2016 Water System Master Plan1 an overview of the City’s service area(s) and the water system facilities. The City’s contiguous water system is supplied with treated surface water sourced by Modesto Irrigation District from Lake Don Pedro and the City’s groundwater extraction wells. The City’s six, small, non-contiguous water systems are supplied solely with groundwater. All seven water systems are included in the City’s RRA and ERP. The City serves approximately 265,000 customers through approximately 76,000 service connections.
An RRA that is up to date keeps key City staff informed of the risks to its water system and assesses the level of resiliency in its ability to provide safe and reliable potable water to its customers. An updated ERP provides a framework and process for the City’s management and system operators to respond to emergencies (natural disasters and human-made threats) of varying degrees with the core goals of protecting the water system and maintaining it’s essential operations to deliver potable water under various circumstances. Having a safe and reliable water system is a core function of a city’s successful operation.
DISCUSSION:
As part of the requirements identified under the America’s Water Infrastructure Act of 2018, Title II – Drinking Water System Improvement, Section 2013 - Community Water System Risk and Resilience, the RRA and ERP shall be reviewed, revised, and certified every five years.
In accordance with Administrative Directive 3.1, Selection Procedures for Professional Consultants who Provide Architectural and Engineering Services for Capital Projects, a request for Qualifications and Proposals (RFQ/P) was formally advertised through Planet Bids on May 22, 2024. Three (3) Statements of Qualifications/Proposals were received.
After careful review of the Statements of Qualifications/Proposals by a City-staffed selection committee, West Yost Associates of Sacramento, CA was selected as the most qualified to provide consulting services.
In accordance with Modesto Municipal Code 8-3.204(a) Exceptions to Formal Bidding Requirements, Agreements for Professional Services are exempt from the bidding requirements of Modesto Municipal Code 8-3.203 if competitive quotations or proposals have been sought informally from at least three (3) qualified entities. However, staff proceeded with the RFP/Q process pursuant to Administrative Directive 3.1 and three (3) proposals were received as part of this solicitation. Staff recommends approval of an Engineering Services Agreement with West Yost Associates, of Sacramento, CA for the 2025 Water System Risk and Resiliency Assessment and Emergency Response Plan Updates.
1 https://modestogov.com/847/Water-Plans-Reports
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City Council Meeting, October 22, 2024
Engineering Services Agreement with West Yost Associates 2025 Water System Risk and Resiliency Assessment and
Emergency Response Plan Updates
FISCAL IMPACT:
Expenses associated with this effort will be housed in the following Non-Capital Project:
101597 - Water ERP Update
Anticipated Project Expenditures:
Engineering Services Agreement - West Yost $132,932
10% Additional Services (if needed) $13,293
Total Consultant Agreement $146,225
Engineering/Design/Administration – City Staff Time $35,000 Grand Total $181,225
COMMITTEE RECOMMENDATION
This item was considered by the Finance Committee at the meeting held on September 23, 2024, where it was recommended that it be forwarded to Council for approval.
CEQA/NEPA REQUIREMENTS:
The approval of this agreement does not constitute a Project for the purposes of the California Environmental Quality Act.
RECOMMENDED COUNCIL ACTION:
Staff Recommendations:
Resolution approving an Engineering Services Agreement with West Yost Associates, of Sacramento, CA for the 2025 Water System Risk and Resiliency Assessment and Emergency Response Plan updates, in the amount of $132,932, plus $13,293 in additional services, if needed, for a total amount not to exceed $146,225 and authorizing the City Manager, or his designee, to execute the Agreement.
Resolution approving an Amendment to the Fiscal Year 2024-25 Multi-Year Program Budget in the amount of $162,000 from Water Fund Reserves to fund the 2025 Water System Risk and Resiliency Assessment and Emergency Response Plan updates and authorizing the City Manager, or his designee, to implement the provisions of the Resolution.
Approved by:
William Wong, Director of Utilities
Joseph P. Lopez, City Manager
Attachments:
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Engineering Services Agreement with West Yost Associates 2025 Water System Risk and Resiliency Assessment and
Emergency Response Plan Updates
1. Resolutions (2)
2. West Yost - Agreement & Exhibits
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1 2024-
MODESTO CITY COUNCIL
RESOLUTION NO. 2024-
RESOLUTION APPROVING AN ENGINEERING SERVICES AGREEMENT
WITH WEST YOST ASSOCIATES, OF SACRAMENTO, CA FOR THE 2025
WATER SYSTEM RISK AND RESILIENCY ASSESSMENT AND EMERGENCY RESPONSE PLAN UPDATES, IN THE AMOUNT OF $132,932, PLUS $13,293 IN
ADDITIONAL SERVICES, IF NEEDED, FOR A TOTAL AMOUNT NOT TO EXCEED $146,225 AND AUTHORIZING THE CITY MANAGER, OR HIS
DESIGNEE, TO EXECUTE THE AGREEMENT
WHEREAS, in October of 2018, the America’s Water Infrastructure Act was signed into law which requires utilities to conduct Risk and Resilience Assessments (RRAs) to assess the risks to, and resilience of, their water systems and to prepare or revise an Emergency Response Plan (ERP) every five years, and WHEREAS, in March of 2020 and April of 2021, the City’s Water System RRA and ERP were completed, respectively, and certified as compliant with the United States Environmental Protection Agency (EPA) requirements, and WHEREAS, the 2021 ERP updated the City’s 2009 document, and WHEREAS, the due date for the upcoming 2025 Water System RRA and ERP updates are March 31, 2025, and September 30, 2025, respectively, and WHEREAS, an RRA that is up to date keeps key City staff informed of the risks to its water system and assesses the level of resiliency in its ability to provide safe and reliable potable water to its customers, and
WHEREAS, an updated ERP provides a framework and process for the City’s management and system operators to respond to emergencies (natural disasters and human-made threats) of varying degrees with the core goals of protecting the water system and maintaining it’s essential operations to deliver potable water under various circumstances, and
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WHEREAS, in accordance with Administrative Directive 3.1, Selection Procedures for Professional Consultants who Provide Architectural and Engineering Services for Capital Projects, a request for Qualifications and Proposals (RFQ/P) was formally advertised through Planet Bids on May 22, 2024, and WHEREAS, staff received and distributed three (3) proposals to a selection committee comprised of City staff, and
WHEREAS, after careful review of the Statements of Qualifications/Proposals, West Yost Associates of Sacramento, CA was selected as the most qualified to provide consulting services, and
WHEREAS, in accordance with Modesto Municipal Code 8-3.204(a) Exceptions to Formal Bidding Requirements, Agreements for Professional Services are exempt from the bidding requirements of Modesto Municipal Code 8-3.203 if competitive quotations or proposals have been sought informally from at least three (3) qualified entities, and WHEREAS, staff proceeded with the RFQ/P process pursuant to Administrative Directive 3.1 and three (3) proposals were received as part of this solicitation, and WHEREAS, staff recommends approval of an Engineering Services Agreement with West Yost Associates, of Sacramento, CA for the 2025 Water System Risk and Resiliency Assessment and Emergency Response Plan Updates.
NOW, THEREFORE BE IT RESOLVED by the Council of the City of Modesto that it hereby approves an Engineering Services Agreement with West Yost Associates for the 2025 Water System Risk and Resiliency Assessment and Emergency Response Plan Updates in the amount of $132,932, plus $13,293 in additional services, if needed, for a total amount not to exceed $146,225.
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BE IT FURTHER RESOLVED that the City Manager, or his designee, is hereby authorized to execute the agreement, in a form approved by the City Attorney.
The foregoing resolution was introduced at a regular meeting of the Council of the City of Modesto held on the 22nd day of October 2024, by Councilmember ?, who moved its adoption, which motion being duly seconded by Councilmember ?, was upon roll call carried and the resolution adopted by the following vote:
AYES: Councilmembers:
NOES: Councilmembers:
ABSENT: Councilmembers:
ATTEST:
DIANE NAYARES-PEREZ, CMC, City Clerk
(SEAL)
APPROVED AS TO FORM:
BY: ____________________________________
JOSE M. SANCHEZ, City Attorney
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1 2024-
MODESTO CITY COUNCIL
RESOLUTION NO. 2024-
RESOLUTION APPROVING AN AMENDMENT TO THE FISCAL YEAR 2024- 25 MULTI-YEAR PROGRAM BUDGET IN THE AMOUNT OF $162,000 FROM WATER FUND RESERVES TO FUND THE 2025 WATER SYSTEM RISK AND
RESILIENCY ASSESSMENT AND EMERGENCY RESPONSE PLAN UPDATES
AND AUTHORIZING THE CITY MANAGER, OR HIS DESIGNEE, TO
IMPLEMENT THE PROVISIONS OF THE RESOLUTION
WHEREAS, certain budgetary transactions are necessary in the amount of $162,000, in order to fund the 2025 Water System Risk and Resiliency Assessment and Emergency Response Plan Updates, and
WHEREAS, the Fiscal Year 2024-25 Multi-Year Program Budget must be amended.
NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Modesto that it hereby approves the amendment of the Fiscal Year 2024-25 Multi-Year Program Budget in the amount of $162,000.
BE IT FURTHER RESOLVED that the City Manager, or his designee, is hereby authorized to implement the provisions of this resolution. #12..
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The foregoing resolution was introduced at a regular meeting of the Council of the City of Modesto held on the 22nd day of October 2024, by Councilmember ?, who moved its adoption, which motion being duly seconded by Councilmember ?, was upon roll call carried and the resolution adopted by the following vote:
AYES: Councilmembers:
NOES: Councilmembers:
ABSENT: Councilmembers:
ATTEST:
DIANA NAYARES-PEREZ
CMC, City Clerk
(SEAL)
APPROVED AS TO FORM:
BY: ____________________________________
JOSE M. SANCHEZ, City Attorney
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ENGINEERING SERVICES AGREEMENT WITH WEST YOST ASSOCIATES FOR 2025 WATER SYSTEM RISK AND RESILIENCY ASSESSMENT AND EMERGENCY
RESPONSE PLAN UPDATES
THIS AGREEMENT, made and entered into in the City of Modesto, State of California, this ______ day of_____________, 2024, (“Effective Date”) by and between the CITY OF MODESTO, a municipal corporation of the State of California, hereinafter referred to as "City", and WEST YOST ASSOCIATES, a California corporation, hereinafter referred to as "Consultant".
This Agreement is made with regard to the following recitals:
A. The City has determined that Engineering Services are necessary for the 2025 Water System Risk and Resiliency Assessment and Emergency Response Plan Updates. Consultant represents that it is qualified, willing and able to provide the aforementioned services.
NOW, THEREFORE, in consideration of this agreement, and the mutual promises, covenants, and stipulations hereinafter contained, the parties agree as follows:
1. SCOPE OF SERVICES.
Consultant shall undertake and complete the preparation of the scope of work as set forth and described in the documents attached hereto and referred to as Exhibit "A" or "project". The Consultant shall perform the services as described in Exhibit "A" in a manner compatible with the standards of its profession and shall produce a fully complete project that is acceptable to City.
2. TERM OF AGREEMENT.
This Agreement is effective as of the date first written above and will continue in effect until City's acceptance of and payment for all services authorized by City and performed by Consultant, unless terminated earlier in accordance with the provisions of the #12..
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termination clause in this Agreement.
Consultant shall undertake and complete the preparation of the scope of work as set forth and described in the documents commonly referred to as “project” attached hereto as Exhibit "A" and made a part hereof. City hereby gives Consultant notice to proceed with the preparation of the project in the manner described in Exhibit "A", as of the Effective Date of this agreement. Consultant shall diligently proceed with the preparation of the project and agrees to complete said preparation within the time period set forth in Exhibit "A".
3. COMPENSATION.
Consultant agrees to accept a sum not to exceed ONE HUNDRED THIRTY TWO THOUSAND NINE HUNDRED THIRTY TWO AND 00/100 DOLLARS ($132,932) (maximum compensation) as full remuneration for performing all services and furnishing all staffing and materials for Modesto in accordance with Exhibit "A" attached hereto and for performance by Consultant of all of its duties and obligations under this Agreement, except that additional services may be compensated as described below.
The Compensation shall be paid pursuant in the manner and at the times set forth below:
City shall pay Consultant on a time and materials basis for Consultant’s actual costs for all work called for in Exhibit “A” to this Agreement. All work to be performed under this Agreement shall be billed at the hourly rates set forth in Exhibit “B” attached hereto, Consultant shall submit monthly invoices to City which include detailed tasks, hours worked, and billable rates for all work completed, and detailed receipts for any out-of-pocket costs paid by Consultant in connection with work performed on this project. #12..
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Additional services may be authorized by the City Manager in an amount up to, but not to exceed ten percent (10%) of the agreed maximum compensation, or THIRTEEN THOUSAND TWO HUNDRED NINETY THREE AND 00/100 DOLLARS ($13,293). In the event that additional services are deemed necessary, the Consultant shall provide a written request to the City Manager indicating the reason for additional work, scope and cost of such work. The City Manager shall provide a written response to the request, either approving or denying the additional expenditure. If additional services are requested and approved, they will be billed at the hourly rates set forth in Exhibit “B” and may not exceed the amount requested and approved in writing by the City Manager. In that event, the new total compensation shall not exceed ONE HUNDRED FORTY SIX THOUSAND TWO HUNDRED TWENTY FIVE AND 00/100 DOLLARS ($146,225). If additional services in excess of this amount are deemed necessary by City Staff, an amendment to this Agreement will be required and must be approved by the City Council prior to commencing the work, as provided in Paragraph 9 of this agreement.
4. OBLIGATIONS OF CONSULTANT.
Throughout the term of this Agreement, Consultant shall possess, or secure all licenses, permits, qualifications and approvals legally required to conduct business.
Consultant represents that it has all of the necessary professional capabilities and experience, as well as all tools, instrumentalities, facilities and other resources necessary to provide the City with the services contemplated by this Agreement. Consultant further represents that it will follow the best current, generally accepted and professional practices to make findings, render opinions, prepare factual presentations, and provide professional advice and recommendations regarding this project. In providing services under this Agreement, Consultant shall perform in a manner consistent with that degree of care and skill ordinarily exercised by members of the same profession currently practicing under similar circumstances at the same time and in the #12..
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same or similar locality ("Standard of Care").”
5. PERFORMANCE BY KEY EMPLOYEE.
Consultant has represented to City that Bill Schilling, will be the person primarily responsible for the performance of the services referred to in this Agreement. City has entered into this Agreement in reliance on that representation by Consultant. Consultant therefore agrees that ten percent (10%) or more of the time to be devoted to the project that is the subject of this Agreement will be that of the above-named person.
6. OWNERSHIP OF DOCUMENTS/TITLE TO DATA.
Ownership of Documents
All reports, drawings, designs, graphics, working papers and other incidental work or materials furnished hereunder shall become and remain the property of the City, upon payment of all invoices due and owing to Consultant, and may be used by City as it may require without any additional cost to City. No reports shall be used by the Consultant for purposes other than this contract without the express prior written consent of City. City shall, to the fullest extent permitted by law, defend, indemnify, and hold harmless Consultant from and against any and all costs, expenses, fees, losses, claims, demands, liabilities, suits, actions, and damages whatsoever arising out of or resulting from such unauthorized reuse or distribution.
Title to Data
If, as a part of the agreement, Consultant is required to produce data such as, but not limited to, drawings, plans, specifications, calculations, models, flow diagrams, visual aids and other related materials, the originals of all such data generated under this agreement will be delivered to City upon the completion or termination of services under the contract.
All materials, documents, data or information obtained from the City data files or any City medium furnished to Consultant in the performance of this Agreement will at all #12..
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times remain the property of the City. Such data or information may not be used or copied for direct or indirect use by Consultant after termination of this Agreement without written consent of the City.
7. NEWS AND INFORMATION RELEASE.
Consultant agrees that it will not issue any news releases in connection with either the award of this Agreement, or any subsequent amendment of or efforts under this Agreement, without first obtaining review and approval of said news releases from City through the City Manager.
8. INTEREST OF CONTRACTOR.
Consultant warrants that it presently has no interest and shall not acquire any interest, direct or indirect, which would conflict in any manner or degree with the performance of services required to be performed under this Agreement. Consultant warrants that, in performance of this Agreement, Consultant shall not employ any person having any such interest. Consultant agrees to file a Statement of Economic Interests with the City Clerk at the start and end of this contract if so required at the option of City.
9. AMENDMENTS.
Both parties to this Agreement understand that it may become desirable or necessary during the execution of this Agreement, for City or Consultant to modify the scope of services provided for under this Agreement. Any material extension or change in the scope of work shall be discussed with City and the change and cost shall be memorialized in a written amendment to the original contract prior to the performance of the additional work.
Until a change order is so executed, City will not be responsible to pay any charges Consultant may incur in performing such additional services, and Consultant shall not be required to perform any such additional services. #12..
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10. INDEPENDENT CONTRACTOR.
