for the PROJECT.

22. CALTRANS is the NEPA Lead Agency for the PROJECT.

Environmental Permits, Approvals and Agreements

23. CITY will comply with the commitments and conditions set forth in the environmental documentation, environmental permits, approvals, and applicable agreements as those commitments and conditions apply to CITY's responsibilities in this AGREEMENT.

24. Unless otherwise assigned in this AGREEMENT, the IMPLEMENTING AGENCY for a PROJECT COMPONENT is responsible for all PROJECT COMPONENT WORK associated with coordinating, obtaining, implementing, renewing, and amending the PROJECT permits, agreements, and approvals whether they are identified in the planned project scope of work or become necessary in the course of completing the PROJECT.

25. It is expected that the PROJECT requires the following environmental permits/approvals:

ENVIRONMENTAL PERMITS/REQUIREMENTS
404 US Army Corps of Engineers
401 Regional Water Quality Control Board
State Waste Discharge Requirements (Porter Cologne)/Regional Water Quality Control Board National Pollutant Discharge Elimination System (NPDES)/State Water Resources Control Board Project Approval and Environmental Document (PA&ED)

26. As the PA&ED IMPLEMENTING AGENCY, CITY is responsible for all PA&ED WORK except those activities and responsibilities that are assigned to another PARTY and those activities that are excluded under this AGREEMENT.

27. CALTRANS will be responsible for completing the following PA&ED activities:

CALTRANS Work Breakdown Structure Identifier (If Applicable) 100.10.10.xx Quality Management
165.15.15.xx Essential Fish Habitat Consultation
165.15.15.xx Section 7 Consultation
#1..
- 15 -
DRAFT Agreement No. 10-0583
Project No.: 1020000195
EA: 10-1M500
10-STA-99-R19.80/R20.60
Agreement No. 10-0583 | 10-STA-99 | EA: 10-1M500
Page | 8
DRAFT
165.25.25 Approval to Circulate Resolution
175.20 Project Preferred Alternative
180.10.05.05.xx CEQA Lead Final Env. Doc QA/QC and Approval 180.10.05.45 Section 7 Consultation
180.15.05 Record of Decision (NEPA)
180.15.10 Notice of Determination (CEQA)

28. Any PARTY preparing environmental documentation, including studies and reports, will ensure that qualified personnel remain available to help resolve environmental issues and perform any necessary work to ensure that the PROJECT remains in environmental compliance.

29. CITY will provide written notice of the initiation of environmental studies to the CEQA and NEPA Lead Agencies prior to completing any other PA&ED phase work.

California Environmental Quality Act (CEQA)

30. Environmental documentation will be prepared in compliance with the California Public Resources Code §§ 21080.3.1(d)(e). CALTRANS will provide, and CITY will use, a letter template and a list of California Native American tribes requesting notification. CITY will prepare consultation documentation for CALTRANS’ signature and transmittal in compliance with the statutorily required time frames.

31. The CEQA Lead Agency will determine the type of CEQA documentation and will cause that documentation to be prepared in accordance with CEQA requirements.

32. Any PARTY involved in the preparation of CEQA documentation will prepare the documentation to meet CEQA requirements and follow the CEQA Lead Agency’s standards that apply to the CEQA process.

33. Any PARTY preparing any portion of the CEQA documentation, including any studies and reports, will submit that portion of the documentation to the CEQA Lead Agency for review, comment, and approval at appropriate stages of development prior to public availability.

34. CITY will submit CEQA-related public notices to CALTRANS for review, comment, and approval prior to publication and circulation.

35. The CEQA Lead Agency will attend all CEQA-related public meetings.

36. CITY will submit all CEQA-related public meeting materials to the CEQA Lead Agency for review, comment, and approval at least ten (10) working days prior to the public meeting date.

If the CEQA Lead Agency makes any changes to the materials, then the CEQA Lead Agency will allow CITY to review, comment, and concur on those changes at least three (3) working days prior to the public meeting date.
#1..
- 16 -
DRAFT Agreement No. 10-0583
Project No.: 1020000195
EA: 10-1M500
10-STA-99-R19.80/R20.60
Agreement No. 10-0583 | 10-STA-99 | EA: 10-1M500
Page | 9
DRAFT

37. If a PARTY who is not the CEQA Lead Agency holds a public meeting about the PROJECT, that PARTY must clearly state its role in the PROJECT and the identity of the CEQA Lead Agency on all meeting publications. All meeting publications must also inform the attendees that public comments collected at the meetings are not part of the CEQA public review process.

That PARTY will submit all meeting advertisements, agendas, exhibits, handouts, and materials to the CEQA Lead Agency for review, comment, and approval at least ten (10) working days prior to publication or use. If that PARTY makes any changes to the materials, it will allow the CEQA Lead Agency to review, comment on, and approve those changes at least three (3) working days prior to the public meeting date.

The CEQA Lead Agency maintains final editorial control with respect to text or graphics that could lead to public confusion over CEQA-related roles and responsibilities.

National Environmental Policy Act (NEPA)

38. Pursuant to Chapter 3 of Title 23, United States Code, Sections 326 and 327, CALTRANS is the NEPA Lead Agency for the PROJECT. CALTRANS is responsible for NEPA compliance, will determine the type of NEPA documentation, and will cause that documentation to be prepared in accordance with NEPA requirements.

CALTRANS, as the NEPA Lead Agency for PROJECT, is responsible for the review, comment, and approval all environmental documentation (including, but not limited to, studies, reports, public notices, and public meeting materials, determinations, administrative drafts, and final environmental documents) at appropriate stages of development prior to approval and public availability.

When required as NEPA Lead Agency, CALTRANS will conduct consultation and coordination and obtain, renew, or amend approvals pursuant to the Federal Endangered Species Act, and Essential Fish Habitat.

When required as NEPA Lead Agency, CALTRANS will conduct consultation and coordination approvals pursuant to Section 106 of the National Historic Preservation Act.

39. Any PARTY involved in the preparation of NEPA documentation will follow FHWA and CALTRANS standards that apply to the NEPA process including, but not limited to, the guidance provided in the FHWA Environmental Toolkit (available at http://environment.fhwa.dot.gov/index.asp) and the CALTRANS Standard Environmental Reference.

40. Any PARTY preparing any portion of the NEPA documentation (including, but not limited to, studies, reports, public notices, and public meeting materials, determinations, administrative drafts, and final environmental documents) will submit that portion of the documentation to CALTRANS for CALTRANS' review, comment, and approval prior to public availability. #1..
- 17 -
DRAFT Agreement No. 10-0583
Project No.: 1020000195
EA: 10-1M500
10-STA-99-R19.80/R20.60
Agreement No. 10-0583 | 10-STA-99 | EA: 10-1M500
Page | 10
DRAFT

41. CITY will prepare, publicize, and circulate all NEPA-related public notices. CITY will submit all notices to the NEPA Lead Agency for review, comment, and approval prior to publication and circulation.

CALTRANS will work with the appropriate federal agency to publish notices in the Federal Register.

42. The NEPA Lead Agency will attend all NEPA-related public meetings.

43. CITY will submit all NEPA-related public meeting materials to CALTRANS for CALTRANS’ review, comment, and approval at least ten (10) working days prior to the public meeting date.

44. If a PARTY who is not the NEPA Lead Agency holds a public meeting about the PROJECT, that PARTY must clearly state its role in the PROJECT and the identity of the NEPA Lead Agency on all meeting publications. All meeting publications must also inform the attendees that public comments collected at the meetings are not part of the NEPA public review process.

That PARTY will submit all meeting advertisements, agendas, exhibits, handouts, and materials to the NEPA Lead Agency for review, comment, and approval at least ten (10) working days prior to publication or use. If that PARTY makes any changes to the materials, it will allow the NEPA Lead Agency to review, comment on, and approve those changes at least three (3) working days prior to the public meeting date.

The NEPA Lead Agency has final approval authority with respect to text or graphics that could lead to public confusion over NEPA-related roles and responsibilities.

45. CITY will ensure that the PROJECT is included in the approved Federal Statewide Transportation Improvement Program (FSTIP) prior to the NEPA Lead Agency’s approval of the environmental document.

Schedule

46. PARTIES will manage the WORK schedule to ensure the timely use of committed funds and to ensure compliance with any environmental permits, right-of-way agreements, construction contracts, and any other commitments. PARTIES will communicate schedule risks or changes as soon as they are identified and will actively manage and mitigate schedule risks.

Additional Provisions
Standards

47. PARTIES will perform all WORK in accordance with federal and California laws, regulations, and standards; Federal Highway Administration (FHWA) standards; and CALTRANS standards.

CALTRANS standards include, but are not limited to, the guidance provided in the:
#1..
- 18 -
DRAFT Agreement No. 10-0583
Project No.: 1020000195
EA: 10-1M500
10-STA-99-R19.80/R20.60
Agreement No. 10-0583 | 10-STA-99 | EA: 10-1M500
Page | 11
DRAFT
 CADD Users Manual
 CALTRANS policies and directives
 Plans Preparation Manual
 Project Development Procedures Manual (PDPM)
 Workplan Standards Guide
 Standard Environmental Reference
 Highway Design Manual
 Encroachment Permits Manual
Noncompliant Work

48. CALTRANS retains the right to reject noncompliant WORK. CITY agrees to suspend WORK upon request by CALTRANS for the purpose of protecting public safety, preserving property rights, and ensuring that all WORK is in the best interest of the State Highway System.

Qualifications

49. Each PARTY will ensure that personnel participating in WORK are appropriately qualified or licensed to perform the tasks assigned to them.

Consultant Selection

50. CITY will invite CALTRANS to participate in the selection of any consultants that participate in the WORK.

Encroachment Permits

51. CALTRANS will issue, upon proper application, the encroachment permits required for WORK within State Highway System (SHS) right-of-way. CITY, their contractors, consultants, agents, and utility owners will not work within the SHS right-of-way without an encroachment permit which specifically allows them to do so. CALTRANS will provide encroachment permits to CITY at no cost. CALTRANS will provide encroachment permits to utility owners at no cost. If the encroachment permit and this AGREEMENT conflict, the requirements of this AGREEMENT will prevail.

52. The IMPLEMENTING AGENCY for a PROJECT COMPONENT will coordinate, prepare, obtain, implement, renew, and amend any encroachment permits needed to complete the WORK.

Protected Resources

53. If any PARTY discovers unanticipated cultural, archaeological, paleontological, or other protected resources during WORK, all WORK in that area will stop and that PARTY will notify all PARTIES within 24 hours of discovery. WORK may only resume after a qualified professional has evaluated the nature and significance of the discovery and CALTRANS approves a plan for its removal or protection.
#1..
- 19 -
DRAFT Agreement No. 10-0583
Project No.: 1020000195
EA: 10-1M500
10-STA-99-R19.80/R20.60
Agreement No. 10-0583 | 10-STA-99 | EA: 10-1M500
Page | 12
DRAFT
Disclosures

54. PARTIES will hold all administrative drafts and administrative final reports, studies, materials, and documentation relied upon, produced, created, or utilized for the WORK in confidence to the extent permitted by law and where applicable, the provisions of California Government Code, Section 7921.505(c)(5) will protect the confidentiality of such documents in the event that said documents are shared between PARTIES.

PARTIES will not distribute, release, or share said documents with anyone other than employees, agents, and consultants who require access to complete the WORK without the written consent of the PARTY authorized to release them, unless required or authorized to do so by law.

55. If a PARTY receives a public records request pertaining to the WORK, that PARTY will notify PARTIES within five (5) working days of receipt and make PARTIES aware of any disclosed public records.

Hazardous Materials

56. HM-1 is hazardous material (including, but not limited to, hazardous waste) that may require removal and disposal pursuant to federal or state law, irrespective of whether it is disturbed by the PROJECT or not.

HM-2 is hazardous material (including, but not limited to, hazardous waste) that may require removal and disposal pursuant to federal or state law only if disturbed by the PROJECT.

The management activities related to HM-1 and HM-2, including and without limitation, any necessary manifest requirements and disposal facility designations are referred to herein as HM-1 MANAGEMENT and HM-2 MANAGEMENT respectively.

57. If HM-1 or HM-2 is found, the discovering PARTY will immediately notify all other PARTIES.

58. CALTRANS, independent of the PROJECT, is responsible for any HM-1 found within the existing State Highway System right-of-way. CALTRANS will undertake, or cause to be undertaken, HM-1 MANAGEMENT with minimum impact to the PROJECT schedule.

CALTRANS, independent of the PROJECT, will pay, or cause to be paid, the cost of HM-1 MANAGEMENT related to HM-1 found within the existing State Highway System right-of-way.

59. CITY, independent of the PROJECT, is responsible for any HM-1 found within the PROJECT limits and outside the existing State Highway System right-of-way. CITY will undertake, or cause to be undertaken, HM-1 MANAGEMENT with minimum impact to the PROJECT schedule.

CITY, independent of the PROJECT, will pay, or cause to be paid, the cost of HM-1 MANAGEMENT for HM-1 found within the PROJECT limits and outside of the existing State Highway System right-of-way.
#1..
- 20 -
DRAFT Agreement No. 10-0583
Project No.: 1020000195
EA: 10-1M500
10-STA-99-R19.80/R20.60
Agreement No. 10-0583 | 10-STA-99 | EA: 10-1M500
Page | 13
DRAFT

60. The CONSTRUCTION IMPLEMENTING AGENCY is responsible for HM-2 MANAGEMENT within the PROJECT limits.

CITY and CALTRANS will comply with the Soil Management Agreement for Aerially Deposited Lead Contaminated Soils (Soil Management Agreement) executed between CALTRANS and the California Department of Toxic Substances Control (DTSC). Under Section 3.2 of the Soil Management Agreement, CALTRANS and CITY each retain joint and severable liability for noncompliance with the provisions of the Soil Management Agreement. CITY will assume all responsibilities assigned to CALTRANS in the Soil Management Agreement during PROJECT COMPONENTS for which they are the IMPLEMENTING AGENCY except for final placement and burial of soil within the State right-of-way, per Section 4.5 of the Soil Management Agreement, which is subject to CALTRANS concurrence and reporting to DTSC which will be performed by CALTRANS.

61. CALTRANS' acquisition or acceptance of title to any property on which any HM-1 or HM-2 is found will proceed in accordance with CALTRANS' policy on such acquisition.

Claims

62. CITY may accept, reject, compromise, settle, or litigate claims of any consultants or contractors hired to complete WORK without concurrence from the other PARTY.

63. PARTIES will confer on any claim that may affect the WORK or PARTIES' liability or responsibility under this AGREEMENT in order to retain resolution possibilities for potential future claims. No PARTY will prejudice the rights of another PARTY until after PARTIES confer on the claim.

64. If the WORK expends state or federal funds, each PARTY will comply with the Federal Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards of 2 CFR, Part 200. PARTIES will ensure that any for-profit consultant hired to participate in the WORK will comply with the requirements in 48 CFR, Chapter 1, Part 31. When state or federal funds are expended on the WORK these principles and requirements apply to all funding types included in this AGREEMENT.

Accounting and Audits

65. If the WORK expends state or federal funds, each PARTY will undergo an annual audit in accordance with the Single Audit Act in the Federal Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards as defined in 2 CFR, Part 200.

66. When a PARTY reimburses a consultant for WORK with state or federal funds, the procurement of the consultant and the consultant overhead costs will be in accordance with the Local Assistance Procedures Manual, Chapter 10.
#1..
- 21 -
DRAFT Agreement No. 10-0583
Project No.: 1020000195
EA: 10-1M500
10-STA-99-R19.80/R20.60
Agreement No. 10-0583 | 10-STA-99 | EA: 10-1M500
Page | 14
DRAFT
Interruption of Work

67. If WORK stops for any reason, IMPLEMENTING AGENCY will place the PROJECT right-of-way in a safe and operable condition acceptable to CALTRANS.

