Agenda packet — Economic Development Committee, September 9, 2024 (part 1 of 2)

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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, September 09, 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.
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"Wordly" puede traducir a más de 25 idiomas diferentes! Para acceder a la traducción durante la reunión, por favor escanee el código QR o haga clic en el enlace https://attend.wordly.ai/join/RJDY-6364.

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,
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 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 -
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Members and placed in the record but will not be read aloud during the meeting. Written comments must be received two hours before the meeting.

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

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

CONSENT ITEMS – ROLL CALL VOTE REQUIRED:

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

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

Consent

1. Consider the summary vacation of a 40-foot strip of the former Litt Road (14,579 square feet) right-of-way and forwarding to Council for approval. (Funding Source:

Not Applicable)
 Motion recommending the summary vacation of a 40-foot strip of the former Litt Road (14,579 square feet) right-of-way and forwarding to Council for approval.
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ENGINEERING SERVICES; Jaspreet Mangat, 209-577-5253,
[email protected]
Consent

2. Consider the new Zeff Road Realignment Public Improvements and approving the summary vacation of the old Zeff Road Alignment adjacent to Crows Landing Road and releasing securities upon expiration of statutory periods and forwarding to Council for approval. (Funding Source: Developer Funded)
 Motion recommending the acceptance of Public Improvements of the Zeff Road Realignment and approving the summary vacation part of the old Zeff Road located adjacent to Crows Landing Road and releasing securities upon expiration of statutory periods and forwarding to Council for approval.

ENGINEERING SERVICES; Jaspreet Mangat, 209-577-5253,
[email protected]
Consent

3. Consider the Agreement for Painting of Water Wells and Tank Sites to HB Restoration Inc., Rio Linda, CA, for a total amount not to exceed $669,076 over five years and forwarding to Council for approval. (Funding Source: Water Fund)  Motion recommending the Award of Bid and Agreement for Painting of Water Wells and Tank Sites to HB Restoration Inc., Rio Linda for a two-year Agreement with three one-year extension options, for an annual estimated amount of $126,000 and a total amount not to exceed $669,076 over five years, and forwarding to Council for approval.

UTILITIES; Manuel Martinez, 209-342-4592, [email protected] Consent

4. Consider the First Amendment for the Water Well Lease Agreements with Beard Land Improvement and Modesto and Empire Traction, increasing the amount by $2,764,332 and extending the term of the Agreement from December 31, 2024 to December 31, 2034, and forwarding to Council for approval. (Funding Source: Water Fund)  Motion recommending the First Amendment to the Water Well/Right of Way Lease Agreement with Beard Land Improvement Company for the water well site on Spenker Avenue for City Well 225 (Beard Well 25 Budget Pack) and well site on Farrar Avenue for City Well 279 (Beard Well Farrar Pump Lot), increasing the amount by $1,113,533 over ten years, and extending the term of the Agreement from December 31, 2024 to December 31, 2034, and forwarding to Council for approval.
 Motion recommending the First Amendment to the Water Well / Right of Way Lease Agreement with Modesto and Empire Traction Company (M&ET) for the water well site on Yosemite Boulevard for City Wells 291 and 292 (M&ET Well 91 and 92 – Mariposa E. & W. Pump Lot) and water well site on S.

McClure Road for City Well 308 (M&ET Well 1 – S. McClure Pump Lot), increasing the amount by $1,650,799 over ten years, and extending the term of the Agreement from December 31, 2024 to December 31, 2034, and forwarding to Council for approval.
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UTILITIES; Manuel Martinez, 209-342-4592, [email protected] Consent

5. Consider the City of Modesto’s Pyrethroid Management Plan and all associated documents and forwarding to Council for approval. (Funding Source: Storm Drain Fund)
 Motion recommending the adoption of the City of Modesto’s Pyrethroid Management Plan and all associated documents and forwarding to Council for approval.

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

6. Consider the First Amendment with Labworks, LLC, Lehi, Utah, for the Annual Maintenance and Support of Labworks LIMS Software, increasing the Agreement amount by $10,504 and forwarding to Council for approval. (Funding Source: Sewer Operation Fund)
 Motion recommending the First Amendment increasing the Agreement amount with Labworks, LLC, for the Annual Maintenance and Support of Labworks LIMS Software by $10,504 from $96,864 to a new total amount of $107,368; and forwarding to Council for approval.

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

NEW BUSINESS

7. Consider Engineering and Planning Document Reports related to bicyclist, pedestrian, and school zone safety: Systemic Safety Analysis Report (SSAR), Local Roadway Safety Plan (LRSP), Non-Motorized Master Plan Update, and School Safety Program Study, and forwarding to Council for approval. (Funding Source: State Systemic Safety Analysis Report (SSAR) Grant, Highway Safety Improvement Program (HSIP), and Local Measure L Funds)
 Motion recommending the acceptance of the following Engineering and Planning Document Reports related to bicyclist, pedestrian, and school zone safety: Systemic Safety Analysis Report (SSAR), Local Roadway Safety Plan (LRSP), Non-Motorized Master Plan Update, and School Safety Program Study, and forwarding to Council for approval.

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

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

COMMITTEE AGENDA REPORT
DATE OF MEETING:

September 9, 2024
Date: August 20, 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: Summary Vacation of Former Litt Road Alignment CONTACT: Jaspreet Mangat, Senior Civil Engineer, [email protected], 209-577-5253
DESCRIPTION:

Consider the summary vacation of a 40-foot strip of the former Litt Road (14,579 square feet) right-of-way and forwarding to Council for approval. (Funding Source: Not Applicable) STRATEGIC PLAN ELEMENT:

The recommended action supports the City’s 2020-2025 Strategic Goal “Ensure Safe, Efficient, and Reliable Infrastructure”.

BACKGROUND:

As part of the Village One Specific Plan, a portion of the Litt Road north of Sylvan Avenue was offered for dedication to the City of Modesto to construct Litt Road and connect to Sylvan Avenue.

In 2012-13, new roundabouts and a new street alignment were constructed. Litt Road north of Sylvan Avenue was realigned to the west to align with the existing intersection of Sylvan Avenue and Litt Road alignment south of Sylvan Avenue.

Existing 40-foot Litt Road Right of Way was quitclaimed to the City of Modesto per Document Number 2023-0059278 recorded on December 20, 2023. The quitclaim transferred the ownership of the property to the City, but the public’s right to use the property as a public right-of-way is required to be abandoned.

DISCUSSION:

Since the new alignment was constructed, the former Litt Road dedicated right of way was never utilized to construct the road. On October 18, 2021, by Resolution 2021-19, the Planning Commission approved the Vesting Parcel Map for the property located at the northwest corner of Litt Road and Sylvan Avenue. As a condition of the Vesting Parcel Map, the former Litt Road #1..
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Economic Development Committee, September 9, 2024
Summary Vacation of the Former Litt Road Alignment

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alignments shall be summarily abandoned. Thus, City of Modesto, has requested the summary vacation of a portion of a 40-foot strip of the former Litt Road alignment, consisting of 14,579 square feet road right-of-way.

In accordance with California Streets and Highways Code - Division 9, Part 3, Chapter 4 Article 1, Section 83311, the roadway is eligible for a summary vacation.

FISCAL IMPACT:

There is no fiscal impact to the City caused by proposed action.

RECOMMENDED COMMITTEE ACTION:

Staff Recommendations:

Motion recommending the summary vacation of a 40-foot strip of the former Litt Road (14,579 square feet) right-of-way and forwarding to Council for approval.

Approved by:

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

1. Exhibit A

2. Exhibit B
1 “The legislative body of a local agency may summarily vacate a street or highway if both of the following conditions exist:
(a) For a period of five consecutive years, the street or highway has been impassable for vehicular travel. (b) No public money was expended for maintenance on the street or highway during such period.” #1..
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EXHIBIT “A”

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LEGAL DESCRIPTION – LITT ROAD Abandonment
The land referred to herein below is situate in the City of Modesto, County of Stanislaus, State of California and is described as follows:

A portion of the 40.00 foot strip of land described in the Road Deed recorded in volume 504 of deeds, page 326, Official Records of said County, situate in the North half of Section 12, Township 3 South, Range 9 East, Mount Diablo Meridian more particularly described as follows:

COMMENCING from the intersection of the centerline of Sylvan Avenue with the centerline of Litt Road as shown on that Record of Survey recorded in Book 33 of Surveys at Page 24, Official Records of said County; thence North 44°45’36” East, 28.26 feet to a line lying 20.00 feet east of and parallel with centerline of said Litt Road; thence along said parallel line, North 0°17’33” West, 44.83 feet to the POINT OF BEGINNING; thence leaving said parallel line westerly along a non-tangent curve, concave northeasterly having a radius of 3547.75 feet, a radial line to the center of said curve bears, North 04°41’13” East, through a central angle of 0°38’56”, an arc length of 40.17 feet, to a line lying 20.00 feet west of and parallel with the centerline of said Litt Road; thence along said parallel line North 0°17’33” West, 329.79 feet, to the beginning of a non-tangent curve concave northwesterly having a radius of 286.98 feet, a radial line to the center of said curve bears, North 53°33’22” West; thence northeasterly along said curve through a central angle of 16°55’09”, an arc length of 84.74 feet, to a line lying 20.00 feet east of and parallel with the centerline of said Litt Road; thence along said parallel line South 0°17’33” East, 407.86 feet to the POINT OF BEGINNING.

Containing an area of 14,579 Square feet.

A PLAT OF THE ABOVE DESCRIBED PARCEL(S) OF LAND IS ATTACHED HERETO AS EXHIBIT “B” AND BY THIS REFERENCE MADE A PART HEREOF.

END DESCRIPTION
This real property description has been prepared by me, or under my direction, in conformance with the requirements of the Professional Land Surveyors’ Act. 12 July 2024
Stephen J. Pyle Date
Professional Land Surveyor
California No. 8385
#1..
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CENTERLINE SYLVAN AVENUE (SOUTH LINE OF NORTH HALF OF SECTION 12,T3S,R9E,MDM)

NORTH LINE SYLVAN AVENUE
N04°41'13"E (R)
N70°28'31"W (R)
N53°33'22"W (R)
C2
N00°17'33"W 329.79'
S00°17'33"E 407.86'

LAND GRANTED TO CITY OF
MODESTO PER DOC.

NO. 2012-0062195

EASEMENT IN FAVOR OF

MODESTO IRRIGATION DISTRICT
PER DOC. NO. 2012-0052187
L1 L2
POB
POC
C1
AREA = 14,579 SQFT

LAND GRANTED TO CITY OF
MODESTO PER DOC.

NO. 2012-0062195
40' EASEMENT ACCEPTED BY
COUNTY IN VOL. 504 PG. 326
OCT. 24, 1993, SCR
20' 20'
N05°20'09"E (R)
20' 20'

LINE TABLE
LINE #
L1
L2

DIRECTION
N44°45'36"E
N0°17'33"W
LENGTH

28.26'

44.83'

CURVE TABLE
CURVE #
C1
C2
RADIUS
3547.75'
286.98'
DELTA
0°38'56"
16°55'09"
LENGTH

40.17'

84.74'
odellengineering.com
of
1165 Scenic Drive, Suite A
Modesto, CA 95350
1 1
EXHIBIT "B"

40.00'
0 30 60
SCALE: 1" = 60'

LITT ROAD

20.00'
DOC NO. DOCUMENT NUMBER

POB POINT OF BEGINNING

POC POINT OF COMMENCEMENT

SCR STANISLAUS COUNTY RECORD

SQFT SQUARE FEET
LEGEND
#1..
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CITY OF MODESTO

COMMITTEE AGENDA REPORT
DATE OF MEETING:

September 9, 2024
August 20, 2024
TO: Economic Development Committee
Chris Ricci, Chair
Eric Alvarez, Vice Chair
Sue Zwahlen, Member
THROUGH: Joseph P. Lopez, City Manager
FROM: Toby Wells, Director of Engineering Services/City Engineer SUBJECT: Acceptance of the Improvements for the New Zeff Road Location and Approving the Summary Vacation of the Old Zeff Road Alignment
CONTACT: Jaspreet Mangat, Senior Civil Engineer, [email protected], 209-577-5253
DESCRIPTION:

Consider the new Zeff Road Realignment Public Improvements and approving the summary vacation of the old Zeff Road Alignment adjacent to Crows Landing Road and releasing securities upon expiration of statutory periods and forwarding to Council for approval. (Funding: Developer Funded)
STRATEGIC PLAN ELEMENT:

The recommended action is consistent with the City’s 2020-2025 Strategic Plan, Goal D: Provide safe, efficient, and reliable infrastructure through proactive community investment, maintenance and sustainability efforts.

BACKGROUND:

Southwest Hide Co. and Modesto Holding Company, (“Owner”), expressed an interest in 2019 to develop a commercial center at the site of former Modesto Tallow rendering plant and began exploring options for the development of their property. City staff and the Owner studied the relocation of the existing alignment of Zeff Road in order to better develop the Crows Landing Avenue frontage and align traffic at an intersection for better ingress and egress to the site.

In 2022, City staff began discussions about the land exchange agreement which involved transfering the southern most quarter mile of Zeff Road in exchange for the dedication of a new Zeff Road alignment to the west that would reconnect Zeff Road to Crows Landing Road through Pueblo Avenue at a signalized intersection.
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Acceptance of the Improvements of the New Zeff Road Location and Approving the Summary Vacation of the Old Location

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On March 14, 2023, City Council approved Resolution 2023-103 to execute the land exchange agreement between the City and the Owner. The agreement was executed and recorded on December 22, 2023. As part of this land agreement, the City transferred 65,776 square feet of property for old Zeff Road to the Owner in exchange for 103,819 square feet of property of the new Zeff Road and Pueblo Avenue.

On August 21, 2023, City of Modesto Planning Commission approved the Tentative Parcel Map 23-004 and Resolution 2023-23 to subdivide 43.55 acres into 15 parcels ranging sizes from 0.5 acres to 7.51 acres. Parcel Map 58-PM-98 was recorded on May 21, 2024. The Irrevocable Offer of Dedication of the new Zeff Road was also recorded with the Document Number 23-0059707.

DISCUSSION:

The Owner hired Ross F. Carroll, Inc. to construct the improvements required per the land exchange agreement.

The Zeff Road realignment improvements are completed and have been inspected by the city staff. These improvements include water mains, sanitary sewer mains, storm drainage facilities, sidewalk and Americans with Disabilities Act (ADA) ramps, streets, curbs and gutters, and streetlights in accordance with City standards and specifications as shown on the as-built improvement plans.

Since the new alignment of Zeff Road is fully functional and operational, part of the old Zeff Road will be vacated in accordance with California Streets and Highways Code - Division 9, Part 3, Chapter 4 Article 1, Section 83301, the roadway is eligible for a summary vacation due to the relocation.

The Owner has requested that the improvements be accepted, and the securities be released.

The improvements have been completed to the satisfaction of the City Engineer, who certifies that the work has been satisfactorily completed, and all fees have been paid.

Once Council accepts the improvements, the following steps will need to be taken.

1. City Clerk files Notice of Completion with County Recorder.

2. City Clerk releases Performance Security immediately after filing Notice of Completion, and releases Labor & Materials Securities 60 days after filing Notice of Completion if no claim is made thereon.

3. City Clerk releases Warranty Security/Letter of Credit one year and one day after acceptance if no claim is made thereon and the city approves the new improvements.

FISCAL IMPACT:

The Owner has paid for the improvements in accordance with the land exchange agreement. The City has not funded these capital improvements; however, in accordance with governmental accounting principles, they will be accounted for as a City general fixed asset.

The following securities as required by the Modesto Municipal Code Section 4-4.605 are in place with the City Clerk’s Office:
1 “The legislative body of a local agency may summarily vacate a street or highway that has been superseded by relocation.”
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Economic Development Committee, September 9, 2024
Acceptance of the Improvements of the New Zeff Road Location and Approving the Summary Vacation of the Old Location

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 A Warranty security is required to guarantee and warrant these improvements for a period of one (1) year following completion and acceptance thereof against any defective work done, or defective materials furnished. This security is required prior to approval of the improvements in an amount of 10% of the estimated cost of improvements to be performed.
 The developer has provided a Letter of Credit in the amount of $220,000.00 which is the 10% of the approved engineer’s estimate.

CEQA/NEPA REQUIREMENTS:

This action is exempt from CEQA under Section 15268(b)(3), which exempts ministerial actions.

RECOMMENDED COMMITTEE ACTION:

Staff Recommendations:

Motion recommending the acceptance of Public Improvements of the Zeff Road Realignment and approving the summary vacation part of the old Zeff Road located adjacent to Crows Landing Road and releasing securities upon expiration of statutory periods and forwarding to Council for approval.

Approved by:

Toby Wells, Director of Engineering Services/City Engineer Joseph P. Lopez, City Manager
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CITY OF MODESTO

COMMITTEE AGENDA REPORT
DATE OF MEETING:

September 09, 2024
Date: August 07, 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: Painting of Water Wells and Tank Sites
CONTACT: Manuel Martinez, Acting Water Division Manager, [email protected], 209-342-4592
DESCRIPTION:

Consider the Agreement for Painting of Water Wells and Tank Sites to HB Restoration Inc., Rio Linda, CA, for a total amount not to exceed $669,076 over five years and forwarding to Council for approval. (Funding Source: Water Fund)
STRATEGIC PLAN ELEMENT:

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

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

BACKGROUND:

The City of Modesto, Water Services Division, operates and maintains 102 water well sites and 13 storage tank sites located in and around Modesto, Salida, Turlock, Grayson, Del Rio, Ceres and Empire. The Water Division’s painting program identifies and prioritizes the painting of well and tank sites, estimating six (6) well sites and one (1) tank site for each contract year.

Tank sites are typically painted every five (5) to ten (10) years with an estimated annual cost of $82,000. Services could include painting tanks, control rooms, electrical cabinets, conduit, motors, water pipelines and appurtenances. All surfaces are pressure washed, paint scraped when needed, spot primed and painted.

On June 03, 2024, a second amendment was approved to extend the term of the agreement with HB Restoration Inc. for the painting of water well and tank sites through January 31, 2025. #3..
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Economic Development Committee, September 09, 2024
Painting of Water Wells and Tank Sites

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On October 20, 2023, a first amendment was approved to execute the Year 5 option by extending the Original Agreement with HB Restoration Inc., for the painting of water well and tank sites through September 23, 2024.

On September 19, 2019, by Resolution No. 2019-458, Council approved an agreement with HB Restoration Inc. for the painting of water well and tank sites for a total amount not to exceed $423,500 over five years.

DISCUSSION:

On April 2, 2024, the City Manager authorized the Purchasing Manager to solicit the procurement for the Painting of Water Wells and Tank Sites. On May 15, 2024, the Purchasing Division issued Invitation for Bids (IFB) IFB 2324-89 for the Painting of Water Wells and Tank Sites on the City's PlanetBids public bidding website under various commodity codes1.

Prospective bidders were notified online and via email of the bid opportunity. Thirty-eight (38) companies downloaded the IFB documents from PlanetBids.

On June 18, 2024, bids were formally opened in the City Clerk's office and broadcast via Microsoft Teams Livestream. Four (4) chose to respond. There were no local bids received.

Based on providing the lowest responsive and responsible bid, City staff recommended to award the Painting of Water Wells and Tank Sites to HB Restoration Inc., Rio Linda, CA for the total amount not to exceed $669,076.

Modesto Municipal Code Section 8-3.203 generally requires all purchases, which meet or exceed $100,000 for material, equipment or contractual services to follow formal bid procedures. An Award of Bid and Agreement for Painting of Water Wells and Tank Sites for the Utilities Department to HB Restoration Inc., Rio Linda, CA, conforms to Modesto Municipal Code because the City complied with the formal bid procedures and HB Restoration Inc. was the lowest responsive and responsible bidder.

FISCAL IMPACT:

The anticipated cost of $669,076 will be absorbed within the current Utilities Department, Water Division FY 2024-25 operating budget and ongoing annual costs will be included as part of the adopted budget, accounting string: 4100-45050-53300.

Expenditures for the current agreement for painting of water wells and tank sites are listed below:

Contract Year Expended
YR 1 (10/08/19 – 10/07/20) $ -
YR 2 (10/08/20 – 10/07/21) $ 80,346
YR 3 (10/08/21 – 10/07/22) $ 85,790
YR 4 (10/08/22 – 10/07/23) $ 77,416
YR 5 (10/08/23 - YTD) $ 84,319
1 63000 Paint, Protective Coating, Varnish, Wallpaper, And Related Products 91054 Painting, Maintenance And Repair Services (Including Caulking) 91461 Painting and Wallpapering
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Economic Development Committee, September 09, 2024
Painting of Water Wells and Tank Sites

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TOTAL $ 327,871
AVERAGE $ 81,968
The new bid submittal includes a 40% price increase that has been calculated into the original request to provide a new base request total. Contract years 3-5 includes a 5% Consumer Price Index (CPI) increase to cover any negotiated requests that have been submitted to the Purchasing Division.

ANTICIPATED AGREEMENT EXPENDITURES:

CY 1 CY2 CY3 CY4 CY5
Original Request $ 90,000 $ 90,000
40% Price Increase (New bid) $ 36,000 $ 36,000
Base Request Total $ 126,000 $ 126,000 $ 126,000 $ 132,300 $ 138,915 5% CPI Increase $ 6,300 $ 6,615 $ 6,946
Contract Year Totals $ 126,000 $ 126,000 $ 132,300 $ 138,915 $ 145,861 5 Year Contract Total $ 669,076
RECOMMENDED COMMITTEE ACTION:

Staff Recommendations:

Motion recommending the Award of Bid and Agreement for Painting of Water Wells and Tank Sites to HB Restoration Inc., Rio Linda for a two (2) year Agreement with three (3) one-year extension options, for an annual estimated amount of $126,000 and a total amount not to exceed $669,076 over five years and forwarding to Council for approval.

Approved by:

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

1. Agreement 279025 – HB Restoration Inc.

2. Exhibit B – HB Restoration Inc. Bid Submittal

3. Exhibit C – IFB 2324-89 Painting of Water Wells and Tank Sites

4. Cost Abstract – IFB 2324-89 Painting of Water Wells and Tank Sites #3..
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ANNUAL AGREEMENT NO 279025

PAINTING OF WATER WELLS AND TANK SITES
HB RESTORATION, 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 HB Restoration Inc., a California 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 PAINTING OF WATER WELLS AND TANK SITES 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 #3..
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WHEREAS, the CITY and CONTRACTOR shall enter into an agreement for the PAINTING OF WATER WELLS AND TANK SITES as described in IFB 2324-89 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, 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 $126,000. The total amount paid by CITY to CONTRACTOR over the full term of the AGREEMENT shall not exceed $669,076. 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.
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AGREEMENT PRICING
Item Description QTY
Unit of
Measure
(UOM)
Price
1 Painter – Regular Hourly Rate 1 Hourly $141.72
2 Painter – Overtime Hourly Rate 1 Hourly $173.24
3 Painter – Weekend/Holiday Hourly Rate 1 Hourly $173.24 4 Paint – Ultra Grip Universal Primer 1 Gallon $26.00
5 Paint – Enduracoat DTM 1 Gallon $46.00
6 Paint – High Adhesion Primer 1 Gallon $46.00
7 Paint – Acryhues Exterior/Interior 1 Gallon $26.00
Equipment QTY
Unit of
Measure
(UOM)
Price
17 Man Lift 1 Per Station $2,500.00

2. PREVAILING WAGES:

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

DIR Project ID#: 20240535433

3. CITY REPRESENTATIVE:
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CITY Representative: Tony Benns, Utilities Plant Operations Supervisor, (209) 652-0002, [email protected]
Purchasing Contact: Melvin Rosal, Buyer, (209) 577-5420, [email protected] The CITY Representative is not authorized to commit the CITY to changes in specifications, requirements, or scope of work, changes in price(s), period of performance or delivery date(s) or method of shipment. Changes of a contractual or business nature shall be effective only by written change to the AGREEMENT, issued by the City of Modesto, Purchasing Division.

4. CONTRACTOR REPRESENTATIVE:

CONTRACTOR Representative: Dimitrios P. Rozakis, CEO, (916) 272-7949, [email protected]

5. TERM OF AGREEMENT:

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

Year 1: February 1, 2025 through January 31, 2026
Year 2: February 1, 2026 through January 31, 2027
Year 3: February 1, 2027 through January 31, 2028
Year 4: February 1, 2028 through January 31, 2029
Year 5: February 1, 2029 through January 31, 2030
Pricing as set forth in Section 1.e. above shall remain firm for the first two (2) years of the AGREEMENT.

Price increases for any subsequent AGREEMENT years following the second year, shall not exceed the percentage change in the Consumer Price Index (CPI) for West Urban Area in any one AGREEMENT year, and shall be negotiated through the Purchasing Division. Requests for price increases shall be submitted by #3..
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CONTRACTOR in writing, ninety (90) days prior to the annual anniversary date of the AGREEMENT to be effective for the subsequent year.

6. LIABILITY INSURANCE:

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 #3..
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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:

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 #3..
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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, 279025
• 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, 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:
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Venue for any dispute or claim arising or related to this AGREEMENT its performance, breach, or interpretation (including issues about its validity or enforceability), shall be exclusively in the Superior Court of Stanislaus County or the United States District Court for the Eastern District of California This AGREEMENT shall be deemed made in, governed by, performed in, and construed and enforced in accordance with the laws of the State of California, without giving effect to its conflicts of laws provisions or principles.

9. ATTORNEYS’ FEES:

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

10. COMMENCEMENT AND COMPLETION OF THE WORK:

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

Proofs of insurance (approved by CITY Risk Manager); and Executed Agreement;
a. Resolution No.2024-_______;
b. CONTRACTOR Bid submittal;
c. IFB No. 2324-89
d. Contractor’s City of Modesto business license

11. TERMINATION OF SERVICES:

Termination for Default: In the event either party fails to perform under this AGREEMENT or breaches any condition contained herein, the other party shall notify in writing the breaching party of the non- #3..
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performance. Within 10 days after receipt of notification, the breaching party shall correct any non-performance to the reasonable satisfaction of the non-breaching party, or such other time as may be identified in the notice.

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

Termination by City for Convenience: The City may also terminate this AGREEMENT the Contractor's performance 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 materialsin 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 otherinformation andmaterial as may have been accumulated by the CONTRACTOR in performing the #3..
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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, #3..
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reduced by any sums previously paid to the CONTRACTOR for such SERVICES.

12. COMPLIANCE WITH ALL LAWS:

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

13. FAILURE TO PERFORM SATISFACTORY WORK:

It is agreed and understood that if the CONTRACTOR fails to perform the SERVICES as specified herein, CITY's representative may:
a. Consent to accept such unsatisfactory service with an appropriate adjustment in contract price, based on established cost factors,
b. 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 #3..
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Code, Section 16700 et seq.), arising from the acquisition of goods, services, or materials pursuant to this AGREEMENT or any allowed subcontract. The assignment made by CONTRACTOR and all assignments made by subcontractors and suppliers shall be made and become effective at the time the CITY makes final payment to The CONTRACTOR, without further acknowledgment by the parties (Government Code, Sections 4550-4554).

15. CITY PROCESS/PROCEDURE APPROVALS:

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

16. DIR REGISTRATION:

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

17. CONTRACTOR'S RESPONSIBILITY FOR DAMAGES:

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

18. NOTICES:

Any notice, payment or instrument required or permitted by this AGREEMENT to be given or delivered to either party shall be deemed to have been received when personally delivered, or one calendar week #3..
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following deposit of the same in any United States Post Office, registered or certified mail, postage prepaid, addressed as follows:

CONTRACTOR: HB Restoration Inc.
5907 26th St.

Rio Linda, CA 95673
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.
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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.
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 #3..
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in no case less than 24 hours’ notice, to such of its books, records, accounts, other sources of information and its facilities as said Department or CITY shall require to ascertain compliance with this AGREEMENT.
e. By executing this AGREEMENT, CONTRACTOR certifies that it shall follow and be in compliance with the Americans with Disabilities Act of 1990, the applicable administrative requirements promulgated in response thereto, and any other applicable Federal laws and regulations relating to handicap discrimination and participation, and will continue to do so for at least the duration of the AGREEMENT and any extensions thereof.

24. CONTRACTOR LICENSES & PERMITS:

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

25. RECORDS:

All final versions of reports, data, maps, models, charts, studies, surveys, photographs, memoranda, plans, studies, specifications, records, files, or any other documents or materials, in electronic or any other form, that CONTRACTOR prepares or obtains pursuant to this Agreement and that relate to the matters covered hereunder shall be the property of the CITY. CONTRACTOR hereby agrees to deliver those documents to the CITY upon termination of the AGREEMENT, and the CITY may use, reuse or otherwise dispose of the documents without CONTRACTOR’s permission. It is understood and agreed that the documents 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 #3..
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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:
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Headings used in the Agreement are for reference purposes only and shall not be considered in construing this AGREEMENT.

32. MISCELLANEOUS:

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

33. ENTIRE AGREEMENT:

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

34. PARTIAL INVALIDITY:

If any provision in this AGREEMENT is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions shall nevertheless continue in full force without being impaired or invalidated in any way.
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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 HB Restoration, Inc. has caused this Agreement to be duly executed. #3..
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1 INVITATION FOR BIDS (“IFB”) NO. 2324-89
FOR

PAINTING OF WATER WELLS AND TANK SITES

THE PAYMENT OF PREVAILING WAGE IS REQUIRED
MANDATORY BID WALK: MAY 23, 2024
BID OPENING: JUNE 18, 2024 at 11:00 A.M.