All acts of Consultant, its agents, officers, and employees and all others acting on behalf of Consultant relating to the performance of this Agreement, shall be performed as independent contractors and not as agents, officers, or employees of City. Consultant, by virtue of this Agreement, has no authority to bind or incur any obligation on behalf of City.
Consultant has no authority or responsibility to exercise any rights or power vested in the City.
No agent, officer, or employee of the City is to be considered an employee of Consultant. It is understood by both Consultant and City that this Agreement shall not under any circumstances be construed or considered to create an employer-employee relationship or a joint venture.
Consultant, its agents, officers and employees are and, at all times during the terms of this Agreement, shall represent and conduct themselves as independent contractors and not as employees of City.
Consultant shall determine the method, details and means of performing the work and services to be provided by Consultant under this Agreement in a manner consistent with the Standard of Care. Consultant shall be responsible to City only for the requirements and results specified in this Agreement, and, except as expressly provided in this Agreement, shall not be subjected to City's control with respect to the physical action or activities of the Consultant in fulfillment of this Agreement. Consultant has control over the manner and means of performing the services under this Agreement.
Consultant is permitted to provide services to others during the same period service is provided to City under this Agreement. If necessary, Consultant has the responsibility for employing other persons or firms to assist Consultant in fulfilling the terms and obligations under this Agreement.
If in the performance of this Agreement any third persons are employed by Consultant, such persons shall be entirely and exclusively under the direction, supervision, and #12..
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control of Consultant. All terms of employment including hours, wages, working conditions, discipline, hiring, and discharging or any other term of employment or requirement of law shall be determined by the Consultant.
It is understood and agreed that as an independent contractor and not an employee of City neither the Consultant or Consultant's assigned personnel shall have any entitlement as a City employee, right to act on behalf of the City in any capacity whatsoever as an agent, or to bind the City to any obligation whatsoever.
It is further understood and agreed that Consultant must issue W-2 forms or other forms as required by law for income and employment tax purposes for all of Consultant's personnel.
As an independent contractor, Consultant hereby indemnifies and holds City harmless from any and all claims that may be made against City based upon any contention by any third party that an employer-employee relationship exists by reason of this Agreement.
11. ASSIGNMENT.
Neither this Agreement nor any portion thereof shall be subcontracted or assigned without the express prior written consent of the City in each and every instance.
12. PATENT/COPYRIGHT MATERIALS.
Unless otherwise expressly provided in the contract, Consultant shall be solely responsible for obtaining the right to use any patented or copyrighted materials in the performance of this Agreement. Consultant shall furnish a warranty of such right to use to City at the request of City.
13. NOTICES.
Notice required by this Agreement shall be given in writing and shall be deemed given and effective upon receipt provided that such are delivered in accordance with the #12..
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provisions of this Section. Notices shall be delivered either by: (a) personal delivery (including delivery by an overnight courier service which obtains confirmation of receipt); or (b) by facsimile, provided that such transmission is followed by delivery by an overnight courier service which obtains confirmation of receipt; or (c) postage prepaid, return receipt requested, certified mail; or (d) by electronic transmission subject to reasonable proof that the notice was both transmitted and received. Each such notice shall be sent to the parties at the address respectively set forth below or to such other address as a party may designate by written notice given in accordance with the provisions of this Section:
FOR CONSULTANT: Name: West Yost Associates
Address: 100 Howe Avenue
Suite 1105
Sacramento, CA 95825
Attention: Bobby Vera, PE
Phone: (916) 306-2212
Email: [email protected]
FOR CITY: Name:
Address:
City of Modesto
1010 10th Street
Suite 4600
Modesto, CA 95354
Attention: Cristian Ciotau
Phone (209) 577-5260
Email: [email protected]
14. INSURANCE REQUIREMENTS.
Insurance. During the term of this Agreement, Contractor shall maintain in full force and effect at its own cost and expense the insurance coverage as set forth in the attached Exhibit (C) to this Agreement and shall otherwise comply with the other provisions of Exhibit (C) to this Agreement. The city utilizes a software program “PINS Advantage” where vendor is responsible for uploading and maintaining updated insurance. #12..
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15. TERMINATION OF AGREEMENT.
Termination by City for Default of Consultant
Should Consultant default in the performance of this Agreement or materially breach any of its provisions, at its option, City may terminate this Agreement by giving written notification to Consultant. The termination date shall be the effective date of the notice. For the purposes of this section, material breach of this Agreement shall include, but not be limited to, any of the following: failure to perform required services or duties, willful destruction of City's property by Consultant, dishonesty or theft.
Termination byCity for Convenience
The City may also terminate the Consultant's performance under the Agreement, either in whole or in part, at its own discretion, or when conditions encountered during the Work make it impossible or impracticable to proceed, or when the Cityis prevented from proceeding with the Agreement by act of God, by law, or by official action of a public authority, or upon a determination by the City that such termination is in the best interest and convenience of the City, or whenever the City is prohibited from completing the Work for any reason. The Cityshall provide no less than ten (10) calendar days written notice of its intent to terminate the Agreement for convenience, and shall endeavor to provide the Consultant with consultation with the City prior to termination.
Post-Termination Procedure
Upon receipt of a written notice of termination pursuant to either of the foregoing paragraphs, the Consultant shall:
a. Cease its work as directed in the notice of termination as of the termination date and see to it that its employees, subconsultants and agents are notified of such termination and act as specified in the notice of termination;
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b. Terminate all orders and Subcontractors except as necessary to complete any portion of the Work that is not terminated; c. If directed in writing by the City to do so, assign all right, title and interest in subcontracts and materials in progress to City, in which case the City will have the right at its discretion to settle, or pay any or all claims arising out of the termination of such subconsultants, but in no event shall recovery by any Consultant or subconsultant include lost profits for portions of the Work not completed or undertaken, including materials not delivered; d. Deliver or otherwise make available to the City all data, drawings, specifications, reports, estimates, summaries and such other information and material as mayhave been accumulated by the Consultant in performing the Work whether completed or in process; e. Settle outstanding liabilities and claims, subject to the approval of City;
f. Complete performance of such part of the Work as has not been terminated;
g. Take such other actions as may be necessary, or as may be directed by the City for the protection and preservation of the Work and/or property related to the Work;
h. If City so requests, and at City's cost, Consultant shall provide sufficient oral or written status reports to make City reasonably aware of the status of Consultant's work on the project. i. The Consultant understands and agrees that City may, in City's sole discretion, refuse to pay Consultant for that portion of #12..
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Consultant's services which were performed by Consultant on the project prior to the termination date and which remain
unacceptable and/or not useful to City as of the termination date.
City will pay Consultant an amount based on the percentage of satisfactory work completed in accordance with the notice of termination. The final payment to the Consultant after termination for convenience shall be limited to amounts due and owing under the Agreement at time of termination, including the following:
a. The cost of settling and paying valid claims arising out of the termination of the Work such as subconsultant agreements or contracts for materials;
b. The Agreement price allocable to the portion of the Work properly performed or goods supplied to the work site by the Consultant as of the date of termination, as determined in accordance with the notice of termination, reduced by any sums previously paid to the Consultant.
Authorization to Terminate Agreement
Termination of the Agreement may be invoked by the City Manager, or his/her designee, subject to the right of the Consultant to appeal the City Manager, or his/her designee’s, decision to the City Council. The Consultant shall appeal by notifying the City Clerk in writing within ten (10) calendar days of receipt of written notification from City of termination of the Agreement. In the event that termination of this Agreement is upheld by the City Council, any cessation of payment of delay claims, extended claims, Eichleay claims, or any other claims for delay shall be retroactive to the date of termination selected by the City Manager, or his/her designee.
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16. CERTIFIED PAYROLL REQUIREMENT.
For consultants performing field work on public works contracts on which prevailing wages are required: The Consultant shall comply with the provisions of Section 1776 of the California Labor Code, regarding payroll records, and shall require its subconsultants and subcontractors to comply with that section as may be required by law.
17. INDEMNITY.
The Consultant shall hold the City, its agents, officers, employees, and volunteers, harmless from and save, defend and indemnify them against any and all claims, losses, liabilities, judgments or damages from every cause, including but not limited to injury to person or property or wrongful death, including reasonable costs and expenses of defense of any judicial or administrative action, to the extent they are arising directly or indirectly out of any negligent, reckless, or willful misconduct of Consultant, or its agents, officers, employees, or volunteers relating to or during the performance of its obligations under this Agreement. The Parties also acknowledge that this Agreement is subject to California Civil Code 2782.8 as amended and effective January 1, 2018.
Consultant's obligation to defend, indemnify, and hold the City, its agents, officers, and employees harmless under the provisions of this paragraph is not limited to or restricted by any requirement in this Agreement for Consultant to procure and maintain a policy of insurance.
18. DISPUTE RESOLUTION.
All claims, controversies, or disputes arising out of, or relating to the formation of this Agreement, or the breach, termination execution, enforcement, interpretation, or validity of this Agreement, including the determination of the scope or applicability of this contract provision shall be determined by binding arbitration in Modesto, California by one arbitrator, except as otherwise specified in this Agreement. The American Arbitration #12..
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Association shall administer the arbitration under its Arbitration Rules then in effect, subject to the modifications of those rules contained in this paragraph. This agreement to arbitrate shall be specifically enforceable under the prevailing law of any court having jurisdiction, and the award rendered by the arbitrator may be entered in any court having jurisdiction. The appropriate venue for any arbitration or court proceeding relating to or arising out of this provision shall be in Stanislaus County, California.
This paragraph is not intended to and does not waive the claim filing requirements found in California Government Code section 900 et seq. In the event that a timely and legally sufficient, arbitrable claim is filed by Consultant with City, and the claim is rejected in whole or in part by City, this paragraph shall result in the conclusive, final, and binding resolution of all the issues presented in the claim by Consultant so long as any issues presented by the claim are arbitrable. Claims rejected by City or by operation of law, shall be submitted by Consultant to arbitration pursuant to the Arbitration Rules of the American Arbitration Association within ninety (90) days after mailing of the written rejection by City to Consultant.
Otherwise, the claim or claims shall be deemed waived in their entirety.
The “fast track’ rules of the American Arbitration Association shall apply to any claim or counterclaim less than ONE HUNDRED FIFTY THOUSAND AND 00/100 ($150,000.00) DOLLARS. In arbitration not proceeding under the “fast track” rules, the arbitrator shall have the power to order that depositions be taken and other discovery be made.
Both City and Consultant shall have the right, upon written notice, to take no more than three (3) depositions of the other as a matter of right in an arbitration proceeding under the “fast track” rules.
Whether or not City and Consultant may be engaged in interstate commerce, any controversy or dispute mentioned above shall be determined by, and the parties shall be bound by, the substantive law of the State of California, and not the Federal Arbitration #12..
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Act at 9 USC Section 1 et seq.
The arbitrator may grant any remedy or relief deemed by the arbitrator just and equitable under the circumstances, whether or not such relief could be awarded in a court of law. The arbitrator shall be empowered to award monetary sanctions against a party for failure of cooperation in the arbitration. The arbitrator shall, in written award, allocate all the costs of the arbitration, including the fees of the arbitrator and the reasonable attorney fees of the prevailing party, against the party who did not prevail. The prevailing party shall be the party in whose favor the majority of the central issues in the case are resolved.
Notwithstanding anything in this provision to the contrary, the arbitrator shall have no power to award punitive damages or other damages not measured by the party’s actual damages (excluding litigation costs and fees) against any party. This limitation of the arbitrator’s powers under this Agreement shall not operate as an exclusion of the issue of punitive damages from this Agreement to Arbitrate sufficient to vest jurisdiction in a court with respect to that issue.
Consultant shall include in all subcontracts a specification whereby the subcontractor consents to being joined in an arbitration between City and Consultant involving the work of the subcontractor to be joined. Consultant’s failure to do so shall be a breach of this Agreement.
The parties hereby waive any rights provided by Title 9.2 of the California Code of Civil Procedure, Section 1296. The arbitrator’s award shall be deemed final, conclusive and binding to the fullest extent allowed by California law.
19. ENTIRE AGREEMENT.
This Agreement and its exhibits contain the entire understanding between Consultant and City. Additional or new terms contained in this Agreement which vary from Consultant's proposal are controlling and are deemed accepted by Consultant by shipment of any #12..
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article or other commencement of performance hereunder. All previous proposals, offers and communications relative to this Agreement, whether oral or written, are hereby superseded except to the extent that they have been incorporated into this Agreement. No future waiver of or exception to any of the terms, conditions, and provisions of this Agreement shall be considered valid unless specifically agreed to in writing by all the parties.
20. PARTIAL INVALIDITY.
If any provision in this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions shall nevertheless continue in full force without being impaired or invalidated in any way.
21. WAIVER.
The waiver by any party to this Agreement of a breach of any provision hereof shall be in writing and shall not operate or be construed as a waiver of any other or subsequent breach hereof unless specifically stated in writing. #12..
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22. AUDIT.
The City's duly authorized representative shall have access at all reasonable times to all reports, contract records, contract documents, contract files, and personnel necessary to audit and verify Consultant's charges to City under this Agreement.
Consultant agrees to retain reports, records, documents, and files related to charges under this Agreement for a period of four (4) years following the date of final payment for Consultant services. City's representative shall have the right to reproduce any of the aforesaid documents.
23. GOVERNING LAW.
This Agreement shall be governed according to the laws of the State of California.
24. HEADINGS NOT CONTROLLING.
Headings used in the Agreement are for reference purposes only and shall not be considered in construing this Agreement.
25. COMPLIANCE WITH LAWS.
Consultant shall comply with all safety and hourly requirements for employees, in accordance with federal, state, and county safety and health regulations and laws.
Consultant shall comply with all applicable federal, state, and local laws, ordinances, regulations and permits.
26. CITY BUSINESS LICENSE.
Consultant will have a City of Modesto business license. #12..
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IN WITNESS WHEREOF, the City of Modesto, a municipal corporation, has authorized the execution of this Agreement by its City Manager and attestation by its City Clerk under authority of Resolution No. 2024- _______, adopted by the Council of the City of Modesto on the _______ day of ____________, 2024, and WEST YOST ASSOCIATES has caused this agreement to be duly executed as of the Effective Date. #12..
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CITY OF MODESTO
Water System Emergency
Response Plan Update
JUNE 18, 2024
EXHIBIT A
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100 Howe Avenue
Suite 110S
Sacramento, CA 95825
916.306.2250 phone
530.756.5991 fax
westyost.com
i
June 18, 2024
Jim Alves, PE
Senior Civil Engineer
City of Modesto
1010 Tenth Street, 6th Floor, City Clerk
Modesto, CA 95353
RE: Proposal in Response to RFP for Water System Emergency Response Plan Update Dear Jim:
Thank you for the opportunity submit this proposal to the City of Modesto (City) for its Water System Emergency Response Plan Update to comply with the U.S. Environmental Protection Agency’s (EPA’s) American Water Infrastructure Act (AWIA) regulations. In 2020, West Yost supported the City in the development of its cyber-Risk and Resilience Assessment (RRA), Risk and Resilience Management Strategies (RRMSs), and Emergency Response Plan (ERP). West Yost is excited for the opportunity to support the City on this important project and continue our longstanding relationship with the City, which began in 2002.
Our Proposed Team with Intimate Knowledge of the City’s Water Systems Our proposed team includes industry-leading professionals who are adept at navigating water system compliance complexities. Our team offers customized assessments that provide comprehensive insights and actionable recommendations to enhance the resilience, safety, and efficiency of the City’s water infrastructure. Our team also has intimate knowledge of the City’s water system through past projects, such as the City’s Water Master Plan and past AWIA Compliance Services.
Our team will be led by Project Manager Bobby Vera and Principal-in-Charge Elizabeth Drayer. Bobby will be the City’s primary point of contact and has supported several regional clients in completing their RRAs and ERPs. Bobby and Elizabeth have worked with the City on more than 25 water planning and design projects, including the City’s Water Master Plan.
Bobby and Elizabeth will be supported by our key team members.
Andrew Ohrt is a recognized, nationwide expert on water system resilience. His work includes supporting the American Water Works Association (AWWA) as a contractor and volunteer. In 2019, he led the project to update AWWA’s cybersecurity resources, which were widely used by utilities in their AWIA compliance efforts. Andrew volunteers his services on the J100 Standard Committee and is the Chair of the G430 Standard Committee. These AWWA standards provide many of the best practices for water sector resilience and security. Tara Mertz is an expert in governance and risk management in the public sector. She understands the intricate balance between risk mitigation and achieving organizational goals. Sarah Walsh has supported or led the completion and successful delivery of over 30 RRAs and ERPs.
She also volunteers as the Secretary for the AWWA Emergency Preparedness and Security committee.
West Yost’s Related Experience Summary, Knowledge of Compliance Requirements, and Proven Approach West Yost’s experience includes work on 37 RRAs, 36 ERPs, and more than 60 cyber RRAs. Our projects have served more than 11 million people, which includes providing AWIA support to the following California clients:
■ City of Modesto
■ City of Fairfield
■ City of Lincoln
■ City of Milpitas
■ City of Petaluma
■ City of Pleasanton
■ City of Vacaville
■ City of Vallejo
■ Dublin San Ramon
Services District
■ Santa Clara Valley
Water District
■ Stanislaus Regional
Water Authority
■ Woodland-Davis
Clean Water Agency
Submitting Organization
West Yost & Associates, Inc.