68. If WORK stops for any reason, each PARTY will continue with environmental commitments included in the environmental documentation, permits, agreements, or approvals that are in effect at the time that WORK stops, and will keep the PROJECT in environmental compliance until WORK resumes.

Penalties, Judgments and Settlements

69. The cost of awards, judgments, fines, interest, penalties, attorney's fees, and/or settlements generated by the WORK are considered WORK costs.

70. The cost of legal challenges to the environmental process or documentation are considered WORK costs.

71. Any PARTY whose action or lack of action causes the levy of fines, interest, or penalties will indemnify and hold all other PARTIES harmless per the terms of this AGREEMENT.

Project Files

72. CITY will furnish CALTRANS with the Project History Files related to the PROJECT facilities on State Highway System within sixty (60) days following the completion of each PROJECT COMPONENT. CITY will assure that the Project History File is prepared and submitted in compliance with the Project Development Procedures Manual, Chapter 7. All material will be submitted neatly in a three-ring binder and in PDF format.

GENERAL CONDITIONS

73. All portions of this AGREEMENT, including the RECITALS section, are enforceable.

Venue

74. PARTIES understand that this AGREEMENT is in accordance with and governed by the Constitution and laws of the State of California. This AGREEMENT will be enforceable in the State of California. Any PARTY initiating legal action arising from this AGREEMENT will file and maintain that legal action in the Superior Court of the county in which the CALTRANS district office that is signatory to this AGREEMENT resides, or in the Superior Court of the county in which the PROJECT is physically located.
#1..
- 22 -
DRAFT Agreement No. 10-0583
Project No.: 1020000195
EA: 10-1M500
10-STA-99-R19.80/R20.60
Agreement No. 10-0583 | 10-STA-99 | EA: 10-1M500
Page | 15
DRAFT
Exemptions

75. All CALTRANS' obligations and commitments under this AGREEMENT are subject to the appropriation of resources by the Legislature, the State Budget Act authority, programming and allocation of funds by the California Transportation Commission (CTC).

Indemnification

76. Neither CALTRANS nor any of its officers and employees, are responsible for any injury, damage, or liability occurring by reason of anything done or omitted to be done by CITY, its contractors, sub-contractors, and/or its agents under or in connection with any work, authority, or jurisdiction conferred upon CITY under this AGREEMENT. It is understood and agreed that CITY, to the extent permitted by law, will defend, indemnify, and save harmless CALTRANS and all of their officers and employees from all claims, suits, or actions of every name, kind, and description brought forth under, but not limited to, tortious, contractual, inverse condemnation, or other theories and assertions of liability occurring by reason of anything done or omitted to be done by CITY, its contractors, sub-contractors, and/or its agents under this AGREEMENT.

77. Neither CITY nor any of its officers and employees, are responsible for any injury, damage, or liability occurring by reason of anything done or omitted to be done by CALTRANS, its contractors, sub-contractors, and/or its agents under or in connection with any work, authority, or jurisdiction conferred upon CALTRANS under this AGREEMENT. It is understood and agreed that CALTRANS, to the extent permitted by law, will defend, indemnify, and save harmless CITY and all of their officers and employees from all claims, suits, or actions of every name, kind, and description brought forth under, but not limited to, tortious, contractual, inverse condemnation, or other theories and assertions of liability occurring by reason of anything done or omitted to be done by CALTRANS, its contractors, sub-contractors, and/or its agents under this AGREEMENT.

Non-parties

78. PARTIES do not intend this AGREEMENT to create a third- party beneficiary or define duties, obligations, or rights for entities in PARTIES not signatory to this AGREEMENT. PARTIES do not intend this AGREEMENT to affect their legal liability by imposing any standard of care for fulfilling the WORK different from the standards imposed by law.

79. PARTIES will not assign or attempt to assign obligations to entities not signatory to this AGREEMENT without an amendment to this AGREEMENT.

Ambiguity and Performance

80. Neither PARTY will interpret any ambiguity contained in this AGREEMENT against the other PARTY. PARTIES waive the provisions of California Civil Code, Section 1654. #1..
- 23 -
DRAFT Agreement No. 10-0583
Project No.: 1020000195
EA: 10-1M500
10-STA-99-R19.80/R20.60
Agreement No. 10-0583 | 10-STA-99 | EA: 10-1M500
Page | 16
DRAFT
A waiver of a PARTY’s performance under this AGREEMENT will not constitute a continuous waiver of any other provision.

81. A delay or omission to exercise a right or power due to a default does not negate the use of that right or power in the future when deemed necessary.

Defaults

82. If any PARTY defaults in its performance of the WORK, a non-defaulting PARTY will request in writing that the default be remedied within thirty (30) calendar days. If the defaulting PARTY fails to do so, the non-defaulting PARTY may initiate dispute resolution.

Dispute Resolution

83. PARTIES will first attempt to resolve AGREEMENT disputes at the PROJECT team level as described in the Quality Management Plan. If they cannot resolve the dispute themselves, the CALTRANS District Director and the Executive Officer of CITY will attempt to negotiate a resolution. If PARTIES do not reach a resolution, PARTIES' legal counsel will initiate mediation.

PARTIES agree to participate in mediation in good faith and will share equally in its costs.

Neither the dispute nor the mediation process relieves PARTIES from full and timely performance of the WORK in accordance with the terms of this AGREEMENT. However, if any PARTY stops fulfilling its obligations, any other PARTY may seek equitable relief to ensure that the WORK continues.

Except for equitable relief, no PARTY may file a civil complaint until after mediation, or forty-five (45) calendar days after filing the written mediation request, whichever occurs first.

PARTIES will file any civil complaints in the Superior Court of the county in which the CALTRANS District Office signatory to this AGREEMENT resides or in the Superior Court of the county in which the PROJECT is physically located.

84. PARTIES maintain the ability to pursue alternative or additional dispute remedies if a previously selected remedy does not achieve resolution.

Prevailing Wage

85. When WORK falls within the Labor Code § 1720(a)(1) definition of "public works" in that it is construction, alteration, demolition, installation, or repair; or maintenance work under Labor Code § 1771, PARTIES will conform to the provisions of Labor Code §§ 1720-1815, and all applicable provisions of California Code of Regulations, Title 8, Division 1, Chapter 8, Subchapter 3, Articles 1-7. PARTIES will include prevailing wage requirements in contracts for public work and require contractors to include the same prevailing wage requirements in all subcontracts. #1..
- 24 -
DRAFT Agreement No. 10-0583
Project No.: 1020000195
EA: 10-1M500
10-STA-99-R19.80/R20.60
Agreement No. 10-0583 | 10-STA-99 | EA: 10-1M500
Page | 17
DRAFT
Work performed by a PARTY's own employees is exempt from the Labor Code's Prevailing Wage requirements.

If WORK is paid for, in whole or part, with federal funds and is of the type of work subject to federal prevailing wage requirements, PARTIES will conform to the provisions of the Davis-Bacon and Related Acts, 40 U.S.C. §§ 3141-3148.

When applicable, PARTIES will include federal prevailing wage requirements in contracts for public works. WORK performed by a PARTY's employees is exempt from federal prevailing wage requirements.
#1..
- 25 -
DRAFT Agreement No. 10-0583
Project No.: 1020000195
EA: 10-1M500
10-STA-99-R19.80/R20.60
Agreement No. 10-0583 | 10-STA-99 | EA: 10-1M500
Page | 1
DRAFT

SIGNATURES
PARTIES are authorized to enter into this AGREEMENT and have delegated to the undersigned the authority to execute this AGREEMENT on behalf of the respective agencies and hereby covenants to have followed all the necessary legal requirements to validly execute this AGREEMENT. By signing below, the PARTIES each expressly agree to execute this AGREEMENT electronically.

The PARTIES acknowledge that executed copies of this AGREEMENT may be exchanged by facsimile or email, and that such copies shall be deemed to be effective as originals.

STATE OF CALIFORNIA DEPARTMENT

OF TRANSPORTATION

CITY OF MODESTO
Grace Magsayo
Acting District Director
Joseph P. Lopez
City Manager
Verification of Funds and Authority: Attest:

Michelle Ishaya
District Budget Manager
Diane Nayares-Perez
City Clerk
Certified as to financial terms and policies: Legally Approved:

Lai Saephan
HQ Accounting Supervisor
Jose M. Sanchez
City Attorney
#1..
- 26 -

CITY OF MODESTO

COMMITTEE AGENDA REPORT
DATE OF MEETING:

May 6, 2024
Date: April 17, 2024
TO: Economic Development Committee
Chris Ricci, Chair
Eric Alvarez, Vice-Chair
Sue Zwahlen, Member
THROUGH: Joseph P. Lopez, City Manager
FROM: William Wong, Director of Utilities
SUBJECT: Purchase of Chemicals for Wastewater Treatment CONTACT: Jeff Daniels, Acting Wastewater Division Manager, [email protected], 209-577-6255
DESCRIPTION:

Consider Agreements for the purchase and delivery of chemicals for wastewater treatment with Thatcher Company of California, Sacramento, CA, Northstar Chemical, Modesto, CA, and Univar Solutions, Kent, WA, for a total amount not to exceed $1,221,021, over five years and forwarding to Council for approval. (Funding Source: Sewer Operations Fund) STRATEGIC PLAN ELEMENT:

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

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

BACKGROUND:

The City of Modesto, Utilities Department Wastewater Services Division, uses sodium hypochlorite, sodium hydroxide, sulfuric acid, phosphoric acid, and citric acid as part of the wastewater treatment process. These chemicals are used to clean and maintain the Membrane BioReactors, extending the usable life of the membranes and ensuring membrane performance meets required water quality standards.

In 2021 the City sought out to establish a multiyear agreement for the purchase and delivery of all the chemicals needed for wastewater treatment. As a result of the bidding process, it was determined that in order to purchase all of the chemicals needed for wastewater treatment, an Agreement would need to be established with two vendors.

On October 26, 2021, by Resolution No. 2021-421, Council approved award of bid for the purchase and delivery of chemicals for wastewater treatment to NorthStar Chemical, Modesto, CA and Univar Solutions, Kent, WA for an estimated annual amount of $275,053, and #2..
- 27 -
Economic Development Committee, May 6, 2024
Purchase of Chemicals for Wastewater Treatment

authorizing the Director of Finance, or designee, to adjust the financial amounts between both providers for a total amount not to exceed $1,778,003 over five years.

During the term of this Agreement, NorthStar declined to extend it and Univar Solutions submitted a price increase on September 30, 2022, for year 2 of the Agreement. The increase was not solely based on the current 10.74% Producers Price index (PPI) and the 98.22% Energy Information Administration (EIA) Fuel Index but also on how volatile the chemical market was at the time. Based on the estimated annual quantity the estimated annual increase was increased to $279,500. Purchasing recommended the approval of this increase based on the increase being justified by the market conditions and supporting documentation.

To reduce costs for chemicals, the Wastewater Division actively participated in the Bay Area Chemical Consortium (BACC) through the Bay Area Clean Water Agencies (BACWA). BACWA facilitated a bidding process for the procurement of chemicals specifically for wastewater treatment.

On January 26, 2023, BACWA initiated a request for bids for a range of chemicals required for wastewater treatment. The bidding process was conducted on the Planet Bids platform, with a deadline set for February 23, 2023, at 4:00 PM (PST). On February 24, 2023, the results of the Request for Bids (RFB) were published on BACWA's website.

On August 8, 2023, Council approved a Purchasing Agreement with Univar Solutions, USA Inc., Kent, WA, by utilizing the Competitive Bid Process with Bay Area Clean Water Agencies, for the Purchase and Delivery of Citric Acid for Wastewater Treatment, for a one-year Agreement for a total amount not to exceed $65,325, approved a Purchasing Agreement with Hasa Inc., Saugus, CA, by utilizing the Competitive Bid Process with BACWA, for the Purchase and Delivery of Sodium Hypochlorite, for a one-year Agreement for a total amount not to exceed $133,917. By establishing Agreements with Univar and Hasa, the new total amount not to exceed was $199,242, and the new estimated savings was calculated at $148,989.

DISCUSSION:

On January 3, 2024, the City Manager authorized the Purchasing Manager to solicit the procurement for purchase and delivery of Chemicals for Wastewater Treatment. On January 19, 2024, the Purchasing Division issued Invitation for Bids (IFB) 2324-66 for Chemicals for Wastewater Treatment 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. Twentyfour (24) companies downloaded the IFB document from PlanetBids.

On February 27, 2024, bids were formally opened in the City Clerk’s office and broadcast via Microsoft Teams Livestream. Three (3) chose to respond, there was one (1) local bid received.

Based on providing the lowest responsive and responsible bid, City Staff recommended to award the Chemicals for Wastewater Treatment to Thatcher Company of California, Inc., Sacramento, CA, Northstar Chemical, Modesto, CA, and Univar Solutions USA, LLC, Kent, WA for a one (1) year agreement with four (4) one-year extension options, for an estimated annual amount of $200,000 and a total amount not to exceed $1,221,021 over five years. 1 19000 Chemicals and Solvents, Commercial (In Bulk)
57800 Miscellaneous Products (Not Otherwise Classified) #2..
- 28 -
Economic Development Committee, May 6, 2024
Purchase of Chemicals for Wastewater Treatment

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. Based on providing the lowest responsive and responsible bid which confirms to the Modesto Municipal Code, 8-3.203, City Staff recommends the award of bid for purchase and delivery of chemicals for wastewater treatment to Thatcher Company of California, Inc, Sacramento, CA, Northstar Chemical, Modesto, CA, and Univar Solutions USA LLC, Kent, WA.

FISCAL IMPACT:

Expenditures over the past three (3) years for the purchase and delivery of chemicals for wastewater treatment under the previous agreements are listed below:

Agreement
Year
Expenditure
Year 1 $160,403
Year 2 $204,665
Year 3 $60,858
TOTAL $425,926
The Year 3 Expenditure is currently low due to a large order for chemicals being placed closer to the June 30, 2024, end date of the existing contract.

ANTICIPATED AGREEMENT EXPENDITURES:

Contractor Year 1 Year 2 Year 3 Year 4 Year 5
Thatcher $110,000 $121,000 $133,100 $146,410 $161,051
Northstar $75,000 $82,500 $90,750 $99,825 $109,808
Univar $15,000 $16,500 $18,150 $19,965 $21,962
Total $200,000 $220,000 $242,000 $266,200 $292,821
Total Amount Not to Exceed $1,221,021
Agreement Years 2–5 include a 10% increase per year to absorb price increase requests from vendors for Consumer Price Index and fluctuations in diesel fuel pricing. Any requested price increases will be negotiated through the Purchasing Division.

Due to the continued volatility of the chemical market, and the unprecedented 10.74% PPI and

98.22% EIA increase request made in year 2 of the previous Agreement, the new anticipated agreement expenditures are calculated at a much higher rate than the previous multiyear Agreement. These anticipated expenditures are estimates that would allow for any unforeseen increases without concerns of exceeding the annual estimated amount or not to exceed amounts, therefore avoiding having to request an increase to amend the Agreement mid contract.

Sufficient funds are budgeted in the current operating Fiscal Year 2023-24 and Proposed Fiscal Year 2024-25, Sewer Operations Fund account 4210-44312-52190. #2..
- 29 -
Economic Development Committee, May 6, 2024
Purchase of Chemicals for Wastewater Treatment

RECOMMENDED COMMITTEE ACTION:

Staff Recommendations:

Motion recommending the Award of Bid and Agreements for the purchase and delivery of chemicals for wastewater treatment to Thatcher Company of California, Sacramento, CA, Northstar Chemical, Modesto, CA, and Univar Solutions, Kent, WA, for a one (1) year agreement with four (4) one-year extension options, for an annual estimated amount of $200,000 and a total combined amount not to exceed $1,221,021 over five years and forwarding to Council for approval.