CITY OF MODESTO CONTACT: Melvin Rosal, Buyer
E-MAIL ADDRESS: [email protected]
PHONE: (209) 577-5420
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INVITATION FOR BIDS # 2324-89

PAINTING OF WATER WELLS AND

TANK SITES
2 Table of Contents PAGE
NOTICE TO BIDDERS ............................................................................................................................. 3 CALENDAR OF EVENTS ........................................................................................................................ 5 CITY CONTACT ....................................................................................................................................... 5 PRECEDENCE........................................................................................................................................... 6 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.......................... 25 BID FORM E – BIDDER CUSTOMER REFERENCES .................................................................... 26 BID FORM F – FINANCIAL INTEREST DISCLOSURE................................................................. 28 BID FORM G – SUPPORT OF LOCAL VENDORS.......................................................................... 30 BID FORM H – BIDDER COMPANY HISTORY STATEMENT .................................................... 31 BID FORM I – ADDENDA ACKNOWLEDGEMENT...................................................................... 32 BID FORM J – BIDDER WARRANTY STATEMENTS................................................................... 33 BID FORM K – BIDDER EXPERIENCE AND CERTIFICATIONS................................................ 34 BID FORM L – SUBCONTRACTOR LIST........................................................................................ 35 TECHNICAL SPECIFICATIONS AND REQUIREMENTS ................................................................. 36

1.1 SCOPE OF WORK:........................................................................................................................ 36

1.27 REQUIRED LICENSES:.............................................................................................................. 42 SAMPLE ANNUAL AGREEMENT - SERVICES............................................................................. 45 #3..
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INVITATION FOR BIDS # 2324-89

PAINTING OF WATER WELLS AND

TANK SITES
3 NOTICE TO BIDDERS
NOTICE IS HEREBY GIVEN that the City of Modesto, County of Stanislaus, State of California (“City”), will receive at the City Clerk’s office, 1010 Tenth Street, Suite 6600, Modesto, CA 95354 sealed Bids (each, a “Bid”) from qualified Bidders (each, a “Bidder”) for the furnishing of painting of water wells and take sites equipment, materials, supplies and/or related services (the “Services”) for the City of Modesto, Utilities Department, Water 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 JUNE 18, 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, 5th Floor, Suite 5300, Modesto, CA 95354.

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

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

The City Clerk’s time stamp shall be considered the official timepiece for the purpose of establishing the actual receipt of Bids. Bids will not be accepted by email or facsimile. The City of Modesto assumes no responsibility for delay in the delivery of the Bid.
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INVITATION FOR BIDS # 2324-89

PAINTING OF WATER WELLS AND

TANK SITES
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 # 2324-89

PAINTING OF WATER WELLS AND TANK SITES
BID OPENING DATE: JUNE 18, 2024 AT 11:00 A.M.”
Bidder must deliver your Bid by a preferred method to the appropriate location below:

MAIL TO: DELIVER/ COURIER TO:

CITY CLERK 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 ninety (90) days after the date set for the opening thereof.
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INVITATION FOR BIDS # 2324-89

PAINTING OF WATER WELLS AND

TANK SITES
5 CALENDAR OF EVENTS
Event Date
IFB Issued MAY 15, 2024
Mandatory Bid Walk MAY 23, 2024 at 08:00 AM
Written Questions Due via Email MAY 31, 2024
Addendum Issued (if required) JUNE 7, 2024 (approximate date) Bid Due Date & Time PRIOR 11:00 A.M. on Tuesday, JUNE 18, 2024 Contract Award Approximately JULY 2024
Bid Walk: A MANDATORY bid walk is scheduled for May 23, 2024 beginning at 08:00 AM. The bidders walk will begin at Well #57, 329 10th Street, Modesto, CA. The group will then attend each site together, as sites are behind fenced areas. Bidders must attend the Bid Walk in order to Bid. Bidders should expect to spend 90-120 minutes in total, for bid walk.

Locations as follows:

SMALL SITE MEDIUM SITE LARGE SITE
Well 57
329 10
th Street
Modesto, CA 95354
Well 236
700 Rachelle Drive
Modesto, CA 95351
Tank 12
2616 Elm Ave
Modesto, CA 95358

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

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

CALIFORNIA LABOR CODE SECTION 1771.1 (a)
The California Labor Code states that, “A contractor or subcontractor shall not be qualified to Bid on, be listed in a Bid proposal, subject to the requirements of Section 4104 of the Public Contract Code, or #3..
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6 engage in the performance of any contract for public work, as defined in this chapter, unless currently registered and qualified to perform public work pursuant to Section 1725.5. It is not a violation of this section for an unregistered contractor to submit a Bid that is authorized by Section 7029.1 of the Business and Professions Code or by Section 10164 or 20103.5 of the Public Contract Code, provided the contractor is registered to perform public work pursuant to Section 1725.5 at the time the agreement is awarded.” This IFB is subject to the registration requirement set forth above.

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

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, JUNE 18, 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/meetup
join/19%3ameeting_NTI0YzBiMDMtNDQ0Yi00YjNlLWIwZjYtYzg4ZDVjMDdkM2Mz%40thread.v2 /0?context=%7b%22Tid%22%3a%22125ccacf-fc61-463c-9976-
189f876ff90b%22%2c%22Oid%22%3a%229715c333-c997-4dd7-8984-12cd4deaa705%22%7d Join Microsoft Teams Meeting (Click here to join the meeting) • +1 (469)-998-7409
• Conference ID: 961 656 049#
Should you have any questions regarding this, please do not hesitate to contact the Purchasing Department Contact listed on the Cover Page.
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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
• Bid Form G – Support of Local Vendors
• Bid Form H – Bidder Company History Statement
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8 • 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. • 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.
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9 • 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.

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

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

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

K. PREVAILING WAGE: Bidder’s workers must be paid no less than the prevailing wage rate as published by the State of California Department of Industrial Relations (DIR), and the successful Bidder shall maintain certified payroll. For additional information regarding Prevailing Wages, please contact the DIR at www.DIR.CA.gov or call its Labor Research and Statistics Unit, Prevailing Wage Unit at 415/703-4774. The City standards available at the following web address shall also apply to the performance of the Bid: City Standards Website:
https://www.modestogov.com/ArchiveCenter/ViewFile/Item/1120 L. BIDDER REPRESENTATION: Bidder represents that:
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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.
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11 • A Bidder may not rely on the bid protest submitted by another bidder, but must timely pursue its own protest.
• A written protest to an Announced Decision must be made to the City of Modesto's Director of Finance no later than ten days after the date of the Announced Decision. • The protest shall be delivered or sent by registered mail and received by the City by the deadline, or protest will be automatically rejected. Protestors who choose to be represented by legal counsel are responsible for the associated expenses. • The protest shall be accompanied by a certified or cashier's check in the amount of $300.00, (except for protests of Federally Funded agreements), made payable to the Clerk of the City of Modesto. Protests filed without the requisite fee will be rejected without any additional review.
• The protest filed with the Director of Finance shall:
a. Include the name, address, email address and business telephone number of the protestor;
b. Identify the protest by name, Invitation for Bid (IFB) or Request for Proposal (RFP) number, and IFB/RFP date;
c. The bid protest must contain a complete statement of the basis for the protest and all supporting documentation. The protest must refer to the specific portion or portions of the Contract Documents upon which the protest is based; d. Include all supporting documentation, if any. Documentation submitted after filing deadline will not be reviewed.
• Bid Protests: A Bidder shall follow, in order, the following steps:
a. Protest to Director of Finance: Upon receipt of a complete and timely protest, the Director of Finance shall review all the submitted materials and shall create and retain a written record of the review. The Director of Finance shall respond at least generally to each material issue raised in the protest not later than ten days after receipt of the protest. Notice of the Director of Finance's decision may be given by letter mailed through U.S. Postal Service.

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

City Clerk’s Office
Attn: Director of Finance
1010 Tenth St. Suite 6600
Modesto CA 95354
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12 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 (10) days after the date of the Director of Finance’s Decision. The scope of the appeal shall be limited by the issues raised in the initial protest to the Director of Finance. The Deputy City Manager shall not be permitted to review any newly raised issues. The Deputy City Manager shall review the appeal, accompanying supporting documents, if any and the written records of the protest review by the Director of Finance. A written record of the Deputy City Manager's review shall be created and maintained. The Deputy City Manager shall give notice of their decision to the protestor within ten days after receipt of appeal.

Further protest appeals shall either be delivered to:

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

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

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

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

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

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

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

The costs of the hearing officer and expenses of the protest shall be borne by the protestor. The sums deposited with the request for hearing shall be credited to the costs of the hearing officer and other hearing expenses. #3..
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14 f. Mandatory Alternative Process for Protests of Procurements Obtained with Federal Funds: If the protested procurement involves federal funds, the Deputy City Manager, City Council, or hearing officer shall give notice, accompanying their respective decisions, to the protestor that he or she has the right to appeal to the appropriate federal agency, for which an agency name, contact (where available) and address shall be provided by City staff. Such an appeal shall be filed with the appropriate agency within seven business days of the dispatch or rejection notices to the protestor. Federal agencies may entertain protests alleging that the City has failed to adopt written protest procedures or has failed to follow such procedures. The City Council is the highest authority of the City of Modesto and its decisions are final. A disappointed Bidder for a contract involving expenditures of Federal funds shall have the right to appeal the City Council decision directly to the federal agency as described herein. #3..
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15 BID SUBMITTAL CHECKLIST

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

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

COMPLETE BID ELEMENTS 
Bid Form A – IFB Acknowledgement
Bid Form B – Bidder Company Information
Bid Form C – Pricing Schedule
Bid Form D – Bidder Exceptions, Clarifications, Amendments Bid Form E – Bidder Customer References
Bid Form F – Financial Interest Disclosure
Bid Form G – Support of Local Vendors
Bid Form H – Bidder Company History Statement
Bid Form I – Addenda Acknowledgement
Bid Form J – Bidder Warranty Statements
Bid Form K – Bidder Experience and Certifications
Bid Form L – Subcontractor List
Bidder’s submission should include all City of Modesto forms. If any form is not applicable, Bidder should write or type “Not Applicable” on it but still include the form in your submission. #3..
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16 BID FORM A – IFB ACKNOWLEDGEMENT
The City is soliciting Bids from qualified firms (each a “Bidder” to fulfill the City’s requirements per the specifications, terms and conditions contained in this Invitation for Bids (“Invitation for Bids” or “IFB”).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Bidder Company Name:

Bidder Headquarters Address:

City/State/Zip:

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

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

Title:

Phone (Office):

Phone (Mobile):

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

Fax Number:

Email:

G. Federal Taxpayer
Identification Number
(TIN):

H. Dun & Bradstreet
(DUNS) Number:

I. Names and Titles of
Top Three Bidder
Officers:

J. Years in Business:

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

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

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

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

The payment of Prevailing Wages is required for this project.

SAMPLE SITES FOR BIDDING PURPOSES: The City has developed a “scope of work” and locations of three well/tank site that will be used for bidding purposes. The sample jobs are indicative of a small site, a medium site, and a large site. The lowest bidder will be determined by the sum of all three sample jobs.

Materials shall be at the Contractors landed cost less any earned discounts, plus a markup of 15% plus sales tax.

SAMPLE JOB 1:

SMALL SITE - WELL #57, 329 10TH ST., MODESTO, CA 95354
STATE ESTIMATED HOURS TO COMPLETE JOB: ____________________________ Description Qty Unit Price
Painting of Discharge Water Lines 1 JOB $_______________________________ Painting of Standby Generator 1 JOB
Painting of Electrical Motor, Cabinets and Conduits 1 JOB

TOTAL BID PRICE FOR REPRESENTATIVE SAMPLE JOB
(All Inclusive Materials and Labor): $_______________________________ SAMPLE JOB 2:

MEDIUM SITE – WELL #236, 700 RACHELLE DRIVE, MODESTO, CA 95351 STATE ESTIMATED HOURS TO COMPLETE JOB: ____________________________ Description Qty Unit Price
Painting of Fiberglass Shelters 1 EA $_______________________________ Painting Carbon Steel Tank (GAC) 2 EA $_______________________________ Painting of Discharge Water Lines 1 JOB $
Painting of Electrical Motors, Cabinets and Conduit 1 JOB $_______________________________ #3..
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22 MISC FEES INCLUDING EQUIPMENT,

DESCRIBE
1 LOT
$

TOTAL BID PRICE FOR REPRESENTATIVE

SAMPLE JOB
(All Inclusive Materials and Labor): 1 JOB
$

TOTAL BID PRICE FOR REPRESENTATIVE SAMPLE JOB
(All Inclusive Materials and Labor):

SAMPLE JOB 3:

LARGE SITE – TANK 12, 2616 ELM AVE, MODESTO, CA 95358
STATE ESTIMATED HOURS TO COMPLETE JOB: ____________________________ Description Qty Unit Price
Painting of Block Building, Doors, Walls and Trim 1 JOB $_______________________________ Painting of Discharge Water Lines 1 JOB $_______________________________ Painting of Electrical Motors, Cabinets and Conduit 1 JOB $ Painting of Storage Tanks 1 JOB $_______________________________

PLEASE INCLUDE ITEMIZED MISC FEES

INCLUDING EQUIPMENT, DESCRIBE
1 LOT
$

TOTAL BID PRICE FOR REPRESENTATIVE SAMPLE JOB
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23 SUM TOTAL OF ALL 3 SAMPLE JOBS $_________________________________ Pricing Schedule
Item Description QTY
Unit of
Measure
(UOM)
Price
1 Painter – Regular Hourly Rate 1 Hourly $
2 Painter – Overtime Hourly Rate 1 Hourly $
3 Painter – Weekend/Holiday Hourly Rate 1 Hourly $
Paint – State Paint Brand and Paint Type
4 Paint - 1 Gallon $
5 Paint - 1 Gallon $
6 Paint - 1 Gallon $
7 Paint - 1 Gallon $
8 Paint - 1 Gallon $
9 Paint - 1 Gallon $
10 Paint - 5 Gallon $
11 Paint - 5 Gallon $
12 Paint - 5 Gallon $
13 Paint - 5 Gallon $
14 Paint - 5 Gallon $
15 Paint - 5 Gallon $
16 Paint -
Equipment QTY
Unit of
Measure
(UOM)
Price
17 18
19 20
21 22
23 Other QTY
Unit of
Measure
(UOM)
Price
24 25
26 27
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24 The payment of Prevailing Wages is required for this project.

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

Payment Terms:

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

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

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

Bidder Company Name:

Name of Bidder Signatory:

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

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

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

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

Name of Bidder Signatory:

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

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

Company Name:

Address:

City, State, Zip Code:

Contact Person:

Email Address:

Telephone Number:

Type of Business or
Governmental
Agency:

Date Range of
Service:

Annual Contract Value $
Company Name:

Address:

City, State, Zip Code:

Contact Person:

Email Address:

Telephone Number:

Type of Business or
Governmental
Agency:

Date Range of
Services:

Annual Contract Value $
Company Name:

Address:

City, State, Zip Code
Contact Person:

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

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

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

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

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

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

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

10.03(h) are satisfied.

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

Print Names of Persons Having a Financial Interest in Bidder Receiving this Agreement:
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29 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
First Name, Last Name
By signing this document, I agree to the information contained within.

Bidder Company Name:

Name of Bidder Signatory:

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

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

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

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

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

Check here:

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

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

City of Modesto Business License
Number:

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

Print/Type Name:

Title:

Signature:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

C. Required Licenses: The successful bidder shall provide proof of a valid State of California contractor’s license: C-33 – Painting and Decorating Contractor. The Contractor shall maintain a valid State of California contractor’s license of one of the preceding type for the duration of the agreement. If at any time, the Contractor no longer possesses a valid State of California contractor’s license of one of the preceding type, the City of Modesto can terminate the agreement without notice or compensation.

Prior to beginning any service that shall be furnished under this specification, the bidder shall secure the appropriate Business License from the City of Modesto. Business License information may be obtained by calling (209) 577-5389. The successful bidder shall maintain a City of Modesto business license for the duration of the agreement.
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35 BID FORM L – SUBCONTRACTOR LIST
Bidder shall list the name and the address of the place of business for each subcontractor who will perform work or labor or render services to the Bidder. In addition, list the type of work the subcontractor will perform, and; (if applicable) its Department of Industrial Relations (DIR) registration number and its California Contractor’s license number:

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

1.1 SCOPE OF WORK:

The City of Modesto, Utilities Department, Water Division, operates approximately 102 water wells and 13 storage tank sites located in and around Modesto, Salida, Turlock, Grayson, Del Rios, Ceres, and Empire. The work covered by these specifications consist of furnishing the painting of these wells and tank sites for the City.

1.2 TECHINCAL SPECIFICATIONS:

The Contractor shall be responsible for all work related to painting of well and tank sites, including but not limited to:

1. Furnishing all labor, materials, supplies, equipment, fuel, tools and insurance necessary to perform the required services.

2. All work shall be done in a professional manner.

3. The Contractor shall be responsible for all work and safety requirements at the job site. Contractor shall adhere to all State, City codes and laws, and Occupational Safety and Health Administration (OSHA) requirements, pertaining to the services described in this IFB document.

4. A detailed log of work completed for each job shall be given to the City Representative at time of invoicing. The City Representative shall identify requirements for invoice detail.

5. Any additional work outside of the scope of service specified in the bid shall be billed at the hourly rate. The Contractor shall submit a quotation to the City Representative for review and approval.

Materials shall be at the Contractors landed cost less any earned discounts, plus a markup of 15% plus sales tax. When called for by the City, the Contractor shall furnish a copy of the manufacturer’s invoice in order to verify the proper price charged to the City.

1.3 DEFINITIONS:

Paints: Manufacturer’s best ready-mixed coatings, except when field catalyzed, with fully ground pigments having soft paste consistency and capable of being readily and uniformly dispersed to complete homogenous mixture, having good flowing and brushing properties, and capable of drying or curing free of streaks or sags.

1.4 SUBMITTALS:

Manufacturer’s instructions: Submit in accordance with requirements for Product Data, include:

1. Special requirements for transportation and storage.

2. Mixing instructions.

3. Shelf life.

4. Pot life of material.

5. Precautions for applications.

6. Surface preparation.

7. Method of application.

8. Recommended number of coats.

9. Recommended thickness of each coat.

10. Recommended total thickness.

11. Drying time of each coat, including prime coat.

12. Required prime coat.

13. Compatible and non-compatible prime coats.
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37 14. Recommended thinners, when recommended.

15. Limits of ambient conditions during and after application.

16. Time allowed between coats.

17. Required protection from the sun, wind and other conditions.

18. Touch-up requirements and limitations.

19. Safety Data Sheets (SDS)

1.5 QUALITY ASSURANCE:

1. Products: First lien or best grade.

2. Materials for each point system: By single manufacturer.

3. Applicator qualifications: Applicator of products similar to specified products with minimum 3 years of experience.

4. Regulatory requirements: Comply with by using paints that do not exceed governing agency’s Volatile Organic Compounds (VOC) limits or do not contain lead.

1.6 ENVIRONMENTAL CONDITIONS:

1. Surface moisture contents: Do not paint surfaces that exceed manufacturer specified moisture contents.

2. Do not paint or coat:
a. Under dusty conditions.
b. When ambient or surface temperature is less than 50 degrees Fahrenheit or unless manufacturer allow a lower temperature.
c. When relative humidity is higher than 85 percent unless manufacturer allows a higher relative humidity.
d. When surface temperature exceeds the manufacturer’s recommendation. e. When ambient temperature exceeds 90 degrees Fahrenheit unless manufacturer allows a higher temperature.

1.7 PROTECTION:

1. Protect adjacent surfaces from paint and damage. Repair damage resulting from inadequate or unsuitable protection.

2. Furnish sufficient drop cloths, shields, and protective equipment to prevent spray or droppings from fouling surfaces not being painted and in particular, surfaces within storage and preparation area.

3. Place cotton waste, cloths, and material that may constitute fire hazard in closed metal containers and remove daily from site.

4. Remove electrical plates, surface hardware, fittings, and fastenings, prior to painting operations. a. Carefully store, clean, and replace on completion of painting in each area. b. Do not use solvent or degreasers that may remove permanent lacquer finish to clean hardware.

1.8 INSPECTION:

1. Thoroughly examine surfaces scheduled to be painted before starting work.

2. Start painting when unsatisfactory conditions have been corrected. #3..
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38 1.9 APPLICATION:

All surfaces shall be pressure washed and dried prior to painting.

1. Spot prime as needed and apply two coats of finish paint.

2. Some of the sites are equipped with plumbing that is epoxy lined and coated. Special attention shall be given to these types of mechanical equipment for priming. Paint that has peeled off of the surfaces within one-year of painting will require warranty repair.

3. Apply each coat at proper consistency.

4. Do not apply finishes on surfaces that are not sufficiently dry.

5. Allow each coat of finish to dry before following coat is applied, unless directed otherwise by manufacturer.

6. Backprime exterior woodwork, which is to receive paint finish, with exterior primer paint.

7. Backprime interior woodwork, which is to receive paint or enamel finish, with enamel undercoat paint.

8. Prime top and bottom edges of wood and metal doors with enamel undercoat when they are to be painted

1.10 MECHANICAL AND ELECTRICAL EQUIPMENT:

1. Prime and paint insulated and bare pipes, conduits, boxes, insulated and bare ducts, hangers, brackets, collars, and supports, except where items are plated or covered with prefinished coating.

2. Replace identification markings on mechanical or electrical equipment when painted over or spattered.

3. Paint exposed conduit and electrical equipment occurring in finished areas with color and texture to match adjacent surfaces.

4. Do Not Paint over any safety or manufacture sign stickers or labels and or placards on any surface. (Mask off areas of signage)

1.11 CLEANING:

1. As work proceeds and upon completion, promptly remove paint where spilled, splashed or spattered.

2. During progress of work, keep premises free from unnecessary accumulation of tools, equipment, surplus materials, and debris.

3. Upon completion of work, leave premises neat and clean.

1.12 GENERAL SPECIFICATIONS:

The types of items that shall be painted at the well and tank sites include, but are not limited to:

1. Fiberglass Buildings

2. Block Buildings, Walls and Trims

3. Graffiti abatement

4. Discharge Water Lines

5. Electrical Motors, Cabinets and Conduits

6. Metal Buildings, Doors and Trims

7. Stand-by Generators

8. Storage Tanks

9. Exterior Wooden Offices, Gates and Doors

10. Carbon Steel Tanks (GAC)
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39 1.13 PAINT REQUIREMENTS:

The types of paints, colors, and items to be painted are listed below. Unknown paint colors will match existing.

Comparable products or Substitutions shall be submitted as an exception at the time of bid and will require approval by the City Representative.

Base Paint* Finish Color Item Description
Kelly Moore – Direct To
Metal - KM 5885 DTM
Semi-gloss Smokey Beige Tanks, Pipes, Fiberglass buildings, Motors Kelly Moore – Direct To
Metal - KM 5885 DTM
Semi-gloss Smokey Beige Metal buildings
Kelly Moore – Direct To
Metal - KM 5885 DTM
Semi-gloss Black Generator – Lower
Kelly Moore – Direct To
Metal - KM 5885 DTM
Semi-gloss Smokey Beige Generator – Top
Kelly Moore – Direct To
Metal - KM 5885 DTM
Semi-gloss Safety Yellow Bollards (Crash Posts)
KM, 00-016-MO Semi-gloss Gray Electrical cabinets, Conduit, and Switch gear Kelly Moore – Acry-Shield
- KM 1250 Latex Enamel
Semi-gloss Pure White Trim
Kelly Moore – Acy-Shield
- KM 1240 Latex
Flat Pure White Wooden Gates, Office, Metal Doors
Industrial Enamel Satin Green Transformer
*Please use a Sherwin Williams equivalent for all Kelly Moore paints. Colors listed are from Sherwin Williams.

1.14 JOB PLANS AND WORK ORDER:

The City and the Contractor shall meet at the proposed well/tank site at an agreed upon time where a job walkthrough and “scope of work” instructions will be given. At that time, the Contractor will measure all work and then submit a quotation to the City Representative for review and approval. The quotation will be delivered either by person or by email to the City Representative within five (5) days of the initial meeting. The quotation shall be all-inclusive for the job, and pricing shall be based on the unit pricing of bidder submittal for this IFB.

Contractor shall include start date with work order. The City and the Contractor shall sign the work order before any work begins.

1.15 WORK SCHEDULE:

1. Work shall be scheduled through the City’s Representative. Each day the Contractor shall work on a specific site until the job is completed.

2. All work shall be performed Monday through Friday 7:00 a.m. to 3:30 p.m., excluding all major holidays. City staff may be present while agreement work is performed. Arrangements can be made if necessary to work after hours with prior authorization from the City. #3..
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40 1.16 START OF JOB:

Contractor shall start each job within fifteen (15) calendar days from the signed work order date.

1.17 SITE LOCATION ADDRESSES:

Attachment A contains all well and tank sites locations within Modesto and surrounding areas. The list represents a general idea of what the City plans on painting within the next five years. The Water Division does not have any specific site identified as of yet for each of those five years, however, the City paints approximately 8 small sites, 11 medium sites, and 4 large sites annually. No quantities guaranteed or implied.

Each site varies in size and is noted below. Sites may be subject to change. The Pricing Schedule depicts samples of the painting jobs.

1.18 BARRICADES:

The Contractor shall place barricades and/or safety ribbon as necessary to restrict access to the work areas. The Contractor shall be responsible for maintaining access control of the work areas from the time work begins until the time the work site is returned to it’s pre-project condition, including paving and cleanup. The City shall be responsible for clearing the area of vehicles before Contractor begins job.

1.19 ADDITIONAL AND EMERGENCY PROTECTION:

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

1.20 CLEAN UP:

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

1.21 DISPOSAL OF MATERIALS:

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

Contractor shall furnish proof of disposal.

1.22 WARRANTY:

Notwithstanding any other provisions of this bid, bidder warrants that the materials, supplies, or other services furnished shall be on the most suitable grade and exactly as specified in this bid. 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 their expense, such defects as are reported within thirty (30) days of 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 order. All materials, parts, labor, assemblies, and components shall be subject to the warranty conditions and terms unless specifically exempted in writing by the City of Modesto. #3..
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INVITATION FOR BIDS # 2324-89

PAINTING OF WATER WELLS AND

TANK SITES
41 1.23 CONTRACTOR’S RESPONSIBILITY FOR WORK:

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

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

The Contractor shall be responsible for and remedy all defects arising from faulty, improper, or inferior workmanship, or parts and materials discovered in any part of the work, during one year after the completion and acceptance of the work. The Contractor shall respond to remedy defects in a timely manner (Two Weeks).

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

1.24 CHARACTER OF WORKERS:

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

1.25 LABOR FORCE AND SUPERVISION:

The Contractor shall provide sufficient labor at all times to carry out the work properly and shall ensure that competent workers who are skilled in the type of work required are employed. The Contractor shall ensure that supervision is provided at all times while any work under this agreement is being performed. If, in the judgment of the City, any person is incompetent or disorderly, Contractor shall promptly remove such person from the work for the duration of the agreement.

1.26 DELAY BY THE CITY:

Any act or omission of any kind by the City of Modesto, its officers, officials, agents or employees, which causes the Contractor delay in the completion of the work shall be grounds for extension of time on the part of the Contractor to complete the work but shall give the Contractor no damages for such delay. #3..
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INVITATION FOR BIDS # 2324-89

PAINTING OF WATER WELLS AND

TANK SITES
42 1.27 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.