Authorized Representative
Elizabeth Drayer, PE
Point of Contact
Bobby Vera, PE
100 Howe Avenue, Suite 110S
Sacramento, CA 95825
916.306.2212 phone
[email protected]
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ii
Jim Alves, PE
June 18, 2024
RE: Water System Emergency Response Plan
From our experience, utilities that have rigorously applied the AWWA J100 Standard in development of their RRA pass the EPA audit. To support the City in complying with the EPA’s regulation, we recommend a full revision of the City’s RRA using the AWWA J100 Standard, as recommended in our proposed scope of work. Since the City last completed AWIA compliance activities, numerous things have changed, including:
■ Updates to AWWA standards, most prominently J100-21 and the associated Operational Guide. Updates to cybersecurity resources are expected in mid-2024. These updates change how the risks associated with specific threats and hazards are evaluated.
■ Changes to the EPA’s approach to ensuring AWIA compliance and consideration of climate change resilience. Specifically:
‒ The EPA is expected to exercise its audit authority under the Safe Drinking Water Act to confirm that AWIA compliance actions meet the associated requirements.
‒ The EPA has released an internal policy that all compliance actions should explicitly account for climate change resilience. ■ Changes to our operating environment. The industry’s understanding of the threats (e.g., cyber) and hazards (e.g., climate change) that are impacting utility operations are continuously evolving. ■ Changes to the City’s operations and staff. Organizations are continuously evolving as infrastructure investments are made, staff leave, new staff join, and customer demands change.
Our proven approach to developing RRAs and ERPs will provide the City the necessary time to meet EPA compliance timelines and combines master planning and systems analysis to support the City’s strategic vision. West Yost will help the City meet the EPA requirements and will help City staff elevate the management and operation of the City’s water system through this project.
West Yost agrees to be bound by the representations in our proposal during the term of the agreement, and our proposal is valid for 90 days. West Yost has successfully entered into agreements with the City in the past and is confident that should we be selected for the City’s project, we will be able to reach mutually agreeable terms. We have included requested modifications to the City’s sample agreement in Section 4 of our proposal for the City’s consideration. West Yost confirms receipt of Questions & Answers No 1.
West Yost is committed to providing a collaborative and responsive experience for a successful project outcome, and our team is available to begin work on this project. Please contact Bobby or Elizabeth if you have questions or need additional information.
Sincerely,
WEST YOST
Bobby Vera, PE Elizabeth Drayer, PE
Project Manager Principal-in-Charge/Vice President
916.306.2212 925.461.6793
[email protected] [email protected]
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City of Modesto | Water System Emergency Response Plan | June 18, 2024 iii
TABLE OF CONTENTS
SECTION PAGE
1. Project Understanding and Approach
Understanding and Approach 1-1
Scope of Services 1-2
Schedule 1-8
Hours Table 1-9
2. Qualifications of Consultant Staff 2-1
3. Experience of Firm 3-1
4. Standard Agreement and Financial Interest Disclosure Form 4-1
5. Cost Proposal Separate Sealed
Appendix A - Resumes A-1
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City of Modesto | Water System Emergency Response Plan | June 18, 2024 1-1 1 PROJECT UNDERSTANDING AND APPROACH
Project Understanding and Approach
America’s Water Infrastructure Act of 2018
The America’s Water Infrastructure Act of 2018 (AWIA)
was signed into law in October of 2018. Under this law, utilities are required to conduct or review risk and resilience assessments (RRAs) and prepare or revise emergency response plans (ERPs) every five years. Utilities must certify to the EPA that they have achieved these new requirements. The City must submit self-certification statements to the EPA certifying RRA and ERP compliance. Below are target dates for the City. ■ Water System ID: CA5010010
■ Population Served: 218,771*
■ RRA Compliance Date: March 31, 2025
■ ERP Compliance Date: September 30, 2025
*According to the U.S. EPA’s Safe Drinking Water Information System as of June 4, 2024.
Industry Standards
AWIA is not prescriptive on how regulatory compliance is achieved. However, West Yost uses the ecosystem of voluntary consensus standards and guidance documents developed
by the AWWA, with complimentary guidance from outside
the water utility industry. To address the wide range of topics covered within an RRA and ERP, we couple the resources and assessments the City has already invested in with the latest industry guidance, resources, and best practices. These include:
■ AWWA J100-21 – Risk Analysis and Management for
Critical Asset Protection Standard for Risk and Resilience Management of Water and Wastewater Systems (J100
Standard) and associated J100 Operational Guide.
■ AWWA Water Sector Cybersecurity Risk Management Tool
and Guidance.
■ AWWA G430-20 – Security Practices for Operation and
Management (G430 Standard).
■ AWWA G440-17 – Emergency Preparedness Practices
(G440 Standard).
■ AWWA M19 – Emergency Planning for Water and
Wastewater Utilities, 5th Edition.
These AWWA standards represent risk and resilience
management and emergency preparedness best practices
for the water sector. Following these standards demonstrates due diligence. In addition to the AWWA standards, we will consider standards from outside the water utility industry as needed to provide a more comprehensive review. These standards include, but are not limited to:
■ Idaho National Laboratory’s Cyber-Informed Engineering Implementation Guide.
■ AWWA G300-14 – Source Water Protection and
associated G300 Operational Guide (G300 Standard).
■ AWWA M71 – Climate Action Plans: Adaptive Strategies
for Utilities.
■ EPA’s Climate Resilience Evaluation and Awareness Tool (CREAT).
These standards are regularly updated. If a more recent version is available, the project team will use that version to support project delivery.
The EPA is conducting audits of AWIA compliance.
Utilities that rigorously applied the AWWA J100
Standard in development of their RRA have
successfully passed the EPA audit. Therefore, we
recommend a full revision of the City’s RRA using
the AWWA J100 Standard. Our scope reflects that
recommendation. To the extent possible, West Yost
will use historical and concurrent work to inform this
project and achieve compliance.
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1-2
Building on Prior AWIA Compliance
Work and Maintaining Continuity
of Service to the City
West Yost has an unparalleled understanding of the City’s water system through a long history of more than 65 projects involving treatment design, hydraulic modeling, and the development of the City’s Water Master Plan and Urban
Water Management Plan. In addition, West Yost supported the City’s prior AWIA compliance project in 2020. We
supported the City’s cyber-RRA, development of risk and resilience management strategies (RRMSs), and development of the ERP. With our extensive knowledge of the City’s
operations and prior AWIA compliance support, the West Yost team can best serve the City in building AWIA compliance.
What Has Changed
The RRA process is intended to be iterative. AWIA requires review, revision, and recertification of the RRA and the ERP every five years. This requirement was established to accommodate change in community water systems, including:
■ Changes to the City’s operations and staff: Organizations continuously evolve as infrastructure investments are
made, staff leave, new staff join, and customer demands change.
■ Changes to the operating environment: Our
understanding of the threats (e.g., cyber) and hazards
(e.g., climate change) that impact utility operations are continuously evolving.
■ Changes to industry best practices: As a reflection of the changes noted above, along with our improved
understanding of how to address risk, industry best
practices continue to evolve.
The City completed and certified its RRA in 2020 using an acceptable method, however, it was not a full J100 RRA.
West Yost takes an all-hazards approach to address the
full range of J100 potential threats and hazards, including malevolent acts, natural hazards, dependency hazards, and proximity hazards. Our approach considers prevention,
protection, preparedness, response, and recovery needs.
With this approach, West Yost can provide the City with a broad range of expertise and resources to further enhance their RRA.
Workshops
Stakeholder engagement is a key component of West Yost’s approach and is consistent with industry standards for
building resilience. West Yost’s workshops are designed to be interactive and collaborative, and will include City staff from management, engineering, and operations.
Workshops are integrated into the scope because they:
1) educate stakeholders on the assessment process, 2)
build consensus on key items such as critical assets and relevant threats/hazards, and 3) provide agency leadership with recommendations on what should change in the
organization to reduce risk and increase resilience. The following workshops are included in the scope:
■ Workshop 1 – Asset and Threat Characterization
■ Workshop 2 – Cybersecurity Risk and Resilience Assessment ■ Workshop 3 – Consequence Analysis
■ Workshop 4 – Risk and Resilience Management
Strategies and Emergency Response Planning
In addition, the workshops provide the opportunity for
staff to better understand AWIA requirements and different types of risks to the City’s water system. Our approach of actively engaging key utility stakeholders will help to further integrate resilience and emergency preparedness into the organizational culture and decision-making processes.
West Yost AWIA compliance workshops count as
continuing education units (CEU) for operators. West Yost provides all documentation to workshop attendees and
retains training information, per State guidance.
Scope of Work
The following sections summarize the proposed scope of
work to develop both an AWIA-compliant RRA and ERP. The West Yost scope of services consists of the following tasks:
■ Task 1 – Project Management
■ Task 2 – Risk and Resilience Assessment Update
■ Task 3 – Emergency Response Plan Update
■ Task 4 – As-Needed Services
The following sections summarize the scope of services to complete this project.
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City of Modesto | Water System Emergency Response Plan | June 18, 2024 1-3 Task 1. Project Management
The objective of this task is to track work progress and expenditures to maintain the project schedule and budget through proactive communications, and standardized
quality assurance and quality control review procedures.
West Yost’s project management activities include:
■ Invoices: West Yost will prepare monthly invoices and progress reports.
■ Quality Control: In accordance with West Yost’s internal quality assurance/quality control (QA/QC) policy,
West Yost will perform QA/QC for each of the project
deliverables prior to final submission to the City.
■ Project Initiation Meeting: West Yost will prepare for and coordinate a project initiation meeting. We will
review the project approach, scope, and updated project schedule, and we will finalize schedules for meetings and workshops. At this meeting, we will also:
‒ Review the AWIA requirements.
‒ Prepare for the series of workshops.
‒ Identify the City’s internal and external stakeholder group members.
‒ Review and discuss the RFI.
‒ Discuss any specific concerns related to resilience and the project.
‒ Identify staff for interviews.
‒ Establish dates for workshops and progress meetings.
■ Project Closeout Meeting: In accordance with West Yost’s internal policy, we will conduct final project closeout activities, which include the final document delivery and final progress report.
TASK 1 ASSUMPTIONS
■ The project duration will be eight months.
■ The project initiation meeting will be in person and up to one hour in duration.
TASK 1 DELIVERABLES
■ West Yost will provide monthly status reports, monthly invoices, and project schedule updates.
■ West Yost will prepare meeting notes and materials.
Task 2. Risk and Resilience
Assessment Update
Under this task, West Yost will assess the risks to the City’s water system from a wide range of potential threats and hazards required by AWIA and recommended in the J100
Standard. This task will be completed through a series of workshops, City staff interviews, site visits, and review of the City’s existing documentation. The City’s RRA will be updated using the J100 Standard. This task includes:
■ Request for Information (RFI) Submittal: West Yost will submit an RFI to the City to capture information that may be relevant to the subsequent tasks.
■ Existing Documentation Review: West Yost will review the most recent documents, including, but not limited to the:
‒ 2020 RRA
‒ 2021 ERP
‒ Additional emergency preparedness documentation
‒ 2021 Water Master Plan
‒ 2020 Seismic Vulnerability Assessment
‒ 2020 Urban Water Management Plan
‒ 2017 Hazard Mitigation Plan
‒ 2020 Cybersecurity Assessment
■ Site Visits: West Yost staff will conduct site visits to facilities and process areas most critical to the City’s operations. During these site visits, we will evaluate the site-specific threats and hazards, review vulnerabilities, and note mitigation and countermeasures that are
already in place. These site visits will be facilitated by City staff. Photos may be collected if authorized by the City. ■ Staff Interviews: Interviews are often an excellent way to collect data for use within an RRA and ERP. To the extent possible, West Yost will conduct interviews concurrent
with site visits. West Yost may conduct additional
interviews in person, by telephone, in a one-on-one
format, or in a small group setting, depending on staff roles and responsibilities. Interviews will inform both the RRA and ERP update.
■ Workshops: West Yost will host a series of educational and collaborative workshops, which will continue to
integrate resilience and emergency preparedness into the organizational culture and decision-making processes.
Workshops will include key stakeholders such as City staff from management, engineering, and operations.
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■ RRA Summary Report: In this report, West Yost will
summarize the work conducted during this task. The
report will include the results of the workshops and
analyses, and the risk and resilience calculations. The report will include project recommendations that, if
implemented, will reduce the risk of the greatest threatasset pairs based on estimated risk reduction and costbenefit analyses.
ASSET AND THREAT CHARACTERIZATION
Asset characterization is the first step of an RRA. In this task, West Yost will assist the City in identifying critical assets, primarily completed during Workshop 1 – Asset and Threat Characterization Workshop. The outcome of this workshop is a list of prioritized critical assets that will be evaluated further in subsequent tasks.
The asset characterization process is summarized in the following steps:
■ Confirm the City’s mission and service levels.
■ Confirm critical assets and customers.
WORKSHOP 1 – ASSET AND
THREAT CHARACTERIZATION
Prior to the workshop, West Yost will use the information provided by the City and collected during site visits and staff interviews to develop a draft updated asset list, including:
■ Built assets (e.g., facilities).
■ Natural assets (e.g., source water).
■ People (e.g., staff or contractors with significant
institutional knowledge).
■ Data (e.g., water quality data).
West Yost will update the City’s list of critical customers, such as hospitals, major businesses, or government
facilities, as needed.
During the Asset and Threat Characterization Workshop,
attendees will first review and discuss the draft updated asset list. The discussion will include confirming the City’s mission and service levels and reviewing critical customers.
This discussion will conclude with an agreed-upon list of critical assets.
Next, the project team will facilitate a threat and hazard characterization discussion to confirm and/or modify those relevant to the City. The group will review and discuss local historical occurrences of threats and hazards and their associated impacts to the City’s water system. At the workshop, the group will reach an agreement on:
■ Insider/outsider physical and cyber malicious adversary attributes.
■ Natural hazards to be analyzed further within the RRA. ■ Dependency and proximity hazards such as power,
chemicals, key suppliers, critical employees, transportation, and proximity to dangerous neighboring sites.
■ Raw water and finished water/distribution system
contamination threats.
West Yost will use the information from Workshop 1 to
update and/or develop scenarios for subsequent tasks.
West Yost will document discussions and decisions from
Workshop 1 in the RRA Summary Report.
CYBERSECURITY RISK AND
RESILIENCE ASSESSMENT
West Yost will evaluate the City’s “electronic, computer or other automated systems” in accordance with the AWIA
requirements. A general introduction to the cyber-RRA
will be included in the project initiation meeting. West Yost will review the City’s information technology (IT) and supervisory control and data acquisition (SCADA) systems and interview cybersecurity stakeholders.
TECHNOLOGY INTERVIEWS AND SITE VISITS
West Yost will assist the City with identifying the appropriate members of the cybersecurity stakeholder group. Typically, this group consists of staff responsible for the day-to-day secure and reliable operation of the City’s IT and SCADA systems. This may include external contractors.
West Yost expects cybersecurity RRA site visits to take half a day or less. We will incorporate interviews into the site visits. During these site visits, West Yost staff will develop a high-level understanding of the City’s IT and SCADA systems.
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City of Modesto | Water System Emergency Response Plan | June 18, 2024 1-5 WORKSHOP 2 – CYBER ASSESSMENT
West Yost will facilitate an evaluation of current
cybersecurity practices using the AWWA Cybersecurity Tool.
The AWWA Cybersecurity Tool is the consensus standard for cybersecurity assessment in the water sector and generates an easy-to-use output for building an AWIA-compliant
cybersecurity assessment and improvement plan. Since the prior round of AWIA, numerous additional cybersecurity
resources have been established by the Department of
Homeland Security (DHS), the EPA, and INL. These additional resources will be included in this RRA to the extent they support the City’s cybersecurity goals.
The output from the AWWA Tool is a prioritized list of
recommended cybersecurity controls based on industry
standards, including the National Institute of Standards and Technology (NIST) Cybersecurity Framework. The workshop will serve to document the status of cybersecurity controls and train utility staff on the use of the AWWA Tool. This will allow City staff to continue using the AWWA Cybersecurity Tool as improvements and changes are implemented.
West Yost will integrate the findings of this task into the RRA Summary Report and ERP.
West Yost anticipates that AWWA will update its
cybersecurity resources prior to this task’s kickoff. West Yost will include relevant updates in the City’s RRA.
ANALYSIS OF CONSEQUENCES,
VULNERABILITY, AND LIKELIHOOD
To complete the RRA, West Yost will recalculate risk for each threat-asset pair identified. This task consists of estimating each of the three variables needed to calculate risk, which are:
■ The consequence of a threat/hazard to an asset.
■ The vulnerability of an asset to a threat.
■ The likelihood of a threat occurring.