Approved by:

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

1. Thatcher Agreement

2. Exhibit B – Thatcher Bid Submittal

3. Northstar Agreement

4. Exhibit B – Northstar Bid Submittal

5. Univar Agreement

6. Exhibit B – Univar Bid Submittal

7. Cost Abstract

8. Exhibit C - IFB 2324-66
#2..
- 30 -
ANNUAL AGREEMENT NO. 271529

FOR CHEMICALS FOR WASTEWATER TREATMENT
THATCHER COMPANY OF CALIFORNIA, 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 Thatcher Company of California, Inc., a Corporation, hereinafter called CONTRACTOR.

W I T N E S E T H:

WHEREAS, the Modesto City Council adopted Resolution No. 2024-______ authorizing the Award of Bid and agreement for the purchase and delivery of chemicals for wastewater treatment 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 purchase and delivery of chemicals for wastewater treatment SERVICES as described in IFB 2324-66, 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:
#2..
- 31 -
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. 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 $110,000. The total amount paid by CITY to CONTRACTOR over the full term of the AGREEMENT shall not exceed $671,561. 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
Item Description
Unit of
Measure Unit Price
Sodium Hypochlorite, 12.5% Active BULK Deliveries
Gallon $2.49
Annual Safety Training for each Chemical Each $0.00

3. CITY REPRESENTATIVE:

CITY Representative: Ben Koehler, WQC Operations Superintendent, (209) 342-4502 Delivery to Jennings: Jennings Operator, (209) 652-8662 Delivery to Sutter: Sutter Operator, (209) 652-2324
Purchasing Contact: Melvin Rosal, Buyer, (209) 577-5420, [email protected] #2..
- 32 -
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. CONTRACTOR CONTACT:

Jayson Stenquist, Vice President of Marketing and Customer Service, (801) 972-4587 ext 1444, [email protected]

5. TERM OF AGREEMENT:

The term of the AGREEMENT shall be for a period of one (1) year, with four (4) one-year extension options at the sole discretion of CITY, for a total of up to five (5) years.

Year 1: July 1, 2024 through June 30, 2025
Year 2: July 1, 2025 through June 30, 2026
Year 3: July 1, 2026 through June 30, 2027
Year 4: July 1, 2027 through June 30, 2028
Year 5: July 1, 2028 through June 30, 2029
Pricing as set forth in Section 1.e. above shall remain firm for the first year of the AGREEMENT.

Price increases for any subsequent AGREEMENT years following the first year, shall not exceed the Producer Price Index (PPI) as published by the Bureau of Labor Statistics: Industry Data for Chemical MFG (Series ID PCU325---325---) in any one (1) agreement year and shall be negotiated through the Purchasing Division with acceptable supporting documentation to substantiate the increase by manufacture. 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.

Price adjustments for diesel fuel fluctuations may be considered. A thirty (30) day written notice is required for consideration. Any price adjustment shall be negotiated through the Purchasing Division and approved at the sole discretion of the CITY.
#2..
- 33 -
The index used to determine price adjustments on diesel fuel shall come from the Energy Information Administration: Website: HTTPS://WWW.EIA.GOV/PETROLEUM/GASDIESEL/, California data.

6. 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; 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. d. Pollution Liability – and/or Asbestos pollution liability and/or errors & omissions applicable to the work being performed, with a limit no less than $1,000,000 per claim or occurrence and $2,000,000 aggregate per policy period of one-year.
#2..
- 34 -
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, 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.

7. 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 #2..
- 35 -
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 271529
 CITY department/division name and address
 Billing period
 Service hours worked day and week
 Unit price, extended price, sales tax and total

8. 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.

9. VENUE & GOVERNING LAW:

Venue for any dispute or claim arising or related to this AGREEMENT its performance, breach, or interpretation (including issues about its validity or enforceability), shall be exclusively in the Superior Court of Stanislaus County or the United States District Court for the Eastern District of California #2..
- 36 -
This AGREEMENT shall be deemed made in, governed by, performed in, and construed and enforced in accordance with the laws of the State of California, without giving effect to its conflicts of law’s provisions or principles.

10. 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.

11. 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. 2324-66;
d. Contractor’s City of Modesto business license

12. 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 ten (10) days after receipt of notification, the breaching party shall correct any nonperformance to the reasonable satisfaction of the non-breaching party, or such other time as may be identified in the notice. Failure to correct any non-performance shall allow the non-breaching party to terminate this AGREEMENT for cause.
#2..
- 37 -
Termination by City for Convenience: The City may also terminate this AGREEMENT the Contractor's performance under the Agreement, either in whole or in part, at its own discretion and without cause.

Post-Termination Procedure
Upon receipt of a written notice of termination pursuant to either of the foregoing paragraphs, the CONTRACTOR shall:
a. Cease its work as directed in the notice of termination as of the termination date and see to it that its employees, subcontractors and agents are notified of such termination and act as specified in the notice of termination; b. Terminate all orders and subcontracts except as necessary to complete any portion of the SERVICES that are not terminated;
c. If directed in writing by the CITY to do so, assign all right, title and interest in subcontracts and materials in progress to CITY, in which case the CITY will have the right at its discretion to settle, or pay any or all claims arising out of the termination of such, but in no event shall recovery by any CONTRACTOR or subcontractor include lost profits for portions of the SERVICES not completed or undertaken, including materials not delivered;
d. Deliver or otherwise make available to the CITY all data, drawings, specifications, reports, estimates, summaries and such other information and material as may have been accumulated by the CONTRACTOR in performing the SERVICES whether completed or in process;
e. Settle outstanding liabilities and claims, subject to the approval of CITY; f. Complete performance of such part of the SERVICES as has not been terminated; g. Take such other actions as may be necessary, or as may be directed by the CITY for the protection and preservation of the SERVICES and/or property related to the SERVICES;
#2..
- 38 -
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.

13. 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.

14. FAILURE TO PERFORM SATISFACTORY WORK:
#2..
- 39 -
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.

15. 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).

16. 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.

17. CONTRACTOR'S RESPONSIBILITY FOR DAMAGES:
#2..
- 40 -
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: Thatcher Company of California, Inc.

P.O. Box 27407
Salt Lake City, UT 84127-0407
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:
#2..
- 41 -
All annual extensions are based upon continuous funding for that purpose by the City Council.

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

22. OTHER GOVERNMENT/PUBLICLY FUNDED AGENCIES:

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

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

The CONTRACTOR and any allowed subcontractors shall comply with the provisions of the Fair Employment and Housing Act (Government Code, Section 12900 et seq.) and the applicable regulations promulgated thereunder (California Administrative Code, Title 2, and Section 7285.0 et seq.). The applicable regulations of the Fair Employment and Housing Commission implementing Government Code, Section 12900, set forth in Chapter 5 of Division 4 of Title 2 of the California Administrative Code are incorporated into this contract by reference and made a part hereof as if set forth in full. 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. #2..
- 42 -
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 twenty-four (24) hours’ notice, to such of its books, records, accounts, other sources of information and its facilities as said Department or CITY shall require to ascertain compliance with this AGREEMENT. e. By executing this AGREEMENT, CONTRACTOR certifies that it shall follow and be in compliance with the Americans with Disabilities Act of 1990, the applicable administrative requirements promulgated in response thereto, and any other applicable Federal laws and regulations relating to handicap discrimination and participation and will continue to do so for at least the duration of the AGREEMENT and any extensions thereof.

24. CONTRACTOR LICENSES & PERMITS:

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

25. RECORDS:

All final versions of reports, data, maps, models, charts, studies, surveys, photographs, memoranda, plans, studies, specifications, records, files, or any other documents or materials, in electronic or any other form, that CONTRACTOR prepares or obtains pursuant to this Agreement and that relate to the matters covered hereunder shall be the property of the CITY. CONTRACTOR hereby agrees to deliver those documents to the CITY upon termination of the AGREEMENT, and the CITY may use, reuse or otherwise dispose of the documents without CONTRACTOR’s permission. It is understood and agreed that the documents and other 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:
#2..
- 43 -
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.

31. HEADINGS NOT CONTROLLING:
#2..
- 44 -
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.

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 Thatcher Company of California, Inc. has caused this Agreement to be duly executed. #2..
- 45 -
#2..
- 46 -
#2..
- 47 -
#2..
- 48 -
#2..
- 49 -
#2..
- 50 -
#2..
- 51 -
#2..
- 52 -
#2..
- 53 -
#2..
- 54 -
#2..
- 55 -
#2..
- 56 -
#2..
- 57 -
#2..
- 58 -
#2..
- 59 -
#2..
- 60 -
#2..
- 61 -
#2..
- 62 -
#2..
- 63 -
#2..
- 64 -
#2..
- 65 -
#2..
- 66 -
#2..
- 67 -
#2..
- 68 -
#2..
- 69 -
#2..
- 70 -
#2..
- 71 -
#2..
- 72 -
#2..
- 73 -
#2..
- 74 -
#2..
- 75 -
#2..
- 76 -
#2..
- 77 -
#2..
- 78 -
#2..
- 79 -
#2..
- 80 -
#2..
- 81 -
#2..
- 82 -
#2..
- 83 -
#2..
- 84 -
#2..
- 85 -
#2..
- 86 -
#2..
- 87 -
#2..
- 88 -
#2..
- 89 -
#2..
- 90 -
#2..
- 91 -
#2..
- 92 -
#2..
- 93 -
#2..
- 94 -
#2..
- 95 -
#2..
- 96 -
#2..
- 97 -
#2..
- 98 -
#2..
- 99 -
ANNUAL AGREEMENT NO. 271066

FOR CHEMICALS FOR WASTEWATER TREATMENT

NORTHSTAR CHEMICAL
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 Northstar Chemical, hereinafter called CONTRACTOR.

W I T N E S E T H:

WHEREAS, the Modesto City Council adopted Resolution No. 2024-______ authorizing the Award of Bid and agreement for the purchase and delivery of chemicals for wastewater treatment 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 purchase and delivery of chemicals for wastewater treatment SERVICES as described in IFB 2324-66, 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:
#2..
- 100 -
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. 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 $75,000 The total amount paid by CITY to CONTRACTOR over the full term of the AGREEMENT shall not exceed $457,883 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
Item Description
Unit of
Measure Unit Price
Sodium Hypochlorite, 12.5% Active BULK Deliveries
Gallon $3.15
Phosphoric Acid – Liquid, 50% Active
Gallon $9.50
Citric Acid – Liquid, 50% Active BULK Deliveries
Gallon $8.10
Annual Safety Training for each Chemical Each $0.00

3. CITY REPRESENTATIVE:

CITY Representative: Ben Koehler, WQC Operations Superintendent, (209) 342-4502 Delivery to Jennings: Jennings Operator, (209) 652-8662 Delivery to Sutter: Sutter Operator, (209) 652-2324
#2..
- 101 -
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. CONTRACTOR CONTACT:

Julie DeBellis, Sales Coordinator, (503) 625-3770, [email protected]

5. TERM OF AGREEMENT:

The term of the AGREEMENT shall be for a period of one (1) year, with four (4) one-year extension options at the sole discretion of CITY, for a total of up to five (5) years.

Year 1: July 1, 2024 through June 30, 2025
Year 2: July 1, 2025 through June 30, 2026
Year 3: July 1, 2026 through June 30, 2027
Year 4: July 1, 2027 through June 30, 2028
Year 5: July 1, 2028 through June 30, 2029
Pricing as set forth in Section 1.e. above shall remain firm for the first year of the AGREEMENT.

Price increases for any subsequent AGREEMENT years following the first year, shall not exceed the Producer Price Index (PPI) as published by the Bureau of Labor Statistics: Industry Data for Chemical MFG (Series ID PCU325---325---) in any one (1) agreement year and shall be negotiated through the Purchasing Division with acceptable supporting documentation to substantiate the increase by manufacture. 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.

Price adjustments for diesel fuel fluctuations may be considered. A thirty (30) day written notice is required for consideration. Any price adjustment shall be negotiated through the Purchasing Division and approved at the sole discretion of the CITY.
#2..
- 102 -
The index used to determine price adjustments on diesel fuel shall come from the Energy Information Administration: Website: HTTPS://WWW.EIA.GOV/PETROLEUM/GASDIESEL/, California data.

6. 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; 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. d. Pollution Liability – and/or Asbestos pollution liability and/or errors & omissions applicable to the work being performed, with a limit no less than $1,000,000 per claim and $2,000,000 aggregate per policy period of one-year.
#2..
- 103 -
e.

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, 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.

7. 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 #2..
- 104 -
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 271066
 CITY department/division name and address
 Billing period
 Service hours worked day and week
 Unit price, extended price, sales tax and total

8. 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.

9. VENUE & GOVERNING LAW:

Venue for any dispute or claim arising or related to this AGREEMENT its performance, breach, or interpretation (including issues about its validity or enforceability), shall be exclusively in the Superior Court of Stanislaus County or the United States District Court for the Eastern District of California #2..
- 105 -
This AGREEMENT shall be deemed made in, governed by, performed in, and construed and enforced in accordance with the laws of the State of California, without giving effect to its conflicts of law’s provisions or principles.

10. 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.

11. 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. 2324-66;
d. Contractor’s City of Modesto business license

12. 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 ten (10) days after receipt of notification, the breaching party shall correct any nonperformance to the reasonable satisfaction of the non-breaching party, or such other time as may be identified in the notice. Failure to correct any non-performance shall allow the non-breaching party to terminate this AGREEMENT for cause.
#2..
- 106 -
Termination by City for Convenience: The City may also terminate this AGREEMENT the Contractor's performance under the Agreement, either in whole or in part, at its own discretion and without cause.

Post-Termination Procedure
Upon receipt of a written notice of termination pursuant to either of the foregoing paragraphs, the CONTRACTOR shall:
a. Cease its work as directed in the notice of termination as of the termination date and see to it that its employees, subcontractors and agents are notified of such termination and act as specified in the notice of termination; b. Terminate all orders and subcontracts except as necessary to complete any portion of the SERVICES that are not terminated;
c. If directed in writing by the CITY to do so, assign all right, title and interest in subcontracts and materials in progress to CITY, in which case the CITY will have the right at its discretion to settle, or pay any or all claims arising out of the termination of such, but in no event shall recovery by any CONTRACTOR or subcontractor include lost profits for portions of the SERVICES not completed or undertaken, including materials not delivered;
d. Deliver or otherwise make available to the CITY all data, drawings, specifications, reports, estimates, summaries and such other information and material as may have been accumulated by the CONTRACTOR in performing the SERVICES whether completed or in process;
e. Settle outstanding liabilities and claims, subject to the approval of CITY; f. Complete performance of such part of the SERVICES as has not been terminated; g. Take such other actions as may be necessary, or as may be directed by the CITY for the protection and preservation of the SERVICES and/or property related to the SERVICES;
#2..
- 107 -
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.

13. 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.

14. FAILURE TO PERFORM SATISFACTORY WORK:
#2..
- 108 -
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.

15. 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).

16. 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.

17. CONTRACTOR'S RESPONSIBILITY FOR DAMAGES:
#2..
- 109 -
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: Northstar Chemical
14200 SW Tualatin-Sherwood Road
Sherwood, OR 97140
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:
#2..
- 110 -
All annual extensions are based upon continuous funding for that purpose by the City Council.