1.28 TERM OF AGREEMENT:

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

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

B. Price increases for subsequent contract years three, four, and five, shall not exceed the Consumer Price Index (CPI) for West Urban Area in any one contract year, and shall be negotiated through the Purchasing Division. Requests for price increases shall be submitted by Contractor(s) in writing, sixty (60) days prior to the annual anniversary date of the contract to be effective for the subsequent year. #3..
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INVITATION FOR BIDS # 2324-89

PAINTING OF WATER WELLS AND

TANK SITES
43 Attachment A
Well Locations
Well# Address Location Size Well# Address Location Size 1 720 16TH STREET MODESTO MEDIUM 213 2310 LEHI AVENUE CERES MEDIUM 2 110 POPLAR AVE MODESTO MEDIUM 214 924 RICHLAND AVE. MODESTO MEDIUM 3 1179 8TH STREET MODESTO MEDIUM 216 830 PECOS AVE. MODESTO SMALL 6 520 E. MORRIS AVENUE MODESTO SMALL 217 450 BYSTRUM ROAD MODESTO LARGE 7 440 W. MORRIS AVENUE MODESTO SMALL 223 1218 ALAMO AVENUE MODESTO MEDIUM 9 1510 10th ST MODESTO SMALL 225 100 SPENKER AVENUE MODESTO MEDIUM 10 405 5TH STREET MODESTO SMALL 232 1502 GRIMES AVENUE MODESTO SMALL 14 924 VIRGINIA AVENUE MODESTO MEDIUM 236 700 RACHELLE AVENUE MODESTO MEDIUM 16 1730 ARDMORE AVENUE MODESTO SMALL 237 1678 SHIRLEY MODESTO MEDIUM 17 1418 BRONSON AVENUE MODESTO SMALL 241 2001 COX AVENUE MODESTO MEDIUM 21 1700 MCHENRY AVENUE MODESTO SMALL 247 4916 BROOKLYN COURT EMPIRE MEDIUM 25 607 WOODROW AVENUE MODESTO SMALL 250 4314 FINNEY ROAD SALIDA MEDIUM 29 701 ZEFF ROAD MODESTO SMALL 255 902 S. MINRET AVENUE TURLOCK MEDIUM 30 1105 CROWS LANDING ROAD MODESTO SMALL 256 305 HEDSTROM ROAD TURLOCK MEDIUM 33 2099 PRESCOTT ROAD MODESTO SMALL 259 3300 COFFEE RD. [VILLAGE 1] MODESTO MEDIUM 38 238 E. WHITMORE AVENUE MODESTO SMALL 262 2901 FITZPATRICK AVENUE MODESTO SMALL 39 3500 FOREST GLEN DRIVE MODESTO SMALL 264 199 ROBIN HOOD DRIVE MODESTO MEDIUM 40 420 N. RIVERSIDE DRIVE MODESTO SMALL 265 1024 GETTYSBURG WAY MODESTO MEDIUM 41 3427 SAGINAW COURT MODESTO MEDIUM 267 1150 E. ORANGEBURG AVENUE MODESTO MEDIUM 42 3499 SISK ROAD MODESTO SMALL 269 1211 ROSE AVENUE MODESTO MEDIUM 43 3741 CARVER ROAD MODESTO SMALL 271-a 1260 COUNTRY CLUB DRIVE DEL RIO SMALL 45 4029 FARA BIUNDO DRIVE MODESTO SMALL 271-b N/W MCHENRY @ STEWART MODESTO SMALL 46 2290 LINCOLN OAK DRIVE MODESTO SMALL 274 8930 CHARLES STREET GRAYSON MEDIUM 47 3001 DRY CREEK DRIVE MODESTO SMALL 275 2301 EVELLE LANE TURLOCK MEDIUM 48 4417 MCHENRY AVENUE MODESTO SMALL 277 501 CODONI AVENUE MODESTO SMALL 49 2111 CROWS LANDING ROAD MODESTO MEDIUM 278 2016 SCENIC DRIVE MODESTO MEDIUM 50 4000 TULLY ROAD MODESTO SMALL 279 2901 FARRAR AVENUE MODESTO MEDIUM 51 4344 DALE ROAD MODESTO SMALL 281 4900 SISK ROAD SALIDA MEDIUM 52 3001 BEAR CUB LANE MODESTO SMALL 282 7312 HILLCREST DRIVE DEL RIO MEDIUM 53 913 ROSELAWN AVE MODESTO MEDIUM 283 821 MARNI WAY MODESTO MEDIUM 54 3720 ARIA WAY MODESTO SMALL 284 1027 MUSICK AVENUE CERES MEDIUM 56 1140 GRAPHICS DRIVE MODESTO SMALL 285 8 C STREET EMPIRE MEDIUM 57 329 10TH STREET MODESTO SMALL 287 320 SCHOOL AVENUE MODESTO MEDIUM 58 3108 TUXFORD LANE (ALLEY) MODESTO MEDIUM 288 5400 MAXIMILLIAN DRIVE. SALIDA MEDIUM 59 314 YOSEMITE MEADOWS DRIVE MODESTO SMALL 289 7129 BELTIS DRIVE DEL RIO MEDIUM 61 4901 DALE ROAD / KAISER WELL MODESTO MEDIUM 290 5123 DURLEY DRIVE SALIDA MEDIUM #3..
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INVITATION FOR BIDS # 2324-89

PAINTING OF WATER WELLS AND

TANK SITES
44 62 3601 SHARON AVE MODESTO MEDIUM 291 3400 YOSEMITE BLVD. MODESTO MEDIUM 63 3911 HONEY CREEK DR MODESTO SMALL 298 5256 PIRRONE CT SALIDA MEDIUM 64 2310 WARM SPRINGS MODESTO MEDIUM 299 5600 PIRRONE ROAD SALIDA MEDIUM 65 2400 MERLE AVENUE MODESTO SMALL 300 1619 SUNRISE AVENUE MODESTO SMALL 66 1834 ESTRELLITA COURT MODESTO MEDIUM 301 1201 S. CARPENTER ROAD MODESTO LARGE 67 4016 LITT RD MODESTO LARGE 304 1201 S. CARPENTER ROAD MODESTO LARGE 68 718 LADD RD MODESTO MEDIUM 305 1218 ALAMO AVENUE MODESTO LARGE 69 8930 CHARLES STREET GRAYSON MEDIUM 306 920 DELBON AVENUE TURLOCK SMALL 70 7111 MCHENRY AVENUE DEL RIO LARGE 307 2237 GLENDALE AVENUE MODESTO LARGE 71 2505 BRENNER WAY MODESTO MEDIUM 308 601 S. MCCLURE ROAD MODESTO SMALL 72 732 SUTTER AVENUE (ALLEY) MODESTO SMALL 310 108 NORTH FRAZINE ROAD MODESTO MEDIUM 204 431 TRASK AVE. MODESTO MEDIUM 312 5130 SOUTH AVENUE EMPIRE MEDIUM 211 904 EDGEBROOK DRIVE MODESTO MEDIUM 313 4400 CARLSON SALIDA MEDIUM 212 236 BEARD AVENUE MODESTO MEDIUM GALLO 153 S SANTA ROSA MODESTO MEDIUM Tank Site Locations (All in Modesto)
T2 329 10TH ST LARGE
T3 701 ZEFF RD LARGE
T4 3720 ARIA WAY (off Sylvan/past Oakdale Road) LARGE
T5 2400 MERLE AVENUE (off Oakdale Road) LARGE
T6 1201 S. CARPENTER ROAD (between Chicago & Houser) LARGE T7 1533 PLUMAS AVENUE (Whitmore and Ustick) LARGE
T8 1218 ALAMO AVENUE (between Crows Landing & 7th Street) LARGE T9 8415 YAMAMOTO WAY LARGE
T10 TANK 10, GALAS (Girasol & Ironside Drive) LARGE
T11 1105 BANGS AVE LARGE
T12 2616 ELM AVENUE (Rosemore & Elm) LARGE
T13 525 CODONI AVE LARGE
T14 718 LADD RD LARGE
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45 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 PAINTING OF WATER WELLS AND TANK SITES 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 PAINTING OF WATER WELLS AND TANK SITES as described in IFB 2324-89 attached hereto as Exhibit “C” and made a part hereof (hereinafter called IFB).

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

AGREEMENT PRICING
Item Description QTY
Unit of
Measure
(UOM)
Price
1 Painter – Regular Hourly Rate 1 Hourly $
2 Painter – Overtime Hourly Rate 1 Hourly $
3 Painter – Weekend/Holiday Hourly Rate 1 Hourly $
Paint – State Paint Brand and Paint Type
4 Paint - 1 Gallon $
5 Paint - 1 Gallon $
6 Paint - 1 Gallon $
7 Paint - 1 Gallon $
8 Paint - 1 Gallon $
9 Paint - 1 Gallon $
10 Paint - 5 Gallon $
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47 11 Paint - 5 Gallon $
12 Paint - 5 Gallon $
13 Paint - 5 Gallon $
14 Paint - 5 Gallon $
15 Paint - 5 Gallon $
16 Paint - 5 Gallon $
Equipment QTY
Unit of
Measure
(UOM)
Price
17 18
19 20
21 22
23 Other QTY
Unit of
Measure
(UOM)
Price
24 25
26 27

2. PREVAILING WAGES:

In accordance with California Labor Code Section 1771, CONTRACTOR shall pay all workers, and shall ensure its subcontractors pay all of their workers, engaged in performing the services described in Exhibit “C” not less than the general prevailing rate of per diem wages for work of a similar character in the locality in which the services described in Exhibit “C” are to be performed, and not less than the general prevailing rate of per diem wages for holiday and overtime work as provided in the California Labor Code. In accordance with California Labor Code Section 1773.2, the City has obtained the general prevailing wages in the locality in which the services described in Exhibit A are to be performed for each craft or type of work needed to be as published by the State of California Department of Industrial Relations, Division of Labor Statistics and Research, a copy of which is on file in the CITY’s Purchasing Department and shall be made available on request. Contractor must comply with all applicable laws and regulations that apply to wages #3..
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48 earned in performance of the services described in Exhibit “C”, including those set forth in Labor Code section 1770 et. seq. and in the IFB.

DIR Project ID#: _________________

3. CITY REPRESENTATIVE:

CITY Representative is:

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 REPRESENTATIVE:

Name, Title, Phone, Email Address

5. TERM OF AGREEMENT:

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

Year 1: 2025 through 2026
Year 2: 2026 through 2027
Year 3: 2027 through 2028
Year 4: 2028 through 2029
Year 5: 2029 through 2030
Pricing as set forth in Section 1.e. above shall remain firm for the first two years of the AGREEMENT.

Price increases for any subsequent AGREEMENT years following the second year, shall not exceed the percentage change in the Consumer Price Index (CPI) for West Urban Area in any one AGREEMENT year, and shall be negotiated through the Purchasing Division. Requests for price increases shall #3..
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49 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.

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 by registered mail, return receipt requested, for all of the following stated insurance policies.
a. General Liability – insurance with a minimum limit of liability per occurrence of $1,000,000 for bodily injury and property damage. If Commercial General Liability Insurance or other form with a general aggregate limit it 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 – Asbestos pollution liability and/or errors and omissions applicable to the work being performed, with a limit not less than $1,000,000 per claim or occurrence of $2,000,000 aggregate per policy period of one year.
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50 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, officials, 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, officials, employees, and volunteers for losses arising from work performed by CONTRACTOR for the CITY.

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

6. PAYMENT:

CONTRACTOR shall invoice CITY not less than once per month based on the cost for services performed and reimbursable costs incurred prior to the invoice date. All invoices shall be paid in full the following payment terms within thirty days after completion and acceptance of the Services by the CITY, and #3..
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51 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:

8. VENUE & GOVERNING LAW:
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52 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:

10. COMMENCEMENT AND COMPLETION OF THE WORK:

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

11. TERMINATION OF SERVICES:

Termination for Default: In the event either party fails to perform under this AGREEMENT or breaches any condition contained herein, the other party shall notify in writing the breaching party of the nonperformance. Within 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 #3..
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53 the notice. Failure to correct any non-performance shall allow the non-breaching party to terminate this AGREEMENT for cause.

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

Post-Termination Procedure
Upon receipt of a written notice of termination pursuant to either of the foregoing paragraphs, the CONTRACTOR shall:
a. Cease its work as directed in the notice of termination as of the termination date and see to it that its employees, subcontractors and agents are notified of such termination and act as specified in the notice of termination; b. Terminate all orders and subcontracts except as necessary to complete any portion of the SERVICES that are not terminated;
c. If directed in writing by the CITY to do so, assign all right, title and interest in subcontracts and materials in progress to CITY, in which case the CITY will have the right at its discretion to settle, or pay any or all claims arising out of the termination of such, but in no event shall recovery by any CONTRACTOR or subcontractor include lost profits for portions of the SERVICES not completed or undertaken, including materials not delivered; d. Deliver or otherwise make available to the CITY all data, drawings, specifications, reports, estimates, summaries and such other information and material as may have been accumulated by the CONTRACTOR in performing the SERVICES whether completed or in process;
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 #3..
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54 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 agreements for materials; b. The AGREEMENT price allocable to the portion of the SERVICES properly performed or goods supplied to the work site by the CONTRACTOR as of the date of termination, as determined in accordance with the notice of termination, reduced by any sums previously paid to the CONTRACTOR for such SERVICES.

12. COMPLIANCE WITH ALL LAWS:

CONTRACTOR hereby agrees that CONTRACTOR and its subcontractors, if any, in the performance of the SERVICES described herein, will comply with all federal, state, county and municipal laws, #3..
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55 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 agreement 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.

14. ASSIGNMENT OF RIGHTS:

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

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

16. DIR REGISTRATION:

17. CONTRACTOR'S RESPONSIBILITY FOR DAMAGES:

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: __________________
__________________
__________________
__________________
CITY: City of Modesto
Purchasing Division
P.O. Box 642
Modesto, CA 95353
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57 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:

The CONTRACTOR and any allowed subcontractors shall comply with the provisions of the Fair Employment #3..
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58 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 agreement 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, #3..
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59 memoranda, plans, studies, specifications, records, files, or any other documents or materials, in electronic or any other form, that CONTRACTOR prepares or obtains pursuant to this Agreement and that relate to the matters covered hereunder shall be the property of the CITY. CONTRACTOR hereby agrees to deliver those documents to the CITY upon termination of the AGREEMENT, and the CITY may use, reuse or otherwise dispose of the documents without CONTRACTOR’s permission. It is understood and agreed that the documents and other materials, including but not limited to those described above, prepared pursuant to this AGREEMENT are prepared specifically for the City and are not necessarily suitable for any future or other use.

26. FACILITIES AND EQUIPMENT:

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

27. INDEPENDENT CONTRACTOR; NOT AGENT:

28. DRUG FREE WORKPLACE:

29. ASSIGNMENT:
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60 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:

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:

34. PARTIAL INVALIDITY:

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

DIANE NAYARES-PEREZ, CMC,
City Clerk

(SEAL)

APPROVED AS TO FORM:

By: ____________________________
JOSE M. SANCHEZ,
City Attorney
By: ____________________________
JOE F. RODRIQUEZ,
Risk Manager
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Anaheim, CA Bakersfield, CA
North Highlands,
CA Rio Linda, CA
Techno Coatings,
Inc.

Unified Field
Services
Corporation
All Star Painting
KD Inc.

HB Restoration
Inc.

Small Site - Well 57, 329 10th St.

Modesto, CA 95354 Qty Unit Price Price Price Price
Painting of Discharge Water Lines 1 Job $ 5,613.82 $ 7,002.00 $ - $ 1,315.00 Painting of Standby Generator 1 Job $ 3,119.58 $ 5,988.00 $ - $ 2,115.00 Painting of Electrical Motor,
Cabinets and Conduits 1 Job $ 3,310.81 $ 5,677.00 $ - $ 1,315.00 $ 12,044.21 $ 18,667.00 $ - $ 4,745.00
64 90 - 16
Medium Site - Well 236, 700
Rachelle Drive, Modesto, CA
95351 Qty Unit Price Price Price Price
Painting of Fiberglass Shelters 1 Job $ 3,119.58 $ 2,790.00 $ - $ 1,565.00 Painting Carbon Steel Tank
(GAC) 1 Job $ 18,777.70 $ 25,254.00 $ - $ 4,425.00
Painting of Discharge Water Lines 1 Job $ 8,387.09 $ 18,307.00 $ - $ 1,465.00 Painting of Electrical Motors,
Cabinets and Conduit 1 Job $ 3,119.58 $ 12,193.00 $ - $ 1,465.00 Misc. Fees including Equipment 1 Lot $ - $ 2,500.00 $ - $ 1,000.00 $ 333,403.96 $ 61,044.00 $ 10,920.00 - $
176 240 - 48
Large Site - Tank 12, 2616 Elm
Ave. Modesto, CA 95358 Qty Unit Price Price Price Price Painting of Block Building, Doors,
Walls and Trim 1 Job $ 31,715.63 $ 62,708.00 $ - $ 8,850.00 Painting of Discharge Water Lines 1 Job $ 8,387.09 $ 51,279.00 $ - $ 3,550.00 Painting of Electrical Motors,
Cabinets and Conduit 1 Job $ 3,119.58 $ 45,859.00 $ - $ 4,950.00 Painting of Storage Tanks 1 Job $ 244,692.82 $ 141,761.00 $ - $ 27,600.00 Misc. Fees including Equipment 1 Lot $ - $ 2,500.00 $ - $ 1,500.00 $ 287,915.13 $ 304,107.00 $ 46,450.00 - $
1501 1644 - 80
$333,363.30 $383,818.00 Withdrawal of Bid $62,115.00
X
Anaheim, CA Bakersfield, CA
North Highlands,
CA Rio Linda, CA
Techno Coatings,
Inc.

Unified Field
Services
Corporation
All Star Painting
KD Inc.

HB Restoration
Inc.
$40.80/HR $63.73/HR
Fringe Benefit Rate $22.93/HR $0.95/HR
Labor Markup (Percent) 75% 20%
Price Per Service $111.52/HR $77.62/HR
$45.77/HR $45.60/HR
$61.58/HR $21.45/HR
10% 57%
$118.08/HR $105.27
$68.40/HR
$21.45/HR
57%
$141.06/HR
$44.77/HR $43.10/HR
$60.80/HR $21.45/HR
10% 57%
$116.13/HR $101.34/HR
$64.65/HR
$21.45/HR
57%
$135.18/HR
$31.42/HR
$50.94/HR
10%
$102.86/HR
Labor Markup (Percent)
Fringe Benefit Rate
Direct Labor Rate
Foreman
Lowest Bidder
Lowest Responsive and Responsible Bidder: HB Restoration, Inc., Rio Linda
Price Per Service
Labor Markup (Percent)
Fringe Benefit Rate
Direct Labor Rate
Foreman - Overtime
Price Per Service
Price Per Service
Labor Markup (Percent)
Fringe Benefit Rate
Direct Labor Rate
Journeyman - Overtime
Price Per Service
Price Per Service
Labor Markup (Percent)
Fringe Benefit Rate
Direct Labor Rate
5th Period Apprentice
Direct Labor Rate
Labor Markup (Percent)
Fringe Benefit Rate
Direct Labor Rate
Journeyman
Estimated Hours to Complete Job
IFB 2324-89
Painting of Water Wells and Tank Sites
Payment of Prevailing Wages
Painter
Total Price (All inclusive Materials and Labor)
Total Price (All inclusive Materials and Labor)
Estimated Hours to Complete Job
Total Price (All inclusive Materials and Labor)
Estimated Hours to Complete Job
Sum of All 3 Jobs
#3..
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CITY OF MODESTO

COMMITTEE AGENDA REPORT
DATE OF MEETING:

September 9, 2024
Date: May 31, 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: First Amendment to Water Well Lease Agreements CONTACT: Manuel Martinez, Acting Water Division Manager, [email protected], 209-342-4592
DESCRIPTION:

Consider the First Amendment for the Water Well Lease Agreements with Beard Land Improvement and Modesto and Empire Traction, increasing the amount by $2,764,332 and extending the term of the Agreement from December 31, 2024 to December 31, 2034, 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:

When the City of Modesto acquired the Del Este water system, the sale included well sites that were leased from Beard and M&ET. The wells at these sites are necessary for water supply and distribution within the Modesto regional water system.

On October 28, 2014, by Resolution 2014-430, Council approved a lease agreement with Beard Land Improvement Company (“Beard”) for the water well site on Spenker Avenue (Well 225) for a ten-year term at an annual cost of $30,000, increasing annually by the Consumer Price Index (CPI) for the San Francisco Bay Area.

On October 28, 2014, by Resolution 2014-431, Council approved a lease agreement with Beard for the water well site on Farrar Avenue (Well 279) for a ten-year term at an annual cost of $30,000, increasing annually by the Consumer Price Index (CPI) for the San Francisco Bay Area. #4..
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Economic Development Committee, September 9, 2024
First Amendment to Water Well Lease Agreements

Page 2 of 4 ends

On October 28, 2014, by Resolution 2014-432, Council approved a lease agreement with Modesto and Empire Traction Company (“M&ET”) for the water well sites on Yosemite Boulevard (Wells 291 and 292) for a ten-year term at an annual cost of $30,000 per well, increasing annually by the Consumer Price Index (CPI) for the San Francisco Bay Area.

On October 28, 2014, by Resolution 2014-433, Council approved a lease agreement with Modesto and Empire Traction Company (“M&ET”) for the water well site on South McClure Road (Well 308) for a ten-year term at an annual cost of $30,000, increasing annually by the Consumer Price Index (CPI) for the San Francisco Bay Area.

On October 23, 2018, by Resolution 2018-482, Council approved an annual rate increase and property tax payments for M&ET Wells 291, 292, and 308 in the amount of $10,344 and a total not to exceed $720,145 through December 2024.

On October 23, 2018, by Resolution 2018-485, Council approved an annual rate increase and property tax payments for Beard Wells 225 and 279 in the amount of $14,098 and a total not to exceed $489,067 through December 2024.

DISCUSSION:

The Water Division currently leases five wells on four sites which are listed below, and staff recommends the continuation of these lease agreements:
 Well 225 on Spenker Avenue (referred to by Beard as Well 25 Budget Pack)  Well 279 on Farrar Avenue (referred to by Beard as Well 79 Farrar Pump Lot)  Wells 291 and 292 on Yosemite Boulevard (referred to by M&ET as Wells 91 and 92 – Mariposa E & W Pump Lot)
 Well 308 on S. McClure Road (referred to by M&ET as Well 1 S. McClure Pump Lot) FISCAL IMPACT:

The monthly rate for each well began in 2015 at $2,500.00 and increased annually to $3,351.81 in 2024, the final year of the lease. Expenditures for the water well lease agreements over the past ten years (2014 to 2024) are listed below:

Calendar Year BEARD M&ET Total
2015 $ 60,503 $ 90,000 $ 150,503
2016 $ 62,013 $ 92,304 $ 154,317
2017 $ 64,177 $ 93,816 $ 157,993
2018 $ 65,427 $ 96,336 $ 161,763
2019 $ 69,113 $ 98,424 $ 167,537
2020 $ 70,886 $ 100,152 $ 171,038
2021 $ 71,642 $ 101,304 $ 172,947
2022 $ 73,873 $ 110,780 $ 184,653
2023 $ 79,419 $ 117,427 $ 196,846
2024 (Jan to Jul) $ 46,926 $ 70,388 $ 117,313
#4..
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Economic Development Committee, September 9, 2024
First Amendment to Water Well Lease Agreements

Page 3 of 4 ends

Total Paid $ 663,979 $ 970,931 $ 1,634,910
Payments Remaining
(Aug-Dec 2024) $ 33,518 $ 50,277 $ 83,795
Grand Total,
2015-2024 $ 697,497 $ 1,021,208 $ 1,718,705
*includes property tax
The terms proposed by Beard and M&ET are listed below, with the new rate starting at $4,000.00 per well per month. This is a total increase of 19% from the current rate. After the first year, the rate will increase by 3% annually for the remainder of the lease. The Beard properties, Wells 225 and 279, will also have County property taxes assessed at a varying rate each year; this expense will be in addition to the lease amount.

Lease Terms Annual Amount
(Per Well)
January 1, 2025 – December 31, 2025 $48,000
January 1, 2026 – December 31, 2026 $49,440
January 1, 2027 – December 31, 2027 $50,923
January 1, 2028 – December 31, 2028 $52,451
January 1, 2029 – December 31, 2029 $54,024
January 1, 2030 – December 31, 2030 $55,645
January 1, 2031 – December 31, 2031 $57,315
January 1, 2032 – December 31, 2032 $59,034
January 1, 2033 – December 31, 2033 $60,805
January 1, 2034 – December 31, 2034 $62,629
Total Lease Cost (Per Well) Over Ten Years: $550,266
Property Tax (Beard Wells) Over Ten Years: $13,000
Total Over Ten Years (Beard), 2 Wells + Property Tax $1,113,533 Total Over Ten Years (M&ET), 3 Wells $1,650,799
GRAND TOTAL Over Ten Years, Combined (Beard and M&ET) $2,764,332 Funds are budgeted in the Water Fund account 4100-45050-53070, Rental of Real Property.

RECOMMENDED COMMITTEE ACTION:

Staff Recommendation:

Motion recommending the First Amendment to the Water Well/Right of Way Lease Agreement with Beard Land Improvement Company for the water well site on Spenker Avenue for City Well 225 (Beard Well 25 Budget Pack) and well site on Farrar Avenue for City Well 279 (Beard Well Farrar Pump Lot), increasing the amount by $1,113,533 over ten years, and extending the term of the Agreement from December 31, 2024 to December 31, 2034, and forwarding to Council for approval.

Motion recommending the First Amendment to the Water Well / Right of Way Lease Agreement with Modesto and Empire Traction Company (M&ET) for the water well site on Yosemite Boulevard for City Wells 291 and 292 (M&ET Well 91 and 92 – Mariposa E. & W. Pump Lot) and water well site on S. McClure Road for City Well 308 (M&ET Well 1 – S. McClure Pump Lot), increasing the amount by $1,650,799 over ten years, and extending the term of the Agreement from December 31, 2024 to December 31, 2034, and forwarding to Council for approval. #4..
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Economic Development Committee, September 9, 2024
First Amendment to Water Well Lease Agreements

Page 4 of 4 ends

Approved by:

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

1. First Amendment to Well Leases, Beard (Well 225, Well 279)

2. First Amendment to Well Leases, M&ET (Well 308, Wells 291-292)

3. Original Beard Lease, Well 225

4. Original Beard Lease, Well 279

5. Original M&ET Lease, Well 308

6. Original M&ET Lease, Well 291-292
#4..
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1 42103585.1/516658.0001

FIRST AMENDMENT TO WATER WELL/RIGHT-OF-WAY LEASE

THIS FIRST AMENDMENT TO WATER WELL/RIGHT-OF-WAY LEASE
(“Amendment”) is made as of February 7, 2024 (the “Effective Date”) between BEARD LAND IMPROVEMENT COMPANY, a California corporation (“Lessor”), and the CITY OF MODESTO, a California municipal corporation (“Lessee”).

RECITALS
A. Lessor and Lessee entered into a Water Well/Right-of-Way Lease dated August 4, 2014 (the “Lease”) under which Lessor leases to Lessee and Lessee leases from Lessor approximately 10,507 square feet commonly known as the land comprising Well Site No. 25, Budget Pack Pump Lot, located at Spenker Avenue, Modesto, Stanislaus County, California 95354, as more particularly described in the Lease as the Premises.

B. Lessor and Lessee desire to amend the Lease to extend the term of the Lease on the terms and conditions set forth herein.

AMENDMENT
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Lessor and Lessee do hereby agree as follows:

1. Definitions. All capitalized terms used, but not defined, in this Amendment shall have the meaning ascribed to them in the Lease.

2. Term. The term of the Lease is hereby extended for ten (10) years commencing on January 1, 2025, and ending on December 31, 2034 (the “Extended Term”). “Term,” as used in the Lease and this Amendment, shall include the Extended Term.

3. Monthly Rent. Lessee shall pay to Lessor, as monthly Rent for the Premises during the Extended Term, monthly payments in advance on the first day of each month as follows:

Period Monthly Rent
January 1, 2025 – December 31, 2025 $4,000.00
January 1, 2026 – December 31, 2026 $4,120.00
January 1, 2027 – December 31, 2027 $4,243.60
January 1, 2028 – December 31, 2028 $4,370.91
January 1, 2029 – December 31, 2029 $4,502.04
January 1, 2030 – December 31, 2030 $4,637.10
January 1, 2031 – December 31, 2031 $4,776.21
January 1, 2032 – December 31, 2032 $4,919.50
January 1, 2033 – December 31, 2033 $5,067.08
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January 1, 2034 – December 31, 2034 $5,219.09
The provisions in Section 5.4 of the Lease shall not be used to adjust monthly Rent during the Extended Term.

4. Additional Rent and Other Amounts Owed by Lessee. Nothing in this Amendment shall be interpreted to relieve, modify or defer Lessee’s obligation to pay any amounts owed by Lessee under the Lease, or otherwise owed by Lessee to Lessor, including but not limited to Real Property Tax or utilities applicable to the Premises.

5. Effect of Amendment. Except as expressly amended herein, all other terms and conditions of the Lease shall remain in full force and effect. The Lease, as amended hereby, constitutes the entire agreement of the parties and no further modification of the Lease shall be binding and effective unless evidenced by an agreement, in writing, signed by both Lessor and Lessee. In the case of any inconsistency between the provisions of the Lease and this Amendment, the provisions of this Amendment shall govern and control.

6. Brokers. Lessor and Lessee hereby warrant to each other that they have had no dealings with any real estate broker or agent in connection with the extension of the term or the other terms and conditions set forth herein and that they know of no real estate broker or agent who is entitled to a commission in connection with this Amendment. Each party agrees to indemnify, protect and defend the other party against, and hold the other party harmless from, any and all claims, demands, losses, liabilities, lawsuits, judgments, costs and expenses (including without limitation reasonable attorneys’ fees) with respect to any leasing commission or equivalent compensation alleged to be owing on account of any dealings with any real estate broker or agent occurring by, through, or under the indemnifying party.

7. Authority. Each signatory of this Amendment hereby represents that he or she has the authority to execute and deliver the same on behalf of the party for which such signatory is acting. Lessee represents that it has not made any assignment, sublease, transfer, conveyance of the Lease or any interest therein or in the Premises.

8. Miscellaneous. The Recitals are hereby incorporated into the terms of this Amendment. This Amendment may be executed in multiple counterparts each of which shall be deemed an original but which together shall constitute one agreement. This Amendment may be executed and/or delivered via email or other electronic means with the same force and effect, and if so executed and/or delivered shall be effective, as if an original of this Amendment was executed and delivered.
[signature page follows]
#4..
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3 42103585.1/516658.0001
IN WITNESS WHEREOF the parties hereto have executed this Amendment as of the date first set forth above.

LESSOR: LESSEE:

BEARD LAND IMPROVEMENT
COMPANY, a California corporation
CITY OF MODESTO, a California municipal
corporation
By:

Its:

Dated:

By:

Its:

Dated:

By:

Its:

Dated:

APPROVED AS TO FORM:

By:

Its:

Dated:
#4..
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1 42103830.1/516658.0001

FIRST AMENDMENT TO WATER WELL/RIGHT-OF-WAY LEASE

RECITALS
A. Lessor and Lessee entered into a Water Well/Right-of-Way Lease dated August 4, 2014 (the “Lease”) under which Lessor leases to Lessee and Lessee leases from Lessor approximately 21,344 square feet commonly known as the land comprising Well Site No. 79, Farrar Pump Lot, located at Farrar Avenue, Modesto, Stanislaus County, California 95354, as more particularly described in the Lease as the Premises.

B. Lessor and Lessee desire to amend the Lease to extend the term of the Lease on the terms and conditions set forth herein.

AMENDMENT
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Lessor and Lessee do hereby agree as follows:

1. Definitions. All capitalized terms used, but not defined, in this Amendment shall have the meaning ascribed to them in the Lease.

3. Monthly Rent. Lessee shall pay to Lessor, as monthly Rent for the Premises during the Extended Term, monthly payments in advance on the first day of each month as follows:

Period Monthly Rent
January 1, 2025 – December 31, 2025 $4,000.00
January 1, 2026 – December 31, 2026 $4,120.00
January 1, 2027 – December 31, 2027 $4,243.60
January 1, 2028 – December 31, 2028 $4,370.91
January 1, 2029 – December 31, 2029 $4,502.04
January 1, 2030 – December 31, 2030 $4,637.10
January 1, 2031 – December 31, 2031 $4,776.21
January 1, 2032 – December 31, 2032 $4,919.50
January 1, 2033 – December 31, 2033 $5,067.08
#4..
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2 42103830.1/516658.0001
January 1, 2034 – December 31, 2034 $5,219.09
The provisions in Section 5.4 of the Lease shall not be used to adjust monthly Rent during the Extended Term.

8. Miscellaneous. The Recitals are hereby incorporated into the terms of this Amendment. This Amendment may be executed in multiple counterparts each of which shall be deemed an original but which together shall constitute one agreement. This Amendment may be executed and/or delivered via email or other electronic means with the same force and effect, and if so executed and/or delivered shall be effective, as if an original of this Amendment was executed and delivered.
[signature page follows]
#4..
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3 42103830.1/516658.0001
IN WITNESS WHEREOF the parties hereto have executed this Amendment as of the date first set forth above.

LESSOR: LESSEE:

BEARD LAND IMPROVEMENT
COMPANY, a California corporation
CITY OF MODESTO, a California municipal
corporation
By:

Its:

Dated:

By:

Its:

Dated:

By:

Its:

Dated:

APPROVED AS TO FORM:

By:

Its:

Dated:
#4..
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1 42103935.1/516658.0001

FIRST AMENDMENT TO WATER WELL/RIGHT-OF-WAY LEASE

THIS FIRST AMENDMENT TO WATER WELL/RIGHT-OF-WAY LEASE
(“Amendment”) is made as of February 7, 2024 (the “Effective Date”) between MODESTO AND EMPIRE TRACTION COMPANY, a California corporation (“Lessor”), and the CITY OF MODESTO, a California municipal corporation (“Lessee”).