West Yost will complete the consequence analysis in
multiple steps. We will screen the threat-asset pairs in Workshop 3 to identify up to 75 priority threat-asset
pairs. After the workshop, West Yost will then update the estimates for consequences, vulnerabilities, and threat likelihoods for each threat-asset pair. West Yost will use this information to calculate the baseline risk for each threat-asset pair.
WORKSHOP 3 – CONSEQUENCE ANALYSIS
West Yost will conduct Workshop 3 to reassess the worst reasonable consequences that may be caused for each of
the threat-asset pairs developed. Prior to the workshop, West Yost will develop preliminary consequence screening criteria. Then, West Yost will conduct a consequence
analysis in a workshop format to build consensus among
City staff. During the workshop, the group will:
■ Review and revise the consequence types.
■ Discuss worst reasonable case assumptions.
■ Develop consequence estimates for select threat-asset pairs.
The results will be summarized in the RRA Summary Report.
CLIMATE CHANGE RISK ASSESSMENT
Once the critical assets have been identified, West Yost will conduct a climate change risk assessment using EPA’s Climate Resilience Evaluation and Awareness Tool (CREAT) to help the City better understand potential climate
change threats and assess the related risks. Results will be compared to other regional and local climate change risk assessments, if available. The results of the analysis will be integrated into the overall RRA to inform the risk and resilience analysis.
EARTHQUAKE IMPACTS SCREENING ANALYSIS
West Yost will update the previously-completed earthquake risk and consequence analysis for the Maximum Credible
Earthquake (MCE) that the City anticipates. This analysis will be based upon the FEMA Hazus Technical Manual,
Chapter 8, for non-linear assets (buildings, reservoirs, and pump stations), and the American Lifelines Alliance (ALA) Seismic Guidelines for Pipelines. Our analysis will highlight areas of strengths and weaknesses within the water system to help guide the City in focusing on future resilience.
One of the most substantial updates to industry best
practices is the approach to understanding seismic risk.
West Yost will update the prior assessment to better
characterize this risk within the RRA.
VULNERABILITY ANALYSIS
West Yost will update the evaluation of each critical asset and its protective systems’ ability to withstand each
specified threat or hazard. West Yost will document and account for existing protective systems such as: physical security systems; City security procedures; flood protection; backup generators; and existing emergency response
capabilities, plans, and protocols. West Yost will summarize the results in the RRA Summary Report.
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THREAT LIKELIHOOD ANALYSIS
West Yost will update the estimates of the threat likelihood (also known as annualized probability or frequency) that a specific threat or hazard will occur for each threat-asset pair retained for analysis. We will utilize standard information on frequency and severity from sources such as the
National Oceanic and Atmospheric Administration (NOAA)
and United States Geological Survey (USGS), local hazard mitigation plans, and the EPA. The analysis will also account for the utility-specific threat/hazard occurrence information gathered previously. The results will be summarized in the RRA Summary Report.
CALCULATE RISK AND RESILIENCE
West Yost will calculate risk and resilience for each priority threat-asset pair using the following equation from AWWA’s J100 Standard:
Risk = Consequences x Vulnerability x Threat Likelihood (C x V x T) West Yost will also complete the Utility Resilience Index, as presented in the J100 Standard.
RISK AND RESILIENCE ASSESSMENT
SUMMARY REPORT
Using the consequences, vulnerabilities, and threat
likelihoods estimated, West Yost will evaluate the risks to and resilience of the City’s operations. West Yost will prepare a Draft RRA Summary Report to summarize the
subtasks our team conducts during this task, the results of the workshops and analyses, and the risk and resilience calculations. West Yost will incorporate the cyber-RRA
results into this report. The report will be of sufficient depth and breadth to document that the City used an all-hazards approach and follows compliance with AWIA.
West Yost will provide the draft report to the City for review.
To assist in the City’s review process, West Yost will conduct a meeting to guide the City through the report prior to the City’s review. Upon receipt of the City’s comments on the Draft RRA Summary Report, West Yost will revise and finalize the document. With completion of this report, the City can certify with the EPA that the City’s RRA is complete.
The project schedule assumes that the City will complete a review of the draft deliverables within four weeks of receipt of the draft report. The budget assumes the City will provide a single set of consolidated comments on the draft report.
RISK AND RESILIENCE MANAGEMENT
STRATEGY (RRMS) DEVELOPMENT
Once risks have been calculated, RRMSs will be developed for implementation of projects to reduce the risk of the greatest threat-asset pairs. RRMSs may include physical security or cybersecurity upgrades, natural hazard
mitigation, training, policy/procedure changes, monitoring strategies, and operational/ financial changes that can make the City more resilient.
Once RRMSs have been developed, West Yost will evaluate how RRMSs lower risk to the critical asset. West Yost will prioritize the RRMSs based on risk reduction and cost
effectiveness.
WORKSHOP 4 – RISK AND RESILIENCE
MANAGEMENT STRATEGIES AND
EMERGENCY RESPONSE PLANNING
Workshop 4 will consist of two topics. The first topic is the analysis of RRMSs and associated results of the net benefit analyses. The second topic is the draft ERP updates discussed under Task 3.
TASK 2 ASSUMPTIONS
■ West Yost will implement a secure file-sharing method to exchange documents.
■ Site visits and City staff interviews will be conducted on the same day, to the extent possible.
■ Workshop 1 will be held in-person and is assumed to be up to two hours in duration.
■ The technology-focused site visits, cybersecurity RRA interviews, and Workshop 2 will occur on the same or
adjoining days. This is estimated to be up to four hours in duration.
■ Workshop 3 will be held in person and is assumed to be up to two hours in duration.
■ Workshop 4 is assumed to be virtual and two hours in
duration. It will include a discussion of both the RRMSs and the ERP.
■ The schedule assumes that the City will complete a review of the Draft RRA within four weeks of receipt of the draft report.
■ The budget assumes that the City will provide a single set of consolidated comments on the Draft RRA.
TASK 2 DELIVERABLES
■ West Yost will prepare meeting and workshop facilitation materials.
■ West Yost will prepare the Draft and Final RRA.
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City of Modesto | Water System Emergency Response Plan | June 18, 2024 1-7 Task 4. As-Needed Services
The objective of this task is to provide additional services to supplement the previous tasks, as requested by the City.
These services may enable the City to immediately begin implementing RRMSs identified within the RRA and identify potential funding sources for longer-term implementation efforts. Potential as-needed services include:
■ Emergency Preparedness Exercise: West Yost will
conduct a table-top exercise to evaluate the City’s ability to implement the revised ERP. We will incorporate
improvements into the ERP prior to finalization. For
example, West Yost regularly leads A Day without
SCADA® exercises to help utilities better understand
their dependence on SCADA and ability to operate in the absence of automation.
■ Cyber-Informed Engineering (CIE) Assessment: West Yost will conduct an assessment of current and ongoing
engineering practices to evaluate how the City is reducing current and future cyber-risk through implementation
of CIE principles. This service includes workshops to
establish an understanding of this new approach to
managing cyber-risk.
TASK 4 ASSUMPTIONS
■ No work on this task will be completed without prior City authorization, scoping, and associated budget/schedule
amendment, if needed.
TASK 4 DELIVERABLES
■ Deliverables provided for this task will be determined within scoping activities.
Task 3. Emergency Response Plan Update
West Yost will update the ERP to maintain AWIA compliance and enhance how the plan supports the City’s operations.
This approach is based on three main principles:
■ Standards-Based Planning: Conforms with the standards and eases implementation of the ERP during an
emergency situation.
■ Concept of Operations: Guides the development of the
ERP and defines the overall approach to emergency
situations, including what should happen, when, and
under whose direction.
■ Capability-Based Planning: Guides the development
of the ERP to help the City build capacity to take a
specific course of action. Capabilities-based planning
answers the question, “Do I have the right mix of
training, organizations, plans, personnel, leadership and management, equipment, and facilities to perform a
required emergency function?”
Since the City’s last AWIA-compliant ERP was developed
approximately five years ago, the City’s capabilities, the City’s operating environment, and industry best practices have evolved. Through this task, West Yost will update the ERP to account for these changes. West Yost will provide recommendations for improvements to the City’s ERP
during Workshop 4.
TASK 3 ASSUMPTIONS
■ The City will provide an editable version of the current ERP. ■ The schedule assumes that the City will complete a review of the Draft Revised ERP within four weeks of receipt of the draft report.
■ City staff will be available to participate in the virtual workshop.
TASK 3 DELIVERABLES
■ West Yost will prepare meeting and workshop facilitation materials.
■ West Yost will prepare the Draft and Final Updated ERP.
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Schedule
West Yost anticipates providing Task 1 deliverables within three weeks after receiving the notice to proceed and requested data. Currently, the project is estimated to start in September 2024.
Task Schedule
TASK
2024 2025
SEP OCT NOV DEC JAN FEB MAR APR
Task 1. Project Management
Task 2. Risk and Resilience Assessment Update
Task 3. Emergency Response Plan Update
Task 4. As-Needed Services
KEY
Work Task
COMPLIANCE DATES
■ RRA: March 31, 2025
■ ERP: September 30, 2025
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City of Modesto | Water System Emergency Response Plan | June 18, 2024 1-9 Estimated Level of Effort
TASK
HOURS BY POSITION
TOTAL TASK HOURS
PRINCIPAL
ENGINEER I /
PROJECT MANAGER
VICE PRESIDENT /
PRINCIPAL-IN-CHARGE
PRINCIPAL TECHNICAL
SPECIALIST I /
LEAD FACILITATOR
SENIOR TECHNICAL
SPECIALIST II /
CYBERSECURITY
PRINCIPAL TECHNICAL
SPECIALIST I /
QA/QC RREVIEWER
TECHNICAL
SPECIALIST IV /
PROJECT ENGINEER
TECHNICAL
SPECIALIST I /
ENGINEER
GENERAL
ADMINISTRATIVE
SUPPORT
BOBBY VERA ELIZABETH DRAYER ANDREW OHRT TARA MERTZ MEL DAMEWOOD SARAH WALSH REESE AGUILAR VARIOUS Task 1. Project Management 12 2 2 12 0 2 0 4 34
Task 2. Risk and Resilience Assessment Update 16 0 60 40 8 72 132 12 340 Task 3. Emergency Response Plan Update 4 0 16 12 8 12 48 12 112 Task 4. As-Needed Services 0 0 0 0 0 0 0 0 0
TOTAL TASK HOURS 32 2 78 64 16 86 180 28 486
Hours Table
The table below shows the level of effort for West Yost to complete the scope of work presented in our proposal.
The estimated hours are allocated to each task by staff level position.
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City of Modesto | Water System Emergency Response Plan | June 18, 2024 2-1 2 QUALIFICATIONS OF CONSULTANT STAFF
Relevant Qualifications
The members of the West Yost team have been industry leaders in cybersecurity and resilience for more than 15 years.
Select examples of our recent sector leadership include:
■ In 2019, West Yost completed a project on behalf of the American Water Works Association (AWWA) to update the
Water Sector Cybersecurity Risk Management Guidance,
the Self-Assessment Tool, and associated outreach
materials in a manner that facilitates AWIA compliance.
These resources have been successfully used by thousands of utilities, to-date.
■ Since 2020, West Yost has partnered with Idaho National Laboratory (INL) to bring cyber-informed engineering
(CIE) to the water sector. The objective of CIE is to help critical infrastructure owners reduce cyber-risk through engineering and organizational controls. This is the future of control system cybersecurity. West Yost will integrate these principles into all efforts completed. We will
leverage our partnership with INL on behalf of the City. ■ Several members of the West Yost team recently advised the Joint Cybersecurity Defense Collaborative (JCDC) on new guidance that the Cybersecurity and Infrastructure Security Agency (CISA) issued on cyber-incident response planning. ■ Andrew Ohrt, our technical lead has provided review
comments and participated in workshops in support
of the development of the forthcoming Environmental
Protection Agency (EPA) Baseline Information on
Malevolent Acts for Community Water Systems 3.0.
■ Several members of the West Yost team are active on the AWWA Emergency Preparedness and Security Committee,
the AWWA J100 Committee, and the AWWA G430
Committee. They are helping shape best practices for the sector through this engagement.
■ West Yost has pioneered the A Day without SCADA®
emergency preparedness exercise model to help our
clients understand their dependence on automation
and the risks associated with that dependence. These
exercises help prepare our clients for both cyber-attacks and operational disruptions.
Coupling this expertise with our intimate knowledge of the City’s operations and infrastructure provides the best possible team to support the City with this important project.
Organizational Chart
Project Manager
Bobby Vera, PE
Principal-in-Charge
Elizabeth Drayer, PE
QA/QC Reviewer
Mel Damewood, III, PE
Lead Facilitator
Andrew Ohrt, PE, CISSP
Cybersecurity
Tara Mertz
Project Engineer
Sarah Walsh, PE
TECHNICAL TEAM
Team Overview
West Yost’s team is shown in our
organizational chart. We have included
a summary of our key team members
and their experience on the following
pages. Our project manager and key
team members have completed several
similar projects and are available
to begin work on the City’s project.
All services will be provided by our
in-house team, and our key staff will
serve in these roles for the duration of
the City’s project.
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Mel Damewood, III, PE
QA/QC REVIEWER
Mel Damewood will be responsible for
conducting quality assurance and quality
control reviews for the City’s project.
Mel provides project management and
technical services for planning studies, and he provides regulatory solutions for municipal water systems.
As a former utilities manager and executive for Eugene
Water & Electric Board, Mel has in-depth knowledge of
the nexus between planning, engineering, and operations.
Since joining West Yost in 2019, Mel has served as project manager and technical specialist on over a dozen AWIA
Risk and Resilience Assessments and Emergency Response
Plans. Mel’s lifetime of utility experience provides a unique perspective to AWIA related issues and requirements.
Andrew Ohrt, PE, CISSP
LEAD FACILITATOR
Andrew Ohrt will facilitate the City’s
Water System ERP and was the Lead
Facilitator for the City’s first round of
AWIA compliance in 2020, completing its
RRA and developing its ERP.
Andrew is an experienced facilitator and program manager specializing in critical infrastructure resilience. Over the course of Andrew’s career, he has assisted water,
wastewater, and power clients to build all-hazards resilience with a focus on cybersecurity. Currently, Andrew leads
West Yost’s Resilience Practice. He also leads West Yost’s partnership with Idaho National Laboratory (INL) and
the American Water Works Association (AWWA) to bring
Cyber-informed Engineering (CIE) to the Water Sector.
From 2019 to 2022, Andrew led West Yost’s support of
clients’ compliance efforts with the America’s Water
Infrastructure Act of 2018 (AWIA). This included over 35 all-hazard risk and resilience assessments (RRAs) and over 80 cyber-RRAs. Between 2019 and 2021, Andrew served as
the project lead for development of AWWA’s cybersecurity resources including the Water Sector Cybersecurity Risk Management Guidance and Self-Assessment Tool, the
small systems version of the tool, and various training resources. He currently serves as the AWWA G430
Standard Committee for Security Practices for Operation and Management Committee Chair and serves on the J100
Standard Committee.
Bobby Vera, PE
PROJECT MANAGER
Bobby Vera will be the City’s primary
point of contact and lead the team in
completing the work on schedule and
within budget. Bobby has 12 years of
engineering experience with West Yost specializing in
water resources, water supply and facilities planning, and wastewater collection system master planning.
Bobby has managed several client RRA ERP projects during the first AWIA compliance round and has worked with the City of Modesto on 25 projects as Project Engineer and/or Project Manager. His projects with the City have included the Water Master Plan, On-Call Hydraulic Modeling Services, Del Rio Model Update, Replacement Well 229, and the
Grayson Water Infrastructure Project and Feasibility Study.
Elizabeth Drayer, PE
PRINCIPAL-IN-CHARGE
Elizabeth Drayer will serve as
Principal-in-Charge on the City’s project.
Elizabeth is a West Yost Vice President and
serves as a Principal-In-Charge for many
firm clients. She has more than 35 years of experience leading complex water resource and master planning projects. She has prepared many studies and plans for clients, including drought response and water shortage contingency plans,
facility operations plans, and emergency operations plans.
Elizabeth has a long history of working with the City
of Modesto in various roles on more than 30 planning
and design projects, including 16 as Principal-in-Charge.
Projects with the City have included the Water Master
Plan, Urban Water Management Plans, Hydraulic Model
Update, Grayson Water Infrastructure Project, Jennings Well Facilities and Treatment Evaluation, Del Rio Replacement Well 271, and Replacement Well 229.
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City of Modesto | Water System Emergency Response Plan | June 18, 2024 2-3 Sarah Walsh, PE
PROJECT ENGINEER
Sarah Walsh specializes in risk and
resilience planning and implementation
for water utilities. She has served as a risk
and resilience technical specialist to aid
utilities in achieving compliance with the amendments to the Safe Drinking Water Act, America’s Water Infrastructure Act of 2018 (AWIA) with risk and resilience assessments (RRAs), and emergency response plans (ERPs). Sarah
has a breadth of experience across multiple industry
sectors, including program and project management,
asset management, technology planning, and regulatory
compliance. Sarah has completed the AWWA Utility Risk and Resilience Certificate Program, as well as numerous FEMA certifications.