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

22. OTHER GOVERNMENT/PUBLICLY FUNDED AGENCIES:

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

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

The CONTRACTOR and any allowed subcontractors shall comply with the provisions of the Fair Employment and Housing Act (Government Code, Section 12900 et seq.) and the applicable regulations promulgated thereunder (California Administrative Code, Title 2, and Section 7285.0 et seq.). The applicable regulations of the Fair Employment and Housing Commission implementing Government Code, Section 12900, set forth in Chapter 5 of Division 4 of Title 2 of the California Administrative Code are incorporated into this contract by reference and made a part hereof as if set forth in full. 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. #2..
- 111 -
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 twenty-four (24) hours’ notice, to such of its books, records, accounts, other sources of information and its facilities as said Department or CITY shall require to ascertain compliance with this AGREEMENT. e. By executing this AGREEMENT, CONTRACTOR certifies that it shall follow and be in compliance with the Americans with Disabilities Act of 1990, the applicable administrative requirements promulgated in response thereto, and any other applicable Federal laws and regulations relating to handicap discrimination and participation and will continue to do so for at least the duration of the AGREEMENT and any extensions thereof.

24. CONTRACTOR LICENSES & PERMITS:

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

25. RECORDS:

All final versions of reports, data, maps, models, charts, studies, surveys, photographs, memoranda, plans, studies, specifications, records, files, or any other documents or materials, in electronic or any other form, that CONTRACTOR prepares or obtains pursuant to this Agreement and that relate to the matters covered hereunder shall be the property of the CITY. CONTRACTOR hereby agrees to deliver those documents to the CITY upon termination of the AGREEMENT, and the CITY may use, reuse or otherwise dispose of the documents without CONTRACTOR’s permission. It is understood and agreed that the documents and other 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:
#2..
- 112 -
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.

31. HEADINGS NOT CONTROLLING:
#2..
- 113 -
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.

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 Northstar Chemical has caused this Agreement to be duly executed. #2..
- 114 -
INVITATION FOR BIDS # 2324-66

CHEMICALS FOR WASTEWATER

TREATMENT
1 INVITATION FOR BIDS (“IFB”) NO. 2324-66
FOR

CHEMICALS FOR WASTEWATER TREATMENT
BID OPENING: February 27, 2024 at 11:00 A.M.

CITY OF MODESTO CONTACT: Melvin Rosal, Buyer
E-MAIL ADDRESS: [email protected]
PHONE: (209) 577-5420
nETL
#2..
- 115 -
INVITATION FOR BIDS # 2324-66

CHEMICALS FOR WASTEWATER

TREATMENT
2 Table of Contents
NOTICE TO BIDDERS ............................................................................................................................. 3 CALENDAR OF EVENTS ........................................................................................................................ 5 CITY CONTACT ....................................................................................................................................... 5 PRECEDENCE........................................................................................................................................... 5 VIRTUAL BID OPENING......................................................................................................................... 6 GENERAL BID REQUIREMENTS .......................................................................................................... 7 BID SUBMITTAL CHECKLIST............................................................................................................. 15 BID FORM A - IFB ACKNOWLEDGEMENT .................................................................................. 16 BID FORM B – BIDDER COMPANY INFORMATION................................................................... 19 BID FORM C - PRICING SCHEDULE .............................................................................................. 21 BID FORM D – BIDDER EXCEPTIONS, CLARIFICATIONS, AMENDMENTS.......................... 23 BID FORM E – BIDDER CUSTOMER REFERENCES .................................................................... 24 BID FORM F - FINANCIAL INTEREST DISCLOSURE.................................................................. 26 BID FORM G – SUPPORT OF LOCAL VENDORS.......................................................................... 28 BID FORM H - BIDDER COMPANY HISTORY STATEMENT..................................................... 29 BID FORM I - ADDENDA ACKNOWLEDGEMENT ...................................................................... 30 BID FORM J – BIDDER WARRANTY STATEMENTS................................................................... 31 BID FORM K – BIDDER EXPERIENCE AND CERTIFICATIONS................................................ 32 BID FORM L - SUBCONTRACTOR LIST.......................................................................................... 33 TECHNICAL SPECIFICATIONS AND REQUIREMENTS ................................................................. 34

1.1 SCOPE OF WORK:........................................................................................................................ 34

1.2 REQUIRED LICENSES:................................................................................................................ 35 SAMPLE AGREEMENT......................................................................................................................... 36 #2..
- 116 -
INVITATION FOR BIDS # 2324-66

CHEMICALS FOR WASTEWATER

TREATMENT
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 purchase and delivery of Chemicals for Wastewater Treatment (the “Services”) for the City of Modesto, Utilities Department, Wastewater 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 February 27, 2024 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, 5 th Floor,
Suite 5300, Modesto, CA 95354.

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

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

The City Clerk’s time stamp shall be considered the official timepiece for the purpose of establishing the actual receipt of Bids. Bids will not be accepted by email or facsimile. The City of Modesto assumes no responsibility for delay in the delivery of the Bid. #2..
- 117 -
INVITATION FOR BIDS # 2324-66

CHEMICALS FOR WASTEWATER

TREATMENT
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 # 2324-66

CHEMICALS FOR WASTEWATER TREATMENT
BID OPENING DATE: FEBRUARY 27, 2024 AT 11:00 A.M.”
Bidder must deliver your Bid by a preferred method to the appropriate location below:

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

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

No Bidder may withdraw its Bid for a period of 90 days after the date set for the opening thereof. #2..
- 118 -
INVITATION FOR BIDS # 2324-66

CHEMICALS FOR WASTEWATER

TREATMENT
5 CALENDAR OF EVENTS
Event Date
IFB Issued January 19, 2024
Written Questions Due via Email February 02, 2024
Addendum Issued (if required) February 09, 2024 (approximate date) Bid Due Date & Time PRIOR 11:00 A.M. on Tuesday, February 27, 2024 Contract Award Approximately March, 2024

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.

PRECEDENCE
Bidder agrees that any agreement resulting from City’s acceptance of its Bid, together with the terms in any City purchase order and associated specifications provided by the City to Bidder therewith, shall comprise the entire agreement between City and Bidder. Moreover, Bidder agrees that any additional or contrary terms contained in Bidder’s acknowledgement of, shall be null and void. #2..
- 119 -
INVITATION FOR BIDS # 2324-66

CHEMICALS FOR WASTEWATER

TREATMENT
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, February 27, 2024. 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/meetupjoin/19%3ameeting_NTI0YzBiMDMtNDQ0Yi00YjNlLWIwZjYtYzg4ZDVjMDd kM2Mz%40thread.v2/0?context=%7b%22Tid%22%3a%22125ccacf-fc61-463c9976-189f876ff90b%22%2c%22Oid%22%3a%229715c333-c997-4dd7-8984- 12cd4deaa705%22%7d
• Join Microsoft Teams Meeting (Click Here to Join 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.
#2..
- 120 -
INVITATION FOR BIDS # 2324-66

CHEMICALS FOR WASTEWATER

TREATMENT
7 GENERAL BID REQUIREMENTS
A. BID SUBMITTAL: Bidders should submit two “inked” (preferably blue ink) signed original Bid document, plus one copy of the signed original Bid document, and one electronic copy submitted via USB. The original Bid document shall be clearly marked. Photocopies do not constitute an original Bid. FAILURE TO FURNISH AT LEAST 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
#2..
- 121 -
INVITATION FOR BIDS # 2324-66

CHEMICALS FOR WASTEWATER

TREATMENT
8 • Bid Form G – Support of Local Vendors
• Bid Form H – Bidder Company History Statement
• Bid Form I – Addenda Acknowledgement Page (if applicable) • 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. #2..
- 122 -
INVITATION FOR BIDS # 2324-66

CHEMICALS FOR WASTEWATER

TREATMENT
9 • 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 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.

J. 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.

K. 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.

L. BIDDER REPRESENTATION: Bidder represents that:
#2..
- 123 -
INVITATION FOR BIDS # 2324-66

CHEMICALS FOR WASTEWATER

TREATMENT
10 • 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.
#2..
- 124 -
INVITATION FOR BIDS # 2324-66

CHEMICALS FOR WASTEWATER

TREATMENT
11 • Subcontractors are not eligible to submit bid protests. • 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:
#2..
- 125 -
INVITATION FOR BIDS # 2324-66

CHEMICALS FOR WASTEWATER

TREATMENT
12 City Clerk’s Office
Attn: Director of Finance
1010 Tenth St. Suite 6600
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 #2..
- 126 -
INVITATION FOR BIDS # 2324-66

CHEMICALS FOR WASTEWATER

TREATMENT
13 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.

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 nET
#2..
- 127 -
INVITATION FOR BIDS # 2324-66

CHEMICALS FOR WASTEWATER

TREATMENT
14 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. f. Mandatory Alternative Process for Protests of Procurements Obtained with Federal Funds: If the protested procurement involves federal funds, the Deputy City Manager, City Council, or hearing officer shall give notice, accompanying their respective decisions, to the protestor that he or she has the right to appeal to the appropriate federal agency, for which an agency name, contact (where available) and address shall be provided by City staff. Such an appeal shall be filed with the appropriate agency within seven business days of the dispatch or rejection notices to the protestor. Federal agencies may entertain protests alleging that the City has failed to adopt written protest procedures or has failed to follow such procedures. The City Council is the highest authority of the City of Modesto, and its decisions are final. A disappointed Bidder for a contract involving expenditures of Federal funds shall have the right to appeal the City Council decision directly to the federal agency as described herein. #2..
- 128 -
INVITATION FOR BIDS # 2324-66

CHEMICALS FOR WASTEWATER

TREATMENT
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. #2..
- 129 -
INVITATION FOR BIDS # 2324-66

CHEMICALS FOR WASTEWATER

TREATMENT
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 un- #2..
- 130 -
INVITATION FOR BIDS # 2324-66

CHEMICALS FOR WASTEWATER

TREATMENT
17 patented invention, article or appliance furnished or used in connection with the contract or purchase order.

6. Samples: Samples of items, when required, shall be furnished free of expense to the City and if not destroyed by test may upon request (made when the sample is furnished), be returned at the Bidder’s expense.

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

8. Payment Terms and Methods: Bidder will be able to choose from either of the following payment methods and associated timings:
(a) Option A (Preferred): City of Modesto ePay Payment: This secure payment methodology is preferred by an increasing number of the City’s suppliers. On Net 30-day timing, you will receive a single-use Master Card number with a detailed remittance for each payment. You will process the payment though your POS/Card terminal. The payment remittance will be sent from [email protected] via email and will contain the following information:
• 16-digit credit card number
• Expiration date
• Security code
• Total dollar amount of invoices to be paid
• Invoices reference numbers and corresponding amounts
#2..
- 131 -
INVITATION FOR BIDS # 2324-66

CHEMICALS FOR WASTEWATER

TREATMENT
18 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.
(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:

Northstar Chemical as a dba of Pacific Star Chemical, LLC 14200 SW Tualatin-Sherwood Road
Sherwood, OR 97140
2/20/2024
#2..
- 132 -
INVITATION FOR BIDS # 2324-66

CHEMICALS FOR WASTEWATER

TREATMENT
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
Northstar Chemical as a dba of Pacific Star Chemical, LLC Northstar Chemical
Delaware
14200 SW Tualatin-Sherwood Road
Sherwood, OR 97140
northstarchemical.com
Julie DeBellis
Sales Coordinator
503-625-3770
14200 SW Tualatin-Sherwood Road, Sherwood, OR 97140
503-625-1478
[email protected]
46-3038886
07-594-7164
Matt Werger - Executive Vice President
Clare Walker - Vice President, Sales CA
10+
875 Codoni Ave
Modesto, CA 95357
Yes
#2..
- 133 -
INVITATION FOR BIDS # 2324-66

CHEMICALS FOR WASTEWATER

TREATMENT
20 Number (note –
provide only if
available now - - but
not required until any
contract begins):
#1295852
#2..
- 134 -
INVITATION FOR BIDS # 2324-66

CHEMICALS FOR WASTEWATER

TREATMENT
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.

Item
No. Item Description
Estimated
Annual
Quantity
Unit of
Measure
Unit Price
(per gallon)
Extended Price
(Annually)

1. Sodium Hypochlorite, 12.5% Active BULK
Deliveries approx.. 4,000 gallons X 18
times per year 72,000 Gallon $_________ $____________

2. Sodium Hydroxide – Liquid Caustic Soda,
50% Active
(Delivered in approx. 275 Gallon Tote) 2,000 Gallon $_________ $____________

3. Sulfuric Acid – Liquid, 50% Active
(Delivered in approx.. 275 Gallon Tote) 1,000 Gallon $_________ $____________

4. Phosphoric Acid – Liquid, 50% Active
(Delivered in approx.. 275g Tote) 1,000 Gallon $_________ $____________

5. Citric Acid – Liquid, 50% Active BULK
Deliveries approx.. 2,000-4,000 gallons 4,000 Gallon $_________ $____________

6. Annual Safety Training for each Chemical 1 Each $_________ $____________ Total $____________
Tax (8.875%) $____________
Grand Total $____________
**For costing purposes only

7. Emergency Delivery 1 Each $____________

3.15/gal

5.25/gal
No Bid

9.50/gal

8.10/gal
0 226,800.00
0 0
279,200.00
303,630.00
24,430.00
10,500.00
9,500.00
32,400.00
#2..
- 135 -
INVITATION FOR BIDS # 2324-66

CHEMICALS FOR WASTEWATER

TREATMENT
22 Payment Terms:

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

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

THE undersigned acknowledges receipt of the referenced IFB and any associated Addenda and 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:

Northstar Chemical as a dba of Pacific Star Chemical, LLC Matt Werger - Executive Vice President
Net 30 Days
#2..
- 136 -
INVITATION FOR BIDS # 2324-66

CHEMICALS FOR WASTEWATER

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

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

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

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

Name of Bidder Signatory:

Signature of Bidder Representative:

None
Northstar Chemical as a dba of Pacific Star Chemical, LLC Matt Werger - Executive Vice President
#2..
- 137 -
INVITATION FOR BIDS # 2324-66

CHEMICALS FOR WASTEWATER

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

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

Company Name:

Address:

City, State, Zip Code:

Contact Person:

Email Address:

Telephone Number:

Type of Business or
Governmental
Agency:

Date Range of
Service:

Annual Contract Value $
Company Name:

Address:

City, State, Zip Code:

Contact Person:

Email Address:

Telephone Number:

Type of Business or
Governmental
Agency:

Date Range of
Services:

Annual Contract Value $
Company Name:

Address:

City, State, Zip Code
Monterey One water
Monterey, CA
David Bradley
[email protected]
831-682-5334
Municipality
2021-present
$450K+
Turlock Irrigation
Turlock, CA
Jessica McElroy
[email protected]
209-883-8613
Municipality
2015-present
$150K+
City of Clovis
Clovis, CA
#2..
- 138 -
INVITATION FOR BIDS # 2324-66

CHEMICALS FOR WASTEWATER

TREATMENT
25 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 $
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 $
Leon Penney
[email protected]
559-324-3038
Municipality
2015-present
700K+
Stockton East Water District
Stockton, CA
Jason Mathews
[email protected]
209-948-0537
Municipality
2017-present
500K+
South San Joaquin Water
Oakdale, CA
Charles Galea
[email protected]
209-844-1505
Municipality
2016-present
100K+
#2..
- 139 -
INVITATION FOR BIDS # 2324-66

CHEMICALS FOR WASTEWATER

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

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

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

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

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

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

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

10.03(h) are satisfied.