McClure Pump Lot, located at McClure Road, Modesto, Stanislaus County, California 95357, as more particularly described in the Lease as the Premises.

B. Lessor and Lessee desire to amend the Lease to extend the term of the Lease on the terms and conditions set forth herein.

AMENDMENT
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Lessor and Lessee do hereby agree as follows:

1. Definitions. All capitalized terms used, but not defined, in this Amendment shall have the meaning ascribed to them in the Lease.

3. Monthly Rent. Lessee shall pay to Lessor, as monthly Rent for the Premises during the Extended Term, monthly payments in advance on the first day of each month as follows:

Period Monthly Rent
January 1, 2025 – December 31, 2025 $4,000.00
January 1, 2026 – December 31, 2026 $4,120.00
January 1, 2027 – December 31, 2027 $4,243.60
January 1, 2028 – December 31, 2028 $4,370.91
January 1, 2029 – December 31, 2029 $4,502.04
January 1, 2030 – December 31, 2030 $4,637.10
January 1, 2031 – December 31, 2031 $4,776.21
January 1, 2032 – December 31, 2032 $4,919.50
January 1, 2033 – December 31, 2033 $5,067.08
#4..
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2 42103935.1/516658.0001
January 1, 2034 – December 31, 2034 $5,219.09
The provisions in Section 5.4 of the Lease shall not be used to adjust monthly Rent during the Extended Term.

8. Miscellaneous. The Recitals are hereby incorporated into the terms of this Amendment. This Amendment may be executed in multiple counterparts each of which shall be deemed an original but which together shall constitute one agreement. This Amendment may be executed and/or delivered via email or other electronic means with the same force and effect, and if so executed and/or delivered shall be effective, as if an original of this Amendment was executed and delivered.
[signature page follows]
#4..
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3 42103935.1/516658.0001
IN WITNESS WHEREOF the parties hereto have executed this Amendment as of the date first set forth above.

LESSOR: LESSEE:

MODESTO AND EMPIRE TRACTION
COMPANY, a California corporation
CITY OF MODESTO, a California municipal
corporation
By:

Its:

Dated:

By:

Its:

Dated:

By:

Its:

Dated:

APPROVED AS TO FORM:

By:

Its:

Dated:
#4..
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1 42103863.1/516658.0001

FIRST AMENDMENT TO WATER WELL/RIGHT-OF-WAY LEASE

RECITALS
A. Lessor and Lessee entered into a Water Well/Right-of-Way Lease dated August 4, 2014 (the “Lease”) under which Lessor leases to Lessee and Lessee leases from Lessor approximately 63,196.48 square feet commonly known as the land comprising Well Site No. 91 & 92, Mariposa East and West Pump Lot, located at Mariposa Road, Modesto, Stanislaus County, California 95354, as more particularly described in the Lease as the Premises.

B. Lessor and Lessee desire to amend the Lease to extend the term of the Lease on the terms and conditions set forth herein.

AMENDMENT
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Lessor and Lessee do hereby agree as follows:

1. Definitions. All capitalized terms used, but not defined, in this Amendment shall have the meaning ascribed to them in the Lease.

3. Monthly Rent. Lessee shall pay to Lessor, as monthly Rent for the Premises during the Extended Term, monthly payments in advance on the first day of each month as follows:

Period Monthly Rent
January 1, 2025 – December 31, 2025 $8,000.00
January 1, 2026 – December 31, 2026 $8,240.00
January 1, 2027 – December 31, 2027 $8,487.20
January 1, 2028 – December 31, 2028 $8,741.82
January 1, 2029 – December 31, 2029 $9,004.07
January 1, 2030 – December 31, 2030 $9,274.19
January 1, 2031 – December 31, 2031 $9,552.42
January 1, 2032 – December 31, 2032 $9,838.99
January 1, 2033 – December 31, 2033 $10,134.16
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January 1, 2034 – December 31, 2034 $10,438.19
The provisions in Section 5.4 of the Lease shall not be used to adjust monthly Rent during the Extended Term.

8. Miscellaneous. The Recitals are hereby incorporated into the terms of this Amendment. This Amendment may be executed in multiple counterparts each of which shall be deemed an original but which together shall constitute one agreement. This Amendment may be executed and/or delivered via email or other electronic means with the same force and effect, and if so executed and/or delivered shall be effective, as if an original of this Amendment was executed and delivered.
[signature page follows]
#4..
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3 42103863.1/516658.0001
IN WITNESS WHEREOF the parties hereto have executed this Amendment as of the date first set forth above.

LESSOR: LESSEE:

MODESTO AND EMPIRE TRACTION
COMPANY, a California corporation
CITY OF MODESTO, a California municipal
corporation
By:

Its:

Dated:

By:

Its:

Dated:

By:

Its:

Dated:

APPROVED AS TO FORM:

By:

Its:

Dated:
#4..
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[Budget Pack Pump Lot]
Water Well/Right-Of-Way Lease – Budget Pack Pump Lot – Well #25 Section 1. Definitions ........................................................................................................... 1 Section 2. Premises. ............................................................................................................ 1 Section 3. Rules and Regulations. ....................................................................................... 1 Section 4. Term. .................................................................................................................. 1 Section 5. Rent. ................................................................................................................... 1 Section 6. Security Deposit. ............................................................................................... 2 Section 7. Use. .................................................................................................................... 2 Section 8. Maintenance, Repairs and Alterations. ............................................................... 3 Section 9. Insurance; Indemnity. .......................................................................................... 4 Section 10. Damage or Destruction. .................................................................................... 6 Section 11. Real Property Taxes. ........................................................................................ 6 Section 12. Utilities & Janitorial Services. ............................................................................ 7 Section 13. Assignment and Subletting. .............................................................................. 7 Section 14. Environmental Provisions.................................................................................. 8 Section 15. Defaults; Remedies. ........................................................................................ 10 Section 16. Condemnation. ............................................................................................... 12 Section 17. Estoppel Certificate. ........................................................................................ 13 Section 18. Lessor’s Liability.............................................................................................. 13 Section 19. Severability. .................................................................................................... 14 Section 20. Interest on Past-due Obligations. .................................................................... 14 Section 21. Time of Essence. ............................................................................................ 14 Section 22. Additional Rent................................................................................................ 14 Section 23. Incorporation of Prior Agreements; Amendments. .......................................... 14 Section 24. Notices. ........................................................................................................... 15 Section 25. Waivers. .......................................................................................................... 15 Section 26. Cumulative Remedies. .................................................................................... 15

WATER WELL/RIGHT-OF-WAY

LEASE-INDEX
#4..
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Water Well/Right-Of-Way Lease – Budget Pack Pump Lot – Well #25 ii
Section 27. Covenants and Conditions. ............................................................................. 15 Section 28. Binding Effect; Choice of Law. ........................................................................ 15 Section 29. Subordination. ................................................................................................. 15 Section 30. Attorneys’ Fees............................................................................................... 16 Section 31. Lessor’s Access.............................................................................................. 16 Section 32. Auctions. ......................................................................................................... 16 Section 33. Signs. .............................................................................................................. 16 Section 34. Merger. ........................................................................................................... 16 Section 35. Quiet Possession. ........................................................................................... 16 Section 36. Security Measures. ......................................................................................... 17 Section 37. Easements. ..................................................................................................... 17 Section 38. Performance Under Protest. ........................................................................... 17 Section 39. Authority. ......................................................................................................... 17 Section 40. Terms and Headings. ...................................................................................... 17 Section 41. Exhibits and Riders. ........................................................................................ 17 Section 42. Successors and Assigns. ................................................................................ 17 Section 43. Professional Fees. .......................................................................................... 18 Section 44. Nondisclosure of Lease Terms. ...................................................................... 18 Section 45. Joint and Several Liability. .............................................................................. 18 Section 46. Broker Indemnification. ................................................................................... 18 Section 47. Holding Over. .................................................................................................. 19 Section 48. Subdivision Map Act. ...................................................................................... 18 #4..
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Water Well/Right-Of-Way Lease – Budget Pack Pump Lot – Well #25

WATER WELL/RIGHT-OF-WAY LEASE
This Water Well/Right-of-Way Lease (this “Lease”) dated effective 4 August 2014 is made by and between BEARD LAND IMPROVEMENT COMPANY, a California corporation (“Lessor”), and CITY OF MODESTO, a California municipal corporation (“Lessee”).

Section 1. Definitions
In addition to any other terms defined in this Lease, the following terms shall have the following meanings:

1.1 Premises. Premises shall mean that certain real property situated in the County of Stanislaus, State of California, commonly known as the land comprising Well Site No. 25, Budget Pack Pump Lot, located at Spenker Avenue, Modesto, California 95354, consisting of approximately 10,507.00 square feet as shown on Exhibit A attached.

1.2 Commencement Date. Commencement Date shall mean the date the term of this Lease is to commence as stated in Section 4.1.

Section 2. Premises.

2.1 Lease of Premises.

Lessor hereby leases to Lessee and Lessee leases from Lessor the Premises for the term, at the rental, and upon all of the conditions set forth herein.

Section 3. Rules and Regulations.

Lessee shall abide by, keep and observe all reasonable rules and regulations which Lessor may make from time to time for the management, safety, care, and cleanliness of the grounds, the parking of vehicles and the preservation of good order of the Premises.

The violations of any such rules and regulations shall be deemed a material breach of this Lease by Lessee.

Section 4. Term.

4.1 Term. The initial term of this Lease shall be for ten (10) years commencing January 1, 2015, and ending on December 31, 2024, unless sooner terminated pursuant to any provision of this Lease. Lessee shall provide six (6) month prior written notice of its intent to vacate at end of term.

4.2 Interim Term. The term of the Lease had renewed on a month-to-month basis effective July 1, 2009.

Section 5. Rent.

5.1 Monthly Rent. Lessee shall pay to Lessor during the term of the Lease as rent for the Premises monthly payments in advance on the first day of each month in the sum of $2,500.00, as adjusted pursuant to Section 5.4. Rent shall be paid to Lessor at the address of Lessor as stated in this Lease, or at such other address as may be designated by Lessor from time to time, without deduction or offset. Rent payable under this Section 5.1 shall be in addition to any other sums payable by Lessee to Lessor under this Lease. Rent for any #4..
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Water Well/Right-Of-Way Lease – Budget Pack Pump Lot – Well #25 2 period during the term which is for less than one (1) month shall be a pro rata portion of the monthly installment.

5.2 Lease Origination Fee. Not Applicable

5.3 Rent Payable on Execution. Not Applicable

5.4 Rental Adjustment. Beginning with January 1, 2016, and annually on each January 1 thereafter, the monthly rent shall be adjusted as follows:

The monthly rent in effect at the time will be adjusted upward, but not downward, in equal proportion to the increase for the most recent twelve (12) month period ending in October of the previous year in the Consumer Price Index for All Urban Consumers (CPI-U), All Items, San Francisco as published by the United States Department of Labor, Bureau of Labor Statistics, San Francisco, California (All Items, San Francisco, 1982-1984=100) (the "Index"). If the Index for San Francisco is discontinued or revised during the term, such other government index or computation with which it is replaced shall be used in order to reach substantially the same result as would have been reached if the Index had not been discontinued or revised. (For example, if the Index increased from 214.692 in October 2014 to 215.245 in October 2015, the monthly rental beginning January 1, 2016, would be $2,506.00 (i.e., $2,500.00 multiplied by 215.245 divided by 214.692).)
Notice of the CPI-U rental adjustments shall be given by Lessor. If Lessor fails to give Lessee written notice of the CPI-U rental adjustment, if any, prior to January 1, 2016, or each subsequent January 1, the monthly rent shall nonetheless be adjusted as of each January 1, but Lessee shall pay such adjusted monthly rent as follows: (a) Lessee shall pay the increase in the monthly rent for the period on and after the applicable January 1 to, but not including, the date on which the adjusted payment is due under the clause within thirty (30) days of receipt of such written notice; and (b) Lessee shall pay the adjusted monthly rent on the first day of the second (2nd) calendar month after the calendar month in which the written notice of the rental adjustment is given and on the first day of each subsequent month.

Section 6. Security Deposit. There is no security deposit.

Section 7. Use.

7.1 Use by Tenant. Lessee shall use the Premises only for the production and distribution of water for commercial, domestic and industrial purposes, unless some other use is approved in writing by Lessor (with no obligation to do so). Such use shall include the right to construct, operate and maintain water wells, pipelines and/or mains and appurtenances necessary thereto. Lessee shall not use, or permit any other person or entity to use, the Premises, or any part thereof for any purpose in violation of the use stated in this Section 7.1, in violation of any law or ordinance of any governmental authority, or in a manner which constitutes a nuisance or unreasonably interferes with other tenants of the properties commonly known as the Beard Industrial District. Lessee shall not store, use or distribute any Hazardous Material (defined herein) on or about the Premises; provided however, that use and storage of materials customarily used in the course of pumping water for human consumption in accordance with Section 14.3 is excepted. #4..
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Water Well/Right-Of-Way Lease – Budget Pack Pump Lot – Well #25 3 7.2 Compliance with Law.
(a) Lessee, at Lessee’s expense, shall comply promptly with all applicable statutes, ordinances, rules, regulations, orders, covenants and restrictions of record, and requirements in effect during the term or any part of the term hereof which apply to the Premises or the use by Lessee of the Premises (the “Applicable Requirements”). (b) Lessee shall not use nor permit the use of the Premises in any manner that will tend to create waste or a nuisance.

7.3 Condition of Premises.
(a) Lessee acknowledges receipt of possession of the Premises. (b) Lessee accepts the Premises “as is” and in the condition existing as of the Commencement Date or the date that Lessee takes possession of the Premises, and subject to all applicable zoning, municipal, county and state laws, ordinances and regulations governing and regulating the use of the Premises, and any covenants or restrictions of record. Lessee acknowledges that neither Lessor nor any agent of Lessor has made any representation or warranty with respect to the Premises or the parcel of which the Premises are a part or with respect to their suitability or fitness for the conduct of Lessee’s business or for any other purpose.

Section 8. Maintenance, Repairs and Alterations.

8.1 Lessor’s Obligations. Lessor has no obligation, in any manner whatsoever, to maintain, repair or replace the Premises, or the equipment therein, all of which obligations are intended to be that of Lessee. It is the intention of the parties that the terms of this Lease govern the respective obligations of the parties as to maintenance, repair and replacement of the Premises, and they expressly waive the benefit of any statute now or hereafter in effect to the extent it is inconsistent with the terms of this Lease.

8.2 Lessee’s Obligations.
(a) Lessee shall, at Lessee's sole expense, keep the Premises and the Alterations and Additions(as hereinafter defined) in good order, condition and repair (whether or not the need for such repairs occurs as a result of Lessee's use, any prior use, the elements or the age of such portion of the Premises). Lessee, in keeping the Premises in good order, condition and repair, shall exercise and perform good maintenance practices. (b) If Lessee fails to perform Lessee’s obligations under this Section 8.2 or under any other Section of this Lease, Lessor may at Lessor’s option enter upon the Premises after ten (10) days’ prior written notice to Lessee (except in the case of emergency, in which case no notice shall be required) perform such obligations on Lessee’s behalf and put the Premises in good order, condition and repair. The cost thereof shall be due and payable as additional rent to Lessor with Lessee’s next rental installment and the amount due shall bear interest until paid as provided in Section 20.
(c) On the last day of the term hereof, or on any sooner termination, Lessee shall surrender the Premises to Lessor in the same condition as received, ordinary wear and tear excepted, clean and free of debris, and unless Lessor otherwise directs, shall remove all fixtures and equipment (whatever water wells, machinery or pipes) installed by or for #4..
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Water Well/Right-Of-Way Lease – Budget Pack Pump Lot – Well #25 4 Lessee on the Premises, Alterations and Additions installed by Lessee and shall close the well in accordance with all requirements of applicable law or of Lessor for such closure. At Lessor’s request, Lessee shall deliver to Lessor a quitclaim deed releasing any interest or rights of Lessee in the Premises.

8.3 Alterations and Additions.
(a) Except for routine and customary maintenance, Lessee shall not make any alterations, improvements, additions, replacements, changes, or installations (collectively “Alterations and Additions”) in, on or about the Premises without Lessor’s prior written consent (which consent shall not be unreasonably withheld). In connection with any such proposed Alterations and Additions, Lessor shall have the right to (i) approve, in its reasonable discretion, Lessee’s contractors; (ii) require Lessee to provide Lessor, at Lessee’s sole cost and expense, a lien and completion bond in an amount equal to one and one-half times the estimated cost of such Alterations and Additions, to insure Lessor against any liability for mechanic’s and materialmen’s liens and to ensure completion of the work; and (iii) require removal of the Alterations and Additions upon termination of this Agreement. Should Lessee make any Alterations and Additions without the prior approval of Lessor, Lessor shall have the right to require that Lessee immediately remove any or all of such Alterations and Additions.
(b) Any proposed Alterations and Additions in or about the Premises that Lessee shall desire to make shall be presented to Lessor in written form, with proposed detailed plans. If Lessor shall give its consent, the consent shall be deemed conditioned upon Lessee acquiring all necessary permits and governmental approvals, the furnishing of a copy thereof to Lessor prior to the commencement of the work, and the compliance by Lessee with all Applicable Requirements and all conditions of said permits and approvals in a prompt and expeditious manner.
(c) Lessee shall pay, when due, all claims for labor or materials furnished or alleged to have been furnished to or for Lessee in connection with the Premises, which are or may be secured by any mechanic’s or materialmen’s lien against the Premises or any interest therein. Lessee shall give Lessor not less than fifteen (15) days’ notice prior to the commencement of any work at the Premises which is expected to cost in excess of $10,000.00, and Lessor shall have the right to post notices of non-responsibility in or on the Premises as provided by law. If Lessee, in good faith, shall contest the validity of any such lien, claim or demand, then Lessee shall, at its sole cost and expense, defend itself and Lessor against the same and shall pay and satisfy any such adverse judgment that may be rendered thereon before the enforcement thereof against Lessor or the Premises. On written request from Lessor, Lessee shall furnish a release bond as provided under California Civil Code Section 3143 or any successor statute, which shall release such lien from the Premises. In addition, Lessor may require Lessee to pay Lessor’s attorney’s fees and costs in participating in such action if Lessor shall decide it is in its best interest to do so.

Section 9. Insurance; Indemnity.

9.1 Liability Insurance - Lessee. Lessee, at Lessee’s expense, shall obtain and keep in force during the term of this Lease a policy of Combined Single Limit Bodily Injury and Property Damage Insurance naming Lessor as an additional insured and insuring Lessee and Lessor against any liability arising out of the use, occupancy or maintenance of the Premises and all other areas appurtenant thereto. Such insurance shall be in an #4..
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Water Well/Right-Of-Way Lease – Budget Pack Pump Lot – Well #25 5 amount not less than $3,000,000 per occurrence naming Lessor as additional insured on such policy. Upon written notice from Lessor to Lessee, said policy amount shall be increased as reasonably required by Lessor during the term or any extensions. The policy shall provide for cross-liability coverage and insure performance by Lessee of the indemnity provisions of this Lease. The liability insurance of Lessee may include a self-insured retention of up to $1,000,000.00. The limits of the insurance, however, shall not limit the liability of Lessee hereunder.

9.2 Insurance Policies. Insurance required hereunder shall be in companies holding a “General Policyholders Rating” of at least B++, or such other rating as may be required by a lender having a lien on the Premises, as set forth in the most current issue of “Best’s Insurance Guide,” or in case of discontinuance of such publication, a comparable guide. Lessee shall deliver to Lessor certificates evidencing the existence and amounts of such insurance, and that Lessor is named additional insured. Furthermore, if requested by Lessor because of a claim being made against Lessor or for other good cause, Lessee shall deliver to Lessor copies of policies of liability insurance required under Section 9.1. No such policy shall be subject to cancellation or reduction of coverage or other modification except after at least thirty (30) days’ prior written notice to Lessor. At least thirty (30) days prior to the expiration of such policies, Lessee shall furnish Lessor with renewals or “binders” thereof, or Lessor may order such insurance and charge the cost thereof to Lessee, which amount shall be payable by Lessee upon demand.

9.3 Waiver of Subrogation. Lessee and Lessor shall cause the insurance company issuing their respective property insurance to waive any subrogation rights that those companies may have against Lessee or Lessor, respectively. Lessee shall also obtain a similar waiver with respect to any sublessees or other occupants of the Premises, provided that Lessee shall be bound to comply with the provisions of Section 13 relating to any such individuals or entities. Lessor and Lessee waive any right that either may have against the other on account of any loss or damage that is insured under their respective property insurance policies for the Premises.

9.4 Lessee’s Assumption of Risk and Waiver. Except to the extent such matter is not covered by the insurance required to be maintained by Lessee under this Lease and such matter is attributable to the negligence or willful misconduct of Lessor, Lessor shall not be liable to Lessee, Lessee’s employees, agents or invitees for: (i) any damage to property of Lessee, or of others, located in, on or about the Premises, (ii) the loss of or damage to any property of Lessee or of others by theft or otherwise, (iii) any injury or damage to persons or property resulting from fire, explosion, falling plaster, steam, gas, electricity, water, rain or leaks from any part of the Premises or from the pipes, appliance of plumbing works or from the roof, street or subsurface or from any other places or by dampness or by any other cause of whatsoever nature, or (iv) any such damage caused by other persons in the Premises, occupants of adjacent property, or the public, or caused by operations in construction of any private, public or quasi-public work. Lessor shall in no event be liable for any consequential damages or loss of business or profits and Lessee hereby waives any and all claims for any such damages. All property of Lessee kept or stored on the Premises shall be so kept or stored at the sole risk of Lessee and Lessee shall hold Lessor harmless from any claims arising out of damage to the same, including subrogation claims by Lessee’s insurance carriers, unless such damage shall be caused by the negligence or willful misconduct of Lessor.
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Water Well/Right-Of-Way Lease – Budget Pack Pump Lot – Well #25 6 9.5 Lessee’s Indemnification of Lessor. Lessee shall be liable for, and shall indemnify, defend, protect and hold Lessor and Lessor’s partners, officers, directors, employees, agents, successors and assigns (collectively, “Lessor Indemnified Parties”) harmless from and against, any and all claims, damages, judgments, suits, causes of action, losses, liabilities and expenses, including attorneys, fees and court costs (collectively, “Indemnified Claims”), arising or resulting from (i) any act or omission of Lessee or any of Lessee’s agents, employees, contractors, sublessees, assignees, licensees or, with respect to acts or omissions within the Premises solely, Lessee’s invitees (collectively, “Lessee Parties”); (ii) the use of the Premises and conduct of Lessee’s business by Lessee or any Lessee Parties, or any other activity, work or thing done, permitted or suffered by Lessee or any Lessee Parties, in or about the Premises; and (iii) any default by Lessee of any obligations on Lessee’s part to be performed under the terms of this Lease. In case any action or proceeding is brought against Lessor or any Lessor Indemnified Parties by reason of any such Indemnified Claims, Lessee, upon notice from Lessor, shall defend the same at Lessee’s expense by counsel approved in writing by Lessor, which approval shall not be unreasonably withheld.

9.8 Survival; No Release of Insurers. Lessee’s covenants, agreements and indemnification in Sections 9.4 and 9.5 shall survive the expiration or earlier termination of this Lease and are not intended to and shall not relieve any insurance carrier of its obligations under policies required to be carried by Lessee pursuant to the provisions of this Lease.

Section 10. Damage or Destruction. There shall be no abatement of monthly rent or any amount payable by Lessee to Lessor by reason of any casualty to the Premise or any other damage or destruction of the Premises.

Section 11. Real Property Taxes.

11.1 Real Property Taxes. Lessee shall pay the real property tax, as defined in Section 11.3, applicable to the Premises. Such payment shall be made by Lessee within thirty (30) days after receipt of Lessor’s written statement setting forth the amount of such real property tax and the computation thereof. If the term of this Lease shall not expire concurrently with the expiration of the tax fiscal year, Lessee’s liability for real property taxes for the last partial lease year shall be prorated on an annual basis.

11.2 Additional Improvements. Lessee shall pay to Lessor upon demand the entirety of any increase in real property tax if assessed solely by reason of additional improvements placed upon the Premises by Lessee or at Lessee’s request.

11.3 Definition of “Real Property Tax”. As used herein, the term “real property tax” shall include any form of real estate tax or assessment, general, special, supplementary, ordinary or extraordinary, and any license fee, commercial rental tax, improvement bond or bonds, levy or tax (other than inheritance, personal income or estate taxes) imposed on the Premises by any authority having the direct or indirect power to tax, including any city, state or federal government, or any school, agricultural, sanitary, fire, street, drainage or other improvement district thereof, as against any legal or equitable interest of Lessor in the Premises or in the real property of which the Premises are a part, as against Lessor’s right to rent or other income therefrom, and as against Lessor’s business of leasing the Premises. The term “real property tax” shall also include any tax, fee, levy assessment or charge (i) in substitution of, partially or totally, any tax, fee, levy assessment or charge hereinabove included within the definition of “real property tax,” or (ii) #4..
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Water Well/Right-Of-Way Lease – Budget Pack Pump Lot – Well #25 7 the nature of which was previously included within the definition of “real property tax,” or (iii) which is imposed for a service or right not charged prior to June 1, 1978, or, if previously charged, has been increased since June 1, 1978, or (iv) which is imposed as a result of a transfer, either partial or total, of Lessor’s interest in the Premises or which is added to a tax or charge hereinbefore included within the definition of real property tax by reason of such transfer, or (v) which is imposed by reason of this Lease, any modifications or changes hereto, or any transfers hereof. Clause (iv) of this Section 11.3 does not include a transfer tax due on a sale by Lessor, but does include any additional, or any increase in, real property taxes arising from a sale by Lessor.

11.4 Joint Assessment. If the Premises are not separately assessed, Lessee’s liability shall be an equitable proportion of the real property taxes for all of the land and improvements included within the tax parcel assessed, such proportion to be determined by Lessor from the respective valuations assigned in the assessor’s work sheets or such other information as may be reasonably available. Lessor’s reasonable determination thereof, in good faith, shall be conclusive.

11.5 Personal Property Taxes.
(a) Lessee shall pay prior to delinquency all taxes assessed against and levied upon trade fixtures, furnishings, equipment and all other personal property of Lessee contained in the Premises or elsewhere. When possible, Lessee shall cause trade fixtures, furnishings, equipment, Lessee Installations and all other personal property of Lessee to be assessed and billed separately from the real property of Lessor. (b) If any of Lessee’s personal property shall be assessed with Lessor’s real property, Lessee shall pay Lessor the taxes attributable to Lessee’s personal property within thirty (30) days after receipt of a written statement setting forth the taxes applicable to Lessee’s property.

Section 12. Utilities & Janitorial Services.

Lessee shall pay for all water, gas, heat, light, power, telephone, cable, communication and other utilities and services supplied to the Premises, together with any taxes thereon. If any such services are not separately metered to Lessee, Lessee shall pay a reasonable proportion to be determined by Lessor of all charges jointly metered. Lessee, at its expense, shall provide the necessary janitorial services to maintain the Premises in a good orderly manner at all times during the Lease term, or any extension thereof. Lessee shall pay the cost of any required governmental inspections of improvements to the Premises.

Section 13. Assignment and Subletting.

13.1 Lessor’s Consent Required. Subject to Section 13.2, Lessee shall not voluntarily or by operation of law assign, transfer, mortgage, sublet, or otherwise transfer or encumber all or any part of Lessee’s interest in this Lease or in the Premises, without Lessor’s prior written consent, which Lessor shall not unreasonably withhold. Lessor shall respond to Lessee’s request for consent hereunder in a timely manner and any attempted assignment, transfer, mortgage, encumbrance or subletting without such consent shall be void, and shall constitute a breach of this Lease.
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Water Well/Right-Of-Way Lease – Budget Pack Pump Lot – Well #25 8 13.2 Governmental Entity. Lessee may assign or sublet the Premises, or any portion thereof, without Lessor’s consent, to any governmental entity that will provide the services to the public in the City of Modesto, California for the production and distribution of water provided by Lessee prior to such assignment or sublet (which may include an entity for purposes of obtaining financing or a water district), provided that such assignee or sublessee assumes, in full, the obligations of Lessee under this Lease. Any such assignment shall not, in any way, affect or limit the liability of Lessee under the terms of this Lease even if after such assignment or subletting the terms of this Lease are materially changed or altered without the consent of Lessee, the consent of whom shall not be necessary. Any assignee or sublessee shall assume and be bound by all of the terms and provisions of this Lease including, but not limited to, the provisions of Section 7 which limit the permissible uses of the Premises. Lessor’s consent to any subleasing or assignment shall not be construed as acquiescence to any other use (unless this Lease is amended to permit such other use) or as a waiver of any other provisions of this Lease.

13.3 No Release of Lessee. Regardless of Lessor’s consent, no subletting or assignment shall release Lessee of Lessee’s obligation or alter the primary liability of Lessee to pay the rent and to perform all other obligations to be performed by Lessee hereunder. The acceptance of rent by Lessor from any other person shall not be deemed to be a waiver by Lessor of any provision hereof. Consent to one assignment or subletting shall not be deemed consent to any subsequent assignment or subletting. In the event of default by any assignee of Lessee or any successor of Lessee in the performance of any of the terms hereof, Lessor may proceed directly against Lessee without the necessity of exhausting remedies against such assignee. Lessor may consent to subsequent assignments or subletting of this Lease or amendments or modifications to this Lease with assignees of Lessee without notifying Lessee, or any successor of Lessee, and without obtaining its or their consent thereto and such action shall not relieve Lessee of liability under this Lease.

13.4 Payment of Additional Rent. If Lessee assigns its interest under this Lease or sublets all or any portion of the Premises, Lessee shall pay to Lessor monthly (in addition to the monthly rent and all other amounts payable by Lessee under this Lease) as additional rent, within thirty (30) days after receipt, 50% of all of the rents and other consideration payable by such assignee or subtenant in excess of (i) the rent otherwise payable by Lessee from time to time under this Lease, or (ii) the allocable portion thereof which is subject to assignment or subletting.