Sarah is serving as West Yost’s AWIA Program Manager for the subsequent regulatory round of AWIA compliance and
has supported or led the completion and successful delivery of over 30 RRAs and ERPs. Sarah was a project engineer
supporting the City of Modesto on its 2020 RRA and ERP.
Tara Mertz
CYBERSECURITY
Tara Mertz is a Senior Technical Specialist
who provides services in cybersecurity risk
assessment and operational technology
systems master planning, focusing on
cybersecurity, resilient design, and governance.
Tara joined West Yost in January 2022 and brings to the team over 22 years of public sector IT/OT leadership
experience. Her experience includes project management
of cross-functional teams, technical ownership and
responsibility for critical infrastructure, and strategic planning. She is technically proficient and effectively communicates with all stakeholders. Through her long-term involvement as a member of the Municipal Information
Systems Association of California (MISAC) and the northern California Critical Infrastructure Security working group, Tara has cultivated respect from her water and wastewater peers and developed long-lasting relationships.
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City of Modesto | Water System Emergency Response Plan | June 18, 2024 3-1 3 EXPERIENCE OF FIRM
OREGON
Lake Oswego
CALIFORNIA
Concord
Davis (Headquarters)
Lake Forest
Oceanside
Pleasanton
Sacramento
San Diego
Santa Rosa
ARIZONA
Phoenix
AZ
CA
OR
OFFICE LOCATIONS
Firm Overview
West Yost is a consulting engineering firm that was
founded in 1990. Our focus is exclusively water, recycled water, wastewater, groundwater, and stormwater. We
provide planning, design, construction management, and
program management services in these areas.
Headquartered in Davis, California, West Yost operates
from 10 offices and has a team of more than 230
dedicated professionals. Our staff comprises certified or registered experts in various fields, including chemical, civil, control systems, electrical, environmental, and
mechanical engineering, as well as wastewater treatment and regulatory compliance. We also have specialists in
geology, engineering geology, hydrogeology, architecture, GIS, control systems, cybersecurity, risk management, asset management, condition assessment, project management,
and construction management and inspection services.
Our robust group of Operations Technology, Cybersecurity, and Resiliency (OTCR) experts are dedicated to the
operational and cybersecurity needs of water and
wastewater utilitiesand will help meet the City’s project needs. The West Yost OTCR team designs, engineers,
implements, and supports SCADA systems, Operational
Technology (OT)/Information Technology (IT), Cybersecurity, and All-Hazards Resilience projects. West Yost is nationally recognized for cybersecurity advocacy and innovation in the water sector.
Experience with the City of Modesto
The City of Modesto has been a West Yost client for more than twenty years. West Yost’s work with the City of Modesto has included planning, design, and construction management support for a wide range of projects spanning the City’s water, wastewater, and stormwater utilities. Much of our work
has focused on water infrastructure design and planning, water and wastewater planning and permitting support, and construction management projects.
West Yost has worked with the City of Modesto on more
than 65 projects and task orders since 2002, including
supporting the City with the first round of AWIA
compliance. In 2020, West Yost worked with the City to
complete a Risk and Resilience Assessment and develop
the Emergency Response Plan.
Some of West Yost’s projects with the City include (from top left) the Grayson Water Infrastructure Project; West Tank 12 and Pump Station; Grogan Park (Tivoli) Production Well; and the Headworks, Dryden Box, and Influent Flume Improvements.
OREGON
Lake Oswego
CALIFORNIA
Concord
Davis (Headquarters)
Lake Forest
Oceanside
Pleasanton
Sacramento
San Diego
Santa Rosa
ARIZONA
Phoenix
AZ
CA
OR
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AWIA Compliance Services
CITY OF MODESTO, CA
■ Status of Services: Completed in 2020
■ Cost of Services: $80,000
■ Team: Bobby Vera (Project Manager), Andrew Ohrt (Lead Facilitator), Sarah Walsh (Technical Specialist), Mel Damewood (Technical Advisor)
■ Reference: Jim Alves, Senior Civil Engineer, 209.571.5557, [email protected] During the first round of AWIA compliance in 2020, West Yost supported the City of Modesto with completing its RRA and developing the City’s ERP. The City completed much of the all-hazards RRA; however, West Yost was retained to complete the cyber portion of the assessment. In addition, West Yost developed risk and resilience management strategies to help the City build resilience to the highest risk scenarios.
AWIA Compliance Services
WOODLAND-DAVIS CLEAN WATER AGENCY, WOODLAND, CA
■ Status of Services: Initially completed in 2020; compliance services restarted in 2024. ■ Cost of Services: $150,000
■ Team: Andrew Ohrt (Lead Facilitator), Sarah Walsh (Technical Specialist), Mel Damewood (Technical Advisor)
■ Reference: Stan Gryczko, Public Works Utilities and Operations Director - City of Davis, 530.757.5686, [email protected]
In 2020, West Yost worked with the Woodland-Davis Clean Water Agency (WDCWA) to support its development of an AWIA-compliant RRA and ERP. West Yost also completed AWIA compliance efforts for the member agencies (the City of Davis; the City of Woodland; and the University of California, Davis) after WDCWA completed its RRA and ERP. Each RRA and ERP was developed according to industry best practices while also meeting the requirements set forth in the Safe Drinking Water Act. Based on West Yost’s performance during the prior round of compliance, our team recently started working with WDCWA to update its RRA and ERP in advance of the 2025 compliance dates.
Cybersecurity Risk Management Guidance and Tool
AMERICAN WATER WORKS ASSOCIATION
■ Status of Services: Completed from 2019 to 2020.
■ Cost of Services: $134,000
■ Team: Andrew Ohrt (Project Manager)
■ Reference: Kevin Morley, Manager - Federal Relations, 202.326.6124, [email protected] West Yost provided American Water Works Association (AWWA) with technical support services to develop guidance that aids community water system compliance with Public Law 115-270, America’s Water Infrastructure Act of 2018; Section 2013 Community Water System Risk and Resilience. The objective of this project, WITAF 039, was to update the existing AWWA cybersecurity guidance, the use case tool and associated outreach materials in a manner that facilitates compliance with the intent of the cybersecurity provisions in AWIA §2013. This will also maintain alignment with the revised NIST Cybersecurity Framework. Based on feedback gathered during face-to-face training sessions and related engagements with users of the tool, the project restructured the output in a manner that more directly supported decision making and provided the user with a baseline for implementing a cybersecurity risk management strategy.
West Yost supported the
City with the cyber-RRA,
RRMS development,
and ERP development.
WDCWA will continue
partnering with
West Yost on AWIA
compliance efforts in
2024-2025.
The AWWA
cybersecurity resources
developed by West Yost
have been used by
thousands of utilities.
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City of Modesto | Water System Emergency Response Plan | June 18, 2024 4-1
10. INDEPENDENT CONTRACTOR
...Consultant shall determine the method, details and
means of performing the work and services to be provided by Consultant under this Agreement in a manner consistent with the Standard of Care....
17. INDEMNITY
The Consultant shall hold the City, its agents, officers, employees, and volunteers, harmless from and save,
defend and indemnify them against any and all claims,
losses, liabilities, judgments or damages from every cause, including but not limited to injury to person or property or wrongful death, including reasonable costs and expenses of defense of any judicial or administrative action, to the extent they are arising directly or indirectly out of any negligent, reckless, or willful misconduct or intentional act or omission of Consultant, or its agents, officers, employees, or volunteers relating to or during the performance of its obligations under this Agreement. Consultant’s obligation to indemnify indemnitees for defense costs (as defined) is not immediate for claims based upon professional liability and shall be satisfied at the time of any settlement or judgment as to Consultant’s indemnity obligations under this provision.
Consultant’s obligation to defend, indemnify, and hold the City, its agents, officers, and employees harmless under the provisions of this paragraph is not limited to or restricted by any requirement in this Agreement for Consultant to
procure and maintain a policy of insurance.
4. OBLIGATIONS OF CONSULTANT.
Throughout the term of this Agreement, Consultant shall possess, or secure all licenses, permits, qualifications and approvals legally required to conduct business. Consultant warrants represents that it has all of the necessary
professional capabilities and experience, as well as all tools, instrumentalities, facilities and other resources necessary to provide the City with the services contemplated by
this Agreement. Consultant further warrants represents
that it will follow the best current, generally accepted and professional practices to make findings, render opinions, prepare factual presentations, and provide professional advice and recommendations regarding this project.
In providing services under this Agreement, Consultant shall perform in a manner consistent with that degree of care and skill ordinarily exercised by members of the same profession currently practicing under similar circumstances at the same time and in the same or similar locality (“Standard of Care”).
6. OWNERSHIP OF DOCUMENTS/TITLE TO DATA.
Ownership of Documents
All reports, drawings, designs, graphics, working papers and other incidental work or materials furnished hereunder shall become and remain the property of the City, upon payment of all invoices due and owing to Consultant and may be used by City as it may require without any additional cost to City. City shall, to the fullest extent permitted by law, defend, indemnify, and hold harmless Consultant from and against any and all costs, expenses, fees, losses, claims, demands, liabilities, suits, actions, and damages whatsoever arising out of or resulting from such unauthorized reuse or distribution.
8. INTEREST OF CONTRACTOR.
Consultant warrants represents that it presently has no interest and shall not acquire any interest, direct or indirect, which would conflict in any manner or degree with the
performance of services required to be performed under
this Agreement. Consultant warrants represents that,
in performance of this Agreement, Consultant shall not
employ any person having any such interest....
4 STANDARD AGREEMENT AND FINANCIAL INTEREST DISCLOSURE FORM Standard Agreement
West Yost has reviewed the Standard Agreement for Consultant Services included with the City’s RFP. We request the following modifications to the City’s Agreement:
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EXHIBIT A - FINANCIAL INTEREST DISCLOSURE
Any contract award to result from this RFQ/RFP process and Proposer’s submission of a SOQ/Proposal 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 Proposer until all persons with a direct or indirect financial interest of greater than $2,000 in the Proposer are identified by name.
Proposer must therefore complete this Proposal 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
Proposer shall identify any person with a financial interest in the Proposer 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 Proposer 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 Proposer 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 Proposer 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.
Financial Interest Disclosure Form
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City of Modesto | Water System Emergency Response Plan | June 18, 2024 4-3 Print Names of Persons Having a Financial Interest in Proposer Receiving this Agreement:
First Name, Last Name
First Name, Last Name
First Name, Last Name
First Name, Last Name
First Name, Last Name
First Name, Last Name
First Name, Last Name
First Name, Last Name
First Name, Last Name
First Name, Last Name
First Name, Last Name
First Name, Last Name
First Name, Last Name
First Name, Last Name
By signing this document, I agree to the information contained within.
Proposer Company Name:
Name of Proposer Signatory:
Signature of Proposer Representative:
West Yost & Associates, Inc.
Elizabeth Drayer, PE, Vice President and Principal-in-Charge *Licensed in state outside CA
Based on our understanding of the financial interest disclosure, no person has a direct or indirect material financial interest in our firm receiving this agreement.
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City of Modesto | Water System Emergency Response Plan | June 18, 2024 A-1
A APPENDIX A - RESUMES
This section includes resumes for our key team members, highlighting experience and expertise relevant to the City’s project.
Key Project Team Member Resumes
TEAM MEMBER ROLE
1. Bobby Vera, PE Project Manager
2. Elizabeth Drayer, PE Principal-in-Charge
3. Mel Damewood, III, PE QA/QC Reviewer
4. Andrew Ohrt, PE, CISSP Lead Facilitator
5. Tara Mertz Cybersecurity
6. Sarah Walsh, PE Project Engineer
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Bobby Vera, PE
Project Manager
1 Bobby Vera is a civil engineer specializing in water resources, water supply and facilities planning, and wastewater collection system master planning. He is proficient in a variety of hydraulic modeling (pressure and gravity systems) and Geographical Information System (GIS) software. Bobby also has experience in water facilities design of groundwater wells, storage and pumping stations, hydraulic transient analyses, and sizing and design of surge mitigation devices (hydropneumatic tanks, air-vacuum valves, etc.).
Bobby primarily supports clients throughout California and Oregon.
EXPERIENCE
America’s Water Infrastructure Act (AWIA) Compliance Services – Risk and Resilience Assessment and Emergency Response Plan, City of Modesto, CA: Project Manager for an all-hazards America’s Water Infrastructure Act (AWIA) 2018-compliant Risk and Resilience Assessment (RRA) and Emergency Response Plan (ERP). West Yost completed a thorough gap analysis after reviewing and organizing previously completed RRA- and ERP-related resources. Both the RRA and ERP were completed using American Water Works Association (AWWA) standards, which represent cross sector best practices. Each RRA considers natural, built, cyber, and personnel assets and any relevant threats and hazards. Risk and resilience management strategies were developed to address the highest risks and reduce vulnerabilities. The City’s ERP was updated, building upon existing emergency preparedness plans, and refined to align with AWIA and state requirements and industry best practices. West Yost assisted the City with preparing selfcertification documentation for submittal to the Environmental Protection Agency.
Water Master Plan, City of Modesto, CA: Project Engineer responsible for updating the City’s hydraulic model, updating performance criteria, and performing system hydraulic evaluations. Updated the hydraulic model through a thorough review of City’s latest GIS and available as-built drawings. Performed hydraulic model calibration (using steady state hydrant test simulations) and verification (using extended period simulations and comparing to City’s SCADA and data collected by hydrant pressure recorders) of the newly updated hydraulic model. Performed existing and buildout water system hydraulic evaluations using the newly updated, calibrated and verified hydraulic model. Results from the existing and buildout water system evaluations will be used to develop a comprehensive capital improvement program.
Water Master Plan Update, City of Vacaville, CA: Project Engineer and technical lead responsible for updating the City of Vacaville’s Water Master Plan. The City’s previous Water Master Plan was completed in 2018, and since then, the City had embarked on a comprehensive update to its General Plan, thereby refining growth estimates, and had experienced a continued decline in water use patterns. The Master Plan built on the focused hydraulic model update (also completed by West Yost) and included a compressive update to water demand projections, revisions to the City’s water supply plan, and evaluated capital improvements needed under existing and future demand projections. West Yost identified improvements that were used as the basis for the City’s comprehensive capital improvement program (CIP). The CIP task took the recommendations from the AWIA work and developed implementable projects to address/improve resiliency.
Staff Title: Principal Engineer I
Office Location: Sacramento, CA
Years of Experience: 13
Years with West Yost: 12
Professional Registrations
▪ Professional Civil Engineer, California
No. 83500; Oregon No. 95681PE
▪ Grade II Water Distribution System
Operator, California No. 48180
Education
▪ MS, Engineering Science, Civil & Water
Resource Engineering, University of
the Pacific, Stockton, California
▪ BS (cum laude), Civil Engineering,
University of the Pacific, Stockton,
California
▪ Water Education Foundation Water
Leader, Class of 2017
Professional Affiliations
▪ American Society of Civil Engineers
▪ American Water Works Association
▪ Sacramento Area Water Works
Association
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Bobby Vera, PE
2 Groundwater Well Strategy Plan, City of Modesto, CA: Project Manager and Project Engineer for the preparation of a groundwater well strategy, which identifies which wells have the highest likelihood of failure and consequence of failure pairs to focus the City’s capital improvement projects. The City has approximately 85 wells, and recently approximately 13 mgd of well production capacity has been abandoned due to well age and water quality concerns. System demands have also dropped, so the need to reestablish production capacity is not as urgent. This strategy was prepared to identify which active wells the City should perform focused assessments to reduce its overall risk. Tasks included: preparing consequence and likelihood of failure factors, preparing risk assessment tables and figures, workshops with city staff, preparing recommended rehabilitation action plans, and budget level cost estimates.
On-Call Water System Hydraulic Modeling, City of Modesto, CA: Project Engineer and Manager responsible for providing and directing on-call hydraulic modeling support for City Staff. Initial tasks generally included the evaluation of various operational changes to the City’s water supply facilities and development of capital and operation improvements to mitigate deficiencies. Moving forward, similar evaluations are anticipated, in additional to the evaluation of development impact analysis and routine updates to the hydraulic model.
2020 Engineers Report, City of Modesto, CA: Project Manager and Engineering in charge of preparing and updated Engineer’s Report for a new Water Rate and Connection Fee Update Study for the City of Modesto based on the 2017 Water Master Plan. The main elements of the report include updating current and buildout water demands; identifying and justifying capital improvements needed to maintain reliable water service; developing cost estimates and prioritizing improvements; and determining the proportional cost allocation between existing and future users. The report laid out improvements needed over a 10-year time horizon and is the basis for near-term capital improvements, further expanding on the City’s Water Master Plan.