It is the legal obligation of all applicants for approval of an agreement or of an application for development rights to verify in writing, under penalty of perjury, that the identity of each person having a material financial interest in the Bidder is true, correct and complete. By signing below, the applicant understands that this information is provided under penalty of perjury, and that intentionally supplying misinformation or deception may result in either invalidation of the agreement or application, or criminal prosecution for misdemeanor violation of the Modesto Municipal Code, or both. Negligent provision of misinformation shall be grounds for invalidation. In accordance with the Modesto Municipal Code, each applicant has a continuing obligation to maintain the truth, accuracy and completeness of the financial interest disclosure information provided below until after final consideration by the City Council of any matter arising out of or relating to the agreement or application.
#2..
- 140 -
INVITATION FOR BIDS # 2324-66

CHEMICALS FOR WASTEWATER

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

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

Bidder Company Name:

Name of Bidder Signatory:

Signature of Bidder Representative:

N/A
Northstar Chemical as a dba of Pacific Star Chemical, LLC Matt Werger - Executive Vice President
None
#2..
- 141 -
INVITATION FOR BIDS # 2324-66

CHEMICALS FOR WASTEWATER

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

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

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

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

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

Check here:

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

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

City of Modesto Business License
Number:

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

Print/Type Name:

Title:

Signature:

Date:

Northstar Chemical as a dba of Pacific Star Chemical, LLC 872 Codoni Ave, Modesto, CA 95357
#1295852
Matt Werger
Executive Vice President
2/20/2024
#2..
- 142 -
INVITATION FOR BIDS # 2324-66

CHEMICALS FOR WASTEWATER

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

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

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

Insert Bidder Company History Overview Statement Beginning Here:

Northstar Chemical as a dba of Pacific Star Chemical, LLC Northstar Chemical Inc. History
Since 1996, Northstar Chemical, Inc. has provided results-driven, sustainable solutions to customers in the Pacific Northwest and California. Northstar Chemical, a privately owned company, specializes in the distribution of corrosive chemicals and water treatment services from our four West Coast locations – Modesto, CA, Santa Fe Springs, CA, Sherwood, OR, and Tacoma, WA.

At Northstar, we are committed to delivering safety to our customers with our highly trained staff, state-of-the-art delivery equipment, and innovative methods for the transfer and storage of the products we distribute. This is our commitment to our customers, employees, and the surrounding community.

We specialize in distributing liquid corrosive chemicals via rail car, full truckload, and mini-bulk quantities. We provide storage tank loan systems to our customers to provide safe storage and effective cost savings. We also enhance our overall services with our technical sales expertise in treating our customer’s water treatment needs.

To develop the infrastructure necessary for offering reliable and innovative results, we:

Expand our fleet of delivery equipment, products, and service offerings to meet new needs Add skilled staff to satisfy our customers’ growing demands We work to earn and maintain your business long-term. Our standards of excellence and outstanding track record in delivering exceptional service and reliability have earned us many long-term customers’ loyalty and commitment.
#2..
- 143 -
INVITATION FOR BIDS # 2324-66

CHEMICALS FOR WASTEWATER

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

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

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

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

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

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

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

Bidder Company Name:

Northstar Chemical as a dba of Pacific Star Chemical, LLC #2..
- 144 -
INVITATION FOR BIDS # 2324-66

CHEMICALS FOR WASTEWATER

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

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

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

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

Insert Bidder Warranty Statement Beginning Here:

Northstar Chemical as a dba of Pacific Star Chemical, LLC Northstar Chemical guarantees all products shipped from their distribution facilities to be non-adulterated or misbranded. This guarantee applies to Northstar products distributed with specifications provided on the product specification sheets.

This guaranty shall be applicable to all valid state laws or municipal ordinances in which, both in express terms and as judicially and administratively interpreted, the definitions of adulteration and misbranding are the same as, or substantially similar to, the definitions of the Federal Food, Drug and Cosmetic Act.

This guaranty shall be void and of no effect in any instance where the particular use or sale of any article to which this guaranty would otherwise apply, results in a use which is not in compliance with the requirements of the Federal Food, Drug and Cosmetic Act, and any regulations promulgated there under.

Northstar Chemical does not guaranty against adulteration or misbranding due to circumstances or causes beyond its control.

This continuing guaranty shall remain in effect from the date hereof, until such date as Northstar Chemical notifies in writing of its revocation. #2..
- 145 -
INVITATION FOR BIDS # 2324-66

CHEMICALS FOR WASTEWATER

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

A. Experience: The Contractor and its employees directly involved in providing inspections, services and repairs shall have a minimum of three years’ experience providing the types of services requested in this IFB:
i. Identify key personnel and their position within your organization. ii. Provide a biographical summary or resume detailing the experience, level of expertise and qualifications of the key individuals providing the types of services requested herein. iii. If you plan to subcontract work, you must also indicate in Bid Form L – Subcontractor List the name and address of each firm and the type of work or tasks the subcontractor will perform. Identify key personnel assigned to the project, their position, qualifications and representative experience. #2..
- 146 -
INVITATION FOR BIDS # 2324-66

CHEMICALS FOR WASTEWATER

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

Name of
Subcontractor
Address Type of Work Contractor
License # (if any)
DIR
Registration #
(if any)

N/A N/A

N/A N/A

N/A N/A

N/A N/A

N/A N/A

N/A N/A

N/A N/A
Bidder Company Name:

Northstar Chemical as a dba of Pacific Star Chemical, LLC #2..
- 147 -
INVITATION FOR BIDS # 2324-66

CHEMICALS FOR WASTEWATER

TREATMENT
34 TECHNICAL SPECIFICATIONS AND REQUIREMENTS

1.1 SCOPE OF WORK:

The City of Modesto, Utilities Department, Wastewater Division, uses sodium hypochlorite, sodium hydroxide, sulfuric acid, phosphoric acid and citric acid as part of the treatment process. These chemicals are used for the cleaning of the membrane and ultraviolet light disinfection systems at the City’s Tertiary Treatment Plant.

The City of Modesto, Utilities Department Wastewater Division, is seeking a qualified Contractor for the delivery of the following wastewater treatment chemicals.

Item
No. Item Description
Estimated
Annual
Quantity
Estimated
Frequency
Unit of
Measure

1. Sodium Hypochlorite, 12.5% Active BULK
Deliveries approx.. 4,000 gallons X 18
times per year 72,000
Every 3
weeks Gallon

2. Sodium Hydroxide – Liquid Caustic Soda,
50% Active
(Delivered in approx. 275 Gallon Tote) 2,000
Every 6
months Gallon

3. Sulfuric Acid – Liquid, 50% Active
(Delivered in approx.. 275 Gallon Tote) 1,000
Every 6
months Gallon

4. Phosphoric Acid – Liquid, 50% Active
(Delivered in approx.. 275g Tote) 1,000
Every 6
months Gallon

5. Citric Acid – Liquid, 50% Active BULK
Deliveries approx.. 2,000-4,000 gallons 4,000 Once a year Gallon

6. Annual Safety Training for each Chemical 1 Once a year Each

7. Emergency Delivery 1 - Each
Delivery location:

City of Modesto Regional Water Recycling Facility – Jennings Campus 7007 Jennings Ave.

Modesto, CA 95358
Days of Week: Monday through Thursday (excluding holidays) NO FRIDAY DELIVERIES unless requested Delivery Hours: 7:00 A.M. to 12:00 P.M. and 12:30 P.M. to 3:30 P.M. (PST) (Or as requested) Each delivery shall be provided to City Staff:

1. Certificate of Analysis

2. Bill of Lading

3. Safety Data Sheet
#2..
- 148 -
INVITATION FOR BIDS # 2324-66

CHEMICALS FOR WASTEWATER

TREATMENT
35 1.2 REQUIRED LICENSES:

Prior to beginning any service that shall be furnished under this specification, the Bidder shall secure the appropriate Business/Delivery license from the City of Modesto. Business/Delivery license information may be obtained by calling (209) 577-5389 or emailing [email protected]. The successful Bidder shall maintain a City of Modesto business license for the duration of the agreement.

1.3 TERM OF CONTRACT:

The term of the contract shall be for a period of one (1) year with four (4) one-year extension options at the sole discretion of City, for a total of three (5) years.

A. Pricing shall remain firm for the first year of any contract, which may be awarded pursuant to this IFB.

B. Price increases for subsequent contract years two, three, four, and five, shall not exceed the Producer Price Index (PPI) as published by the Bureau of Labor Statistics: Industry Data for Chemical MFG (Series ID PCU325---325---) in any one (1) agreement year, and shall be negotiated through the Purchasing Division with acceptable supporting documentation to substantiate the increase by manufacture. Requests for price increases shall be submitted by contractor in writing, sixty (90) days prior to the annual anniversary date of the contract to be effective for the subsequent year.

C. Price adjustments for diesel fuel fluctuations may be considered. A thirty (30) day written notice is required for consideration. Any price adjustment shall be negotiated through the Purchasing Division, and approved at the sole discretion of the CITY.

The index used to determine price adjustments on diesel fuel shall come from the Energy Information Administration: Website: HTTPS://WWW.EIA.GOV/PETROLEUM/GASDIESEL/, California data. #2..
- 149 -
36 SAMPLE AGREEMENT

SAMPLE ANNUAL AGREEMENT - SERVICES
This agreement, hereinafter called AGREEMENT, made and entered into in the City of Modesto, State of California, this ____ day of _________, 2024, 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. 2024-______ authorizing the Award of Bid and agreement for the purchase and delivery of chemicals for wastewater treatment SERVICES to CONTRACTOR, attached hereto as Exhibit “A” and made a part hereof, and WHEREAS, the CONTRACTOR provided a responsive and responsible submittal that best meets the CITY needs, attached hereto as Exhibit “B” and made a part hereof, and WHEREAS, the CITY and CONTRACTOR shall enter into an agreement for the purchase and delivery of chemicals for wastewater treatment SERVICES as described in IFB 2324-66, attached hereto as Exhibit “C” and made a part hereof (hereinafter called IFB). #2..
- 150 -
37 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. 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
Item
No. Item Description
Estimated
Annual
Quantity
Unit of
Measure
Unit Price
(per gallon)
Extended Price
(Annually)

1. Sodium Hypochlorite, 12.5% Active
BULK Deliveries approx.. 4,000 gallons X
18 times per year 72,000 Gallon $_________ $____________

2. Sodium Hydroxide – Liquid Caustic Soda,
50% Active
(Delivered in approx. 275 Gallon Tote) 2,000 Gallon $_________ $____________

3. Sulfuric Acid – Liquid, 50% Active
(Delivered in approx.. 275 Gallon Tote) 1,000 Gallon $_________ $____________

4. Phosphoric Acid – Liquid, 50% Active
(Delivered in approx.. 275g Tote) 1,000 Gallon $_________ $____________

5. Citric Acid – Liquid, 50% Active BULK
Deliveries approx.. 2,000Yes-4,000 gallons 4,000 Gallon $_________ $____________ #2..
- 151 -
38 6. Annual Safety Training for each Chemical 1 Each $_________ $____________ **For costing purposes only

7. Emergency Delivery 1 Each $____________

3. CITY REPRESENTATIVE:

CITY Representative: Ben Koehler, WQC Operations Superintendent, (209) 342-4502 Delivery to Jennings: Jennings Operator, (209) 652-8662 Delivery to Sutter: Sutter Operator, (209) 652-2324
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 one (1) year, with four (4) one-year extension options at the sole discretion of CITY, for a total of up to five years.

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

Price increases for any subsequent AGREEMENT years following the first year, shall not exceed the Producer Price Index (PPI) as published by the Bureau of Labor Statistics: Industry Data for Chemical MFG (Series ID PCU325---325---) in any one (1) agreement year and shall be negotiated through the Purchasing Division with acceptable supporting documentation to substantiate the increase by manufacture. Requests for #2..
- 152 -
39 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.

Price adjustments for diesel fuel fluctuations may be considered. A thirty (30) day written notice is required for consideration. Any price adjustment shall be negotiated through the Purchasing Division, and approved at the sole discretion of the CITY.

The index used to determine price adjustments on diesel fuel shall come from the Energy Information Administration: Website: HTTPS://WWW.EIA.GOV/PETROLEUM/GASDIESEL/, California data.

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; 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.
#2..
- 153 -
40 c. Workers' Compensation - in compliance with the statutes of the State of California, plus employer's liability with a minimum limit of liability of $1,000,000 per accident for bodily injury or disease.

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

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

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:
#2..
- 154 -
41 CONTRACTOR shall invoice CITY not less than once per month based on the cost for services performed and reimbursable costs incurred prior to the invoice date. All invoices shall be paid in full the following payment terms within thirty days after completion and acceptance of the Services by the CITY, and receipt of a properly prepared invoice, CITY will pay CONTRACTOR [TO BE DETERMINED BY IFB RESPONSE IN FINAL AGREEMENT, EITHER “Net 30 terms via CITY’s ePay Program” or “Net 45 Days via manual check”.]. The CITY is exempt from payment of Federal Excise Tax, and all invoices shall be exclusive of such excise tax.

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

7. INDEMNITY: The CONTRACTOR shall hold the CITY, its agents, officials, officers, employees, and volunteers, harmless from and save, defend and indemnify them against any and all claims, losses, liabilities, judgments or damages from every cause, including but not limited to injury to person or property or wrongful death, including reasonable costs and expenses of defense of any judicial or administrative action, arising directly or indirectly out of any negligent or intentional act or omission of CONTRACTOR, or its agents, officials, officers, employees, or volunteers relating to or during the performance of its obligations under this AGREEMENT. CONTRACTOR’s obligation to defend, indemnify, and hold the CITY, its agents, officials, #2..
- 155 -
42 officers, and employees harmless under the provisions of this paragraph is not limited to or restricted by any requirement in this AGREEMENT for CONTRACTOR to procure and maintain a policy of insurance.

8. VENUE & GOVERNING LAW:

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

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

10. COMMENCEMENT AND COMPLETION OF THE WORK:

The work contemplated herein shall be commenced 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. 2324-66;
d. Contractor’s City of Modesto business license

11. TERMINATION OF SERVICES:
#2..
- 156 -
43 Termination for Default: In the event either party fails to perform under this AGREEMENT or breaches any condition contained herein, the other party shall notify in writing the breaching party of the nonperformance. Within 10 days after receipt of notification, the breaching party shall correct any non-performance to the reasonable satisfaction of the non-breaching party, or such other time as may be identified in the notice.

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

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 #2..
- 157 -
44 SERVICES whether completed or in process;
e. Settle outstanding liabilities and claims, subject to the approval of CITY; f. Complete performance of such part of the SERVICES as has not been terminated; g. Take such other actions as may be necessary, or as may be directed by the CITY for the protection and preservation of the SERVICES and/or property related to the SERVICES;
h. If CITY so requests, and at CITY's cost, CONTRACTOR shall provide sufficient oral or written status reports to make CITY reasonably aware of the status of CONTRACTOR’s work on the SERVICES.
i. CONTRACTOR understands and agrees that CITY may, in CITY’s sole discretion, refuse to pay CONTRACTOR for that portion of CONTRACTOR's SERVICES which were performed by CONTRACTOR on the project prior to the termination date and which remain unacceptable and/or not useful to CONTRACTOR as of the termination date.

CITY will pay CONTRACTOR for SERVICES actually completed prior to the receipt of the termination notice or otherwise completed in accordance with the notice of termination. The final payment to the CONTRACTOR after termination for convenience shall be limited to amounts due and owing under the AGREEMENT at time of termination, including the following:
a. The cost of settling and paying valid claims arising out of the termination of the SERVICES such as subcontractor agreements or contracts for materials; 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.
#2..
- 158 -
45 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 the acquisition of goods, services, or materials pursuant to this AGREEMENT or any allowed subcontract. The assignment made by CONTRACTOR and all #2..
- 159 -
46 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. 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.