13.5 Attorney’s Fees. In the event Lessee shall assign or sublet the Premises or request the consent of Lessor to any assignment, subletting, or waiver of rights in any removable personal property to be placed on the Premises by Lessee, or if Lessee shall request the consent of Lessor for any act Lessee proposes to do, then Lessee shall pay Lessor’s reasonable attorney’s fees incurred in connection therewith.

Section 14. Environmental Provisions.

14.1 Defined Terms.
(a) Hazardous Materials. For purposes of this Lease, “Hazardous Materials” shall mean any substance which is or becomes at any time during the term: (i) defined under any Environmental Law (defined below) as a hazardous substance, hazardous waste, hazardous material, pollutant or contaminant; (ii) a petroleum hydrocarbon, including crude oil or any fraction thereof; (iii) a hazardous, toxic, corrosive, flammable, explosive, #4..
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Water Well/Right-Of-Way Lease – Budget Pack Pump Lot – Well #25 9 infectious, radioactive, carcinogenic or a reproductive toxicant; or (iv) otherwise regulated under any Environmental Laws.
(b) Environmental Laws. For purposes of this Lease, “Environmental Laws” shall mean all present and future federal, state and local laws, statutes, ordinances, regulations, rules, judicial and administrative orders and decrees, permits, licenses, approvals, authorizations and similar requirements of all federal, state and local governmental agencies or other governmental entities with legal authority pertaining to the protection of human health and safety or the environment.
(c) Release. For purposes of this Lease, “Release” shall mean any accidental or intentional spilling, leaking, pumping, pouring, emitting, emptying, discharging, injection, escaping, leaching, migrating, dumping or disposing into the air, land, surface water, ground water or the environment (including without limitation the abandonment or discarding of receptacles containing any Hazardous Materials).

14.2 Compliance With Environmental Laws. Lessee shall at all times comply with all applicable Environmental Laws. Without limiting the generality of the foregoing, Lessee shall procure and maintain in effect at all times during the term and any holdover period any permits and licenses required by any Environmental Laws for Lessee’s operations on or about the Premises.

14.3 Releases. Lessee shall not cause or permit to occur during the term or any holdover period any Release of a Hazardous Material or any condition of pollution or nuisance on or about the Premises, whether affecting the surface water or ground water, air, the soil, the surface of the Property, or the subsurface environment. Prior to or upon the date Lessee ceases to occupy the Premises, Lessee shall have removed from the Premises all Hazardous Materials introduced onto or permitted on the Premises by Lessee. In the event any Release of a Hazardous Material to the environment, or any condition of pollution or nuisance, occurs on or about or beneath the Premises during the term or any holdover period as a result of any act or omission of Lessee or Lessee’s employees, agents, contractors, invitees or guests, Lessee shall promptly undertake remedial measures as required to clean up, abate or otherwise respond to the Release, pollution or nuisance in accordance with applicable Environmental Laws at Lessee’s sole cost. This Section 14.3 shall not preclude Lessee from treating water at the wellhead so long as the treatment is done in compliance with all applicable Environmental Laws and Lessee disposes of all Hazardous Materials used in connection with or generated by such treatment at a location off the Premises in accordance with all applicable Environmental Laws.

14.4 Environmental Indemnity. Lessee shall indemnify, defend, and hold all Indemnitees (as defined below) harmless from and against any and all claims, suits, causes of action, demands, losses, damages (including, without limitation, foreseeable and unforeseeable consequential damages and punitive damages), diminution of property value, liabilities, fines, penalties, costs, taxes, charges, administrative and judicial proceedings, orders, judgments, settlements, remedial actions and compliance requirements (including, without limitation, enforcement and clean-up actions), third-party claims (including, without limitation, tort, economic and property claims), natural resource damages, additional costs of ownership, maintenance and development of the Premises (over and above those incurred for the ownership, maintenance and development of the Premises as tendered to Lessee), expenses (including without limitation reasonable attorneys’ fees and expenses, costs of defense and costs and expenses of all experts and consultants) arising, directly or indirectly, out of: (a) any non-compliance by Lessee, or any of Lessee’s employees, #4..
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Water Well/Right-Of-Way Lease – Budget Pack Pump Lot – Well #25 10 agents, contractors, invitees or guests, with any Environmental Laws; (b) any use, storage, generation, production, Release, disposal or transportation by Lessee, or any of Lessee’s employees, agents, contractors, invitees or guests, of any Hazardous Materials at, on, in, about or under the Premises at any time during Lessee’s occupancy or possession of the Premises; or (c) the migration from the Premises, at any time, of any Hazardous Materials Released by Lessee, or any of Lessee’s employees, agents, contractors, invitees or guests, at, on, in, about, or under the Premises at any time during Lessee’s occupancy and/or possession of the Premises. Lessee shall promptly assume its defense and indemnification obligations (with counsel reasonably acceptable to Lessor) upon written notice from any Indemnitee. Indemnitees may participate in, but not control, the defense of the claim at their own expense. At Lessee’s request, Indemnitees shall reasonably cooperate in the defense of a claim at their own expense. Lessee shall not settle any claim without Indemnitees’ agreement, which agreement shall not be unreasonably withheld. “Indemnitees” shall mean and include Lessor, any successor in interest to Lessor, and the respective officers, directors, trustees, employees, agents, successors, assigns, and insurers of Lessor or any successor of Lessor.

Section 15. Defaults; Remedies.

15.1 Defaults. The occurrence of any one or more of the following events shall constitute a material default and breach of this Lease by Lessee. (a) The vacating or abandonment of the Premises by Lessee. (b) The failure by Lessee to make any payment of rent or any other payment required to be made by Lessee hereunder, as and when due, where such failure shall continue for a period of ten (10) days after written notice thereof from Lessor to Lessee. In the event that Lessor serves Lessee with a Notice to Pay Rent or Quit pursuant to applicable Unlawful Detainer statutes such Notice to Pay Rent or Quit shall also constitute the notice required by this subsection.
(c) The failure by Lessee to observe or perform any of the covenants, conditions or provisions of this Lease to be observed or performed by Lessee, other than described in Subsection (b) above, where such failure shall continue for a period of thirty (30) days after written notice thereof from Lessor to Lessee; provided, however, that if the nature of Lessee’s default is such that more than thirty (30) days are reasonably required for its cure, then Lessee shall not be deemed to be in default if Lessee commenced such cure within said thirty (30) day period and thereafter diligently prosecutes such cure to completion. (d) (i) The making by Lessee of any general arrangement or assignment for the benefit of creditors; (ii) Lessee becomes a “debtor” as defined in 11 U.S.C. Section 101 or any similar or successor statute thereto (unless, in the case of a petition filed against Lessee, the same is dismissed within sixty (60) days); (iii) the appointment of a trustee or receiver to take possession of substantially all of Lessee’s assets located at the Premises or of Lessee’s interest in this Lease, where possession is not restored to Lessee within thirty (30) days; or (iv) the attachment, execution or other judicial seizure of substantially all of Lessee’s assets located at the Premises or of Lessee’s interest in this Lease, where such seizure is not discharged within thirty (30) days. If any provision of this Subsection 15 (d) is contrary to any applicable law, such provision shall be of no force or effect. (e) The discovery by Lessor that any financial statement given to Lessor by Lessee, any assignee of Lessee, any sublessee of Lessee, any successor in interest of #4..
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Water Well/Right-Of-Way Lease – Budget Pack Pump Lot – Well #25 11 Lessee or any guarantor of Lessee’s obligation hereunder, and any of them, was materially false.
(f) The occurrence of any Release or any condition in violation of Environmental Laws and Hazardous Materials provisions in Section 14. The failure of Lessee to comply with any applicable laws governing the Premises including but not limited to, occurrence of any Release or condition in violation of Environmental Laws and Hazardous Materials provisions in Section 14 and the failure to cure such noncompliance within the earlier of (i) thirty (30) days after delivery to Lessee from Lessor, or the applicable governmental authority, of written notice of such non-compliance, or (ii) any time required for compliance under applicable law.

15.2 Remedies. In the event of any such default or breach by Lessee, Lessor may at any time thereafter, with or without notice of demand and without limiting Lessor in the exercise of any right or remedy which Lessor may have by reason of such default or breach:
(a) Terminate Lessee’s right to possession of the Premises by any lawful means, in which case this Lease shall terminate and Lessee shall immediately surrender possession of the Premises to Lessor. In such event Lessor shall be entitled to recover from Lessee all damages incurred by Lessor by reason of Lessee’s default including, but not limited to: (i) the cost of recovering possession of the Premises; (ii) expenses of reletting, including necessary renovation and alteration of the Premises; (iii) reasonable attorney’s fees and collection costs; (iv) any real estate commission actually paid; and (v) the worth at the time of award by the court having jurisdiction thereof of the amount by which the unpaid rent for the balance of the term after the time of such award exceeds the amount of such rental loss for the same period that Lessee proves could be reasonably avoided.
(b) Maintain Lessee’s right to possession in which case this Lease shall continue in effect whether or not Lessee shall have abandoned the Premises. In such event Lessor shall be entitled to enforce all of Lessor’s rights and remedies under this Lease, including the right to recover the rent as it becomes due hereunder. (c) Pursue any other remedy now or hereafter available to Lessor under the law or at equity. Unpaid installments of rent and other unpaid monetary obligations of Lessee under the terms of this Lease shall bear interest as provided in Section 20.

15.4 Late Charges. Lessee acknowledges that late payment by Lessee to Lessor of rent and other sums due hereunder will cause Lessor to incur costs not contemplated by this Lease, the exact amount of which will be extremely difficult to ascertain. Such costs include, but are not limited to, processing and accounting charges, and late charges which may be imposed on Lessor by the terms of any mortgage or trust deed covering the #4..
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Water Well/Right-Of-Way Lease – Budget Pack Pump Lot – Well #25 12 Premises. Accordingly, if any installment of rent or any other sum due from Lessee shall not be received by Lessor or Lessor’s designee within ten (10) days after such amount shall be due, then, without any requirement for notice to Lessee, Lessee shall pay to Lessor, on demand, a late charge equal to 6% of such overdue amount. The parties acknowledge that it is impractical to determine the amount of Lessor’s damages in such instances and such late charge represents a fair and reasonable estimate of the costs Lessor will incur by reason of late payment by Lessee. Acceptance of such late charge by Lessor shall in no event constitute a waiver of Lessee’s default with respect to such overdue amount, nor prevent Lessor from exercising any of the other rights and remedies granted hereunder. In the event that a late charge is payable hereunder, whether or not collected, for three (3) installments of rent within any twelve (12) month period, then rent shall automatically become due and payable quarterly in advance, rather than monthly, notwithstanding Section 5 or any other provisions of this Lease to the contrary.

15.5 Impounds. In the event that a late charge is payable hereunder, whether or not collected, for three (3) installments of rent within any twelve (12) month period, or for any other monetary obligation of Lessee under the terms of this Lease, Lessee shall pay to Lessor, if Lessor shall so request, in addition to any other payments required under this Lease, a monthly advance installment, payable at the same time as the monthly rent, as estimated by Lessor, for real property taxes on the Premises which are payable by Lessee under the terms of this Lease. A fund for such installments shall be established by Lessor to insure payment when due, before delinquency, of any or all such real property taxes. If the amounts paid to Lessor by Lessee under the provisions of this Section 15 are insufficient to discharge the obligations of Lessee to pay such real property taxes as the same become due, Lessee shall pay to Lessor, upon Lessor’s demand, such additional sums necessary to pay such obligations. All moneys paid to Lessor under this Section may be intermingled with other money of Lessor and shall not bear interest. In the event of a default in the obligations of Lessee to perform under this Lease, then any balance remaining from funds paid to Lessor under the provisions of this Section may, at the option of Lessor, be applied to the payment of any monetary default of Lessee in lieu of being applied to the payment of real property tax.

Section 16. Condemnation.

16.2 Partial Taking. In the event of a partial taking of the Premises which does not result in a termination of this Lease pursuant to Section 16.1, rent shall be abated, effective as of the date possession of the Premises is required to be surrendered, in proportion to the part of the Premises so made unusable by Lessee. No award of any taking which does not result in a termination of this Lease pursuant to Section 16.1 shall be apportioned and Lessee hereby assigns to Lessor any award which may be made in such taking or #4..
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Water Well/Right-Of-Way Lease – Budget Pack Pump Lot – Well #25 13 condemnation, together with any and all rights of Lessee now or hereafter arising in or to the same or any part thereof; provided, however, Lessee shall be entitled to any award made to Lessee for the taking of personal property and fixtures belonging to Lessee or for Lessee’s relocation costs or business interruption compensation. Lessee, at Lessee’s expense, shall restore the portion of the Premises remaining usable to as near its former condition as reasonably possible.

16.3 Temporary Taking. No temporary taking of the Premises or of Lessee’s rights therein or under this Lease shall terminate this Lease or give Lessee any right to any abatement of rent hereunder. Any award made to Lessee by reason of any such temporary taking shall belong entirely to Lessee and Lessor shall not be entitled to share therein.

16.4 Sale. A sale by Lessor to any authority having the power of eminent domain, either under threat of condemnation or while condemnation proceedings are pending, shall be deemed a taking under the power of eminent domain for all purposes under this Section

16. Section 17. Estoppel Certificate.

17.1 Lessee shall at any time upon not less than ten (10) days’ prior written notice from Lessor execute, acknowledge and deliver to Lessor a statement in writing (i) certifying that this Lease is unmodified and in full force and effect (or, if modified, stating the nature of such modification and certifying that this Lease, as so modified, is in full force and effect) and the date to which the rent and other charges are paid in advance, if any, and (ii) acknowledging that there are not, to Lessee’s knowledge, any uncured defaults on the part of Lessor hereunder, or specifying such defaults if any are claimed. Any such statement may be conclusively relied upon by any prospective purchaser or encumbrancer of the Premises.

17.2 At Lessor’s option, Lessee’s failure to deliver such statement within such time shall be a material breach of this Lease or shall be conclusive upon Lessee (i) that this Lease is in full force and effect, without modification except as may be represented by Lessor, (ii) that there are no uncured defaults in Lessor’s performance, and (iii) that not more than one (1) month’s rent has been paid in advance.

17.3 If Lessor desires to finance, refinance, or sell the Premises, or any part thereof, Lessee shall deliver to any lender or purchaser designated by Lessor, such financial statements of Lessee as are prepared in the ordinary course by Lessee as may be reasonably requested by such lender or purchaser. Such statements shall include the past three years financial statements of Lessee. All such financial statements shall be received by Lessor and such lender or purchaser in confidence and shall be used only for the purposes herein set forth.

Section 18. Lessor’s Liability.

18.1 Limitation on Liability. Notwithstanding anything contained in this Lease to the contrary, the obligations of Lessor under this Lease (including any actual or alleged breach or default by Lessor) do not constitute personal obligations of the, directors, officers or shareholders of Lessor or Lessor’s partners, and Lessee shall not seek recourse against the individual directors, officers or shareholders of Lessor, or any of their personal assets for satisfaction of any liability with respect to this Lease. In addition, the liability of Lessor for its obligations under this Lease (including any liability as a result of any or alleged #4..
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Water Well/Right-Of-Way Lease – Budget Pack Pump Lot – Well #25 14 failure, breach of default by Lessor), shall be limited solely to, and Lessee’s and its successors’ and assigns’ sole and exclusive remedy shall be against, the Premises, and no other assets of Lessor.

18.2 Transfer of Lessor’s Interest. The term “Lessor” as used herein shall mean only the owner or owners at the time in question of the fee title or the leasehold under a ground lease of the Premises. In the event of any transfer of such title or interest, Lessor herein named (and in case of any subsequent transfers then the grantor) shall be relieved from and after the date of such transfer of all liability as respects Lessor’s obligations thereafter to be performed, provided that any funds in the hands of Lessor or the then grantor at the time of such transfer, in which Lessee has an interest, shall be delivered to the grantee. Subject to the foregoing limitations, the obligations contained in this Lease to be performed by Lessor shall be binding on Lessor’s successors and assigns, but only during their respective periods of ownership.

Section 19. Severability.

The invalidity of any provision of this Lease as determined by a court of competent jurisdiction shall in no way affect the validity of any other provision hereof.

Section 20. Interest on Past-due Obligations.

Except as expressly herein provided, any amount due to Lessor not paid when due shall bear interest at the rate equal to two percent (2%) in excess of the announced prime rate established by Wells Fargo Bank, N.A., in San Francisco, California, as of the date such sums are due but in no event in excess of the maximum rate allowable under law.

Payment of such interest shall not excuse or cure any default by Lessee under this Lease.

Section 21. Time of Essence.

Unless designated time periods are stated, time is of the essence in performance under each parties’ obligations under this Lease.

Section 22. Additional Rent.

Any and all monetary obligations of Lessee to Lessor under the terms of this Lease shall be deemed to be rent.

Section 23. Incorporation of Prior Agreements; Amendments.

This Lease contains all agreements of the parties with respect to any matter mentioned herein. No prior agreement or understanding pertaining to any such matter shall be effective. This Lease may be modified in writing only, signed by the parties in interest at the time of the modification. Except as otherwise stated in this Lease, Lessee hereby acknowledges that Lessor or any employees or agents has not made any oral or written warranties or representations to Lessee relative to the condition or use by Lessee of the Premises and Lessee acknowledges that Lessee assumes all responsibility regarding the Occupational Safety Health Act, the legal use and adaptability of the Premises and the compliance thereof with all applicable laws and regulations in effect during the term of this Lease.
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Water Well/Right-Of-Way Lease – Budget Pack Pump Lot – Well #25 15 Section 24. Notices.

Any notice required or permitted to be given hereunder shall be in writing and may be given by personal delivery, or by established overnight courier (e.g. Federal Express) or by certified mail, return receipt requested, and if given personally or by courier or mail, shall be deemed sufficiently given if addressed to Lessee or to Lessor at the address noted with the signature of the respective parties, as the case may be. Either party may by notice to the other specify a different address for notice purposes. A copy of all notices required or permitted to be given to Lessor hereunder shall be concurrently transmitted to such party or parties at such addresses as Lessor may from time to time hereafter designate by notice to Lessee.

Section 25. Waivers.

No waiver by Lessor of any provision hereof shall be deemed a waiver of any other provision hereof or of any subsequent breach by Lessee of the same or any other provision.

Lessor’s consent to, or approval of any act, shall not be deemed to render unnecessary the obtaining of Lessor’s consent to or approval of any subsequent act by Lessee. The acceptance of rent by Lessor shall not be a waiver of any preceding breach by Lessee of any provision hereof, other than the failure of Lessee to pay the particular rent so accepted, but not any late fee or interest thereon, regardless of Lessor’s knowledge of such preceding breach at the time of acceptance of such rent.

Section 26. Cumulative Remedies.

No remedy or election hereunder shall be deemed exclusive but shall, wherever possible, be cumulative with all other remedies at law or in equity.

Section 27. Covenants and Conditions.

Each provision of this Lease performable by Lessee shall be deemed both a covenant and a condition.

Section 28. Binding Effect; Choice of Law.

Subject to any provisions hereof restricting assignment or subletting by Lessee and subject to the provisions of Section 13, this Lease shall bind the parties, their personal representatives, successors and assigns. This Lease shall be governed by the laws of the State of California.

Section 29. Subordination.

29.1 This Lease shall be subordinate to any ground lease, mortgage, deed of trust, or any other hypothecation or security now or hereafter placed upon the real property of which the Premises are a part and to any and all advances made on the security thereof and to all renewals, modifications, consolidations, replacements and extensions thereof. If any mortgagee, trustee or ground lessor shall elect to have this Lease prior to the lien of its mortgage, deed of trust or ground lease, and shall give written notice thereof to Lessee, this Lease shall be deemed prior to such mortgage, deed of trust, or ground lease, whether this Lease is dated prior or subsequent to the date of said mortgage, deed of trust or ground lease or the date of recording thereof.
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Water Well/Right-Of-Way Lease – Budget Pack Pump Lot – Well #25 16 29.2 Lessee shall execute any documents required to effectuate an attornment, a subordination or to make this Lease prior to the lien of any mortgage, deed of trust or ground lease, as the case may be. Lessee’s failure to execute such documents within ten (10) days after written demand shall constitute a material default by Lessee hereunder, or, at Lessor’s option, Lessor may execute such documents on behalf of Lessee as Lessee’s attorney-in-fact. Lessee does hereby make, constitute and irrevocably appoint Lessor as Lessee’s attorney-in-fact and in Lessee’s name, place and stead, to execute such documents in accordance with this Section.

Section 30. Attorneys’ Fees.

If either party named herein brings an action to enforce the terms hereof or declare rights hereunder, the prevailing party in any such action, on trial or appeal, shall be entitled to his reasonable attorneys’ fees to be paid by the losing party as fixed by the court.

Section 31. Lessor’s Access.

Lessor and Lessor’s agents shall have the right to enter the Premises at reasonable times for the purpose of inspecting the same, showing the same to prospective purchasers, lenders, or lessees, and making such alterations, repairs, improvements or additions to the Premises of which they are a part as Lessor may deem necessary or desirable. Lessor may at any time place on or about the Premises any ordinary “For Sale” signs and Lessor may at any time place on or about the Premises any ordinary “For Lease” signs, all without rebate of rent or liability to Lessee.

Section 32. Auctions.

Lessee shall not conduct, nor permit to be conducted, either voluntarily or involuntarily, any auction upon the Premises without first having obtained Lessor’s prior written consent. Notwithstanding anything to the contrary in this Lease, Lessor shall not be obligated to exercise any standard of reasonableness in determining whether to grant such consent.

Section 33. Signs.

Lessee shall not place any sign upon the Premises without Lessor’s prior written consent, except for any signage reasonably related to Lessee's use of the Premises.

Section 34. Merger.

The voluntary or other surrender of this Lease by Lessee, or a mutual cancellation thereof, or a termination by Lessor, shall not work a merger, and shall, at the option of Lessor, terminate all or any existing subtenancies or may, at the option of Lessor, operate as an assignment to Lessor of any or all of such subtenancies.

Section 35. Quiet Possession.

Upon Lessee paying the rent for the Premises and observing and performing all of the covenants, and provisions on Lessee’s part to be observed and performed hereunder, Lessee shall have quiet possession of the Premises for the term subject to all of the provisions of this Lease.
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Water Well/Right-Of-Way Lease – Budget Pack Pump Lot – Well #25 17 Section 36. Security Measures.

Lessee hereby acknowledges that the rental payable to Lessor hereunder does not include the cost of guard service or other security measures, and that Lessor shall have no obligation whatsoever to provide same. Lessee assumes all responsibility for the protection of Lessee, its agents and invitees from acts of third parties.

Section 37. Easements.

Lessor reserves to itself the right, from time to time, to grant such easements, rights and dedications that Lessor deems necessary or desirable, and to cause the recordation of subdivision maps and restrictions, so long as such easements, rights, dedications, maps and restrictions do not unreasonably interfere with the use of the Premises by Lessee.

Lessee shall sign any of the aforementioned documents upon request of Lessor and failure to do so shall constitute a material breach of this Lease.

Section 38. Performance Under Protest.

If at any time a dispute shall arise as to any amount or sum of money to be paid by one party to the other under the provisions hereof, the party against whom the obligation to pay the money is asserted shall have the right to make payment “under protest” and such payment shall not be regarded as voluntary payment, and there shall survive the right on the part of said party to institute suit for recovery of such sum. If it shall be adjudged that there was no legal obligation on the part of said party to pay such sum or any part thereof, said party shall be entitled to recover such sum or so much thereof as it was not legally required to pay under the provisions of this Lease.

Section 39. Authority.

Lessee represents and warrants to Lessor that this Lease has been duly authorized, executed and delivered by Lessee.

Section 40. Terms and Headings.

The words “Lessor” and “Lessee” as used in this Lease shall include the plural as well as the singular. Words used in any gender include other genders. The Section headings of this Lease are not a part of this Lease and shall have no effect upon the construction or interpretation of any part of it. Any deletion of language from this Lease prior to its execution by Lessor and Lessee shall not be construed to raise any presumption, canon of construction or implication, including, without limitation, any implication that the parties intended thereby to state the converse of the deleted language.

Section 41. Exhibits and Riders.

All Exhibits and Riders attached to this Lease (which consist solely of Exhibit A) are hereby incorporated in this Lease for all purposes as though set forth at length herein.

Section 42. Successors and Assigns.

Subject to the provisions of Section 13, and except as otherwise provided in this Lease, all of the covenants, conditions and provisions of this Lease shall be binding upon, and shall inure to the benefit of, the parties and their respective heirs, personal #4..
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Water Well/Right-Of-Way Lease – Budget Pack Pump Lot – Well #25 18 representatives and permitted successors and assigns; provided, however, no rights shall inure to the benefit of any Transferee of Lessee unless the Transfer to such Transferee is made in compliance with the provisions of Section 13, and no options or other rights which are expressly made personal to the original Lessee shall be assignable to or exercisable by anyone other than the original Lessee under this Lease.

Section 43. Professional Fees.

If either Lessor or Lessee brings suit against the other with respect to this Lease, including for unlawful detainer or any other relief against the other of them, or otherwise enforces this Lease, then all costs and expenses incurred by the prevailing party (including without limitation, its actual appraisers, accountants’, attorneys’ and other professional fees, expenses and court costs), shall be paid by the other party, on demand.

Section 44. Nondisclosure of Lease Terms.

The terms of this Lease are confidential and constitute proprietary information of Lessor. Disclosure of the terms could adversely affect the ability of Lessor to negotiate other leases and impair Lessor’s relationship with other lessees. Accordingly, Lessee and its partners, officers, directors, employees, agents and attorneys shall not intentionally and voluntarily disclose the terms and conditions of this Lease to any newspaper or other publication or any other lessee or apparent prospective lessee or real estate agent, either directly or indirectly, without the prior written consent of Lessor, provided, however, that Lessee may disclose the terms to prospective subtenants or assignees under this Lease.

This Section 44 shall not apply to any disclosure required by applicable law (including, without limitation, the Public Records Act).

Section 45. Joint and Several Liability.

If more than one person or entity executes this Lease as Lessee: (a) each of them is and shall be jointly and severally liable for the covenants, conditions, provisions and agreements of this Lease to be kept, observed and performed by Lessee; and (b) the act or signature of, or notice from or to, any one or more of them with respect to this Lease shall be binding upon each and all of the persons and entities executing this Lease as Lessee with the same force and effect as if each and all of them had so acted or signed or given or received such notice. The person(s) signing this Lease on behalf of Lessee shall have no personal liability under this Lease.

Section 46. Broker Indemnification.

Lessee shall indemnify, defend and hold Lessor harmless from and against any claims, demands, liabilities, damages or expenses (including attorneys' fees and costs incurred in defending against any claim or demand) for brokerage commissions, finder fees or related costs incurred by Lessee or arising from any commitments or agreements alleged to have been made by Lessee relating to this Lease. Lessor shall indemnify, defend and hold Lessee harmless from and against any claims, demands, liabilities, damages or expenses (including attorneys' fees and costs incurred in defending against any claim or demand) for brokerage commissions, finder fees or related costs incurred by Lessor or arising from any commitments or agreements alleged to have been made by Lessor relating to this Lease. This Section 46 shall survive the expiration or earlier termination of the term of this Lease.
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Water Well/Right-Of-Way Lease – Budget Pack Pump Lot – Well #25 19 Section 47. Holding Over.

If Lessee holds over after the expiration or earlier termination of the Term, Lessee shall become a tenant at sufferance only, upon the terms and conditions set forth in this Lease so far as applicable (including Lessee’s obligation to pay all other additional charges under this Lease), but at a Monthly Basic Rent equal to: (a) two hundred percent (200%) of the Monthly Basic Rent applicable to the Premises immediately prior to the date of such expiration or earlier termination. Acceptance by Landlord of rent after such expiration or earlier termination shall not constitute a consent to a hold over or result in an extension of this Lease. Lessee shall pay an entire month’s Monthly Basic Rent calculated in accordance with this Section 47 for any portion of a month it holds over and remains in possession of the Premises.

Section 48. Subdivision Map Act.

Lessee represents and warrants to Lessor that the Subdivision Map Act is not applicable to this Lease, the execution and delivery of this Lease by Lessor is not a violation of the Subdivision Map Act and that this Lease is enforceable against Lessee in accordance with its terms. Lessee covenants and agrees that neither Lessee nor any other governmental authority or person has any rights under the Subdivision Map Act with respect to the Lease. Lessee covenants and agrees to indemnify, defend, protect and hold Lessor and Lessor Indemnified Parties harmless from and against, any and all claims, damages, judgments, suits, causes of action, losses, liabilities and expenses, including attorneys' fees and court costs, arising or resulting from a breach of any representation, warranty or covenant by Lessee under this Section 48. In case any action or proceeding is brought against Lessor or any Lessor Indemnified Parties with respect to any such indemnified claim, Lessee, upon notice from Lessor, shall defend the same at Lessee’s expense by counsel approved in writing by Lessor, which approval shall not be unreasonably withheld.

Lessee shall pay to Lessor, within thirty (30) days of receipt of an invoice, any expenses incurred by Lessor arising from any breach of any representation, warranty or covenant by Lessee in this Section 48. If there is a claim, or Lessor determines, that this Lease is in violation of the Subdivision Map Act, upon the written request of Lessor, Lessor and Lessee will enter into a modification to this Lease as may be deemed reasonably necessary or appropriate by Lessor to comply with the Subdivision Map Act. Lessee shall pay all out-ofpocket expenses incurred by Lessor in connection with such modification within thirty (30) days of receipt of an invoice. The representations, warranties and covenants by Lessee under this Section 48 are being made by Lessee to Lessor to induce Lessor to enter into the Lease and are being relied upon by Lessor; but for such representations, warranties and covenants, Lessor would not enter into this Lease.
(Signatures on next page)
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Water Well/Right-Of-Way Lease – Budget Pack Pump Lot – Well #25 20 LESSOR AND LESSEE HAVE CAREFULLY READ AND REVIEWED THIS LEASE

AND EACH TERM AND PROVISION CONTAINED HEREIN AND, BY EXECUTION OF THIS LEASE, SHOW THEIR INFORMED AND VOLUNTARY CONSENT THERETO. THE

PARTIES HEREBY AGREE THAT, AT THE TIME THIS LEASE IS EXECUTED, THE

TERMS OF THIS LEASE ARE COMMERCIALLY REASONABLE AND EFFECTUATE THE

INTENT AND PURPOSE OF LESSOR AND LESSEE WITH RESPECT TO THE PREMISES.