Hydraulic Evaluation for Stanislaus School, City of Modesto, CA: Project Manager and Engineer responsible for preparing a hydraulic evaluation to assess whether the City could provide adequate water service to Stanislaus School. The School currently has water service from an existing on-site well, which has elevated levels of 1, 2, 3 TCP. In lieu of treating the existing well, the School approached the City to determine if the City’s existing distribution system could accommodate the School. The evaluation involved hydraulicly evaluating whether proposed pipeline extensions would provide sufficient fire flow to the school and as well as assessing distribution system water age in the area. West Yost recommended an alternative alignment that provided necessary fire flows as well as balanced distribution system water quality.
Grayson and Westley Surface Water Supply Feasibility Evaluation, Modesto, CA: Project Manager for assessing the feasibility of developing surface water supplies for the Grayson, Westley, and surrounding disadvantaged communities. This study is builds on the Grayson Water Infrastructure Project, which evaluated groundwater treatment and import of surface water from the City’s contiguous area, and identified Infrastructure needs and associated capital costs for both options. Capital costs for both options were relatively high, therefore this a new surface water supply option was evaluated. The City was approached by a confidential party which was looking to sell a property which has an associated water right that the City could potentially develop. Tasks included reviewing available water rights documentation, assessing available monthly diversion rates, site visit and assessment and feasibility of developing the offered water right.
Jennings WWTP Potable Well Wellhead Treatment, City of Modesto, CA: Project Manager responsible for leading the design team in designing a wellhead treatment at the City’s potable water well that supplies the Jennings WWTP. The well does not meet all secondary standards and has elevated manganese and total dissolved solids concentrations. The City’s goal was to be able to meet all primary and secondary standards. The project included preparing basis of design report, all contract documents (i.e., plans, specifications, and cost estimates) as well as providing services during construction. Facilities included: a new submersible well pump, a hydropneumatic seal water tank, a water softening system, a reverse osmosis system, as well as a new replacement 1,700 gpm booster pump station and associated 500-gallon hydropneumatic tank, and all associated electrical and instrumentation equipment. Site improvements includes concrete paving, a canopy over the new equipment and new fencing.
Del Rio Hydraulic Model Update, Calibration and Operational Evaluation, City of Modesto, CA: Project Engineer and Manager responsible for updating the City’s hydraulic model for the outlying service area of Del Rio. The hydraulic model was calibrating using extended period simulations and comparing model predicted results with SCADA recorded information and information gathered by hydrant pressure recorders. The updated and calibrated model was then updated to reflect existing conditions. The City is nearing completion of major infrastructure for this outlying area (Tank 14, Well 68 and Well 70) and the calibrated model was used to help the City develop a new operating strategy for the new facilities brought online.
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Elizabeth Drayer, PE
Principal-in-Charge
1 Elizabeth’s expertise is in water resources engineering and multi-disciplinary project teams. She has experience leading water resources planning studies and design projects and specializes in water supply and infrastructure master planning. She has prepared more than 24 water and utility master plans, more than 20 water supply assessments, and more than 30 urban water management plans. She has also prepared many other studies and plans for clients including groundwater studies, drought response and water shortage contingency plans, facility operations plans, and emergency operations plans involving the evaluation of existing facilities, evaluation of existing and future water demands, identification of system deficiencies and needs, evaluation of water supply alternatives, and development of recommendations for capital improvements. She has prepared preliminary and detailed designs for water supply facilities such as pipelines, pump stations, reservoirs, and canals. Elizabeth is a West Yost Vice President and serves on West Yost’s Board of Directors.
EXPERIENCE
Water Master Plan, City of Modesto, CA: Project Engineer for the evaluation of existing and potential future water supplies for the City of Modesto in conjunction with the development of the Water Master Plan. Tasks included evaluation of the availability and reliability of the City’s treated surface water supplies purchased from the Modesto Irrigation District and treated at the Modesto Regional Water Treatment Plant, and local groundwater supplies pumped from 110 wells located throughout the City. Evaluation of future water supplies included an evaluation of groundwater quality issues, the feasibility of implementing an aquifer storage and recovery program, and the potential for acquisition of additional surface water supplies. Conjunctive use of the City’s available and projected surface water and groundwater supplies was also evaluated with respect to seasonal demand patterns and operational issues.
2010, 2015, 2020 Urban Water Management Plans, City of Modesto and Modesto Irrigation District, CA: QC Reviewer for the preparation of a 2020 Joint Urban Water Management Plan (UWMP) for the City of Modesto and Modesto Irrigation District, Project Manager for the 2015 UWMP for the City of Modesto, and Project Engineer for the preparation of a Joint 2010 UWMP for the City of Modesto and Modesto Irrigation District. Tasks include review of water demand projections, water supply availability and reliability from surface water and groundwater, SB X7-7 compliance, demand management measures, and the City’s water shortage contingency plan. The UWMPs were prepared in compliance with the retail and wholesale water supplier requirements of the California Water Code and the Department of Water Resources Guidebook.
Del Rio Replacement Well 271, City of Modesto, CA: Principal-in-Charge for preparation of plans and specifications for the above-grade facilities and well equipment to replace Del Rio Well 271 on a new parcel. Facilities include a vertical turbine well pump, masonry block well building, 12-foot tall masonry wall, tablet chlorinator in a separate fiberglass enclosure, generator with sub-base fuel tank, flushing main and air gap structure, electrical and instrumentation improvements, and site work. Work included initial site layout so West Yost well design staff could complete design of the below grade structures (test boring and well), and working with City staff to develop concept plans, preliminary design report, and final design of the facility.
Staff Title: Vice President
Office Location: Pleasanton, CA
Years of Experience: 36
Years with West Yost: 24
Professional Registrations
▪ Professional Civil Engineer, California
No. 46872
Education
▪ MS, Structural Engineering, University
of California, Berkeley
▪ BS, Civil Engineering, University of
California, Berkeley
Certifications
▪ Underground Storage Tank Installation
▪ UC Davis Extension, 32-hour Course,
Groundwater Hydrology
▪ UC Davis Extension, 32-hour Course,
Principles of Toxicology
Professional Affiliations
▪ American Society of Civil Engineers
▪ American Water Works Association
▪ Association of California Water
Agencies
▪ WateReuse Association
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Elizabeth Drayer, PE
2 Replacement Well 229, City of Modesto, CA: Principal-in-Charge for preparation of plans and specifications for the above-grade facilities and well equipment to replace Well 229 on the same parcel as the former Well 229, which had been properly abandoned a few years previous. Facilities include a vertical turbine well pump, masonry block well building, chain link fence and gate, tablet chlorinator in a separate fiberglass enclosure, generator with sub-base fuel tank, electrical and instrumentation improvements, and site work. Work included initial site layout so West Yost well design staff could complete design of the below grade structures (test boring and well), and working with City staff to develop concept plans, preliminary design report, and final design of the facility.
Grayson Water Infrastructure Project, Modesto, CA: Project Manager for the Grayson Water Infrastructure Project to evaluate available groundwater treatment options, select a preferred alternative and design new treatment, storage and pumping facilities to provide the community of Grayson with a safe and reliable drinking water supply. Tasks include a treatment alternatives study to evaluate available treatment strategies to meet both primary and secondary drinking water standards per Divison of Drinking Water requirements, design of on-site water storage and pumping facilities, as well as associated environmental studies and public outreach. As an alternative to on-site treatment, the feasibility of constructing a pipeline to connect to the City’s South Modesto service area is also being evaluated, along with alternatives for treating and disposing of the waste stream from the groundwater treatment process.
Well Equipping Template, City of Modesto, CA: QC Reviewer for the development of a well equipping template for the City of Modesto to supplement the City’s standard specifications with requirements specific to well equipping projects. The well equipping template includes provisions for general, civil, architectural, structural, electrical, instrumentation and controls for well equipping projects and will assist the City in standardization of future well facilities.
Jennings Well Treatment Improvements, City of Modesto, CA: QC Reviewer for the planning and design of treatment improvements for the City’s potable water supply well at the City’s Jennings Wastewater Treatment Plant (WWTP). The well currently supplies potable water for use by Jennings WWTP staff. Water produced from the well has consistently exceeded secondary Maximum Contaminant Levels (MCLs) for chloride, manganese, sulfate, and total dissolved solids. To improve water quality from this well and to address concerns from the City’s Safety Officer, the City retained West Yost to evaluate the well and identify recommended improvements.
Water Master Plan Update, City of Milpitas, CA: Project Manager for an update to the Water Master Plan for the City of Milpitas, which also includes a Water Utility Asset Condition Assessment and a Risk and Resiliency Assessment and Emergency Response Plan in compliance with the America’s Water Infrastructure Act of 2018. The Water Master Plan included an update and calibration of the City’s water system hydraulic model, evaluation of recent water use trends and development of future water use projections based on planned development, hydraulic analysis of the City’s water system to identify needed water system improvements, and development of a prioritized capital improvement program for implementation of recommended improvements.
Emergency Response and Preparedness Review, City of Hayward, CA: Project Engineer for performing a review of the City of Hayward’s emergency response documents and emergency preparedness activities as part of the update of the City’s Water Master Plan. Tasks included preparing a list of recommendations for update of the City’s emergency response plan to be consistent with other local, regional and state emergency plans and protocols developed by Alameda County and the California Emergency Management Agency (Cal EMA), development of an emergency training program, development of a water department emergency operations center, and development of a Business Continuity Plan. A review of the City’s emergency water supplies and interties, and their ability to meet emergency water demands, was also conducted.
Emergency Water Supply Support, Mountain House Community Services District, Mountain House, CA: Principal-in-Charge for providing emergency water supply support to the Mountain House CSD. Recent (2015 and again in 2021) declarations of unavailability of water issued by the State Water Resources Control Board indicate that the Mountain House CSD needs to plan for emergency water supplies for short period interruptions (several days), medium period interruptions (several months), and long period interruptions (several years). West Yost has assisted the Mountain House CSD in preparing for a potential long-term interruption of water supply from Byron Bethany Irrigation District (BBID) that could be caused by a catastrophic earthquake destroying several Delta island levees and causing a long-term intrusion of salt water into the Delta and is assisting the Mountain House CSD in the evaluation of several short-term and long-term supply options.
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Mel Damewood, III, PE
QA/QC Reviewer
1 Mel Damewood provides project management and technical services for planning studies, and he provides regulatory solutions for municipal water systems. As a former utilities manager and executive for Eugene Water & Electric Board, Mel has in-depth knowledge of the nexus between planning, engineering, and operations. Mel uses his engineering and management experience to fulfill strategy and planning compliance. Mel was a member of the Water and Wastewater Task Group for the 2013 Oregon Resilience Plan.
EXPERIENCE
2018 America’s Water Infrastructure Act (AWIA) Risk and Resilience Assessment (RRA) and Emergency Response Plan (ERP) Compliance Projects: Project Manager and Project Engineer for numerous all-hazards RRA’s and ERP’s. For each project, West Yost completed a thorough gap analysis after reviewing and organizing previously completed RRA and ERP-related resources. RRA’s and ERPs were completed in accordance with American Water Works Association (AWWA) standards and best management practices.
Each RRA considers natural, built, cyber and personal assets and all threats and hazards.
West Yost conducted multiple seismic vulnerability studies to identify design earthquake and threat likelihood, soil shaking and displacement (Liquefaction and Landslide) impacts of the design earthquake relative to local geology and implemented those characteristics to linear and non-linear assets utilizing American Lifeline Alliance (ALA) and HAZUS methodologies to determine damage estimates and consequences to water facilities. Mel performed project management and seismic evaluations for the following utilities:
▪ Joint Water Commission and Barney Reservoir Joint Operating Commission, Hillsboro, OR ▪ Lake Oswego-Tigard Water Partnership, OR
▪ San Gabriel Valley Water Company, CA
▪ City of Fairfield, CA
▪ City of Sweet Home, OR
▪ City of Hillsboro, OR
▪ City of Davis, CA
▪ City of Florence, OR
▪ City of Vacaville, CA
▪ City of Beaverton, OR
▪ City of Veneta, OR
▪ Winston Dillard Water District, OR
Staff Title: Principal Tech Specialist I
Office Location: Remote Oregon
Years of Experience: 39
Years with West Yost: 4
Professional Registrations
▪ Professional Civil and Environmental
Engineer, Oregon No. 13672
Education
▪ BS, Civil Engineering, Oregon State
University, Corvallis
Certifications and Training
▪ General Post-Earthquake Damage
Inspector (GQI), ATC-45, ATC-20-1
▪ Federal Emergency Management
Agency Training - National Incident
Management System, Incident
Command System Courses, 100, 200,
300, 400, 700, 800
Professional Affiliations
▪ American Water Works Association,
Pacific Northwest Section, 2018–2019
Chair
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Mel Damewood, III, PE
2 2018 America’s Water Infrastructure Act Risk and Resilience Assessment/Emergency Response Plan Compliance Gap Assessment, City of Petaluma, CA: Emergency Planning Lead for a gap analysis of the City’s current risk and resilience assessment and emergency response plan-related documents. West Yost provided a summary table to the City.
Emergency Water Supply Plan, City of Hillsboro, OR: Project Manager. West Yost is currently contracted to provide a provisional water supply plan for the City of Hillsboro (population 100,000). West Yost is investigating various sources, locations and human resource strategies to provide 1 to 2 gallons of water per day per person in the event of a catastrophic emergency and failure of its distribution system.
Current Seismic Vulnerability And Mitigation Planning For The Following Master Plans:
▪ City of Corvallis, OR Wastewater Master Plan (Technical lead for Seismic Study) ▪ City of Albany Water System Master Plan (Project Manager and technical lead for Seismic Study) ▪ City of Cottage Grove Water System Master Plan (Project Manager and technical lead for Seismic Study) Water Master Plan, City of Albany, OR: Project Manager for the Albany Water Master Plan (WMP) and is the primary technical lead for the Resilience Plan and Pipeline Renewal and Replacement Plan of the WMP. Mel has led multiple subconsultants, including non-traditional WMP areas of focus, including Albany’s hydroelectric plant and condition assessments of the SantiamAlbany Canal and structures. This work has included a detailed condition assessment of Albany’s water facilities, which provided valuable information for strategic replacements and CIP work. Mel has also kept the complex project on track in schedule and budget, meeting with Albany’s PM on a regular basis, to discuss issues and concepts that have aided in the overall understanding of utility management strategies in the acceptance and implementation of master plans.
PREVIOUS EXPERIENCE
Eugene Water & Electric Board, Eugene, OR: Chief Engineer, Chief Engineering & Operations Officer, Chief Water Officer, Retired, May 2019. Projects included:
▪ Master Planning: (1) Initiated the first comprehensive master planning process for the electric utility since 1979. (2) Participated and provided leadership for several water system master plans. (3) Instituted the inclusion of integrated resiliency planning within the water master plan, leading the region in resiliency planning and implementation efforts. (4) Project Manager for EWEB’s first Emergency Water Supply Plan. ▪ Capital Planning and Project Implementation: (1) Developed and matured EWEB’s first ongoing 10 year capital improvement plan for the Water Utility. (2) Influenced electric capital planning efforts to expand view from a 5 year plan to a 10 year plan. (3) Managing multimillion dollar capital improvement plans over decades of service. (4) Successfully balanced aging infrastructure needs with financial limitations of the utility. (5) Implemented and successfully delivered on multiple capital projects over the last 15 years
▪ Financial Planning and Fiscal Discipline: (1) Utilized Electric and Water Utility Long-Term Financial Planning methods and methodologies. (2) Utilized budgeting and reporting systems to identify financial issues proactively. (3) Fostered key relationships within EWEB to implement financial and fiscal changes throughout the utility. ▪ Development and Implementation of Policies and Procedures: (1) Customer policies and procedures, interpreting and explaining to the public, adept to conflict resolution. (2) Development of standards, policies and standard operations procedures for utility.
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Andrew Ohrt, PE, CISSP
Lead Facilitator
1 Andrew Ohrt an experienced facilitator and program manager specializing in critical infrastructure resilience. Over the course of Andrew’s career, he has assisted water, wastewater, and power clients to build all-hazards resilience with a focus on cybersecurity. Currently, Andrew leads West Yost’s Resilience Practice. He also leads West Yost’s partnership with Idaho National Laboratory (INL) and the American Water Works Association (AWWA) to bring Cyber-informed Engineering (CIE) to the Water Sector. From 2019-2022 he led West Yost’s support of clients’ America’s Water Infrastructure Act of 2018 (AWIA) compliance efforts. This included over 35 all-hazard risk and resilience assessments (RRAs) and over 80 cyber-RRAs. Between 2019 and 2021, Andrew served as the project lead for development of AWWA’s cybersecurity resources including the Water Sector Cybersecurity Risk Management Guidance and SelfAssessment Tool, the small systems version of the tool, and various training resources. He currently serves as the AWWA G-430 Standard for Security Practices for Operation and Management Committee Chair.
EXPERIENCE
AWIA Compliance Services, City of Modesto, CA: Lead Facilitator for the first round of AWIA compliance in 2020. West Yost supported the City of Modesto with completing its RRA and developing the City’s ERP. The City completed much of the all-hazards RRA, however, West Yost was retained to complete the cyber portion of the assessment. In addition, West Yost developed risk and resilience management strategies to help the City build resilience to the highest risk scenarios.