17. NOTICES:

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

CONTRACTOR: __________________
__________________
__________________
__________________
CITY: City of Modesto
Purchasing Division
P.O. Box 642
Modesto, CA 95353
#2..
- 160 -
47 Each party may change its address for delivery of notice by delivering written notice of such change of address to the other party.

18. SIGNATORY(IES) FOR CONTRACTOR:

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

19. QUANTITIES:

No minimum or maximum is guaranteed or implied.

20. FUNDING:

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

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

21. 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.

22. NON-DISCRIMINATION:
a. During the performance of this AGREEMENT, CONTRACTOR and any allowed subcontractors shall not unlawfully discriminate against any employee or applicant for employment because of race, color, ancestry, religion, sex, national origin, marital status, age, medical condition (cancer related), physical handicap (including AIDS), sexual orientation, or any other basis prohibited by Federal or California law. Equal employment opportunity extends, but is not limited to recruitment, compensation, benefits, layoff, termination, and all other conditions of employment. The CONTRACTOR and any allowed subcontractors shall ensure that #2..
- 161 -
48 the evaluation and treatment of their employees and applicants for employment are free of such discrimination.

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

23. CONTRACTOR LICENSES & PERMITS:

CONTRACTOR warrants and represents that it possesses and shall maintain all licenses, and shall secure and maintain all necessary permits, necessary to perform the SERVICES. #2..
- 162 -
49 24. RECORDS:

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

25. FACILITIES AND EQUIPMENT:

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

26. INDEPENDENT CONTRACTOR; NOT AGENT:

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

27. DRUG FREE WORKPLACE:

CONTRACTOR certifies that it is following and in compliance with Sections 8350 - 8355 of Chapter 5.5 of the Government Code, Drug Free Workplace Act whereby each person or organization awarded #2..
- 163 -
50 a contract/purchase order or grant for the procurement of any property or service from any state agency (city) shall certify to the contracting or granting agency that it will provide a drug free workplace.

28. ASSIGNMENT:

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

29. WAIVER:

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

30. HEADINGS NOT CONTROLLING:

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

31. MISCELLANEOUS:

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

32. ENTIRE AGREEMENT:

This Agreement and its exhibits contain the entire understanding between CONTRACTOR and CITY. Additional or new terms contained in this AGREEMENT which vary from CONTRACTOR’S bid are controlling and are deemed accepted by CONTRACTOR by performance of any SERVICES or other commencement of performance hereunder. The terms and conditions of the IFB, attached hereto as Exhibit C, are incorporated herein. In the event of a conflict between the IFB and this AGREEMENT, this AGREEMENT shall control. All previous bids, offers and communications relative to this Agreement, whether oral or written, are hereby superseded except to the extent that they have been incorporated into this #2..
- 164 -
51 Agreement. No future waiver or exception to any of the terms, conditions, and provisions of this AGREEMENT shall be considered valid unless specifically agreed to in writing by the parties.

33. PARTIAL INVALIDITY:

If any provision in this AGREEMENT is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions shall nevertheless continue in full force without being impaired or invalidated in any way.
#2..
- 165 -
52 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.

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: ____________________________

CHRISTINA ALGER,
Acting Risk Manager
#2..
- 166 -
ANNUAL AGREEMENT NO. 271065

FOR CHEMICALS FOR WASTEWATER TREATMENT

UNIVAR SOLUTIONS USA, LLC
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 Univar Solutions USA, LLC, hereinafter called CONTRACTOR.

W I T N E S E T H:

WHEREAS, the Modesto City Council adopted Resolution No. 2024-______ authorizing the Award of Bid and agreement for the purchase and delivery of chemicals for wastewater treatment 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 purchase and delivery of chemicals for wastewater treatment SERVICES as described in IFB 2324-66, 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 #2..
- 167 -
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 $15,000. The total amount paid by CITY to CONTRACTOR over the full term of the AGREEMENT shall not exceed $91,577. 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
Item Description
Unit of
Measure Unit Price
Sodium Hydroxide – Liquid Caustic Soda, 50% Active Gallon $5.00 Sulfuric Acid – Liquid, 50% Active Gallon $3.75
Annual Safety Training for each Chemical Each $0.00

3. CITY REPRESENTATIVE:

CITY Representative: Ben Koehler, WQC Operations Superintendent, (209) 342-4502 Delivery to Jennings: Jennings Operator, (209) 652-8662 Delivery to Sutter: Sutter Operator, (209) 652-2324
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 #2..
- 168 -
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. CONTRACTOR CONTACT:

Jennifer Perras, Sr. Municipal Specialist, (253) 872-5040, [email protected]

5. TERM OF AGREEMENT:

The term of the AGREEMENT shall be for a period of one (1) year, with four (4) one-year extension options at the sole discretion of CITY, for a total of up to five (5) years.

Year 1: July 1, 2024 through June 30, 2025
Year 2: July 1, 2025 through June 30, 2026
Year 3: July 1, 2026 through June 30, 2027
Year 4: July 1, 2027 through June 30, 2028
Year 5: July 1, 2028 through June 30, 2029
Pricing as set forth in Section 1.e. above shall remain firm for the first year of the AGREEMENT.

Price increases for any subsequent AGREEMENT years following the first year, shall not exceed the Producer Price Index (PPI) as published by the Bureau of Labor Statistics: Industry Data for Chemical MFG (Series ID PCU325---325---) in any one (1) agreement year and shall be negotiated through the Purchasing Division with acceptable supporting documentation to substantiate the increase by manufacture. 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.

Price adjustments for diesel fuel fluctuations may be considered. A thirty (30) day written notice is required for consideration. Any price adjustment shall be negotiated through the Purchasing Division and approved at the sole discretion of the CITY.

The index used to determine price adjustments on diesel fuel shall come from the Energy Information Administration: Website: HTTPS://WWW.EIA.GOV/PETROLEUM/GASDIESEL/, California data.

6. LIABILITY INSURANCE:
#2..
- 169 -
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; 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. d. Pollution Liability – and/or Asbestos pollution liability and/or errors & omissions applicable to the work being performed, with a limit no less than $1,000,000 per claim and $2,000,000 aggregate per policy period of one-year.

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 #2..
- 170 -
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, 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, 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.

7. 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:
#2..
- 171 -
 This AGREEMENT number 271065
 CITY department/division name and address
 Billing period
 Service hours worked day and week
 Unit price, extended price, sales tax and total

8. 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, 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.

9. VENUE & GOVERNING LAW:

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

10. 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 #2..
- 172 -
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.

11. 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. 2324-66;
d. Contractor’s City of Modesto business license

12. 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 Ten (10) days after receipt of notification, the breaching party shall correct any nonperformance to the reasonable satisfaction of the non-breaching party, or such other time as may be identified in the notice. Failure to correct any non-performance shall allow the non-breaching party to terminate this AGREEMENT for cause.

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

Post-Termination Procedure
Upon receipt of a written notice of termination pursuant to either of the foregoing paragraphs, the CONTRACTOR shall:
a. Cease its work as directed in the notice of termination as of the termination date and see to it that its employees, subcontractors and agents are notified of such termination and act as specified in the notice of termination; #2..
- 173 -
b. Terminate all orders and subcontracts except as necessary to complete any portion of the SERVICES that are not terminated;
c. If directed in writing by the CITY to do so, assign all right, title and interest in subcontracts and materials in progress to CITY, in which case the CITY will have the right at its discretion to settle, or pay any or all claims arising out of the termination of such, but in no event shall recovery by any CONTRACTOR or subcontractor include lost profits for portions of the SERVICES not completed or undertaken, including materials not delivered;
d. Deliver or otherwise make available to the CITY all data, drawings, specifications, reports, estimates, summaries and such other information and material as may have been accumulated by the CONTRACTOR in performing the SERVICES whether completed or in process;
e. Settle outstanding liabilities and claims, subject to the approval of CITY; f. Complete performance of such part of the SERVICES as has not been terminated; g. Take such other actions as may be necessary, or as may be directed by the CITY for the protection and preservation of the SERVICES and/or property related to the SERVICES;
h. If CITY so requests, and at CITY's cost, CONTRACTOR shall provide sufficient oral or written status reports to make CITY reasonably aware of the status of CONTRACTOR’s work on the SERVICES.
i. CONTRACTOR understands and agrees that CITY may, in CITY’s sole 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.
#2..
- 174 -
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.

13. 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.

14. 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. #2..
- 175 -
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.

15. 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).

16. 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.

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: Univar Solutions USA, LLC
8201 S 212th St
Kent, WA 98032
#2..
- 176 -
CITY: City of Modesto
Purchasing Division
P.O. Box 642
Modesto, CA 95353
Each party may change its address for delivery of notice by delivering written notice of such change of address to the other party.

19. SIGNATORY(IES) FOR CONTRACTOR:

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

20. QUANTITIES:

No minimum or maximum is guaranteed or implied.

21. FUNDING:

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

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

22. OTHER GOVERNMENT/PUBLICLY FUNDED AGENCIES:

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

23. NON-DISCRIMINATION:
a. During the performance of this AGREEMENT, CONTRACTOR and any allowed subcontractors shall not unlawfully discriminate against any employee or applicant for employment because of race, color, ancestry, religion, sex, national origin, marital status, age, medical condition (cancer related), physical handicap (including AIDS), sexual orientation, or any other basis prohibited by Federal or California law. Equal employment opportunity extends, but is not limited to recruitment, compensation, benefits, layoff, termination, and all other conditions of employment. The CONTRACTOR and any allowed subcontractors shall ensure that #2..
- 177 -
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 twenty-four (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 #2..
- 178 -
other form, that CONTRACTOR prepares or obtains pursuant to this Agreement and that relate to the matters covered hereunder shall be the property of the CITY. CONTRACTOR hereby agrees to deliver those documents to the CITY upon termination of the AGREEMENT, and the CITY may use, reuse or otherwise dispose of the documents without CONTRACTOR’s permission. It is understood and agreed that the documents and other materials, including but not limited to those described above, prepared pursuant to this AGREEMENT are prepared specifically for the City and are not necessarily suitable for any future or other use.

26. FACILITIES AND EQUIPMENT:

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

27. INDEPENDENT CONTRACTOR; NOT AGENT:

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

28. DRUG FREE WORKPLACE:

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

29. ASSIGNMENT:

Neither this AGREEMENT nor any SERVICES hereunder shall be subcontracted or assigned by CONTRACTOR without the prior written consent of the CITY in each and every instance. #2..
- 179 -

30. WAIVER:

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

31. HEADINGS NOT CONTROLLING:

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

32. MISCELLANEOUS:

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

33. ENTIRE AGREEMENT:

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

34. PARTIAL INVALIDITY:

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.
#2..
- 180 -
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 Univar Solutions USA, LLC has caused this Agreement to be duly executed. #2..
- 181 -
#2..
- 182 -
#2..
- 183 -
#2..
- 184 -
#2..
- 185 -
#2..
- 186 -
#2..
- 187 -
#2..
- 188 -
#2..
- 189 -
#2..
- 190 -
#2..
- 191 -
#2..
- 192 -
#2..
- 193 -
#2..
- 194 -
#2..
- 195 -
#2..
- 196 -
#2..
- 197 -
#2..
- 198 -
#2..
- 199 -
#2..
- 200 -
#2..
- 201 -
#2..
- 202 -
#2..
- 203 -
#2..
- 204 -
#2..
- 205 -
#2..
- 206 -
#2..
- 207 -
#2..
- 208 -
#2..
- 209 -
#2..
- 210 -
#2..
- 211 -
#2..
- 212 -
#2..
- 213 -
#2..
- 214 -
#2..
- 215 -
#2..
- 216 -
#2..
- 217 -
#2..
- 218 -
#2..
- 219 -
#2..
- 220 -
#2..
- 221 -
#2..
- 222 -
#2..
- 223 -
#2..
- 224 -
#2..
- 225 -
#2..
- 226 -
#2..
- 227 -
#2..
- 228 -
#2..
- 229 -
#2..
- 230 -
#2..
- 231 -
#2..
- 232 -
#2..
- 233 -
#2..
- 234 -
#2..
- 235 -
#2..
- 236 -
#2..
- 237 -
#2..
- 238 -
#2..
- 239 -
#2..
- 240 -
#2..
- 241 -
#2..
- 242 -
#2..
- 243 -
#2..
- 244 -
#2..
- 245 -
#2..
- 246 -
#2..
- 247 -
#2..
- 248 -
#2..
- 249 -
#2..
- 250 -
#2..
- 251 -
#2..
- 252 -
#2..
- 253 -
#2..
- 254 -
#2..
- 255 -
#2..
- 256 -
#2..
- 257 -
#2..
- 258 -
#2..
- 259 -
#2..
- 260 -
#2..
- 261 -
#2..
- 262 -
#2..
- 263 -
#2..
- 264 -
#2..
- 265 -
#2..
- 266 -
#2..
- 267 -
#2..
- 268 -
#2..
- 269 -
#2..
- 270 -
#2..
- 271 -
#2..
- 272 -
#2..
- 273 -
#2..
- 274 -
#2..
- 275 -
#2..
- 276 -
#2..
- 277 -
#2..
- 278 -
#2..
- 279 -
#2..
- 280 -
#2..
- 281 -
#2..
- 282 -
#2..
- 283 -
#2..
- 284 -
#2..
- 285 -
#2..
- 286 -
#2..
- 287 -
#2..
- 288 -
#2..
- 289 -
#2..
- 290 -
#2..
- 291 -
#2..
- 292 -
#2..
- 293 -
#2..
- 294 -
#2..
- 295 -
#2..
- 296 -
#2..
- 297 -
#2..
- 298 -
#2..
- 299 -
#2..
- 300 -
#2..
- 301 -
#2..
- 302 -
#2..
- 303 -
#2..
- 304 -
#2..
- 305 -
#2..
- 306 -
#2..
- 307 -
#2..
- 308 -
#2..
- 309 -
#2..
- 310 -
#2..
- 311 -
#2..
- 312 -
#2..
- 313 -
#2..
- 314 -
#2..
- 315 -
#2..
- 316 -
#2..
- 317 -
#2..
- 318 -
#2..
- 319 -
#2..
- 320 -
#2..
- 321 -
#2..
- 322 -
#2..
- 323 -
#2..
- 324 -
#2..
- 325 -
#2..
- 326 -
#2..
- 327 -
#2..
- 328 -
#2..
- 329 -
#2..
- 330 -
#2..
- 331 -
#2..
- 332 -
#2..
- 333 -
#2..
- 334 -
#2..
- 335 -
#2..
- 336 -
#2..
- 337 -
#2..
- 338 -
#2..
- 339 -
#2..
- 340 -
#2..
- 341 -
#2..
- 342 -
#2..
- 343 -
#2..
- 344 -
#2..
- 345 -
#2..
- 346 -
Item # Description
Estimated
Quantity
Unit of
Measure Unit Price
Extended
Price Unit Price
Extended
Price Unit Price
Extended
Price Unit Price
Extended
Price
1 Sodium Hypochlorite,

12.5% Active BULK 72,000 Gallon $ 3.15 $226,800.00 $ 2.49 $179,280.00 NO BID $ - $ 3.15 $ 226,800.00 2 Sodium Hydroxide - Liquid
Caustic Soda, 50% Active 2,000 Gallon $ 5.25 $ 10,500.00 NO BID $ - NO BID $ - $ 5.00 $ 10,000.00 3 Sulfuric Acid - Liquid, 50%
Active 1,000 Gallon NO BID $ - NO BID $ - NO BID $ - $ 3.75 $ 3,750.00 4 Phosphoric Acid - Liquid
50% Active 1,000 Gallon $ 9.50 $ 9,500.00 NO BID $ - $ 13.60 $ 13,600.00 NO BID $ - 5 Citric Acid - Liquid 50%
Active BULK 4,000 Gallon $ 8.10 $ 32,400.00 NO BID $ - $ 13.15 $ 52,600.00 $ 10.61 $ 42,440.00 6 Annual Safety Training for
each chemical 1 Each $ - $ - $ - $ - $ - $ - $ - $ -
Total
Tax (8.875%)
Grand Total

CITY OF MODESTO
PO BOX 642 MODESTO CA 95353
IFB NO. 2324-66 Chemicals for Wastewater Treatment
$ 195,191.10
$ 279,200.00
$ 24,779.00

KENT, WA

UNIVAR SOLUTIONS USA
LLC
$ 179,280.00 $ 282,990.00
$ 15,911.10

SMYRA, TN
CHEMRITE, INC.
$ 66,200.00
Low Bidder - Thatcher Company of California, Inc for Sodium Hypochlorite - Primary Contractor, Northstar Chemical for Sodium Hypochlorite - Secondary Contractor Phosphoric Acid and Citric Acid, and Univar Solutions for Sodium Hydroxide, and Sulfuric Acid.