Lessor and Lessee have executed this Lease at the place and on the date specified immediately adjacent to their respective signatures.
“LESSOR”
Executed at Modesto, California BEARD LAND IMPROVEMENT COMPANY on ___________________, 2014.

By:
(Signature)
Address: 530 Eleventh Street Name:

Modesto, CA 95354 Title:

Taxpayer I.D.: 94-1562141
By: __________________________________
(Signature)
Name:

Title:
“LESSEE”

CITY OF MODESTO
Executed at Modesto, California By:
on ___________________, 2014. (Signature)
Name:

Address: _______________________ Title:
_______________________
Taxpayer I.D. By:
(Signature)
Name:

Title:
608861.2
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Water Well/Right-Of-Way Lease – Budget Pack Pump Lot – Well #25 21 #4..
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Water Well/Right-Of-Way Lease – Budget Pack Pump Lot – Well #25 22 #4..
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[Farrar Pump Lot]
Water Well/Right-Of-Way Lease – Farrar Pump Lot – Well #79 Section 1. Definitions ........................................................................................................... 1 Section 2. Premises. ............................................................................................................ 1 Section 3. Rules and Regulations. ....................................................................................... 1 Section 4. Term. .................................................................................................................. 1 Section 5. Rent. ................................................................................................................... 1 Section 6. Security Deposit. ............................................................................................... 2 Section 7. Use. .................................................................................................................... 2 Section 8. Maintenance, Repairs and Alterations. ............................................................... 3 Section 9. Insurance; Indemnity. .......................................................................................... 4 Section 10. Damage or Destruction. .................................................................................... 6 Section 11. Real Property Taxes. ........................................................................................ 6 Section 12. Utilities & Janitorial Services. ............................................................................ 7 Section 13. Assignment and Subletting. .............................................................................. 7 Section 14. Environmental Provisions.................................................................................. 8 Section 15. Defaults; Remedies. ........................................................................................ 10 Section 16. Condemnation. ............................................................................................... 12 Section 17. Estoppel Certificate. ........................................................................................ 13 Section 18. Lessor’s Liability.............................................................................................. 13 Section 19. Severability. .................................................................................................... 14 Section 20. Interest on Past-due Obligations. .................................................................... 14 Section 21. Time of Essence. ............................................................................................ 14 Section 22. Additional Rent................................................................................................ 14 Section 23. Incorporation of Prior Agreements; Amendments. .......................................... 14 Section 24. Notices. ........................................................................................................... 15 Section 25. Waivers. .......................................................................................................... 15 Section 26. Cumulative Remedies. .................................................................................... 15

WATER WELL/RIGHT-OF-WAY

LEASE-INDEX
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Water Well/Right-Of-Way Lease – Farrar Pump Lot – Well #79 ii
Section 27. Covenants and Conditions. ............................................................................. 15 Section 28. Binding Effect; Choice of Law. ........................................................................ 15 Section 29. Subordination. ................................................................................................. 15 Section 30. Attorneys’ Fees............................................................................................... 16 Section 31. Lessor’s Access.............................................................................................. 16 Section 32. Auctions. ......................................................................................................... 16 Section 33. Signs. .............................................................................................................. 16 Section 34. Merger. ........................................................................................................... 16 Section 35. Quiet Possession. ........................................................................................... 16 Section 36. Security Measures. ......................................................................................... 17 Section 37. Easements. ..................................................................................................... 17 Section 38. Performance Under Protest. ........................................................................... 17 Section 39. Authority. ......................................................................................................... 17 Section 40. Terms and Headings. ...................................................................................... 17 Section 41. Exhibits and Riders. ........................................................................................ 17 Section 42. Successors and Assigns. ................................................................................ 17 Section 43. Professional Fees. .......................................................................................... 18 Section 44. Nondisclosure of Lease Terms. ...................................................................... 18 Section 45. Joint and Several Liability. .............................................................................. 18 Section 46. Broker Indemnification. ................................................................................... 18 Section 47. Holding Over. .................................................................................................. 19 Section 48. Subdivision Map Act. ...................................................................................... 18 #4..
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Water Well/Right-Of-Way Lease – Farrar Pump Lot – Well #79

Section 1. Definitions
In addition to any other terms defined in this Lease, the following terms shall have the following meanings:

1.1 Premises. Premises shall mean that certain real property situated in the County of Stanislaus, State of California, commonly known as the land comprising Well Site No. 79, Farrar Pump Lot, located at Farrar Avenue, Modesto, California 95354, consisting of approximately 21,344.40 square feet as shown on Exhibit A attached.

1.2 Commencement Date. Commencement Date shall mean the date the term of this Lease is to commence as stated in Section 4.1.

Section 2. Premises.

2.1 Lease of Premises.

Lessor hereby leases to Lessee and Lessee leases from Lessor the Premises for the term, at the rental, and upon all of the conditions set forth herein.

Section 3. Rules and Regulations.

The violations of any such rules and regulations shall be deemed a material breach of this Lease by Lessee.

Section 4. Term.

4.2 Interim Term. The term of the Lease had renewed on a month-to-month basis effective July 1, 2009.

Section 5. Rent.

5.1 Monthly Rent. Lessee shall pay to Lessor during the term of the Lease as rent for the Premises monthly payments in advance on the first day of each month in the sum of $2,500.00, as adjusted pursuant to Section 5.4. Rent shall be paid to Lessor at the address of Lessor as stated in this Lease, or at such other address as may be designated by Lessor from time to time, without deduction or offset. Rent payable under this Section 5.1 shall be in addition to any other sums payable by Lessee to Lessor under this Lease. Rent for any #4..
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Water Well/Right-Of-Way Lease – Farrar Pump Lot – Well #79 2 period during the term which is for less than one (1) month shall be a pro rata portion of the monthly installment.

5.2 Lease Origination Fee. Not Applicable

5.3 Rent Payable on Execution. Not Applicable

5.4 Rental Adjustment. Beginning with January 1, 2016, and annually on each January 1 thereafter, the monthly rent shall be adjusted as follows:

Section 6. Security Deposit. There is no security deposit.

Section 7. Use.

7.1 Use by Tenant. Lessee shall use the Premises only for the production and distribution of water for commercial, domestic and industrial purposes, unless some other use is approved in writing by Lessor (with no obligation to do so). Such use shall include the right to construct, operate and maintain water wells, pipelines and/or mains and appurtenances necessary thereto. Lessee shall not use, or permit any other person or entity to use, the Premises, or any part thereof for any purpose in violation of the use stated in this Section 7.1, in violation of any law or ordinance of any governmental authority, or in a manner which constitutes a nuisance or unreasonably interferes with other tenants of the properties commonly known as the Beard Industrial District. Lessee shall not store, use or distribute any Hazardous Material (defined herein) on or about the Premises; provided however, that use and storage of materials customarily used in the course of pumping water for human consumption in accordance with Section 14.3 is excepted. #4..
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Water Well/Right-Of-Way Lease – Farrar Pump Lot – Well #79 3 7.2 Compliance with Law.
(a) Lessee, at Lessee’s expense, shall comply promptly with all applicable statutes, ordinances, rules, regulations, orders, covenants and restrictions of record, and requirements in effect during the term or any part of the term hereof which apply to the Premises or the use by Lessee of the Premises (the “Applicable Requirements”). (b) Lessee shall not use nor permit the use of the Premises in any manner that will tend to create waste or a nuisance.

Section 8. Maintenance, Repairs and Alterations.

8.2 Lessee’s Obligations.
(a) Lessee shall, at Lessee's sole expense, keep the Premises and the Alterations and Additions(as hereinafter defined) in good order, condition and repair (whether or not the need for such repairs occurs as a result of Lessee's use, any prior use, the elements or the age of such portion of the Premises). Lessee, in keeping the Premises in good order, condition and repair, shall exercise and perform good maintenance practices. (b) If Lessee fails to perform Lessee’s obligations under this Section 8.2 or under any other Section of this Lease, Lessor may at Lessor’s option enter upon the Premises after ten (10) days’ prior written notice to Lessee (except in the case of emergency, in which case no notice shall be required) perform such obligations on Lessee’s behalf and put the Premises in good order, condition and repair. The cost thereof shall be due and payable as additional rent to Lessor with Lessee’s next rental installment and the amount due shall bear interest until paid as provided in Section 20.
(c) On the last day of the term hereof, or on any sooner termination, Lessee shall surrender the Premises to Lessor in the same condition as received, ordinary wear and tear excepted, clean and free of debris, and unless Lessor otherwise directs, shall remove all fixtures and equipment (whatever water wells, machinery or pipes) installed by or for #4..
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Water Well/Right-Of-Way Lease – Farrar Pump Lot – Well #79 4 Lessee on the Premises, Alterations and Additions installed by Lessee and shall close the well in accordance with all requirements of applicable law or of Lessor for such closure. At Lessor’s request, Lessee shall deliver to Lessor a quitclaim deed releasing any interest or rights of Lessee in the Premises.

Section 9. Insurance; Indemnity.

9.1 Liability Insurance - Lessee. Lessee, at Lessee’s expense, shall obtain and keep in force during the term of this Lease a policy of Combined Single Limit Bodily Injury and Property Damage Insurance naming Lessor as an additional insured and insuring Lessee and Lessor against any liability arising out of the use, occupancy or maintenance of the Premises and all other areas appurtenant thereto. Such insurance shall be in an #4..
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Water Well/Right-Of-Way Lease – Farrar Pump Lot – Well #79 5 amount not less than $3,000,000 per occurrence naming Lessor as additional insured on such policy. Upon written notice from Lessor to Lessee, said policy amount shall be increased as reasonably required by Lessor during the term or any extensions. The policy shall provide for cross-liability coverage and insure performance by Lessee of the indemnity provisions of this Lease. The liability insurance of Lessee may include a self-insured retention of up to $1,000,000.00. The limits of the insurance, however, shall not limit the liability of Lessee hereunder.

9.4 Lessee’s Assumption of Risk and Waiver. Except to the extent such matter is not covered by the insurance required to be maintained by Lessee under this Lease and such matter is attributable to the negligence or willful misconduct of Lessor, Lessor shall not be liable to Lessee, Lessee’s employees, agents or invitees for: (i) any damage to property of Lessee, or of others, located in, on or about the Premises, (ii) the loss of or damage to any property of Lessee or of others by theft or otherwise, (iii) any injury or damage to persons or property resulting from fire, explosion, falling plaster, steam, gas, electricity, water, rain or leaks from any part of the Premises or from the pipes, appliance of plumbing works or from the roof, street or subsurface or from any other places or by dampness or by any other cause of whatsoever nature, or (iv) any such damage caused by other persons in the Premises, occupants of adjacent property, or the public, or caused by operations in construction of any private, public or quasi-public work. Lessor shall in no event be liable for any consequential damages or loss of business or profits and Lessee hereby waives any and all claims for any such damages. All property of Lessee kept or stored on the Premises shall be so kept or stored at the sole risk of Lessee and Lessee shall hold Lessor harmless from any claims arising out of damage to the same, including subrogation claims by Lessee’s insurance carriers, unless such damage shall be caused by the negligence or willful misconduct of Lessor.
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Water Well/Right-Of-Way Lease – Farrar Pump Lot – Well #79 6 9.5 Lessee’s Indemnification of Lessor. Lessee shall be liable for, and shall indemnify, defend, protect and hold Lessor and Lessor’s partners, officers, directors, employees, agents, successors and assigns (collectively, “Lessor Indemnified Parties”) harmless from and against, any and all claims, damages, judgments, suits, causes of action, losses, liabilities and expenses, including attorneys, fees and court costs (collectively, “Indemnified Claims”), arising or resulting from (i) any act or omission of Lessee or any of Lessee’s agents, employees, contractors, sublessees, assignees, licensees or, with respect to acts or omissions within the Premises solely, Lessee’s invitees (collectively, “Lessee Parties”); (ii) the use of the Premises and conduct of Lessee’s business by Lessee or any Lessee Parties, or any other activity, work or thing done, permitted or suffered by Lessee or any Lessee Parties, in or about the Premises; and (iii) any default by Lessee of any obligations on Lessee’s part to be performed under the terms of this Lease. In case any action or proceeding is brought against Lessor or any Lessor Indemnified Parties by reason of any such Indemnified Claims, Lessee, upon notice from Lessor, shall defend the same at Lessee’s expense by counsel approved in writing by Lessor, which approval shall not be unreasonably withheld.

Section 11. Real Property Taxes.

11.3 Definition of “Real Property Tax”. As used herein, the term “real property tax” shall include any form of real estate tax or assessment, general, special, supplementary, ordinary or extraordinary, and any license fee, commercial rental tax, improvement bond or bonds, levy or tax (other than inheritance, personal income or estate taxes) imposed on the Premises by any authority having the direct or indirect power to tax, including any city, state or federal government, or any school, agricultural, sanitary, fire, street, drainage or other improvement district thereof, as against any legal or equitable interest of Lessor in the Premises or in the real property of which the Premises are a part, as against Lessor’s right to rent or other income therefrom, and as against Lessor’s business of leasing the Premises. The term “real property tax” shall also include any tax, fee, levy assessment or charge (i) in substitution of, partially or totally, any tax, fee, levy assessment or charge hereinabove included within the definition of “real property tax,” or (ii) #4..
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Water Well/Right-Of-Way Lease – Farrar Pump Lot – Well #79 7 the nature of which was previously included within the definition of “real property tax,” or (iii) which is imposed for a service or right not charged prior to June 1, 1978, or, if previously charged, has been increased since June 1, 1978, or (iv) which is imposed as a result of a transfer, either partial or total, of Lessor’s interest in the Premises or which is added to a tax or charge hereinbefore included within the definition of real property tax by reason of such transfer, or (v) which is imposed by reason of this Lease, any modifications or changes hereto, or any transfers hereof. Clause (iv) of this Section 11.3 does not include a transfer tax due on a sale by Lessor, but does include any additional, or any increase in, real property taxes arising from a sale by Lessor.

Section 12. Utilities & Janitorial Services.

Section 13. Assignment and Subletting.

13.1 Lessor’s Consent Required. Subject to Section 13.2, Lessee shall not voluntarily or by operation of law assign, transfer, mortgage, sublet, or otherwise transfer or encumber all or any part of Lessee’s interest in this Lease or in the Premises, without Lessor’s prior written consent, which Lessor shall not unreasonably withhold. Lessor shall respond to Lessee’s request for consent hereunder in a timely manner and any attempted assignment, transfer, mortgage, encumbrance or subletting without such consent shall be void, and shall constitute a breach of this Lease.
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Water Well/Right-Of-Way Lease – Farrar Pump Lot – Well #79 8 13.2 Governmental Entity. Lessee may assign or sublet the Premises, or any portion thereof, without Lessor’s consent, to any governmental entity that will provide the services to the public in the City of Modesto, California for the production and distribution of water provided by Lessee prior to such assignment or sublet (which may include an entity for purposes of obtaining financing or a water district), provided that such assignee or sublessee assumes, in full, the obligations of Lessee under this Lease. Any such assignment shall not, in any way, affect or limit the liability of Lessee under the terms of this Lease even if after such assignment or subletting the terms of this Lease are materially changed or altered without the consent of Lessee, the consent of whom shall not be necessary. Any assignee or sublessee shall assume and be bound by all of the terms and provisions of this Lease including, but not limited to, the provisions of Section 7 which limit the permissible uses of the Premises. Lessor’s consent to any subleasing or assignment shall not be construed as acquiescence to any other use (unless this Lease is amended to permit such other use) or as a waiver of any other provisions of this Lease.

Section 14. Environmental Provisions.

14.1 Defined Terms.
(a) Hazardous Materials. For purposes of this Lease, “Hazardous Materials” shall mean any substance which is or becomes at any time during the term: (i) defined under any Environmental Law (defined below) as a hazardous substance, hazardous waste, hazardous material, pollutant or contaminant; (ii) a petroleum hydrocarbon, including crude oil or any fraction thereof; (iii) a hazardous, toxic, corrosive, flammable, explosive, #4..
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Water Well/Right-Of-Way Lease – Farrar Pump Lot – Well #79 9 infectious, radioactive, carcinogenic or a reproductive toxicant; or (iv) otherwise regulated under any Environmental Laws.
(b) Environmental Laws. For purposes of this Lease, “Environmental Laws” shall mean all present and future federal, state and local laws, statutes, ordinances, regulations, rules, judicial and administrative orders and decrees, permits, licenses, approvals, authorizations and similar requirements of all federal, state and local governmental agencies or other governmental entities with legal authority pertaining to the protection of human health and safety or the environment.
(c) Release. For purposes of this Lease, “Release” shall mean any accidental or intentional spilling, leaking, pumping, pouring, emitting, emptying, discharging, injection, escaping, leaching, migrating, dumping or disposing into the air, land, surface water, ground water or the environment (including without limitation the abandonment or discarding of receptacles containing any Hazardous Materials).

14.4 Environmental Indemnity. Lessee shall indemnify, defend, and hold all Indemnitees (as defined below) harmless from and against any and all claims, suits, causes of action, demands, losses, damages (including, without limitation, foreseeable and unforeseeable consequential damages and punitive damages), diminution of property value, liabilities, fines, penalties, costs, taxes, charges, administrative and judicial proceedings, orders, judgments, settlements, remedial actions and compliance requirements (including, without limitation, enforcement and clean-up actions), third-party claims (including, without limitation, tort, economic and property claims), natural resource damages, additional costs of ownership, maintenance and development of the Premises (over and above those incurred for the ownership, maintenance and development of the Premises as tendered to Lessee), expenses (including without limitation reasonable attorneys’ fees and expenses, costs of defense and costs and expenses of all experts and consultants) arising, directly or indirectly, out of: (a) any non-compliance by Lessee, or any of Lessee’s employees, #4..
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Water Well/Right-Of-Way Lease – Farrar Pump Lot – Well #79 10 agents, contractors, invitees or guests, with any Environmental Laws; (b) any use, storage, generation, production, Release, disposal or transportation by Lessee, or any of Lessee’s employees, agents, contractors, invitees or guests, of any Hazardous Materials at, on, in, about or under the Premises at any time during Lessee’s occupancy or possession of the Premises; or (c) the migration from the Premises, at any time, of any Hazardous Materials Released by Lessee, or any of Lessee’s employees, agents, contractors, invitees or guests, at, on, in, about, or under the Premises at any time during Lessee’s occupancy and/or possession of the Premises. Lessee shall promptly assume its defense and indemnification obligations (with counsel reasonably acceptable to Lessor) upon written notice from any Indemnitee. Indemnitees may participate in, but not control, the defense of the claim at their own expense. At Lessee’s request, Indemnitees shall reasonably cooperate in the defense of a claim at their own expense. Lessee shall not settle any claim without Indemnitees’ agreement, which agreement shall not be unreasonably withheld. “Indemnitees” shall mean and include Lessor, any successor in interest to Lessor, and the respective officers, directors, trustees, employees, agents, successors, assigns, and insurers of Lessor or any successor of Lessor.

Section 15. Defaults; Remedies.

15.1 Defaults. The occurrence of any one or more of the following events shall constitute a material default and breach of this Lease by Lessee. (a) The vacating or abandonment of the Premises by Lessee. (b) The failure by Lessee to make any payment of rent or any other payment required to be made by Lessee hereunder, as and when due, where such failure shall continue for a period of ten (10) days after written notice thereof from Lessor to Lessee. In the event that Lessor serves Lessee with a Notice to Pay Rent or Quit pursuant to applicable Unlawful Detainer statutes such Notice to Pay Rent or Quit shall also constitute the notice required by this subsection.
(c) The failure by Lessee to observe or perform any of the covenants, conditions or provisions of this Lease to be observed or performed by Lessee, other than described in Subsection (b) above, where such failure shall continue for a period of thirty (30) days after written notice thereof from Lessor to Lessee; provided, however, that if the nature of Lessee’s default is such that more than thirty (30) days are reasonably required for its cure, then Lessee shall not be deemed to be in default if Lessee commenced such cure within said thirty (30) day period and thereafter diligently prosecutes such cure to completion. (d) (i) The making by Lessee of any general arrangement or assignment for the benefit of creditors; (ii) Lessee becomes a “debtor” as defined in 11 U.S.C. Section 101 or any similar or successor statute thereto (unless, in the case of a petition filed against Lessee, the same is dismissed within sixty (60) days); (iii) the appointment of a trustee or receiver to take possession of substantially all of Lessee’s assets located at the Premises or of Lessee’s interest in this Lease, where possession is not restored to Lessee within thirty (30) days; or (iv) the attachment, execution or other judicial seizure of substantially all of Lessee’s assets located at the Premises or of Lessee’s interest in this Lease, where such seizure is not discharged within thirty (30) days. If any provision of this Subsection 15 (d) is contrary to any applicable law, such provision shall be of no force or effect. (e) The discovery by Lessor that any financial statement given to Lessor by Lessee, any assignee of Lessee, any sublessee of Lessee, any successor in interest of #4..
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Water Well/Right-Of-Way Lease – Farrar Pump Lot – Well #79 11 Lessee or any guarantor of Lessee’s obligation hereunder, and any of them, was materially false.
(f) The occurrence of any Release or any condition in violation of Environmental Laws and Hazardous Materials provisions in Section 14. The failure of Lessee to comply with any applicable laws governing the Premises including but not limited to, occurrence of any Release or condition in violation of Environmental Laws and Hazardous Materials provisions in Section 14 and the failure to cure such noncompliance within the earlier of (i) thirty (30) days after delivery to Lessee from Lessor, or the applicable governmental authority, of written notice of such non-compliance, or (ii) any time required for compliance under applicable law.

15.4 Late Charges. Lessee acknowledges that late payment by Lessee to Lessor of rent and other sums due hereunder will cause Lessor to incur costs not contemplated by this Lease, the exact amount of which will be extremely difficult to ascertain. Such costs include, but are not limited to, processing and accounting charges, and late charges which may be imposed on Lessor by the terms of any mortgage or trust deed covering the #4..
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Water Well/Right-Of-Way Lease – Farrar Pump Lot – Well #79 12 Premises. Accordingly, if any installment of rent or any other sum due from Lessee shall not be received by Lessor or Lessor’s designee within ten (10) days after such amount shall be due, then, without any requirement for notice to Lessee, Lessee shall pay to Lessor, on demand, a late charge equal to 6% of such overdue amount. The parties acknowledge that it is impractical to determine the amount of Lessor’s damages in such instances and such late charge represents a fair and reasonable estimate of the costs Lessor will incur by reason of late payment by Lessee. Acceptance of such late charge by Lessor shall in no event constitute a waiver of Lessee’s default with respect to such overdue amount, nor prevent Lessor from exercising any of the other rights and remedies granted hereunder. In the event that a late charge is payable hereunder, whether or not collected, for three (3) installments of rent within any twelve (12) month period, then rent shall automatically become due and payable quarterly in advance, rather than monthly, notwithstanding Section 5 or any other provisions of this Lease to the contrary.

Section 16. Condemnation.

16.2 Partial Taking. In the event of a partial taking of the Premises which does not result in a termination of this Lease pursuant to Section 16.1, rent shall be abated, effective as of the date possession of the Premises is required to be surrendered, in proportion to the part of the Premises so made unusable by Lessee. No award of any taking which does not result in a termination of this Lease pursuant to Section 16.1 shall be apportioned and Lessee hereby assigns to Lessor any award which may be made in such taking or #4..
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Water Well/Right-Of-Way Lease – Farrar Pump Lot – Well #79 13 condemnation, together with any and all rights of Lessee now or hereafter arising in or to the same or any part thereof; provided, however, Lessee shall be entitled to any award made to Lessee for the taking of personal property and fixtures belonging to Lessee or for Lessee’s relocation costs or business interruption compensation. Lessee, at Lessee’s expense, shall restore the portion of the Premises remaining usable to as near its former condition as reasonably possible.

16. Section 17. Estoppel Certificate.

Section 18. Lessor’s Liability.

18.1 Limitation on Liability. Notwithstanding anything contained in this Lease to the contrary, the obligations of Lessor under this Lease (including any actual or alleged breach or default by Lessor) do not constitute personal obligations of the, directors, officers or shareholders of Lessor or Lessor’s partners, and Lessee shall not seek recourse against the individual directors, officers or shareholders of Lessor, or any of their personal assets for satisfaction of any liability with respect to this Lease. In addition, the liability of Lessor for its obligations under this Lease (including any liability as a result of any or alleged #4..
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Water Well/Right-Of-Way Lease – Farrar Pump Lot – Well #79 14 failure, breach of default by Lessor), shall be limited solely to, and Lessee’s and its successors’ and assigns’ sole and exclusive remedy shall be against, the Premises, and no other assets of Lessor.

Section 19. Severability.

The invalidity of any provision of this Lease as determined by a court of competent jurisdiction shall in no way affect the validity of any other provision hereof.

Section 20. Interest on Past-due Obligations.

Payment of such interest shall not excuse or cure any default by Lessee under this Lease.

Section 21. Time of Essence.

Unless designated time periods are stated, time is of the essence in performance under each parties’ obligations under this Lease.

Section 22. Additional Rent.

Any and all monetary obligations of Lessee to Lessor under the terms of this Lease shall be deemed to be rent.

Section 23. Incorporation of Prior Agreements; Amendments.

This Lease contains all agreements of the parties with respect to any matter mentioned herein. No prior agreement or understanding pertaining to any such matter shall be effective. This Lease may be modified in writing only, signed by the parties in interest at the time of the modification. Except as otherwise stated in this Lease, Lessee hereby acknowledges that Lessor or any employees or agents has not made any oral or written warranties or representations to Lessee relative to the condition or use by Lessee of the Premises and Lessee acknowledges that Lessee assumes all responsibility regarding the Occupational Safety Health Act, the legal use and adaptability of the Premises and the compliance thereof with all applicable laws and regulations in effect during the term of this Lease.
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Water Well/Right-Of-Way Lease – Farrar Pump Lot – Well #79 15 Section 24. Notices.

Section 25. Waivers.

No waiver by Lessor of any provision hereof shall be deemed a waiver of any other provision hereof or of any subsequent breach by Lessee of the same or any other provision.

Section 26. Cumulative Remedies.

No remedy or election hereunder shall be deemed exclusive but shall, wherever possible, be cumulative with all other remedies at law or in equity.

Section 27. Covenants and Conditions.

Each provision of this Lease performable by Lessee shall be deemed both a covenant and a condition.

Section 28. Binding Effect; Choice of Law.

Section 29. Subordination.

29.1 This Lease shall be subordinate to any ground lease, mortgage, deed of trust, or any other hypothecation or security now or hereafter placed upon the real property of which the Premises are a part and to any and all advances made on the security thereof and to all renewals, modifications, consolidations, replacements and extensions thereof. If any mortgagee, trustee or ground lessor shall elect to have this Lease prior to the lien of its mortgage, deed of trust or ground lease, and shall give written notice thereof to Lessee, this Lease shall be deemed prior to such mortgage, deed of trust, or ground lease, whether this Lease is dated prior or subsequent to the date of said mortgage, deed of trust or ground lease or the date of recording thereof.
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Water Well/Right-Of-Way Lease – Farrar Pump Lot – Well #79 16 29.2 Lessee shall execute any documents required to effectuate an attornment, a subordination or to make this Lease prior to the lien of any mortgage, deed of trust or ground lease, as the case may be. Lessee’s failure to execute such documents within ten (10) days after written demand shall constitute a material default by Lessee hereunder, or, at Lessor’s option, Lessor may execute such documents on behalf of Lessee as Lessee’s attorney-in-fact. Lessee does hereby make, constitute and irrevocably appoint Lessor as Lessee’s attorney-in-fact and in Lessee’s name, place and stead, to execute such documents in accordance with this Section.

Section 30. Attorneys’ Fees.

Section 31. Lessor’s Access.

Section 32. Auctions.

Section 33. Signs.

Lessee shall not place any sign upon the Premises without Lessor’s prior written consent, except for any signage reasonably related to Lessee's use of the Premises.

Section 34. Merger.

Section 35. Quiet Possession.

Upon Lessee paying the rent for the Premises and observing and performing all of the covenants, and provisions on Lessee’s part to be observed and performed hereunder, Lessee shall have quiet possession of the Premises for the term subject to all of the provisions of this Lease.
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Water Well/Right-Of-Way Lease – Farrar Pump Lot – Well #79 17 Section 36. Security Measures.

Section 37. Easements.

Lessee shall sign any of the aforementioned documents upon request of Lessor and failure to do so shall constitute a material breach of this Lease.

Section 38. Performance Under Protest.

Section 39. Authority.

Lessee represents and warrants to Lessor that this Lease has been duly authorized, executed and delivered by Lessee.

Section 40. Terms and Headings.

Section 41. Exhibits and Riders.

All Exhibits and Riders attached to this Lease (which consist solely of Exhibit A) are hereby incorporated in this Lease for all purposes as though set forth at length herein.

Section 42. Successors and Assigns.

Subject to the provisions of Section 13, and except as otherwise provided in this Lease, all of the covenants, conditions and provisions of this Lease shall be binding upon, and shall inure to the benefit of, the parties and their respective heirs, personal #4..
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Water Well/Right-Of-Way Lease – Farrar Pump Lot – Well #79 18 representatives and permitted successors and assigns; provided, however, no rights shall inure to the benefit of any Transferee of Lessee unless the Transfer to such Transferee is made in compliance with the provisions of Section 13, and no options or other rights which are expressly made personal to the original Lessee shall be assignable to or exercisable by anyone other than the original Lessee under this Lease.

Section 43. Professional Fees.

Section 44. Nondisclosure of Lease Terms.

This Section 44 shall not apply to any disclosure required by applicable law (including, without limitation, the Public Records Act).

Section 45. Joint and Several Liability.

Section 46. Broker Indemnification.

Lessee shall indemnify, defend and hold Lessor harmless from and against any claims, demands, liabilities, damages or expenses (including attorneys' fees and costs incurred in defending against any claim or demand) for brokerage commissions, finder fees or related costs incurred by Lessee or arising from any commitments or agreements alleged to have been made by Lessee relating to this Lease. Lessor shall indemnify, defend and hold Lessee harmless from and against any claims, demands, liabilities, damages or expenses (including attorneys' fees and costs incurred in defending against any claim or demand) for brokerage commissions, finder fees or related costs incurred by Lessor or arising from any commitments or agreements alleged to have been made by Lessor relating to this Lease. This Section 46 shall survive the expiration or earlier termination of the term of this Lease.
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Water Well/Right-Of-Way Lease – Farrar Pump Lot – Well #79 19 Section 47. Holding Over.