Consequence-driven, Cyber-informed Engineering (CCE) Training, Idaho National Laboratory (INL), Idaho Falls, ID: Project Manager and Lead Trainer. As a National and Homeland Security certified instructor, Andrew facilitates CCE ACCELERATE trainings on behalf of INL and the Department of Energy. He provides support to both large group instruction and small group, case study discussions. In addition, he has supported the ongoing refinement of training materials. He is actively developing Water Sector-specific CCE resources.
Cyber-informed Engineering (CIE) Implementation Guide Development Support, Idaho National Laboratory (INL), Idaho Falls, ID: Project Manager and Technical Lead. CIE is an emerging approach to engineer out cyber risk from our nation’s critical infrastructure systems. West Yost led the review of principle summaries drafted by INL staff and development of a Water Sector case study for inclusion in the CIE Implementation Guide.
The CIE Implementation Guide is the first resource developed under the guidance of the U.S. Department of Energy. It provides the basis for future cross-sector CIE resource development.
Water Sector Cybersecurity Risk Management Guidance and Self-Assessment Tool Update, American Water Works Association (AWWA), Denver, CO: Project Manager.
The objective of this project was to update the existing AWWA cybersecurity guidance, the use- case tool and associated outreach materials in a manner that facilitates compliance with the intent of the cybersecurity provisions in America’s Water Infrastructure Act of 2018 §2013 Community Water System Risk and Resilience, which requires all community water systems serving populations of 3,300 or more to conduct Staff Title: Resilience Practice Area Lead.
Principal Technical Specialist I
Office Location: Remote Minnesota
Years of Experience: 18
Years with West Yost: 5
Professional Registrations
▪ Professional Environmental Engineer:
Alaska No. 14322, Minnesota
No. 50531, Washington No. 47854
▪ Certified Information System Security
Practitioner (CISSP)
Education
▪ MS, Civil Engineering, University of
Minnesota, Twin Cities
▪ BA, Physics, Gustavus Adolphus
Professional Certificates
▪ Certified Information System Security
Professional
▪ AWWA Utility Risk and Resilience
▪ Envision Sustainability Professional
(ENV SP)
▪ FEMA IS-100.b, IS-120.a, IS-130,
IS-200.B, IS-700.A, IS-800.B, IS-860.B
▪ Institute of Asset Management
▪ Idaho National Laboratory CCE Work
Force Development
▪ Idaho National Laboratory National
and Homeland Security Instructor
Professional Affiliations
▪ American Water Works Association
- Security and Emergency
Preparedness Committee Member
- J100-21 Standard Committee
Member
- G430 Standard for Security Practices
for Operation and Management
Committee - Chair
▪ American Public Works Association –
Cybersecurity Training Development
Work Group
▪ Cyber-informed Engineering Work
Group
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Andrew Ohrt, PE, CISSP
2 and certify completion of an assessment of the risks to, and resilience of their systems, including an emergency response plan. The new provision places emphasis on cybersecurity risks, that could impact the following: 1) Electronic, computer, or other automated systems (including the security of such systems) which are utilized by the system; 2) The financial infrastructure of the system (meaning accounting and financial business systems operated by a utility, such as customer billing and payment systems).
RISK AND RESILEINCE ASSESSMENT AND EMERGENCY RESPONSE PLANNING 2018 America’s Water Infrastructure Act Risk and Resilience Assessment and Emergency Response Plan Compliance Projects:
Program Manager/Technical Lead. West Yost assisted numerous clients with their all-hazards America’s Water Infrastructure Act (AWIA) 2018-compliant Risk and Resilience Assessments (RRAs) and Emergency Response Plans (ERPs). Each project included an assessment of current cybersecurity practices and identified additional cybersecurity practices for implementation. In addition, cyber-incident response procedures were developed and included in emergency response plans.
America’s Water Infrastructure Act Risk and Resilience Assessment, Santa Clara Valley Water District (Valley Water), San Jose, CA: Technical Lead. West Yost assisted Valley Water with their America’s Water Infrastructure Act (AWIA) 2018 (S.3021) risk and resilience assessment (RRA) and emergency response plan (ERP)-compliance certification. West Yost reviewed and documented Valley Water’s previously completed RRAs and ERPs to provide a thorough gap analysis. Staff interviews were be conducted to gather data for sensitive and high-security information. This included interviews with IT and OT cybersecurity staff members. West Yost made project recommendations to address compliance gaps. West Yost completed summary reports for Valley Water to document compliance and will prepare certification letters for submittal to the U.S. Environmental Protection Agency. We developed a compliance dashboard to provide a high-level summary for executives and critical customers.
CYBER-INFORMED ENGINEERING (CIE)/CONSEQUENCE-DRIVEN, CYBER-INFORMED ENGINEERING (CCE) Cyber-informed Engineering Review Services, Eastern Municipal Water District, Perris, CA: Technical Specialist. West Yost led the application of CIE principles to an ongoing engineering design project. This included reviews at the 60% and 90% engineering designs. Recommendations were provided to the asset owner and design engineer to support improved cyber-resilience of the water and wastewater systems.
A Day without SCADA® Emergency Preparedness Exercise, City of Sacramento, CA: Exercise Director. West Yost conducted an emergency preparedness exercise for the City. The scenario simulated a loss of automation within the water system. Consistent with CIE/CCE, a focus of the scenario was to understand current organizational capabilities and engineering of the system to successfully respond and recover. The exercise resulted in an after-action report/ implementation plan with numerous improvements to City operations.
Cyber-Incident Response Planning and Exercising, Eastern Municipal Water District, Perris, CA: Technical Specialist. West Yost supported the development of a cyber-incident response plan for both IT and OT systems. The project team conducted a table-top exercise to train staff and test the draft cyber-incident response plan. The plan was revised based on staff feedback and outcomes from the exercise.
SELECTED PRESENTATIONS AND PUBLICATIONS
▪ Ervin, Dan, Michael Gruenbaum, Mel Damewood, and Andrew Ohrt. Taking Advantage of Earthquake Early Warning Systems.
Journal of the American Water Works Association. July/August 2023. ▪ Ohrt, Andrew. Et al. Engineering Cyber-Physical Resilience. Journal of the American Water Works Association. May 2021. ▪ Ohrt, Andrew, Kevin Morley, Dan Groves, and Joel Cox. Tackle Cybersecurity and AWIA Compliance with AWWA’s New Cybersecurity Risk Management Tool. Journal of the American Water Works Association. March 2020. ▪ Wright, Virginia, Andrew Ohrt, and Andy Bochman. Engineering Cybersecurity into U.S. Critical Infrastructure. Harvard Business Review. April 17, 2023.
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Tara M. Mertz
Cybersecurity
1 Tara Mertz is a Senior Technical Specialist who provides services in operational technology systems master planning and risk assessment with a focus on cybersecurity, network architecture, and governance. Tara joined West Yost in January 2022 and brings to the team 22+ years of public sector IT/OT leadership experience.
Her experience includes project management of cross-functional teams, technical owner’s advisory services, cybersecurity risk assessment, network design, and implementation planning. She is technically proficient and effectively communicates strategic planning vision to stakeholders.
Through her long-term involvement as a member of the Municipal Information Systems Association of California (MISAC) and the northern California Critical Infrastructure Security working group, Tara has cultivated respect from her water and wastewater peers and developed long-lasting relationships.
EXPERIENCE
SCADA Cybersecurity Baseline Assessment, Waterman Water Treatment Plant, City of Fairfield, CA: Project Manager and Technical Team Member. As Phase I, conducted and assessed the current cybersecurity posture of the Waterman SCADA systems in alignment with industry best practices including NIST CSF and CISA CIS Controls v8. The scope of work included site visits to collect data and evaluate configurations then develop documentation of the current state and prioritized recommendations for addressing vulnerabilities and improving resiliency.
SCADA Cybersecurity Baseline Assessment, Las Gallinas Valley Sanitary District, San Rafael, CA: Project Manager and Technical Lead. West Yost OTCR provided services to Las Gallinas Valley Sanitary District to provide a comprehensive SCADA network assessment aimed at identifying, documenting, and outlining any cybersecurity deficiencies or areas which may benefit from alternative improvements. Tara was responsible for providing overall project management, coordinating site visits for evaluation of systems and data collection, and development of a prioritized list of projects based on recommendations for foundational cybersecurity safeguards.
AWIA Cybersecurity Improvements, East Orange County Water District, Orange, CA:
Subject Matter Expert. Tara is responsible for the overall execution and coordination of all aspects of the project including reviewing vendor submittals related to hardware and software, development of policies and procedures, and assistance with managing the District’s ongoing SCADA governance initiative. West Yost previously conducted the District’s AWIA cybersecurity assessment using the AWWA Cybersecurity Tool and Guidance. The cybersecurity assessment identified the need for the District to conduct a SCADA Master Plan with a strategic approach to system-wide SCADA technology and support improvements. West Yost developed the District’s SCADA Master Plan. The SCADA Master Plan identified key cybersecurity improvements, including policies and procedures, access control and physical security improvements, and execution of an ongoing SCADA governance initiative. Through this project, West Yost will assist the District with implementation of the required cybersecurity improvements.
Staff Title: Senior Technical Specialist II
Office Location: Sacramento, CA
Years of Experience: 22
Years with West Yost: 2
Education
▪ BA, Communications, San Diego State
University
▪ SANS MGT414: SANS Training Program
for CISSP Certification
▪ Department of Homeland Security, 201
– Intermediate Cybersecurity for
Industrial Control Systems
▪ Department of Homeland Security, 301
– ICS Cybersecurity
▪ VMWare vSphere v7.x Install,
Configure, Manage
▪ Cisco Security CSFPA and CSVPN
▪ Homeland Security/FEMA Certificates:
IS100, IS120, IS130, IS200, IS553,
IS700, and K146
Certifications
▪ CompTIA Security+ SY0-701, 2024
▪ MCPS: Microsoft Certified Professional,
2018
Professional Affiliations
▪ Control Systems Cybersecurity
Association International CS2AI
Professional Qualifications
▪ Databases: MS SQL, Oracle, MySQL,
PostgreSQL
▪ Network: HPE, Cisco, Ubiquiti
▪ Operating Systems: Windows, Linux,
Mac
▪ Open-Source Tools: Metasploit,
Wireshark
▪ Web Servers: IIS, Apache
▪ Wireless Technology: Nokia, GE MDS,
SAF Tehnika, Phoenix Contact
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Tara M. Mertz
2 IT and SCADA Infrastructure Cybersecurity Risk and Vulnerability Assessment, Eastern Municipal Water District, Perris, CA:
Project Manager. Tara is responsible for providing overall project management, data collection, baseline gap analysis, assessment using NIST-CSF framework, and development of project portfolio based on recommendations.
IT and SCADA Cybersecurity Incident Planning and Day Without SCADA Training Exercise, County of Placer, Auburn, CA: Project Manager and Technical Team Member. Through a DHS Grant, Placer County sponsored the workshop and exercise to further develop cyber emergency management knowledge and resources throughout the County in the event of a water/wastewater cyber incident.
Tara supported the County CISO and County OES in cyber incident response planning, facilitating the workshop and training exercise, and review and recommendations for the content of the County’s cyber-annex within their Emergency Response Plans.
SCADA Technology Upgrades Project Phase 1, Fairfield- Suisun Sewer District, Fairfield, CA: Technical Lead. West Yost OTCR provided services for the network design and initial comprehensive cybersecurity assessment of the District’s core SCADA systems including servers, workstations, network equipment, and software. Tara documented the current condition of the network communications equipment including routers, switches, and firewalls and provided recommendations for secure network convergence between the SCADA and untrusted networks as well as improvements to enhance resiliency through distributed architecture of the core SCADA servers.
SCADA Technology Upgrades Project Phase 2, Fairfield- Suisun Sewer District, Fairfield, CA: Project Manager and Technical Lead.
As Phase 2, Tara and her team developed hardware and software performance specifications, bills of materials, an implementation plan, and designed high level network architecture cybersecurity improvements including virtualization of the core SCADA systems and segmentation of the networks. The project work includes technical owner’s advisory services and engineering support during implementation of upgrades to the SCADA Software HMI and industrial alarm system. Tara is also supporting the District as program manager to coordinate and validate the work performed by contractors and subcontractors of the District.
Operational Technology Planning Services Project, Honolulu Board of Water Supply’s (BWS), HI: Subject Matter Expert. Tara focuses on developing a comprehensive plan for addressing operational technology (OT) issues across all Divisions of BWS. The plan also justifies the business needs for operational technology upgrades, creates a roadmap for implementation and outlines tactical implementation approaches for BWS to structure technology investments. Tara has used her background in water utility IT and OT to assist in creating recommendations for OT Wireless technology and SCADA Network improvement projects as well as providing QA/QC to the project.
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Sarah Walsh, PE
Project Engineer
1 Sarah Walsh specializes in risk and resilience planning and execution for water and wastewater utilities. Recently, she has been serving as a risk and resilience technical specialist to aid utilities in achieving compliance with the amendments to the Safe Drinking Water Act; America’s Water Infrastructure Act of 2018 (AWIA) with risk and resilience assessments (RRAs) and emergency response plans (ERPs). She has a breadth of experience across multiple industry sectors including program management, asset management, regulatory compliance, as well as water, wastewater and stormwater operation analysis and optimization. Sarah is a registered Professional Engineer and has completed the AWWA Utility Risk and Resilience Certification as well as numerous FEMA certifications.
EXPERIENCE
RISK AND RESILIENCE PLANNING AND MITIGATION
2018 America’s Water Infrastructure Act, Risk and Resilience Assessment and Emergency Response Plan Compliance Projects: Sarah has served as Risk and Resilience Technical Specialist in assisting approximately 40 clients to achieve compliance with AWIA regulations through conducting RRAs, as well as developing or expanding ERPs. AWIA compliance is achieved in utilizing cross-sector best practices from the American Water Works Association as well as resources from the Federal, and industry partners.
Each RRA considers natural, built, cyber, and personnel assets and any relevant threats or hazards which the utility may encounter. Risk and resilience management strategies are developed for assets having the highest associated risk in order to reduce vulnerability; these strategies feed into the new requirements for ERPs. A gap analysis is conducted on existing ERPs and recommendations are presented in order to develop an AWIA complaint document. Finally, assistance is given to the utility in order to self-certify to the Environmental Protection Agency before the utility’s regulatory deadline.
Sarah is serving as West Yost’s AWIA Program Manager for the subsequent regulatory round of AWIA compliance.
AWIA Compliance Services, City of Modesto, CA: Project Engineer for the first round of AWIA compliance in 2020. West Yost supported the City of Modesto with completing its RRA and developing the City’s ERP. The City completed much of the all-hazards RRA, however, West Yost was retained to complete the cyber portion of the assessment. In addition, West Yost developed risk and resilience management strategies to help the City build resilience to the highest risk scenarios.
Emergency Drinking Water Supply Plan, City of Hillsboro, Hillsboro, OR: Sarah is serving as Project Engineer in developing an emergency drinking response plan for the City. The plan includes definition of supply and demand recommendations and alternatives, development of a distribution plan and discussion of staffing and considerations for equity and vulnerable populations.
Staff Title: Technical Specialist IV
Office Location: Remote Wisconsin
Years of Experience: 8
Years with West Yost: 4
Professional Registrations
▪ Professional Engineer,
Wisconsin No. 47345
Education
▪ MS, Environmental Engineering,
University of Minnesota - Twin Cities,
Minneapolis
▪ BS, Environmental Engineering,
Marquette University, Milwaukee, WI
Certifications
▪ AWWA Utility Risk and Resilience
Certification
▪ FEMA IS-100, IS-120, IS-130, IS-139, IS200, IS-700, IS-800, IS-1300 Professional Affiliations
▪ American Water Works Association,
Emergency Preparedness and Security
Committee – Secretary
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Sarah Walsh, PE
2 Seismic Assessment of Linear Assets, Woodinville Water District, Woodinville, WA: Sarah has served as Project Engineer in conducting a fragility analysis for the linear water assets of the utility. The project included using geographic information system (GIS) data and existing planning documentation to calculate the estimated number of leaks and breaks in the distribution system and transmission lines following a scenario earthquake.
Emergency Response Plan Update, East Valley Water District, Los Angeles, CA: Sarah served the technical specialist to review an existing emergency response plan and perform a gap analysis using industry and best practice guidance to develop an outline for the revised plan. Sarah conducted a review of established California Legislation to ensure the plan complied with State regulatory requirements.
TECHNOLOGY PLANNING
Operational Technology Strategic Plan for Honolulu Board of Water Supply (BWS), City and County of Honolulu, HI: Project Engineer and Project Manager.
CONFERENCE PRESENTATIONS & PUBLICATIONS
▪ Cox, Joel, Andrew Ohrt, Sarah Walsh, and Bailey Bartolucci. Is Your Utility Leaking More Than Just Water? Journal of the American Water Works Association. July/August 2021.