Revised March 20, 2024

NORTHSTAR CHEMICAL

SHERWOOD, OR
$ 303,979.00

SALT LAKE CITY, UT

THATCHER COMPANY OF
CALIFORNIA, INC.
$ 72,075.25
$ 5,875.25 $ 25,115.36
$ 308,105.36
#2..
- 347 -
INVITATION FOR BIDS # 2324-66

CHEMICALS FOR WASTEWATER

TREATMENT
1 INVITATION FOR BIDS (“IFB”) NO. 2324-66
FOR

CHEMICALS FOR WASTEWATER TREATMENT
BID OPENING: February 27, 2024 at 11:00 A.M.

CITY OF MODESTO CONTACT: Melvin Rosal, Buyer
E-MAIL ADDRESS: [email protected]
PHONE: (209) 577-5420
#2..
- 348 -
INVITATION FOR BIDS # 2324-66

CHEMICALS FOR WASTEWATER

TREATMENT
2 Table of Contents
NOTICE TO BIDDERS ............................................................................................................................. 3 CALENDAR OF EVENTS ........................................................................................................................ 5 CITY CONTACT ....................................................................................................................................... 5 PRECEDENCE........................................................................................................................................... 5 VIRTUAL BID OPENING......................................................................................................................... 6 GENERAL BID REQUIREMENTS .......................................................................................................... 7 BID SUBMITTAL CHECKLIST............................................................................................................. 15 BID FORM A - IFB ACKNOWLEDGEMENT .................................................................................. 16 BID FORM B – BIDDER COMPANY INFORMATION................................................................... 19 BID FORM C - PRICING SCHEDULE .............................................................................................. 21 BID FORM D – BIDDER EXCEPTIONS, CLARIFICATIONS, AMENDMENTS.......................... 23 BID FORM E – BIDDER CUSTOMER REFERENCES .................................................................... 24 BID FORM F - FINANCIAL INTEREST DISCLOSURE.................................................................. 26 BID FORM G – SUPPORT OF LOCAL VENDORS.......................................................................... 28 BID FORM H - BIDDER COMPANY HISTORY STATEMENT..................................................... 29 BID FORM I - ADDENDA ACKNOWLEDGEMENT ...................................................................... 30 BID FORM J – BIDDER WARRANTY STATEMENTS................................................................... 31 BID FORM K – BIDDER EXPERIENCE AND CERTIFICATIONS................................................ 32 BID FORM L - SUBCONTRACTOR LIST.......................................................................................... 33 TECHNICAL SPECIFICATIONS AND REQUIREMENTS ................................................................. 34

1.1 SCOPE OF WORK:........................................................................................................................ 34

1.2 REQUIRED LICENSES:................................................................................................................ 35 SAMPLE AGREEMENT......................................................................................................................... 36 #2..
- 349 -
INVITATION FOR BIDS # 2324-66

CHEMICALS FOR WASTEWATER

TREATMENT
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 purchase and delivery of Chemicals for Wastewater Treatment (the “Services”) for the City of Modesto, Utilities Department, Wastewater 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 February 27, 2024 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, 5 th Floor,
Suite 5300, Modesto, CA 95354.

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

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

The City Clerk’s time stamp shall be considered the official timepiece for the purpose of establishing the actual receipt of Bids. Bids will not be accepted by email or facsimile. The City of Modesto assumes no responsibility for delay in the delivery of the Bid. #2..
- 350 -
INVITATION FOR BIDS # 2324-66

CHEMICALS FOR WASTEWATER

TREATMENT
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 # 2324-66

CHEMICALS FOR WASTEWATER TREATMENT
BID OPENING DATE: FEBRUARY 27, 2024 AT 11:00 A.M.”
Bidder must deliver your Bid by a preferred method to the appropriate location below:

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

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

No Bidder may withdraw its Bid for a period of 90 days after the date set for the opening thereof. #2..
- 351 -
INVITATION FOR BIDS # 2324-66

CHEMICALS FOR WASTEWATER

TREATMENT
5 CALENDAR OF EVENTS
Event Date
IFB Issued January 19, 2024
Written Questions Due via Email February 02, 2024
Addendum Issued (if required) February 09, 2024 (approximate date) Bid Due Date & Time PRIOR 11:00 A.M. on Tuesday, February 27, 2024 Contract Award Approximately March, 2024

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.

PRECEDENCE
Bidder agrees that any agreement resulting from City’s acceptance of its Bid, together with the terms in any City purchase order and associated specifications provided by the City to Bidder therewith, shall comprise the entire agreement between City and Bidder. Moreover, Bidder agrees that any additional or contrary terms contained in Bidder’s acknowledgement of, shall be null and void. #2..
- 352 -
INVITATION FOR BIDS # 2324-66

CHEMICALS FOR WASTEWATER

TREATMENT
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, February 27, 2024. 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/meetupjoin/19%3ameeting_NTI0YzBiMDMtNDQ0Yi00YjNlLWIwZjYtYzg4ZDVjMDd kM2Mz%40thread.v2/0?context=%7b%22Tid%22%3a%22125ccacf-fc61-463c9976-189f876ff90b%22%2c%22Oid%22%3a%229715c333-c997-4dd7-8984- 12cd4deaa705%22%7d
• Join Microsoft Teams Meeting (Click Here to Join 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.
#2..
- 353 -
INVITATION FOR BIDS # 2324-66

CHEMICALS FOR WASTEWATER

TREATMENT
7 GENERAL BID REQUIREMENTS
A. BID SUBMITTAL: Bidders should submit two “inked” (preferably blue ink) signed original Bid document, plus one copy of the signed original Bid document, and one electronic copy submitted via USB. The original Bid document shall be clearly marked. Photocopies do not constitute an original Bid. FAILURE TO FURNISH AT LEAST 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
#2..
- 354 -
INVITATION FOR BIDS # 2324-66

CHEMICALS FOR WASTEWATER

TREATMENT
8 • Bid Form G – Support of Local Vendors
• Bid Form H – Bidder Company History Statement
• Bid Form I – Addenda Acknowledgement Page (if applicable) • 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. #2..
- 355 -
INVITATION FOR BIDS # 2324-66

CHEMICALS FOR WASTEWATER

TREATMENT
9 • 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 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.

J. 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.

K. 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.

L. BIDDER REPRESENTATION: Bidder represents that:
#2..
- 356 -
INVITATION FOR BIDS # 2324-66

CHEMICALS FOR WASTEWATER

TREATMENT
10 • 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.
#2..
- 357 -
INVITATION FOR BIDS # 2324-66

CHEMICALS FOR WASTEWATER

TREATMENT
11 • Subcontractors are not eligible to submit bid protests. • 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:
#2..
- 358 -
INVITATION FOR BIDS # 2324-66

CHEMICALS FOR WASTEWATER

TREATMENT
12 City Clerk’s Office
Attn: Director of Finance
1010 Tenth St. Suite 6600
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 #2..
- 359 -
INVITATION FOR BIDS # 2324-66

CHEMICALS FOR WASTEWATER

TREATMENT
13 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.

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 #2..
- 360 -
INVITATION FOR BIDS # 2324-66

CHEMICALS FOR WASTEWATER

TREATMENT
14 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. f. Mandatory Alternative Process for Protests of Procurements Obtained with Federal Funds: If the protested procurement involves federal funds, the Deputy City Manager, City Council, or hearing officer shall give notice, accompanying their respective decisions, to the protestor that he or she has the right to appeal to the appropriate federal agency, for which an agency name, contact (where available) and address shall be provided by City staff. Such an appeal shall be filed with the appropriate agency within seven business days of the dispatch or rejection notices to the protestor. Federal agencies may entertain protests alleging that the City has failed to adopt written protest procedures or has failed to follow such procedures. The City Council is the highest authority of the City of Modesto, and its decisions are final. A disappointed Bidder for a contract involving expenditures of Federal funds shall have the right to appeal the City Council decision directly to the federal agency as described herein. #2..
- 361 -
INVITATION FOR BIDS # 2324-66

CHEMICALS FOR WASTEWATER

TREATMENT
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. #2..
- 362 -
INVITATION FOR BIDS # 2324-66

CHEMICALS FOR WASTEWATER

TREATMENT
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 un- #2..
- 363 -
INVITATION FOR BIDS # 2324-66

CHEMICALS FOR WASTEWATER

TREATMENT
17 patented invention, article or appliance furnished or used in connection with the contract or purchase order.

6. Samples: Samples of items, when required, shall be furnished free of expense to the City and if not destroyed by test may upon request (made when the sample is furnished), be returned at the Bidder’s expense.

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

8. Payment Terms and Methods: Bidder will be able to choose from either of the following payment methods and associated timings:
(a) Option A (Preferred): City of Modesto ePay Payment: This secure payment methodology is preferred by an increasing number of the City’s suppliers. On Net 30-day timing, you will receive a single-use Master Card number with a detailed remittance for each payment. You will process the payment though your POS/Card terminal. The payment remittance will be sent from [email protected] via email and will contain the following information:
• 16-digit credit card number
• Expiration date
• Security code
• Total dollar amount of invoices to be paid
• Invoices reference numbers and corresponding amounts
#2..
- 364 -
INVITATION FOR BIDS # 2324-66

CHEMICALS FOR WASTEWATER

TREATMENT
18 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.
(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:
#2..
- 365 -
INVITATION FOR BIDS # 2324-66

CHEMICALS FOR WASTEWATER

TREATMENT
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
#2..
- 366 -
INVITATION FOR BIDS # 2324-66

CHEMICALS FOR WASTEWATER

TREATMENT
20 Number (note –
provide only if
available now - - but
not required until any
contract begins):
#2..
- 367 -
INVITATION FOR BIDS # 2324-66

CHEMICALS FOR WASTEWATER

TREATMENT
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.

Item
No. Item Description
Estimated
Annual
Quantity
Unit of
Measure
Unit Price
(per gallon)
Extended Price
(Annually)

1. Sodium Hypochlorite, 12.5% Active BULK
Deliveries approx.. 4,000 gallons X 18
times per year 72,000 Gallon $_________ $____________

2. Sodium Hydroxide – Liquid Caustic Soda,
50% Active
(Delivered in approx. 275 Gallon Tote) 2,000 Gallon $_________ $____________

3. Sulfuric Acid – Liquid, 50% Active
(Delivered in approx.. 275 Gallon Tote) 1,000 Gallon $_________ $____________

4. Phosphoric Acid – Liquid, 50% Active
(Delivered in approx.. 275g Tote) 1,000 Gallon $_________ $____________

5. Citric Acid – Liquid, 50% Active BULK
Deliveries approx.. 2,000-4,000 gallons 4,000 Gallon $_________ $____________

6. Annual Safety Training for each Chemical 1 Each $_________ $____________ Total $____________
Tax (8.875%) $____________
Grand Total $____________
**For costing purposes only

7. Emergency Delivery 1 Each $____________
#2..
- 368 -
INVITATION FOR BIDS # 2324-66

CHEMICALS FOR WASTEWATER

TREATMENT
22 Payment Terms:

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

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

THE undersigned acknowledges receipt of the referenced IFB and any associated Addenda and 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:
#2..
- 369 -
INVITATION FOR BIDS # 2324-66

CHEMICALS FOR WASTEWATER

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

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

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

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

Name of Bidder Signatory:

Signature of Bidder Representative:
#2..
- 370 -
INVITATION FOR BIDS # 2324-66

CHEMICALS FOR WASTEWATER

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

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

Company Name:

Address:

City, State, Zip Code:

Contact Person:

Email Address:

Telephone Number:

Type of Business or
Governmental
Agency:

Date Range of
Service:

Annual Contract Value $
Company Name:

Address:

City, State, Zip Code:

Contact Person:

Email Address:

Telephone Number:

Type of Business or
Governmental
Agency:

Date Range of
Services:

Annual Contract Value $
Company Name:

Address:

City, State, Zip Code
#2..
- 371 -
INVITATION FOR BIDS # 2324-66

CHEMICALS FOR WASTEWATER

TREATMENT
25 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 $
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 $
#2..
- 372 -
INVITATION FOR BIDS # 2324-66

CHEMICALS FOR WASTEWATER

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

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

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

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

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

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

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

10.03(h) are satisfied.

It is the legal obligation of all applicants for approval of an agreement or of an application for development rights to verify in writing, under penalty of perjury, that the identity of each person having a material financial interest in the Bidder is true, correct and complete. By signing below, the applicant understands that this information is provided under penalty of perjury, and that intentionally supplying misinformation or deception may result in either invalidation of the agreement or application, or criminal prosecution for misdemeanor violation of the Modesto Municipal Code, or both. Negligent provision of misinformation shall be grounds for invalidation. In accordance with the Modesto Municipal Code, each applicant has a continuing obligation to maintain the truth, accuracy and completeness of the financial interest disclosure information provided below until after final consideration by the City Council of any matter arising out of or relating to the agreement or application.
#2..
- 373 -
INVITATION FOR BIDS # 2324-66

CHEMICALS FOR WASTEWATER

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

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

Bidder Company Name:

Name of Bidder Signatory:

Signature of Bidder Representative:
#2..
- 374 -
INVITATION FOR BIDS # 2324-66

CHEMICALS FOR WASTEWATER

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

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

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

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

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

Check here:

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

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

City of Modesto Business License
Number:

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

Print/Type Name:

Title:

Signature:

Date:
#2..
- 375 -
INVITATION FOR BIDS # 2324-66

CHEMICALS FOR WASTEWATER

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

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

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

Insert Bidder Company History Overview Statement Beginning Here:
#2..
- 376 -
INVITATION FOR BIDS # 2324-66

CHEMICALS FOR WASTEWATER

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

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

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

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

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

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

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

Bidder Company Name:
#2..
- 377 -
INVITATION FOR BIDS # 2324-66

CHEMICALS FOR WASTEWATER

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

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

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

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

Insert Bidder Warranty Statement Beginning Here:
#2..
- 378 -
INVITATION FOR BIDS # 2324-66

CHEMICALS FOR WASTEWATER

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

A. Experience: The Contractor and its employees directly involved in providing inspections, services and repairs shall have a minimum of three years’ experience providing the types of services requested in this IFB:
i. Identify key personnel and their position within your organization. ii. Provide a biographical summary or resume detailing the experience, level of expertise and qualifications of the key individuals providing the types of services requested herein. iii. If you plan to subcontract work, you must also indicate in Bid Form L – Subcontractor List the name and address of each firm and the type of work or tasks the subcontractor will perform. Identify key personnel assigned to the project, their position, qualifications and representative experience. #2..
- 379 -
INVITATION FOR BIDS # 2324-66

CHEMICALS FOR WASTEWATER

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

Name of
Subcontractor
Address Type of Work Contractor
License # (if any)
DIR
Registration #
(if any)

N/A N/A

N/A N/A

N/A N/A

N/A N/A

N/A N/A

N/A N/A

N/A N/A
Bidder Company Name:
#2..
- 380 -
INVITATION FOR BIDS # 2324-66

CHEMICALS FOR WASTEWATER

TREATMENT
34 TECHNICAL SPECIFICATIONS AND REQUIREMENTS

1.1 SCOPE OF WORK:

The City of Modesto, Utilities Department, Wastewater Division, uses sodium hypochlorite, sodium hydroxide, sulfuric acid, phosphoric acid and citric acid as part of the treatment process. These chemicals are used for the cleaning of the membrane and ultraviolet light disinfection systems at the City’s Tertiary Treatment Plant.