Section 48. Subdivision Map Act.

Lessee shall pay to Lessor, within thirty (30) days of receipt of an invoice, any expenses incurred by Lessor arising from any breach of any representation, warranty or covenant by Lessee in this Section 48. If there is a claim, or Lessor determines, that this Lease is in violation of the Subdivision Map Act, upon the written request of Lessor, Lessor and Lessee will enter into a modification to this Lease as may be deemed reasonably necessary or appropriate by Lessor to comply with the Subdivision Map Act. Lessee shall pay all out-ofpocket expenses incurred by Lessor in connection with such modification within thirty (30) days of receipt of an invoice. The representations, warranties and covenants by Lessee under this Section 48 are being made by Lessee to Lessor to induce Lessor to enter into the Lease and are being relied upon by Lessor; but for such representations, warranties and covenants, Lessor would not enter into this Lease.
(Signatures on next page)
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Water Well/Right-Of-Way Lease – Farrar Pump Lot – Well #79 20 LESSOR AND LESSEE HAVE CAREFULLY READ AND REVIEWED THIS LEASE

AND EACH TERM AND PROVISION CONTAINED HEREIN AND, BY EXECUTION OF THIS LEASE, SHOW THEIR INFORMED AND VOLUNTARY CONSENT THERETO. THE

PARTIES HEREBY AGREE THAT, AT THE TIME THIS LEASE IS EXECUTED, THE

TERMS OF THIS LEASE ARE COMMERCIALLY REASONABLE AND EFFECTUATE THE

INTENT AND PURPOSE OF LESSOR AND LESSEE WITH RESPECT TO THE PREMISES.

By:
(Signature)
Address: 530 Eleventh Street Name:

Modesto, CA 95354 Title:

Taxpayer I.D.: 94-1562141
By: __________________________________
(Signature)
Name:

Title:
“LESSEE”

CITY OF MODESTO
Executed at Modesto, California By:
on ___________________, 2014. (Signature)
Name:

Address: _______________________ Title:
_______________________
Taxpayer I.D. By:
(Signature)
Name:

Title:
608861.2
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Water Well/Right-Of-Way Lease – Farrar Pump Lot – Well #79 21 #4..
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Water Well/Right-Of-Way Lease – Farrar Pump Lot – Well #79 22 #4..
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[S. McClure Pump Lot]
Water Well/Right-Of-Way Lease – S. McClure Pump Lot - Well #1 Section 1. Definitions ........................................................................................................... 1 Section 2. Premises. ............................................................................................................ 1 Section 3. Rules and Regulations. ....................................................................................... 1 Section 4. Term. .................................................................................................................. 1 Section 5. Rent. ................................................................................................................... 1 Section 6. Security Deposit. ............................................................................................... 2 Section 7. Use. .................................................................................................................... 2 Section 8. Maintenance, Repairs and Alterations. ............................................................... 3 Section 9. Insurance; Indemnity. .......................................................................................... 5 Section 10. Damage or Destruction. .................................................................................... 6 Section 11. Real Property Taxes. ........................................................................................ 6 Section 12. Utilities & Janitorial Services. ............................................................................ 7 Section 13. Assignment and Subletting. .............................................................................. 7 Section 14. Environmental Provisions.................................................................................. 8 Section 15. Defaults; Remedies. ........................................................................................ 10 Section 16. Condemnation. ............................................................................................... 12 Section 17. Estoppel Certificate. ........................................................................................ 13 Section 18. Lessor’s Liability.............................................................................................. 14 Section 19. Severability. .................................................................................................... 14 Section 20. Interest on Past-due Obligations. .................................................................... 14 Section 21. Time of Essence. ............................................................................................ 14 Section 22. Additional Rent................................................................................................ 14 Section 23. Incorporation of Prior Agreements; Amendments. .......................................... 14 Section 24. Notices. ........................................................................................................... 15 Section 25. Waivers. .......................................................................................................... 15 Section 26. Cumulative Remedies. .................................................................................... 15

WATER WELL/RIGHT-OF-WAY

LEASE-INDEX
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Water Well/Right-Of-Way Lease – S. McClure Pump Lot - Well #1 ii
Section 27. Covenants and Conditions. ............................................................................. 15 Section 28. Binding Effect; Choice of Law. ........................................................................ 15 Section 29. Subordination. ................................................................................................. 15 Section 30. Attorneys’ Fees............................................................................................... 16 Section 31. Lessor’s Access.............................................................................................. 16 Section 32. Auctions. ......................................................................................................... 16 Section 33. Signs. .............................................................................................................. 16 Section 34. Merger. ........................................................................................................... 16 Section 35. Quiet Possession. ........................................................................................... 17 Section 36. Security Measures. ......................................................................................... 17 Section 37. Easements. ..................................................................................................... 17 Section 38. Performance Under Protest. ........................................................................... 17 Section 39. Authority. ......................................................................................................... 17 Section 40. Terms and Headings. ...................................................................................... 17 Section 41. Exhibits and Riders. ........................................................................................ 18 Section 42. Successors and Assigns. ................................................................................ 18 Section 43. Professional Fees. .......................................................................................... 18 Section 44. Nondisclosure of Lease Terms. ...................................................................... 18 Section 45. Joint and Several Liability. .............................................................................. 18 Section 46. Broker Indemnification. ................................................................................... 18 Section 47. Holding Over. .................................................................................................. 19 Section 48. Subdivision Map Act. ...................................................................................... 18 #4..
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Water Well/Right-Of-Way Lease – S. McClure Pump Lot - Well #1

WATER WELL/RIGHT-OF-WAY LEASE
This Water Well/Right-of-Way Lease (this “Lease”) dated effective 4 August 2014 is made by and between MODESTO AND EMPIRE TRACTION COMPANY, a California corporation (“Lessor”), and CITY OF MODESTO, a California municipal corporation (“Lessee”).

Section 1. Definitions
In addition to any other terms defined in this Lease, the following terms shall have the following meanings:

1.1 Premises. Premises shall mean that certain real property situated in the County of Stanislaus, State of California, commonly known as the land comprising Well Site No. 1, S. McClure Pump Lot, located at McClure Road, Modesto, California 95357, consisting of approximately 10,000.00 square feet as shown on Exhibit A attached.

1.2 Commencement Date. Commencement Date shall mean the date the term of this Lease is to commence as stated in Section 4.1.

Section 2. Premises.

2.1 Lease of Premises.

Lessor hereby leases to Lessee and Lessee leases from Lessor the Premises for the term, at the rental, and upon all of the conditions set forth herein.

Section 3. Rules and Regulations.

The violations of any such rules and regulations shall be deemed a material breach of this Lease by Lessee.

Section 4. Term.

4.2 Interim Term. The term of the Lease had renewed on a month-to-month basis effective July 1, 2009.

Section 5. Rent.

5.1 Monthly Rent. Lessee shall pay to Lessor during the term of the Lease as rent for the Premises monthly payments in advance on the first day of each month in the sum of $2,500.00, as adjusted pursuant to Section 5.4. Rent shall be paid to Lessor at the address of Lessor as stated in this Lease, or at such other address as may be designated by Lessor from time to time, without deduction or offset. Rent payable under this Section 5.1 shall be #4..
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Water Well/Right-Of-Way Lease – S. McClure Pump Lot - Well #1 2 in addition to any other sums payable by Lessee to Lessor under this Lease. Rent for any period during the term which is for less than one (1) month shall be a pro rata portion of the monthly installment.

5.2 Lease Origination Fee. Not Applicable

5.3 Rent Payable on Execution. Not Applicable

5.4 Rental Adjustment. Beginning with January 1, 2016, and annually on each January 1 thereafter, the monthly rent shall be adjusted as follows:

Section 6. Security Deposit. There is no security deposit.

Section 7. Use.

7.2 Compliance with Law.
(a) Lessee, at Lessee’s expense, shall comply promptly with all applicable statutes, ordinances, rules, regulations, orders, covenants and restrictions of record, and requirements in effect during the term or any part of the term hereof which apply to the Premises or the use by Lessee of the Premises (the “Applicable Requirements”). (b) Lessee shall not use nor permit the use of the Premises in any manner that will tend to create waste or a nuisance.

Section 8. Maintenance, Repairs and Alterations.

8.2 Lessee’s Obligations.
(a) Lessee shall, at Lessee's sole expense, keep the Premises and the Alterations and Additions(as hereinafter defined) in good order, condition and repair (whether or not the need for such repairs occurs as a result of Lessee's use, any prior use, the elements or the age of such portion of the Premises). Lessee, in keeping the Premises in good order, condition and repair, shall exercise and perform good maintenance practices. (b) If Lessee fails to perform Lessee’s obligations under this Section 8.2 or under any other Section of this Lease, Lessor may at Lessor’s option enter upon the Premises after ten (10) days’ prior written notice to Lessee (except in the case of emergency, in which case no notice shall be required) perform such obligations on Lessee’s behalf and put the Premises in good order, condition and repair. The cost thereof shall be due and payable as additional rent to Lessor with Lessee’s next rental installment and the amount due shall bear interest until paid as provided in Section 20.
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Water Well/Right-Of-Way Lease – S. McClure Pump Lot - Well #1 4 (c) On the last day of the term hereof, or on any sooner termination, Lessee shall surrender the Premises to Lessor in the same condition as received, ordinary wear and tear excepted, clean and free of debris, and unless Lessor otherwise directs, shall remove all fixtures and equipment (whatever water wells, machinery or pipes) installed by or for Lessee on the Premises, Alterations and Additions installed by Lessee and shall close the well in accordance with all requirements of applicable law or of Lessor for such closure. At Lessor’s request, Lessee shall deliver to Lessor a quitclaim deed releasing any interest or rights of Lessee in the Premises.

9.1 Liability Insurance - Lessee. Lessee, at Lessee’s expense, shall obtain and keep in force during the term of this Lease a policy of Combined Single Limit Bodily Injury and Property Damage Insurance naming Lessor as an additional insured and insuring Lessee and Lessor against any liability arising out of the use, occupancy or maintenance of the Premises and all other areas appurtenant thereto. Such insurance shall be in an amount not less than $3,000,000 per occurrence naming Lessor as additional insured on such policy. Upon written notice from Lessor to Lessee, said policy amount shall be increased as reasonably required by Lessor during the term or any extensions. The policy shall provide for cross-liability coverage and insure performance by Lessee of the indemnity provisions of this Lease. The liability insurance of Lessee may include a self-insured retention of up to $1,000,000.00. The limits of the insurance, however, shall not limit the liability of Lessee hereunder.

9.5 Lessee’s Indemnification of Lessor. Lessee shall be liable for, and shall indemnify, defend, protect and hold Lessor and Lessor’s partners, officers, directors, employees, agents, successors and assigns (collectively, “Lessor Indemnified Parties”) harmless from and against, any and all claims, damages, judgments, suits, causes of action, losses, liabilities and expenses, including attorneys, fees and court costs (collectively, “Indemnified Claims”), arising or resulting from (i) any act or omission of Lessee or any of Lessee’s agents, employees, contractors, sublessees, assignees, licensees or, with respect to acts or omissions within the Premises solely, Lessee’s invitees (collectively, “Lessee Parties”); (ii) the use of the Premises and conduct of Lessee’s business by Lessee or any Lessee Parties, or any other activity, work or thing done, permitted or suffered by Lessee or any Lessee Parties, in or about the Premises; and (iii) any default by Lessee of any obligations on Lessee’s part to be performed under the terms of this Lease. In case any action or proceeding is brought against Lessor or any Lessor Indemnified Parties by reason of any such Indemnified Claims, Lessee, upon notice from Lessor, shall defend the same at Lessee’s expense by counsel approved in writing by Lessor, which approval shall not be unreasonably withheld.

Section 11. Real Property Taxes.

11.3 Definition of “Real Property Tax”. As used herein, the term “real property tax” shall include any form of real estate tax or assessment, general, special, supplementary, ordinary or extraordinary, and any license fee, commercial rental tax, improvement bond or bonds, levy or tax (other than inheritance, personal income or estate taxes) imposed on the Premises by any authority having the direct or indirect power to tax, including any city, state or federal government, or any school, agricultural, sanitary, fire, #4..
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Water Well/Right-Of-Way Lease – S. McClure Pump Lot - Well #1 7 street, drainage or other improvement district thereof, as against any legal or equitable interest of Lessor in the Premises or in the real property of which the Premises are a part, as against Lessor’s right to rent or other income therefrom, and as against Lessor’s business of leasing the Premises. The term “real property tax” shall also include any tax, fee, levy assessment or charge (i) in substitution of, partially or totally, any tax, fee, levy assessment or charge hereinabove included within the definition of “real property tax,” or (ii) the nature of which was previously included within the definition of “real property tax,” or (iii) which is imposed for a service or right not charged prior to June 1, 1978, or, if previously charged, has been increased since June 1, 1978, or (iv) which is imposed as a result of a transfer, either partial or total, of Lessor’s interest in the Premises or which is added to a tax or charge hereinbefore included within the definition of real property tax by reason of such transfer, or (v) which is imposed by reason of this Lease, any modifications or changes hereto, or any transfers hereof. Clause (iv) of this Section 11.3 does not include a transfer tax due on a sale by Lessor, but does include any additional, or any increase in, real property taxes arising from a sale by Lessor.

Section 12. Utilities & Janitorial Services.

Section 13. Assignment and Subletting.

13.2 Governmental Entity. Lessee may assign or sublet the Premises, or any portion thereof, without Lessor’s consent, to any governmental entity that will provide the services to the public in the City of Modesto, California for the production and distribution of water provided by Lessee prior to such assignment or sublet (which may include an entity for purposes of obtaining financing or a water district), provided that such assignee or sublessee assumes, in full, the obligations of Lessee under this Lease. Any such assignment shall not, in any way, affect or limit the liability of Lessee under the terms of this Lease even if after such assignment or subletting the terms of this Lease are materially changed or altered without the consent of Lessee, the consent of whom shall not be necessary. Any assignee or sublessee shall assume and be bound by all of the terms and provisions of this Lease including, but not limited to, the provisions of Section 7 which limit the permissible uses of the Premises. Lessor’s consent to any subleasing or assignment shall not be construed as acquiescence to any other use (unless this Lease is amended to permit such other use) or as a waiver of any other provisions of this Lease.

Section 14. Environmental Provisions.

14.1 Defined Terms.
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Water Well/Right-Of-Way Lease – S. McClure Pump Lot - Well #1 9 (a) Hazardous Materials. For purposes of this Lease, “Hazardous Materials” shall mean any substance which is or becomes at any time during the term: (i) defined under any Environmental Law (defined below) as a hazardous substance, hazardous waste, hazardous material, pollutant or contaminant; (ii) a petroleum hydrocarbon, including crude oil or any fraction thereof; (iii) a hazardous, toxic, corrosive, flammable, explosive, infectious, radioactive, carcinogenic or a reproductive toxicant; or (iv) otherwise regulated under any Environmental Laws.
(b) Environmental Laws. For purposes of this Lease, “Environmental Laws” shall mean all present and future federal, state and local laws, statutes, ordinances, regulations, rules, judicial and administrative orders and decrees, permits, licenses, approvals, authorizations and similar requirements of all federal, state and local governmental agencies or other governmental entities with legal authority pertaining to the protection of human health and safety or the environment.
(c) Release. For purposes of this Lease, “Release” shall mean any accidental or intentional spilling, leaking, pumping, pouring, emitting, emptying, discharging, injection, escaping, leaching, migrating, dumping or disposing into the air, land, surface water, ground water or the environment (including without limitation the abandonment or discarding of receptacles containing any Hazardous Materials).

14.4 Environmental Indemnity. Lessee shall indemnify, defend, and hold all Indemnitees (as defined below) harmless from and against any and all claims, suits, causes of action, demands, losses, damages (including, without limitation, foreseeable and unforeseeable consequential damages and punitive damages), diminution of property value, liabilities, fines, penalties, costs, taxes, charges, administrative and judicial proceedings, orders, judgments, settlements, remedial actions and compliance requirements (including, without limitation, enforcement and clean-up actions), third-party claims (including, without limitation, tort, economic and property claims), natural resource damages, additional costs #4..
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Water Well/Right-Of-Way Lease – S. McClure Pump Lot - Well #1 10 of ownership, maintenance and development of the Premises (over and above those incurred for the ownership, maintenance and development of the Premises as tendered to Lessee), expenses (including without limitation reasonable attorneys’ fees and expenses, costs of defense and costs and expenses of all experts and consultants) arising, directly or indirectly, out of: (a) any non-compliance by Lessee, or any of Lessee’s employees, agents, contractors, invitees or guests, with any Environmental Laws; (b) any use, storage, generation, production, Release, disposal or transportation by Lessee, or any of Lessee’s employees, agents, contractors, invitees or guests, of any Hazardous Materials at, on, in, about or under the Premises at any time during Lessee’s occupancy or possession of the Premises; or (c) the migration from the Premises, at any time, of any Hazardous Materials Released by Lessee, or any of Lessee’s employees, agents, contractors, invitees or guests, at, on, in, about, or under the Premises at any time during Lessee’s occupancy and/or possession of the Premises. Lessee shall promptly assume its defense and indemnification obligations (with counsel reasonably acceptable to Lessor) upon written notice from any Indemnitee. Indemnitees may participate in, but not control, the defense of the claim at their own expense. At Lessee’s request, Indemnitees shall reasonably cooperate in the defense of a claim at their own expense. Lessee shall not settle any claim without Indemnitees’ agreement, which agreement shall not be unreasonably withheld. “Indemnitees” shall mean and include Lessor, any successor in interest to Lessor, and the respective officers, directors, trustees, employees, agents, successors, assigns, and insurers of Lessor or any successor of Lessor.

Section 15. Defaults; Remedies.

15.1 Defaults. The occurrence of any one or more of the following events shall constitute a material default and breach of this Lease by Lessee. (a) The vacating or abandonment of the Premises by Lessee. (b) The failure by Lessee to make any payment of rent or any other payment required to be made by Lessee hereunder, as and when due, where such failure shall continue for a period of ten (10) days after written notice thereof from Lessor to Lessee. In the event that Lessor serves Lessee with a Notice to Pay Rent or Quit pursuant to applicable Unlawful Detainer statutes such Notice to Pay Rent or Quit shall also constitute the notice required by this subsection.
(c) The failure by Lessee to observe or perform any of the covenants, conditions or provisions of this Lease to be observed or performed by Lessee, other than described in Subsection (b) above, where such failure shall continue for a period of thirty (30) days after written notice thereof from Lessor to Lessee; provided, however, that if the nature of Lessee’s default is such that more than thirty (30) days are reasonably required for its cure, then Lessee shall not be deemed to be in default if Lessee commenced such cure within said thirty (30) day period and thereafter diligently prosecutes such cure to completion. (d) (i) The making by Lessee of any general arrangement or assignment for the benefit of creditors; (ii) Lessee becomes a “debtor” as defined in 11 U.S.C. Section 101 or any similar or successor statute thereto (unless, in the case of a petition filed against Lessee, the same is dismissed within sixty (60) days); (iii) the appointment of a trustee or receiver to take possession of substantially all of Lessee’s assets located at the Premises or of Lessee’s interest in this Lease, where possession is not restored to Lessee within thirty (30) days; or (iv) the attachment, execution or other judicial seizure of substantially all of Lessee’s assets located at the Premises or of Lessee’s interest in this Lease, where such #4..
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Water Well/Right-Of-Way Lease – S. McClure Pump Lot - Well #1 11 seizure is not discharged within thirty (30) days. If any provision of this Subsection 15 (d) is contrary to any applicable law, such provision shall be of no force or effect. (e) The discovery by Lessor that any financial statement given to Lessor by Lessee, any assignee of Lessee, any sublessee of Lessee, any successor in interest of Lessee or any guarantor of Lessee’s obligation hereunder, and any of them, was materially false.
(f) The occurrence of any Release or any condition in violation of Environmental Laws and Hazardous Materials provisions in Section 14. The failure of Lessee to comply with any applicable laws governing the Premises including but not limited to, occurrence of any Release or condition in violation of Environmental Laws and Hazardous Materials provisions in Section 14 and the failure to cure such noncompliance within the earlier of (i) thirty (30) days after delivery to Lessee from Lessor, or the applicable governmental authority, of written notice of such non-compliance, or (ii) any time required for compliance under applicable law.

15.3 Default by Lessor. Lessor shall not be in default unless Lessor fails to perform obligations required of Lessor within a reasonable time, but in no event later than thirty (30) days after written notice by Lessee to Lessor and to the holder of any first mortgage or deed of trust covering the Premises whose name and address shall have theretofore been furnished to Lessee in writing, specifying wherein Lessor has failed to perform such obligation; provided, however, that if the nature of Lessor’s obligation is such that more than thirty (30) days are required for performance then Lessor shall not be in default if Lessor commences performance within such thirty (30) day period and thereafter diligently prosecutes the same to completion.
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Water Well/Right-Of-Way Lease – S. McClure Pump Lot - Well #1 12 15.4 Late Charges. Lessee acknowledges that late payment by Lessee to Lessor of rent and other sums due hereunder will cause Lessor to incur costs not contemplated by this Lease, the exact amount of which will be extremely difficult to ascertain. Such costs include, but are not limited to, processing and accounting charges, and late charges which may be imposed on Lessor by the terms of any mortgage or trust deed covering the Premises. Accordingly, if any installment of rent or any other sum due from Lessee shall not be received by Lessor or Lessor’s designee within ten (10) days after such amount shall be due, then, without any requirement for notice to Lessee, Lessee shall pay to Lessor, on demand, a late charge equal to 6% of such overdue amount. The parties acknowledge that it is impractical to determine the amount of Lessor’s damages in such instances and such late charge represents a fair and reasonable estimate of the costs Lessor will incur by reason of late payment by Lessee. Acceptance of such late charge by Lessor shall in no event constitute a waiver of Lessee’s default with respect to such overdue amount, nor prevent Lessor from exercising any of the other rights and remedies granted hereunder. In the event that a late charge is payable hereunder, whether or not collected, for three (3) installments of rent within any twelve (12) month period, then rent shall automatically become due and payable quarterly in advance, rather than monthly, notwithstanding Section 5 or any other provisions of this Lease to the contrary.

Section 16. Condemnation.

16.1 Total Taking. If the whole of the Premises or so much thereof as to render the balance unusable by Lessee shall be taken under power of eminent domain, this Lease shall automatically terminate as of the date of such condemnation, or as of the date possession is taken by the condemning authority, whichever is earlier. No award of any taking which results in a termination of this Lease pursuant to this Section 16.1 shall be apportioned and Lessee hereby assigns to Lessor any award which may be made in such taking or condemnation, together with any and all rights of Lessee now or hereafter arising in or to the same or any part thereof; provided, however, Lessee shall be entitled to any award made to Lessee for the taking of personal property and fixtures belonging to Lessee or for Lessee’s relocation costs or business interruption compensation. #4..
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Water Well/Right-Of-Way Lease – S. McClure Pump Lot - Well #1 13 16.2 Partial Taking. In the event of a partial taking of the Premises which does not result in a termination of this Lease pursuant to Section 16.1, rent shall be abated, effective as of the date possession of the Premises is required to be surrendered, in proportion to the part of the Premises so made unusable by Lessee. No award of any taking which does not result in a termination of this Lease pursuant to Section 16.1 shall be apportioned and Lessee hereby assigns to Lessor any award which may be made in such taking or condemnation, together with any and all rights of Lessee now or hereafter arising in or to the same or any part thereof; provided, however, Lessee shall be entitled to any award made to Lessee for the taking of personal property and fixtures belonging to Lessee or for Lessee’s relocation costs or business interruption compensation. Lessee, at Lessee’s expense, shall restore the portion of the Premises remaining usable to as near its former condition as reasonably possible.

16. Section 17. Estoppel Certificate.

18.1 Limitation on Liability. Notwithstanding anything contained in this Lease to the contrary, the obligations of Lessor under this Lease (including any actual or alleged breach or default by Lessor) do not constitute personal obligations of the, directors, officers or shareholders of Lessor or Lessor’s partners, and Lessee shall not seek recourse against the individual directors, officers or shareholders of Lessor, or any of their personal assets for satisfaction of any liability with respect to this Lease. In addition, the liability of Lessor for its obligations under this Lease (including any liability as a result of any or alleged failure, breach of default by Lessor), shall be limited solely to, and Lessee’s and its successors’ and assigns’ sole and exclusive remedy shall be against, the Premises, and no other assets of Lessor.

Section 19. Severability.

The invalidity of any provision of this Lease as determined by a court of competent jurisdiction shall in no way affect the validity of any other provision hereof.

Section 20. Interest on Past-due Obligations.

Payment of such interest shall not excuse or cure any default by Lessee under this Lease.

Section 21. Time of Essence.

Unless designated time periods are stated, time is of the essence in performance under each parties’ obligations under this Lease.

Section 22. Additional Rent.

Any and all monetary obligations of Lessee to Lessor under the terms of this Lease shall be deemed to be rent.

Section 23. Incorporation of Prior Agreements; Amendments.

This Lease contains all agreements of the parties with respect to any matter mentioned herein. No prior agreement or understanding pertaining to any such matter shall be effective. This Lease may be modified in writing only, signed by the parties in interest at #4..
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Water Well/Right-Of-Way Lease – S. McClure Pump Lot - Well #1 15 the time of the modification. Except as otherwise stated in this Lease, Lessee hereby acknowledges that Lessor or any employees or agents has not made any oral or written warranties or representations to Lessee relative to the condition or use by Lessee of the Premises and Lessee acknowledges that Lessee assumes all responsibility regarding the Occupational Safety Health Act, the legal use and adaptability of the Premises and the compliance thereof with all applicable laws and regulations in effect during the term of this Lease.

Section 24. Notices.

Section 25. Waivers.

No waiver by Lessor of any provision hereof shall be deemed a waiver of any other provision hereof or of any subsequent breach by Lessee of the same or any other provision.

Section 26. Cumulative Remedies.

No remedy or election hereunder shall be deemed exclusive but shall, wherever possible, be cumulative with all other remedies at law or in equity.

Section 27. Covenants and Conditions.

Each provision of this Lease performable by Lessee shall be deemed both a covenant and a condition.

Section 28. Binding Effect; Choice of Law.

Section 29. Subordination.

29.1 This Lease shall be subordinate to any ground lease, mortgage, deed of trust, or any other hypothecation or security now or hereafter placed upon the real property #4..
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Water Well/Right-Of-Way Lease – S. McClure Pump Lot - Well #1 16 of which the Premises are a part and to any and all advances made on the security thereof and to all renewals, modifications, consolidations, replacements and extensions thereof. If any mortgagee, trustee or ground lessor shall elect to have this Lease prior to the lien of its mortgage, deed of trust or ground lease, and shall give written notice thereof to Lessee, this Lease shall be deemed prior to such mortgage, deed of trust, or ground lease, whether this Lease is dated prior or subsequent to the date of said mortgage, deed of trust or ground lease or the date of recording thereof.

29.2 Lessee shall execute any documents required to effectuate an attornment, a subordination or to make this Lease prior to the lien of any mortgage, deed of trust or ground lease, as the case may be. Lessee’s failure to execute such documents within ten (10) days after written demand shall constitute a material default by Lessee hereunder, or, at Lessor’s option, Lessor may execute such documents on behalf of Lessee as Lessee’s attorney-in-fact. Lessee does hereby make, constitute and irrevocably appoint Lessor as Lessee’s attorney-in-fact and in Lessee’s name, place and stead, to execute such documents in accordance with this Section.

Section 30. Attorneys’ Fees.

Section 31. Lessor’s Access.

Section 32. Auctions.

Section 33. Signs.

Lessee shall not place any sign upon the Premises without Lessor’s prior written consent, except for any signage reasonably related to Lessee's use of the Premises.

Section 34. Merger.

Section 36. Security Measures.

Section 37. Easements.

Lessee shall sign any of the aforementioned documents upon request of Lessor and failure to do so shall constitute a material breach of this Lease.

Section 38. Performance Under Protest.

Section 39. Authority.

Lessee represents and warrants to Lessor that this Lease has been duly authorized, executed and delivered by Lessee.

Section 40. Terms and Headings.

All Exhibits and Riders attached to this Lease (which consist solely of Exhibit A) are hereby incorporated in this Lease for all purposes as though set forth at length herein.

Section 42. Successors and Assigns.

Subject to the provisions of Section 13, and except as otherwise provided in this Lease, all of the covenants, conditions and provisions of this Lease shall be binding upon, and shall inure to the benefit of, the parties and their respective heirs, personal representatives and permitted successors and assigns; provided, however, no rights shall inure to the benefit of any Transferee of Lessee unless the Transfer to such Transferee is made in compliance with the provisions of Section 13, and no options or other rights which are expressly made personal to the original Lessee shall be assignable to or exercisable by anyone other than the original Lessee under this Lease.

Section 43. Professional Fees.

Section 44. Nondisclosure of Lease Terms.

This Section 44 shall not apply to any disclosure required by applicable law (including, without limitation, the Public Records Act).

Section 45. Joint and Several Liability.

Section 46. Broker Indemnification.

Lessee shall indemnify, defend and hold Lessor harmless from and against any claims, demands, liabilities, damages or expenses (including attorneys' fees and costs #4..
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Water Well/Right-Of-Way Lease – S. McClure Pump Lot - Well #1 19 incurred in defending against any claim or demand) for brokerage commissions, finder fees or related costs incurred by Lessee or arising from any commitments or agreements alleged to have been made by Lessee relating to this Lease. Lessor shall indemnify, defend and hold Lessee harmless from and against any claims, demands, liabilities, damages or expenses (including attorneys' fees and costs incurred in defending against any claim or demand) for brokerage commissions, finder fees or related costs incurred by Lessor or arising from any commitments or agreements alleged to have been made by Lessor relating to this Lease. This Section 46 shall survive the expiration or earlier termination of the term of this Lease.

Section 47. Holding Over.

Section 48. Subdivision Map Act.

Lessee shall pay to Lessor, within thirty (30) days of receipt of an invoice, any expenses incurred by Lessor arising from any breach of any representation, warranty or covenant by Lessee in this Section 48. If there is a claim, or Lessor determines, that this Lease is in violation of the Subdivision Map Act, upon the written request of Lessor, Lessor and Lessee will enter into a modification to this Lease as may be deemed reasonably necessary or appropriate by Lessor to comply with the Subdivision Map Act. Lessee shall pay all out-ofpocket expenses incurred by Lessor in connection with such modification within thirty (30) days of receipt of an invoice. The representations, warranties and covenants by Lessee under this Section 48 are being made by Lessee to Lessor to induce Lessor to enter into the Lease and are being relied upon by Lessor; but for such representations, warranties and covenants, Lessor would not enter into this Lease.
(Signatures on next page)
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Water Well/Right-Of-Way Lease – S. McClure Pump Lot - Well #1 20 LESSOR AND LESSEE HAVE CAREFULLY READ AND REVIEWED THIS LEASE

AND EACH TERM AND PROVISION CONTAINED HEREIN AND, BY EXECUTION OF THIS LEASE, SHOW THEIR INFORMED AND VOLUNTARY CONSENT THERETO. THE

PARTIES HEREBY AGREE THAT, AT THE TIME THIS LEASE IS EXECUTED, THE

TERMS OF THIS LEASE ARE COMMERCIALLY REASONABLE AND EFFECTUATE THE

INTENT AND PURPOSE OF LESSOR AND LESSEE WITH RESPECT TO THE PREMISES.

Lessor and Lessee have executed this Lease at the place and on the date specified immediately adjacent to their respective signatures.
“LESSOR”
Executed at Modesto, California MODESTO & EMPIRE TRACTION COMPANY on ___________________, 2014.

By:
(Signature)
Address: 530 Eleventh Street Name:

Modesto, CA 95354 Title:

Taxpayer I.D.: 94-1562141
By: __________________________________
(Signature)
Name:

Title:
“LESSEE”

CITY OF MODESTO
Executed at Modesto, California By:
on ___________________, 2014. (Signature)
Name:

Address: _______________________ Title:
_______________________
Taxpayer I.D. By:
(Signature)
Name:

Title:
608861.2
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[Mariposa E & W Pump Lot]
Water Well/Right-Of-Way Lease – Mariposa E & W Pump Lot – Well #91 & 92 Section 1. Definitions ........................................................................................................... 1 Section 2. Premises. ............................................................................................................ 1 Section 3. Rules and Regulations. ....................................................................................... 1 Section 4. Term. .................................................................................................................. 1 Section 5. Rent. ................................................................................................................... 2 Section 6. Security Deposit. ............................................................................................... 2 Section 7. Use. .................................................................................................................... 2 Section 8. Maintenance, Repairs and Alterations. ............................................................... 3 Section 9. Insurance; Indemnity. .......................................................................................... 5 Section 10. Damage or Destruction. .................................................................................... 6 Section 11. Real Property Taxes. ........................................................................................ 6 Section 12. Utilities & Janitorial Services. ............................................................................ 7 Section 13. Assignment and Subletting. .............................................................................. 7 Section 14. Environmental Provisions.................................................................................. 8 Section 15. Defaults; Remedies. ........................................................................................ 10 Section 16. Condemnation. ............................................................................................... 12 Section 17. Estoppel Certificate. ........................................................................................ 13 Section 18. Lessor’s Liability.............................................................................................. 13 Section 19. Severability. .................................................................................................... 14 Section 20. Interest on Past-due Obligations. .................................................................... 14 Section 21. Time of Essence. ............................................................................................ 14 Section 22. Additional Rent................................................................................................ 14 Section 23. Incorporation of Prior Agreements; Amendments. .......................................... 14 Section 24. Notices. ........................................................................................................... 15 Section 25. Waivers. .......................................................................................................... 15

WATER WELL/RIGHT-OF-WAY

LEASE-INDEX
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Water Well/Right-Of-Way Lease – Mariposa E & W Pump Lot – Well #91 & 92 ii
Section 26. Cumulative Remedies. .................................................................................... 15 Section 27. Covenants and Conditions. ............................................................................. 15 Section 28. Binding Effect; Choice of Law. ........................................................................ 15 Section 29. Subordination. ................................................................................................. 15 Section 30. Attorneys’ Fees............................................................................................... 16 Section 31. Lessor’s Access.............................................................................................. 16 Section 32. Auctions. ......................................................................................................... 16 Section 33. Signs. .............................................................................................................. 16 Section 34. Merger. ........................................................................................................... 16 Section 35. Quiet Possession. ........................................................................................... 16 Section 36. Security Measures. ......................................................................................... 17 Section 37. Easements. ..................................................................................................... 17 Section 38. Performance Under Protest. ........................................................................... 17 Section 39. Authority. ......................................................................................................... 17 Section 40. Terms and Headings. ...................................................................................... 17 Section 41. Exhibits and Riders. ........................................................................................ 17 Section 42. Successors and Assigns. ................................................................................ 17 Section 43. Professional Fees. .......................................................................................... 18 Section 44. Nondisclosure of Lease Terms. ...................................................................... 18 Section 45. Joint and Several Liability. .............................................................................. 18 Section 46. Broker Indemnification. ................................................................................... 18 Section 47. Holding Over. .................................................................................................. 19 Section 48. Subdivision Map Act. ...................................................................................... 18 #4..
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Water Well/Right-Of-Way Lease – Mariposa E & W Pump Lot – Well #91 & 92

Section 1. Definitions
In addition to any other terms defined in this Lease, the following terms shall have the following meanings:

1.1 Premises. Premises shall mean that certain real property situated in the County of Stanislaus, State of California, commonly known as the land comprising Well Site No. 91 & 92, Mariposa East and West Pump Lot, located at Mariposa Road, Modesto, California 95354, consisting of approximately 63,196.48 square feet as shown on Exhibit A attached.

1.2 Commencement Date. Commencement Date shall mean the date the term of this Lease is to commence as stated in Section 4.1.

Section 2. Premises.

2.1 Lease of Premises.

Lessor hereby leases to Lessee and Lessee leases from Lessor the Premises for the term, at the rental, and upon all of the conditions set forth herein.

Section 3. Rules and Regulations.

The violations of any such rules and regulations shall be deemed a material breach of this Lease by Lessee.

Section 4. Term.

4.2 Interim Term. The term of the Lease had renewed on a month-to-month basis effective July 1, 2009.
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Water Well/Right-Of-Way Lease – Mariposa E & W Pump Lot – Well #91 & 92 Section 5. Rent.

5.1 Monthly Rent. Lessee shall pay to Lessor during the term of the Lease as rent for the Premises monthly payments in advance on the first day of each month in the sum of $2,500.00, as adjusted pursuant to Section 5.4. Rent shall be paid to Lessor at the address of Lessor as stated in this Lease, or at such other address as may be designated by Lessor from time to time, without deduction or offset. Rent payable under this Section 5.1 shall be in addition to any other sums payable by Lessee to Lessor under this Lease. Rent for any period during the term which is for less than one (1) month shall be a pro rata portion of the monthly installment.

5.2 Lease Origination Fee. Not Applicable

5.3 Rent Payable on Execution. Not Applicable

5.4 Rental Adjustment. Beginning with January 1, 2016, and annually on each January 1 thereafter, the monthly rent shall be adjusted as follows:

Section 6. Security Deposit. There is no security deposit.

Section 7. Use.

7.1 Use by Tenant. Lessee shall use the Premises only for the production and distribution of water for commercial, domestic and industrial purposes, unless some other use is approved in writing by Lessor (with no obligation to do so). Such use shall include the right to construct, operate and maintain water wells, pipelines and/or mains and appurtenances necessary thereto. Lessee shall not use, or permit any other person or #4..
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Water Well/Right-Of-Way Lease – Mariposa E & W Pump Lot – Well #91 & 92 entity to use, the Premises, or any part thereof for any purpose in violation of the use stated in this Section 7.1, in violation of any law or ordinance of any governmental authority, or in a manner which constitutes a nuisance or unreasonably interferes with other tenants of the properties commonly known as the Beard Industrial District. Lessee shall not store, use or distribute any Hazardous Material (defined herein) on or about the Premises; provided however, that use and storage of materials customarily used in the course of pumping water for human consumption in accordance with Section 14.3 is excepted.

Section 8. Maintenance, Repairs and Alterations.

8.2 Lessee’s Obligations.
(a) Lessee shall, at Lessee's sole expense, keep the Premises and the Alterations and Additions(as hereinafter defined) in good order, condition and repair (whether or not the need for such repairs occurs as a result of Lessee's use, any prior use, the elements or the age of such portion of the Premises). Lessee, in keeping the Premises in good order, condition and repair, shall exercise and perform good maintenance practices. (b) If Lessee fails to perform Lessee’s obligations under this Section 8.2 or under any other Section of this Lease, Lessor may at Lessor’s option enter upon the Premises after ten (10) days’ prior written notice to Lessee (except in the case of emergency, in which case no notice shall be required) perform such obligations on Lessee’s behalf and put the Premises in good order, condition and repair. The cost thereof shall be due and payable as #4..
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Water Well/Right-Of-Way Lease – Mariposa E & W Pump Lot – Well #91 & 92 additional rent to Lessor with Lessee’s next rental installment and the amount due shall bear interest until paid as provided in Section 20.
(c) On the last day of the term hereof, or on any sooner termination, Lessee shall surrender the Premises to Lessor in the same condition as received, ordinary wear and tear excepted, clean and free of debris, and unless Lessor otherwise directs, shall remove all fixtures and equipment (whatever water wells, machinery or pipes) installed by or for Lessee on the Premises, Alterations and Additions installed by Lessee and shall close the well in accordance with all requirements of applicable law or of Lessor for such closure. At Lessor’s request, Lessee shall deliver to Lessor a quitclaim deed releasing any interest or rights of Lessee in the Premises.

9.1 Liability Insurance - Lessee. Lessee, at Lessee’s expense, shall obtain and keep in force during the term of this Lease a policy of Combined Single Limit Bodily Injury and Property Damage Insurance naming Lessor as an additional insured and insuring Lessee and Lessor against any liability arising out of the use, occupancy or maintenance of the Premises and all other areas appurtenant thereto. Such insurance shall be in an amount not less than $3,000,000 per occurrence naming Lessor as additional insured on such policy. Upon written notice from Lessor to Lessee, said policy amount shall be increased as reasonably required by Lessor during the term or any extensions. The policy shall provide for cross-liability coverage and insure performance by Lessee of the indemnity provisions of this Lease. The liability insurance of Lessee may include a self-insured retention of up to $1,000,000.00. The limits of the insurance, however, shall not limit the liability of Lessee hereunder.

Section 11. Real Property Taxes.

11.3 Definition of “Real Property Tax”. As used herein, the term “real property tax” shall include any form of real estate tax or assessment, general, special, supplementary, ordinary or extraordinary, and any license fee, commercial rental tax, improvement bond or bonds, levy or tax (other than inheritance, personal income or estate taxes) imposed on the Premises by any authority having the direct or indirect power to tax, including any city, state or federal government, or any school, agricultural, sanitary, fire, street, drainage or other improvement district thereof, as against any legal or equitable interest of Lessor in the Premises or in the real property of which the Premises are a part, #4..
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Water Well/Right-Of-Way Lease – Mariposa E & W Pump Lot – Well #91 & 92 as against Lessor’s right to rent or other income therefrom, and as against Lessor’s business of leasing the Premises. The term “real property tax” shall also include any tax, fee, levy assessment or charge (i) in substitution of, partially or totally, any tax, fee, levy assessment or charge hereinabove included within the definition of “real property tax,” or (ii) the nature of which was previously included within the definition of “real property tax,” or (iii) which is imposed for a service or right not charged prior to June 1, 1978, or, if previously charged, has been increased since June 1, 1978, or (iv) which is imposed as a result of a transfer, either partial or total, of Lessor’s interest in the Premises or which is added to a tax or charge hereinbefore included within the definition of real property tax by reason of such transfer, or (v) which is imposed by reason of this Lease, any modifications or changes hereto, or any transfers hereof. Clause (iv) of this Section 11.3 does not include a transfer tax due on a sale by Lessor, but does include any additional, or any increase in, real property taxes arising from a sale by Lessor.

Section 12. Utilities & Janitorial Services.

Section 13. Assignment and Subletting.

Section 14. Environmental Provisions.

14.1 Defined Terms.
(a) Hazardous Materials. For purposes of this Lease, “Hazardous Materials” shall mean any substance which is or becomes at any time during the term: (i) defined under any Environmental Law (defined below) as a hazardous substance, hazardous waste, #4..
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Water Well/Right-Of-Way Lease – Mariposa E & W Pump Lot – Well #91 & 92 hazardous material, pollutant or contaminant; (ii) a petroleum hydrocarbon, including crude oil or any fraction thereof; (iii) a hazardous, toxic, corrosive, flammable, explosive, infectious, radioactive, carcinogenic or a reproductive toxicant; or (iv) otherwise regulated under any Environmental Laws.
(b) Environmental Laws. For purposes of this Lease, “Environmental Laws” shall mean all present and future federal, state and local laws, statutes, ordinances, regulations, rules, judicial and administrative orders and decrees, permits, licenses, approvals, authorizations and similar requirements of all federal, state and local governmental agencies or other governmental entities with legal authority pertaining to the protection of human health and safety or the environment.
(c) Release. For purposes of this Lease, “Release” shall mean any accidental or intentional spilling, leaking, pumping, pouring, emitting, emptying, discharging, injection, escaping, leaching, migrating, dumping or disposing into the air, land, surface water, ground water or the environment (including without limitation the abandonment or discarding of receptacles containing any Hazardous Materials).

14.4 Environmental Indemnity. Lessee shall indemnify, defend, and hold all Indemnitees (as defined below) harmless from and against any and all claims, suits, causes of action, demands, losses, damages (including, without limitation, foreseeable and unforeseeable consequential damages and punitive damages), diminution of property value, liabilities, fines, penalties, costs, taxes, charges, administrative and judicial proceedings, orders, judgments, settlements, remedial actions and compliance requirements (including, without limitation, enforcement and clean-up actions), third-party claims (including, without limitation, tort, economic and property claims), natural resource damages, additional costs of ownership, maintenance and development of the Premises (over and above those incurred for the ownership, maintenance and development of the Premises as tendered to Lessee), expenses (including without limitation reasonable attorneys’ fees and expenses, #4..
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Water Well/Right-Of-Way Lease – Mariposa E & W Pump Lot – Well #91 & 92 costs of defense and costs and expenses of all experts and consultants) arising, directly or indirectly, out of: (a) any non-compliance by Lessee, or any of Lessee’s employees, agents, contractors, invitees or guests, with any Environmental Laws; (b) any use, storage, generation, production, Release, disposal or transportation by Lessee, or any of Lessee’s employees, agents, contractors, invitees or guests, of any Hazardous Materials at, on, in, about or under the Premises at any time during Lessee’s occupancy or possession of the Premises; or (c) the migration from the Premises, at any time, of any Hazardous Materials Released by Lessee, or any of Lessee’s employees, agents, contractors, invitees or guests, at, on, in, about, or under the Premises at any time during Lessee’s occupancy and/or possession of the Premises. Lessee shall promptly assume its defense and indemnification obligations (with counsel reasonably acceptable to Lessor) upon written notice from any Indemnitee. Indemnitees may participate in, but not control, the defense of the claim at their own expense. At Lessee’s request, Indemnitees shall reasonably cooperate in the defense of a claim at their own expense. Lessee shall not settle any claim without Indemnitees’ agreement, which agreement shall not be unreasonably withheld. “Indemnitees” shall mean and include Lessor, any successor in interest to Lessor, and the respective officers, directors, trustees, employees, agents, successors, assigns, and insurers of Lessor or any successor of Lessor.

Section 15. Defaults; Remedies.

15.1 Defaults. The occurrence of any one or more of the following events shall constitute a material default and breach of this Lease by Lessee. (a) The vacating or abandonment of the Premises by Lessee. (b) The failure by Lessee to make any payment of rent or any other payment required to be made by Lessee hereunder, as and when due, where such failure shall continue for a period of ten (10) days after written notice thereof from Lessor to Lessee. In the event that Lessor serves Lessee with a Notice to Pay Rent or Quit pursuant to applicable Unlawful Detainer statutes such Notice to Pay Rent or Quit shall also constitute the notice required by this subsection.
(c) The failure by Lessee to observe or perform any of the covenants, conditions or provisions of this Lease to be observed or performed by Lessee, other than described in Subsection (b) above, where such failure shall continue for a period of thirty (30) days after written notice thereof from Lessor to Lessee; provided, however, that if the nature of Lessee’s default is such that more than thirty (30) days are reasonably required for its cure, then Lessee shall not be deemed to be in default if Lessee commenced such cure within said thirty (30) day period and thereafter diligently prosecutes such cure to completion. (d) (i) The making by Lessee of any general arrangement or assignment for the benefit of creditors; (ii) Lessee becomes a “debtor” as defined in 11 U.S.C. Section 101 or any similar or successor statute thereto (unless, in the case of a petition filed against Lessee, the same is dismissed within sixty (60) days); (iii) the appointment of a trustee or receiver to take possession of substantially all of Lessee’s assets located at the Premises or of Lessee’s interest in this Lease, where possession is not restored to Lessee within thirty (30) days; or (iv) the attachment, execution or other judicial seizure of substantially all of Lessee’s assets located at the Premises or of Lessee’s interest in this Lease, where such seizure is not discharged within thirty (30) days. If any provision of this Subsection 15 (d) is contrary to any applicable law, such provision shall be of no force or effect. #4..
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Water Well/Right-Of-Way Lease – Mariposa E & W Pump Lot – Well #91 & 92 (e) The discovery by Lessor that any financial statement given to Lessor by Lessee, any assignee of Lessee, any sublessee of Lessee, any successor in interest of Lessee or any guarantor of Lessee’s obligation hereunder, and any of them, was materially false.
(f) The occurrence of any Release or any condition in violation of Environmental Laws and Hazardous Materials provisions in Section 14. The failure of Lessee to comply with any applicable laws governing the Premises including but not limited to, occurrence of any Release or condition in violation of Environmental Laws and Hazardous Materials provisions in Section 14 and the failure to cure such noncompliance within the earlier of (i) thirty (30) days after delivery to Lessee from Lessor, or the applicable governmental authority, of written notice of such non-compliance, or (ii) any time required for compliance under applicable law.

15.4 Late Charges. Lessee acknowledges that late payment by Lessee to Lessor of rent and other sums due hereunder will cause Lessor to incur costs not contemplated by this Lease, the exact amount of which will be extremely difficult to ascertain. Such costs include, but are not limited to, processing and accounting charges, and late charges which #4..
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Water Well/Right-Of-Way Lease – Mariposa E & W Pump Lot – Well #91 & 92 may be imposed on Lessor by the terms of any mortgage or trust deed covering the Premises. Accordingly, if any installment of rent or any other sum due from Lessee shall not be received by Lessor or Lessor’s designee within ten (10) days after such amount shall be due, then, without any requirement for notice to Lessee, Lessee shall pay to Lessor, on demand, a late charge equal to 6% of such overdue amount. The parties acknowledge that it is impractical to determine the amount of Lessor’s damages in such instances and such late charge represents a fair and reasonable estimate of the costs Lessor will incur by reason of late payment by Lessee. Acceptance of such late charge by Lessor shall in no event constitute a waiver of Lessee’s default with respect to such overdue amount, nor prevent Lessor from exercising any of the other rights and remedies granted hereunder. In the event that a late charge is payable hereunder, whether or not collected, for three (3) installments of rent within any twelve (12) month period, then rent shall automatically become due and payable quarterly in advance, rather than monthly, notwithstanding Section 5 or any other provisions of this Lease to the contrary.

Section 16. Condemnation.

16.2 Partial Taking. In the event of a partial taking of the Premises which does not result in a termination of this Lease pursuant to Section 16.1, rent shall be abated, effective as of the date possession of the Premises is required to be surrendered, in proportion to the part of the Premises so made unusable by Lessee. No award of any taking which does not result in a termination of this Lease pursuant to Section 16.1 shall be apportioned and Lessee hereby assigns to Lessor any award which may be made in such taking or #4..
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Water Well/Right-Of-Way Lease – Mariposa E & W Pump Lot – Well #91 & 92 condemnation, together with any and all rights of Lessee now or hereafter arising in or to the same or any part thereof; provided, however, Lessee shall be entitled to any award made to Lessee for the taking of personal property and fixtures belonging to Lessee or for Lessee’s relocation costs or business interruption compensation. Lessee, at Lessee’s expense, shall restore the portion of the Premises remaining usable to as near its former condition as reasonably possible.

16. Section 17. Estoppel Certificate.

Section 18. Lessor’s Liability.

18.1 Limitation on Liability. Notwithstanding anything contained in this Lease to the contrary, the obligations of Lessor under this Lease (including any actual or alleged breach or default by Lessor) do not constitute personal obligations of the, directors, officers or shareholders of Lessor or Lessor’s partners, and Lessee shall not seek recourse against the individual directors, officers or shareholders of Lessor, or any of their personal assets for satisfaction of any liability with respect to this Lease. In addition, the liability of Lessor for its obligations under this Lease (including any liability as a result of any or alleged failure, breach of default by Lessor), shall be limited solely to, and Lessee’s and its #4..
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Water Well/Right-Of-Way Lease – Mariposa E & W Pump Lot – Well #91 & 92 successors’ and assigns’ sole and exclusive remedy shall be against, the Premises, and no other assets of Lessor.

Section 19. Severability.

The invalidity of any provision of this Lease as determined by a court of competent jurisdiction shall in no way affect the validity of any other provision hereof.

Section 20. Interest on Past-due Obligations.

Payment of such interest shall not excuse or cure any default by Lessee under this Lease.

Section 21. Time of Essence.

Unless designated time periods are stated, time is of the essence in performance under each parties’ obligations under this Lease.

Section 22. Additional Rent.

Any and all monetary obligations of Lessee to Lessor under the terms of this Lease shall be deemed to be rent.

Section 23. Incorporation of Prior Agreements; Amendments.

This Lease contains all agreements of the parties with respect to any matter mentioned herein. No prior agreement or understanding pertaining to any such matter shall be effective. This Lease may be modified in writing only, signed by the parties in interest at the time of the modification. Except as otherwise stated in this Lease, Lessee hereby acknowledges that Lessor or any employees or agents has not made any oral or written warranties or representations to Lessee relative to the condition or use by Lessee of the Premises and Lessee acknowledges that Lessee assumes all responsibility regarding the Occupational Safety Health Act, the legal use and adaptability of the Premises and the compliance thereof with all applicable laws and regulations in effect during the term of this Lease.
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Water Well/Right-Of-Way Lease – Mariposa E & W Pump Lot – Well #91 & 92 Section 24. Notices.

Section 25. Waivers.

No waiver by Lessor of any provision hereof shall be deemed a waiver of any other provision hereof or of any subsequent breach by Lessee of the same or any other provision.

Section 26. Cumulative Remedies.

No remedy or election hereunder shall be deemed exclusive but shall, wherever possible, be cumulative with all other remedies at law or in equity.

Section 27. Covenants and Conditions.

Each provision of this Lease performable by Lessee shall be deemed both a covenant and a condition.

Section 28. Binding Effect; Choice of Law.

Section 29. Subordination.

Section 30. Attorneys’ Fees.

Section 31. Lessor’s Access.

Section 32. Auctions.

Section 33. Signs.

Lessee shall not place any sign upon the Premises without Lessor’s prior written consent, except for any signage reasonably related to Lessee's use of the Premises.

Section 34. Merger.

Section 35. Quiet Possession.

Upon Lessee paying the rent for the Premises and observing and performing all of the covenants, and provisions on Lessee’s part to be observed and performed hereunder, Lessee shall have quiet possession of the Premises for the term subject to all of the provisions of this Lease.
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Water Well/Right-Of-Way Lease – Mariposa E & W Pump Lot – Well #91 & 92 Section 36. Security Measures.

Section 37. Easements.

Lessee shall sign any of the aforementioned documents upon request of Lessor and failure to do so shall constitute a material breach of this Lease.

Section 38. Performance Under Protest.

Section 39. Authority.

Lessee represents and warrants to Lessor that this Lease has been duly authorized, executed and delivered by Lessee.

Section 40. Terms and Headings.

Section 41. Exhibits and Riders.

All Exhibits and Riders attached to this Lease (which consist solely of Exhibit A) are hereby incorporated in this Lease for all purposes as though set forth at length herein.

Section 42. Successors and Assigns.

Subject to the provisions of Section 13, and except as otherwise provided in this Lease, all of the covenants, conditions and provisions of this Lease shall be binding upon, and shall inure to the benefit of, the parties and their respective heirs, personal representatives and permitted successors and assigns; provided, however, no rights shall #4..
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Water Well/Right-Of-Way Lease – Mariposa E & W Pump Lot – Well #91 & 92 inure to the benefit of any Transferee of Lessee unless the Transfer to such Transferee is made in compliance with the provisions of Section 13, and no options or other rights which are expressly made personal to the original Lessee shall be assignable to or exercisable by anyone other than the original Lessee under this Lease.

Section 43. Professional Fees.

Section 44. Nondisclosure of Lease Terms.

This Section 44 shall not apply to any disclosure required by applicable law (including, without limitation, the Public Records Act).

Section 45. Joint and Several Liability.

Section 46. Broker Indemnification.

Lessee shall indemnify, defend and hold Lessor harmless from and against any claims, demands, liabilities, damages or expenses (including attorneys' fees and costs incurred in defending against any claim or demand) for brokerage commissions, finder fees or related costs incurred by Lessee or arising from any commitments or agreements alleged to have been made by Lessee relating to this Lease. Lessor shall indemnify, defend and hold Lessee harmless from and against any claims, demands, liabilities, damages or expenses (including attorneys' fees and costs incurred in defending against any claim or demand) for brokerage commissions, finder fees or related costs incurred by Lessor or arising from any commitments or agreements alleged to have been made by Lessor relating to this Lease. This Section 46 shall survive the expiration or earlier termination of the term of this Lease.
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Water Well/Right-Of-Way Lease – Mariposa E & W Pump Lot – Well #91 & 92 Section 47. Holding Over.

Section 48. Subdivision Map Act.

Lessee shall pay to Lessor, within thirty (30) days of receipt of an invoice, any expenses incurred by Lessor arising from any breach of any representation, warranty or covenant by Lessee in this Section 48. If there is a claim, or Lessor determines, that this Lease is in violation of the Subdivision Map Act, upon the written request of Lessor, Lessor and Lessee will enter into a modification to this Lease as may be deemed reasonably necessary or appropriate by Lessor to comply with the Subdivision Map Act. Lessee shall pay all out-ofpocket expenses incurred by Lessor in connection with such modification within thirty (30) days of receipt of an invoice. The representations, warranties and covenants by Lessee under this Section 48 are being made by Lessee to Lessor to induce Lessor to enter into the Lease and are being relied upon by Lessor; but for such representations, warranties and covenants, Lessor would not enter into this Lease.
(Signatures on next page)
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Water Well/Right-Of-Way Lease – Mariposa E & W Pump Lot – Well #91 & 92

LESSOR AND LESSEE HAVE CAREFULLY READ AND REVIEWED THIS LEASE

AND EACH TERM AND PROVISION CONTAINED HEREIN AND, BY EXECUTION OF THIS LEASE, SHOW THEIR INFORMED AND VOLUNTARY CONSENT THERETO. THE

PARTIES HEREBY AGREE THAT, AT THE TIME THIS LEASE IS EXECUTED, THE

TERMS OF THIS LEASE ARE COMMERCIALLY REASONABLE AND EFFECTUATE THE

INTENT AND PURPOSE OF LESSOR AND LESSEE WITH RESPECT TO THE PREMISES.

Lessor and Lessee have executed this Lease at the place and on the date specified immediately adjacent to their respective signatures.
“LESSOR”
Executed at Modesto, California MODESTO & EMPIRE TRACTION COMPANY on ___________________, 2014.

By:
(Signature)
Address: 530 Eleventh Street Name:

Modesto, CA 95354 Title:

Taxpayer I.D.: 94-1562141
By: __________________________________
(Signature)
Name:

Title:
“LESSEE”

CITY OF MODESTO
Executed at Modesto, California By:
on ___________________, 2014. (Signature)
Name:

Address: _______________________ Title:
_______________________
Taxpayer I.D. By:
(Signature)
Name:

Title:
608861.2
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Water Well/Right-Of-Way Lease – Mariposa E & W Pump Lot – Well #91 & 92 #4..
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Water Well/Right-Of-Way Lease – Mariposa E & W Pump Lot – Well #91 & 92 #4..
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CITY OF MODESTO

COMMITTEE AGENDA REPORT
DATE OF MEETING:

September 09, 2024
August 15, 2024
TO: Economic Development Committee
Chris Ricci, Chair
Eric Alvarez, Vice-Chair
Sue Zwahlen, Member
THROUGH: Joseph P. Lopez, City Manager
FROM: Will Wong, Director of Utilities
SUBJECT: Adoption of the City of Modesto’s Pyrethroid Management Plan CONTACT: Jeff Daniels, Wastewater Division Manager, [email protected], 209-577-6255
DESCRIPTION:

Consider the City of Modesto’s Pyrethroid Management Plan and all associated documents and forwarding to Council for approval. (Funding Source: Storm Drain Fund) STRATEGIC PLAN ELEMENT:

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

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

BACKGROUND:

The City of Modesto is regulated under the Stormwater National Pollution Discharge Elimination System (NPDES) Region-wide permit1 and all associated amendments. The Utilities Department, Wastewater Division, Environmental Services Section is responsible for managing and maintaining compliance with the City’s Stormwater NPDES permit.

On June 8, 2017, the Central Valley Regional Water Quality Control Board (Regional Water Board) adopted Resolution R5-2017-0057, the Basin Plan Amendment (BPA) for the control of Pyrethroid Pesticide Discharges2.
1 Order No. R5-2016-0040-001 issued to the City of Modesto. 2 Additional Information can be found on the Regional Water Board website:
https://www.waterboards.ca.gov/rwqcb5/water_issues/tmdl/central_valley_projects/central_valley_pesticides/pyreth roid_tmdl_bpa/.
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Economic Development Committee, September 09, 2024
City of Modesto Pyrethroid Management Plan and Integrated Pest Management Policy

Page 2 of 3 ends

Economic Development CommitteeSeptember 9, 2024

Economic Development Committee
September 9, 2024