The City of Modesto, Utilities Department Wastewater Division, is seeking a qualified Contractor for the delivery of the following wastewater treatment chemicals.

Item
No. Item Description
Estimated
Annual
Quantity
Estimated
Frequency
Unit of
Measure

1. Sodium Hypochlorite, 12.5% Active BULK
Deliveries approx.. 4,000 gallons X 18
times per year 72,000
Every 3
weeks Gallon

2. Sodium Hydroxide – Liquid Caustic Soda,
50% Active
(Delivered in approx. 275 Gallon Tote) 2,000
Every 6
months Gallon

3. Sulfuric Acid – Liquid, 50% Active
(Delivered in approx.. 275 Gallon Tote) 1,000
Every 6
months Gallon

4. Phosphoric Acid – Liquid, 50% Active
(Delivered in approx.. 275g Tote) 1,000
Every 6
months Gallon

5. Citric Acid – Liquid, 50% Active BULK
Deliveries approx.. 2,000-4,000 gallons 4,000 Once a year Gallon

6. Annual Safety Training for each Chemical 1 Once a year Each

7. Emergency Delivery 1 - Each
Delivery location:

City of Modesto Regional Water Recycling Facility – Jennings Campus 7007 Jennings Ave.

Modesto, CA 95358
Days of Week: Monday through Thursday (excluding holidays) NO FRIDAY DELIVERIES unless requested Delivery Hours: 7:00 A.M. to 12:00 P.M. and 12:30 P.M. to 3:30 P.M. (PST) (Or as requested) Each delivery shall be provided to City Staff:

1. Certificate of Analysis

2. Bill of Lading

3. Safety Data Sheet
#2..
- 381 -
INVITATION FOR BIDS # 2324-66

CHEMICALS FOR WASTEWATER

TREATMENT
35 1.2 REQUIRED LICENSES:

Prior to beginning any service that shall be furnished under this specification, the Bidder shall secure the appropriate Business/Delivery license from the City of Modesto. Business/Delivery license information may be obtained by calling (209) 577-5389 or emailing [email protected]. The successful Bidder shall maintain a City of Modesto business license for the duration of the agreement.

1.3 TERM OF CONTRACT:

The term of the contract shall be for a period of one (1) year with four (4) one-year extension options at the sole discretion of City, for a total of three (5) years.

A. Pricing shall remain firm for the first year of any contract, which may be awarded pursuant to this IFB.

B. Price increases for subsequent contract years two, three, four, and five, shall not exceed the Producer Price Index (PPI) as published by the Bureau of Labor Statistics: Industry Data for Chemical MFG (Series ID PCU325---325---) in any one (1) agreement year, and shall be negotiated through the Purchasing Division with acceptable supporting documentation to substantiate the increase by manufacture. Requests for price increases shall be submitted by contractor in writing, sixty (90) days prior to the annual anniversary date of the contract to be effective for the subsequent year.

C. Price adjustments for diesel fuel fluctuations may be considered. A thirty (30) day written notice is required for consideration. Any price adjustment shall be negotiated through the Purchasing Division, and approved at the sole discretion of the CITY.

The index used to determine price adjustments on diesel fuel shall come from the Energy Information Administration: Website: HTTPS://WWW.EIA.GOV/PETROLEUM/GASDIESEL/, California data. #2..
- 382 -
36 SAMPLE AGREEMENT

SAMPLE ANNUAL AGREEMENT - SERVICES
This agreement, hereinafter called AGREEMENT, made and entered into in the City of Modesto, State of California, this ____ day of _________, 2024, 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. 2024-______ authorizing the Award of Bid and agreement for the purchase and delivery of chemicals for wastewater treatment SERVICES to CONTRACTOR, attached hereto as Exhibit “A” and made a part hereof, and WHEREAS, the CONTRACTOR provided a responsive and responsible submittal that best meets the CITY needs, attached hereto as Exhibit “B” and made a part hereof, and WHEREAS, the CITY and CONTRACTOR shall enter into an agreement for the purchase and delivery of chemicals for wastewater treatment SERVICES as described in IFB 2324-66, attached hereto as Exhibit “C” and made a part hereof (hereinafter called IFB). #2..
- 383 -
37 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. 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
Item
No. Item Description
Estimated
Annual
Quantity
Unit of
Measure
Unit Price
(per gallon)
Extended Price
(Annually)

1. Sodium Hypochlorite, 12.5% Active
BULK Deliveries approx.. 4,000 gallons X
18 times per year 72,000 Gallon $_________ $____________

2. Sodium Hydroxide – Liquid Caustic Soda,
50% Active
(Delivered in approx. 275 Gallon Tote) 2,000 Gallon $_________ $____________

3. Sulfuric Acid – Liquid, 50% Active
(Delivered in approx.. 275 Gallon Tote) 1,000 Gallon $_________ $____________

4. Phosphoric Acid – Liquid, 50% Active
(Delivered in approx.. 275g Tote) 1,000 Gallon $_________ $____________

5. Citric Acid – Liquid, 50% Active BULK
Deliveries approx.. 2,000-4,000 gallons 4,000 Gallon $_________ $____________ #2..
- 384 -
38 6. Annual Safety Training for each Chemical 1 Each $_________ $____________ **For costing purposes only

7. Emergency Delivery 1 Each $____________

3. CITY REPRESENTATIVE:

CITY Representative: Ben Koehler, WQC Operations Superintendent, (209) 342-4502 Delivery to Jennings: Jennings Operator, (209) 652-8662 Delivery to Sutter: Sutter Operator, (209) 652-2324
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 one (1) year, with four (4) one-year extension options at the sole discretion of CITY, for a total of up to five years.

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

Price increases for any subsequent AGREEMENT years following the first year, shall not exceed the Producer Price Index (PPI) as published by the Bureau of Labor Statistics: Industry Data for Chemical MFG (Series ID PCU325---325---) in any one (1) agreement year and shall be negotiated through the Purchasing Division with acceptable supporting documentation to substantiate the increase by manufacture. Requests for #2..
- 385 -
39 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.

Price adjustments for diesel fuel fluctuations may be considered. A thirty (30) day written notice is required for consideration. Any price adjustment shall be negotiated through the Purchasing Division, and approved at the sole discretion of the CITY.

The index used to determine price adjustments on diesel fuel shall come from the Energy Information Administration: Website: HTTPS://WWW.EIA.GOV/PETROLEUM/GASDIESEL/, California data.

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; 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.
#2..
- 386 -
40 c. Workers' Compensation - in compliance with the statutes of the State of California, plus employer's liability with a minimum limit of liability of $1,000,000 per accident for bodily injury or disease.

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

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

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:
#2..
- 387 -
41 CONTRACTOR shall invoice CITY not less than once per month based on the cost for services performed and reimbursable costs incurred prior to the invoice date. All invoices shall be paid in full the following payment terms within thirty days after completion and acceptance of the Services by the CITY, and receipt of a properly prepared invoice, CITY will pay CONTRACTOR [TO BE DETERMINED BY IFB RESPONSE IN FINAL AGREEMENT, EITHER “Net 30 terms via CITY’s ePay Program” or “Net 45 Days via manual check”.]. The CITY is exempt from payment of Federal Excise Tax, and all invoices shall be exclusive of such excise tax.

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

7. INDEMNITY: The CONTRACTOR shall hold the CITY, its agents, officials, officers, employees, and volunteers, harmless from and save, defend and indemnify them against any and all claims, losses, liabilities, judgments or damages from every cause, including but not limited to injury to person or property or wrongful death, including reasonable costs and expenses of defense of any judicial or administrative action, arising directly or indirectly out of any negligent or intentional act or omission of CONTRACTOR, or its agents, officials, officers, employees, or volunteers relating to or during the performance of its obligations under this AGREEMENT. CONTRACTOR’s obligation to defend, indemnify, and hold the CITY, its agents, officials, #2..
- 388 -
42 officers, and employees harmless under the provisions of this paragraph is not limited to or restricted by any requirement in this AGREEMENT for CONTRACTOR to procure and maintain a policy of insurance.

8. VENUE & GOVERNING LAW:

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

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

10. COMMENCEMENT AND COMPLETION OF THE WORK:

The work contemplated herein shall be commenced 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. 2324-66;
d. Contractor’s City of Modesto business license

11. TERMINATION OF SERVICES:
#2..
- 389 -
43 Termination for Default: In the event either party fails to perform under this AGREEMENT or breaches any condition contained herein, the other party shall notify in writing the breaching party of the nonperformance. Within 10 days after receipt of notification, the breaching party shall correct any non-performance to the reasonable satisfaction of the non-breaching party, or such other time as may be identified in the notice.

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

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 #2..
- 390 -
44 SERVICES whether completed or in process;
e. Settle outstanding liabilities and claims, subject to the approval of CITY; f. Complete performance of such part of the SERVICES as has not been terminated; g. Take such other actions as may be necessary, or as may be directed by the CITY for the protection and preservation of the SERVICES and/or property related to the SERVICES;
h. If CITY so requests, and at CITY's cost, CONTRACTOR shall provide sufficient oral or written status reports to make CITY reasonably aware of the status of CONTRACTOR’s work on the SERVICES.
i. CONTRACTOR understands and agrees that CITY may, in CITY’s sole discretion, refuse to pay CONTRACTOR for that portion of CONTRACTOR's SERVICES which were performed by CONTRACTOR on the project prior to the termination date and which remain unacceptable and/or not useful to CONTRACTOR as of the termination date.

CITY will pay CONTRACTOR for SERVICES actually completed prior to the receipt of the termination notice or otherwise completed in accordance with the notice of termination. The final payment to the CONTRACTOR after termination for convenience shall be limited to amounts due and owing under the AGREEMENT at time of termination, including the following:
a. The cost of settling and paying valid claims arising out of the termination of the SERVICES such as subcontractor agreements or contracts for materials; 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.
#2..
- 391 -
45 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 the acquisition of goods, services, or materials pursuant to this AGREEMENT or any allowed subcontract. The assignment made by CONTRACTOR and all #2..
- 392 -
46 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. 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.

17. NOTICES:

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

CONTRACTOR: __________________
__________________
__________________
__________________
CITY: City of Modesto
Purchasing Division
P.O. Box 642
Modesto, CA 95353
#2..
- 393 -
47 Each party may change its address for delivery of notice by delivering written notice of such change of address to the other party.

18. SIGNATORY(IES) FOR CONTRACTOR:

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

19. QUANTITIES:

No minimum or maximum is guaranteed or implied.

20. FUNDING:

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

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

21. 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.

22. NON-DISCRIMINATION:
a. During the performance of this AGREEMENT, CONTRACTOR and any allowed subcontractors shall not unlawfully discriminate against any employee or applicant for employment because of race, color, ancestry, religion, sex, national origin, marital status, age, medical condition (cancer related), physical handicap (including AIDS), sexual orientation, or any other basis prohibited by Federal or California law. Equal employment opportunity extends, but is not limited to recruitment, compensation, benefits, layoff, termination, and all other conditions of employment. The CONTRACTOR and any allowed subcontractors shall ensure that #2..
- 394 -
48 the evaluation and treatment of their employees and applicants for employment are free of such discrimination.

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

23. CONTRACTOR LICENSES & PERMITS:

CONTRACTOR warrants and represents that it possesses and shall maintain all licenses, and shall secure and maintain all necessary permits, necessary to perform the SERVICES. #2..
- 395 -
49 24. RECORDS:

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

25. FACILITIES AND EQUIPMENT:

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

26. INDEPENDENT CONTRACTOR; NOT AGENT:

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

27. DRUG FREE WORKPLACE:

CONTRACTOR certifies that it is following and in compliance with Sections 8350 - 8355 of Chapter 5.5 of the Government Code, Drug Free Workplace Act whereby each person or organization awarded #2..
- 396 -
50 a contract/purchase order or grant for the procurement of any property or service from any state agency (city) shall certify to the contracting or granting agency that it will provide a drug free workplace.

28. ASSIGNMENT:

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

29. WAIVER:

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

30. HEADINGS NOT CONTROLLING:

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

31. MISCELLANEOUS:

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

32. ENTIRE AGREEMENT:

This Agreement and its exhibits contain the entire understanding between CONTRACTOR and CITY. Additional or new terms contained in this AGREEMENT which vary from CONTRACTOR’S bid are controlling and are deemed accepted by CONTRACTOR by performance of any SERVICES or other commencement of performance hereunder. The terms and conditions of the IFB, attached hereto as Exhibit C, are incorporated herein. In the event of a conflict between the IFB and this AGREEMENT, this AGREEMENT shall control. All previous bids, offers and communications relative to this Agreement, whether oral or written, are hereby superseded except to the extent that they have been incorporated into this #2..
- 397 -
51 Agreement. No future waiver or exception to any of the terms, conditions, and provisions of this AGREEMENT shall be considered valid unless specifically agreed to in writing by the parties.

33. PARTIAL INVALIDITY:

If any provision in this AGREEMENT is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions shall nevertheless continue in full force without being impaired or invalidated in any way.
#2..
- 398 -
52 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.

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: ____________________________

CHRISTINA ALGER,
Acting Risk Manager
#2..
- 399 -

CITY OF MODESTO

COMMITTEE AGENDA REPORT
DATE OF MEETING:

May 6, 2024
Date: April 10, 2024
TO: Economic Development Committee
Chris Ricci, Chair
Eric Alvarez, Vice-Chair
Sue Zwahlen, Member
THROUGH: Joseph P. Lopez, City Manager
FROM: William Wong, Director of Utilities
SUBJECT: Engineering Services Agreement with BKF Engineers Highway 99 Water Main Crossings Improvements Project
CONTACT: Edgar Vargas, Senior Civil Engineer
[email protected], 209-577-5424
DESCRIPTION:

Consider an Engineering Services Agreement with BKF Engineers, of Modesto, CA, for the Final Design of the Highway 99 Water Main Crossings Improvements Project, in the amount of $491,321, plus $49,132 in additional services, if needed, for an Agreement total not to exceed $540,453 and forwarding to Council for approval. (Funding Source: Water Fund) STRATEGIC PLAN ELEMENT:

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

BACKGROUND:

The Highway 99 Water Main Crossings Improvements Project entails replacing three (3) water mains that run across Highway 99 within bridge overcrossings at I Street, G Street, and Sierra Drive. This project will strengthen and replace a total of approximately 1,220 linear feet of water mains that are deteriorating due to age and prone to leaks.

Each bridge overcrossing contains a steel casing carrier pipe, which houses the water mains running from one side of Highway 99 to the other. The existing steel casing carrier pipes will remain in place; only the water mains within will be replaced.

DISCUSSION:

To increase efficiencies, Staff is requesting the use of a consultant to provide Engineering Services for the Final Design of the Highway 99 Water Main Crossings Improvements Project. #3..
- 400 -
Economic Development Committee, May 6, 2024
Engineering Services Agreement with BKF Engineers
Highway 99 Water Main Crossings Improvements Project