▪ Walsh, Sarah. “Data, Dollars and Drops: Things You Don’t Want Leaking from Your System” AWWA Water Infrastructure Conference. 2021.
▪ Walsh, Sarah. “Don’t be Scared of Your SCADA: Cyber Informed Engineering for the Water Sector” Wisconsin AWWA Annual Conference. 2020.
▪ Walsh, Sarah. “Asset Management – Are we missing anything?” Indiana AWWA Annual Conference. 2017.
EXHIBIT A
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WE SUPPORT OUR COMMUNITIES
WE ARE WATER FOCUSED
WE TAKE PRIDE IN WHAT WE DO
WE STRIVE TO BECOME OUR BEST
WE DO WHAT’S RIGHT
WE BELIEVE IN QUALITY
WE LISTEN
WE SOLVE CHALLENGING PROBLEMS
WE SEE THE BIGGER PICTURE
WE TAKE OWNERSHIP
WE COLLABORATE
WE HAVE FUN
WE ARE WEST YOST
EXHIBIT A
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EXHIBIT B
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EXHIBIT B
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EXHIBIT B
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EXHIBIT B
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EXHIBIT B
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EXHIBIT B
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1 Exhibit C:
Insurance Requirements for Professional Services
Contractor shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder and the results of that work by the Contractor, his agents, representatives, employees or subcontractors.
MINIMUM SCOPE AND LIMIT OF INSURANCE
Coverage shall be at least as broad as:
1. Commercial General Liability (CGL): Insurance Services Office Form CG 00 01 covering CGL on an “occurrence” basis, including products and completed operations, property damage, bodily injury and personal & advertising injury with limits no less than $1,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location (ISO CG 25 03 or 25 04) or the general aggregate limit shall be twice the required occurrence limit.
2. Automobile Liability: ISO Form Number CA 00 01 covering any auto (Code 1), or if Contractor has no owned autos, hired, (Code 8) and non-owned autos (Code 9), with limit no less than $1,000,000 per accident for bodily injury and property damage.
3. Workers’ Compensation: as required by the State of California, with Statutory Limits, and Employer’s Liability Insurance with limit of no less than $1,000,000 per accident for bodily injury or disease. (Not required if consultant provides written verification it has no employees)
4. Professional Liability (Errors and Omissions) Insurance appropriates to the Consultant’s profession, with limit no less than $2,000,000 per occurrence or claim, $2,000,000 aggregate.
If the contractor maintains broader coverage and/or higher limits than the minimums shown above, the City of Modesto requires and shall be entitled to the broader coverage and/or the higher limits maintained by the contractor. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City of Modesto.
Umbrella or Excess Coverage
The Contractor may use Umbrella or Excess Policies to provide the liability limits as required in this agreement.
This form of insurance will be acceptable provided that all of the Primary and Umbrella or Excess Policies shall provide all of the insurance coverages herein required, including, but not limited to, primary and noncontributory, additional insured, Self-Insured Retentions (SIRs), indemnity, and defense requirements. The Umbrella or Excess policies shall be provided on a true “following form” or broader coverage basis, with coverage at least as broad as provided on the underlying Commercial General Liability insurance. No insurance policies maintained by the Additional Insureds, whether primary or excess, and which also apply to a loss covered hereunder, shall be called upon to contribute to a loss until the Contractor’s primary and excess liability policies are exhausted.
The insurance policies are to contain, or be endorsed to contain, the following provisions:
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2 Additional Insured Status
The City of Modesto, its officers, officials, employees, and volunteers are to be covered as additional insureds on the CGL policy with respect to liability arising out of work or operations performed by or on behalf of the Contractor including materials, parts, or equipment furnished in connection with such work or operations.
General liability coverage can be provided in the form of an endorsement to the Contractor’s insurance with coverage equal to ISO form CG 2010. If Completed Operations endorsement is required, a separate endorsement equal to ISO form CG 2037 is required.
Primary Coverage
The Additional Insured coverage under the Contractor’s policy shall be “primary and non-contributory” and will not seek contribution from the City’s insurance or self-insurance and shall be at least as broad as CG 20 01 04 13. The City of Modesto does not accept endorsements limiting the Contractor’s insurance coverage to the sole negligence of the Named Insured.
Notice of Cancellation
Each insurance policy required above shall provide that coverage shall not be canceled, except with notice to the City of Modesto.
Waiver of Subrogation
Contractor hereby grants to City of Modesto a waiver of any right to subrogation which any insurer of said Contractor may acquire against the City of Modesto by virtue of the payment of any loss under such insurance.
Contractor agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not the City of Modesto has received a waiver of subrogation endorsement from the insurer.
Self-Insured Retentions
All Self-insured retentions must be disclosed to Risk Management for approval and shall not reduce the limits of liability. The City of Modesto may require the Contractor to purchase coverage with a lower retention or provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention. Any and all deductibles and SIRs shall be the sole responsibility of Contractor or subcontractor who procured such insurance and shall not apply to the Indemnified Additional Insured Parties.
Acceptability of Insurers
Insurance is to be placed with insurers with a current A.M. Best’s rating of no less than A:VII, unless otherwise acceptable to the City of Modesto.
Claims Made Policies (applicable to Professional Liability only) If any of the required policies provide claims-made coverage:
1. The Retroactive Date must be shown and must be before the date of the contract or the beginning of contract work.
2. Insurance must be maintained, and evidence of insurance must be provided for at least five (5) years after completion of the contract of work.
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3 3. If coverage is canceled or non-renewed, and not replaced with another claims-made policy form with a Retroactive Date prior to the contract effective date, the Contractor must purchase “extended reporting” coverage for a minimum of five (5) years after completion of work.
Verification of Coverage
Contractor shall furnish the City of Modesto with original certificates and amendatory endorsements or copies of the applicable policy language effecting coverage required by this clause and a copy of the Declarations and Endorsements Pages of the CGL and any Excess policies listing all policy endorsements. All certificates and endorsements are to be received and approved by the City of Modesto Risk Services before work commences.
However, failure to obtain the required documents prior to the work beginning shall not waive the Contractor’s obligation to provide them. The City of Modesto reserves the right to require complete, certified copies of all required insurance policies, including endorsements required by these specifications, at any time. City reserves the right to obtain a full certified copy of any insurance policy and endorsements. Failure to exercise this right shall not constitute a waiver of right to exercise later.
Subcontractors
Contractors shall require and verify that all subcontractors, or other parties hired for this work, purchase and maintain coverage for indemnity and insurance requirements as least as broad as specified in this agreement to the extent they apply to the scope of the subcontractor’s work with the same certificate of insurance requirements and naming as additional insureds all parties to this contract.
Special Risks or Circumstances
City of Modesto reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances.
Certificate Holder Address
Proper address for mailing certificates, endorsements and notices shall be:
City of Modesto
Attn: Risk Management
1010 10th Street
Modesto, CA 95354
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CITY OF MODESTO
COUNCIL AGENDA REPORT
DATE OF MEETING:
October 22, 2024
Date: September 27, 2024
TO: Mayor & City Council
THROUGH: Joseph P. Lopez, City Manager
FROM: William Wong, Director of Utilities
SUBJECT: Engineering Services Agreements with Woodard and Curran for the River Trunk, South Trunk, and Santa Rosa Phase II Sewer Trunk Rehabilitation Project
CONTACT: Cristian Ciotau, Engineering Division Manager
[email protected], 209-571-5175
DESCRIPTION:
Consider approving an Engineering Services Agreement with Woodard and Curran, of Sacramento, CA, for the River Trunk, South Trunk, and Santa Rosa Phase II Sewer Trunk Rehabilitation Project, for a total amount not to exceed $811,646. (Funding Source:
Wastewater Fund)
STRATEGIC PLAN ELEMENT:
The recommended action supports the 2020-2025 City of Modesto Strategic Plan Initiatives, Goal D: Provide safe, efficient, and reliable infrastructure through proactive community investment, maintenance, and sustainability efforts.
BACKGROUND:
The 2016 Wastewater Collection System Condition Assessment Report prepared by Brown and Caldwell provided Utilities Department staff with an understanding of current pipeline and manhole conditions in the collection system by inspecting and assessing a representative number of unlined reinforced concrete pipe reaches and manholes. The report documented the procedures and findings of the investigation and provided recommendations for the repair and rehabilitation of the pipeline and manhole assets.
The following areas have been identified as being moderately to severely deteriorated:
River Trunk - this area will rehabilitate approximately 2,800 feet of 30-inch unlined reinforced concrete pipe with 8 associated manholes.
South Trunk - this area will rehabilitate approximately 1,680 feet of 24 to 33-inch unlined reinforced concrete pipe with 8 associated manholes.
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City Council Meeting, October 22, 2024
Engineering Services Agreements with Woodard and Curran for the River Trunk, South Trunk, and Santa Rosa Phase II Sewer Trunk Rehabilitation Project
Santa Rosa Phase II Trunk - this area will rehabilitate approximately 5,622 feet of 24 to 33-inch unlined reinforced concrete pipe with 22 associated manholes.
DISCUSSION:
Due to the complexity of this project, and to increase efficiencies, staff has requested the use of a consultant to provide engineering services for the River Trunk, South Trunk, and Santa Rosa Phase II Sewer Trunk Rehabilitation Project.
On June 13, 2023, by Resolution No. 2023-278, Council approved a Prequalified List of Consultants to Provide Water, Wastewater and Storm Drain Engineering Services for Various Capital Projects.
In accordance with Administrative Directive 3.1, Selection Procedures for Professional Consultants Who Provide Architectural and Engineering Services for Capital Projects, a Request for Proposal (RFP) was sent to the four (4) prequalified consultants.
On July 9, 2024, staff received and distributed two (2) proposals to a selection committee consisting of Utilities Engineering and Operations staff. The selection committee evaluated the proposals and determined Woodard and Curran, of Sacramento, CA to be the most qualified and responsive. Woodard and Curran’s sealed proposal costs were opened after the selection ranking had been finalized; the proposal cost and scope were reviewed and negotiated to provide design and bid period services.
The scope of services to be provided under this agreement include:
Project Management
Field Investigations
Permitting Assistance
Public Outreach Assistance
Development of Construction Documents
Bid Phase Services
Engineering Support During Construction
In accordance with Modesto Municipal Code 8-3.204(a) “Exceptions to Formal Bidding Requirements”, Agreements for Professional Services are exempt from the bidding requirements of Modesto Municipal Code 8-3.203 if competitive quotations or proposals have been sought informally from at least three (3) qualified entities.
However, staff proceeded with the RFP process pursuant to Administrative Directive 3.1 and two (2) proposals were received as part of this solicitation. Staff recommends approval of an Engineering Services Agreement with Woodard and Curran for the River Trunk, South Trunk, and Santa Rosa Phase II Sewer Trunk Rehabilitation Project. #13..
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City Council Meeting, October 22, 2024
Engineering Services Agreements with Woodard and Curran for the River Trunk, South Trunk, and Santa Rosa Phase II Sewer Trunk Rehabilitation Project
FISCAL IMPACT:
Expenses associated with this effort will be housed in the following Non-Capital Project:
101591 – RT, ST & SR Ph2 SS Trunk Rehab
ANTICIPATED PROJECT EXPENDITURES:
Construction $7,000,000
Construction Contingency $700,000
Construction Administration $500,000
Engineering Services Agreement – Woodard and Curran $737,860 10% Additional Services, if Needed $73,786
Engineering/Design/Administration $100,000
Total $9,111,646
A budget adjustment in the amount of $9,090,315 from Wastewater Fund Reserves will be necessary to fund the River Trunk, South Trunk, and Santa Rosa Phase II Sewer Trunk Rehabilitation Project.
COMMITTEE RECOMMENDATION
This item was considered by the Finance Committee at the meeting held on September 23, 2024, where it was recommended that it be forwarded to Council for approval.
CEQA/NEPA REQUIREMENTS:
Staff will be utilizing the program level CEQA Environmental Planning and Compliance documents provided for projects listed within the 2016 WWMP. These program level CEQA documents cover the River Trunk, South Trunk, and Santa Rosa Phase II Sewer Trunk Rehabilitation Project.
STAFF RECOMMENDATION:
Resolution approving an Engineering Services Agreement with Woodard and Curran, of Sacramento, CA, for the River Trunk, South Trunk, and Santa Rosa Phase II Sewer Trunk Rehabilitation Project in the amount of $737,860, plus $73,786 in additional services, if needed, for a total amount not to exceed $811,646 and authorizing the City Manager, or his designee, to execute the Agreement.
Resolution approving an amendment to the Fiscal Year 2024-25 Multi-Year Program Budget in the amount of $9,090,315 from Wastewater Reserves to fund the River Trunk, South Trunk, and Santa Rosa Phase II Sewer Trunk Rehabilitation Project and authorizing the City Manager, or his designee, to implement the provisions of the Resolution.
Approved by:
William Wong, Director of Utilities
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City Council Meeting, October 22, 2024
Engineering Services Agreements with Woodard and Curran for the River Trunk, South Trunk, and Santa Rosa Phase II Sewer Trunk Rehabilitation Project
Joseph P. Lopez, City Manager
Attachments:
1. Resolutions (2)
2. Woodard and Curran – Engineering Services Agreement & Exhibits #13..
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1 2024-
MODESTO CITY COUNCIL
RESOLUTION NO. 2024-
RESOLUTION APPROVING AN ENGINEERING SERVICES AGREEMENT
WITH WOODARD AND CURRAN, OF SACRAMENTO, CA, FOR THE RIVER
TRUNK, SOUTH TRUNK, AND SANTA ROSA PHASE II SEWER TRUNK REHABILITATION PROJECT IN THE AMOUNT OF $737,860, PLUS $73,786 IN
ADDITIONAL SERVICES, IF NEEDED, FOR A TOTAL AMOUNT NOT TO EXCEED $811,646 AND AUTHORIZING THE CITY MANAGER, OR HIS
DESIGNEE, TO EXECUTE THE AGREEMENT
WHEREAS, the 2016 Wastewater Collection System Condition Assessment Report was prepared by Brown and Caldwell, and
WHEREAS, the report documented the procedures and findings of the investigation and provided recommendations for the repair and rehabilitation of identified pipeline and manhole assets, and
WHEREAS, the River Trunk, South Trunk and Santa Rosa Phase II Trunk were found to be moderately to severely deteriorated, and
WHEREAS, due to the complexity of this project, and to increase efficiencies, staff has requested the use of a consultant to provide engineering services for the River Trunk, South Trunk, and Santa Rosa Phase II Sewer Trunk Rehabilitation Project, and WHEREAS, on June 13, 2023, by Resolution No. 2023-278, Council approved a Prequalified List of Consultants to Provide Water, Wastewater and Storm Drain Engineering Services for Various Capital Projects, and
WHEREAS, in accordance with Administrative Directive 3.1, Selection Procedures for Professional Consultants Who Provide Architectural and Engineering Services for Capital Projects, a Request for Proposal (RFP) was sent to the four (4) prequalified consultants, and
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2 2024-
WHEREAS, staff received and distributed two (2) proposals to a selection committee consisting of Utilities Engineering and Operations staff, and WHEREAS, the selection committee evaluated the proposals and determined Woodard and Curran, of Sacramento, CA to be the most qualified and responsive, and WHEREAS, in accordance with Modesto Municipal Code 8-3.204(a) Exceptions to Formal Bidding Requirements, Agreements for Professional Services are exempt from the bidding requirements of Modesto Municipal Code 8-3.203 if competitive quotations or proposals have been sought informally from at least three (3) qualified entities, and WHEREAS, staff proceeded with the RFP process pursuant to Administrative Directive 3.1 and two (2) proposals were received as part of this solicitation, and WHEREAS, staff recommends approval of an Engineering Services Agreement with Woodard and Curran for the River Trunk, South Trunk, and Santa Rosa Phase II Sewer Trunk Rehabilitation Project.
NOW, THEREFORE BE IT RESOLVED by the Council of the City of Modesto that it hereby approves an Engineering Services Agreement with Woodward and Curran for the River Trunk, South Trunk, and Santa Rosa Phase II Sewer Trunk Rehabilitation Project in the amount of $737,860, plus $73,786 in additional services, if needed, for a total amount not to exceed $811,646.
BE IT FURTHER RESOLVED that the City Manager, or his designee, is hereby authorized to execute the agreement, in a form approved by the City Attorney. #13..
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3 2024-
The foregoing resolution was introduced at a regular meeting of the Council of the City of Modesto held on the 22nd day of October 2024, by Councilmember ?, who moved its adoption, which motion being duly seconded by Councilmember ?, was upon roll call carried and the resolution adopted by the following vote:
AYES: Councilmembers:
NOES: Councilmembers:
ABSENT: Councilmembers:
ATTEST:
DIANE NAYARES-PEREZ, CMC, City Clerk
(SEAL)
APPROVED AS TO FORM:
BY: ____________________________________
JOSE M. SANCHEZ, City Attorney
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1 2024-
MODESTO CITY COUNCIL
RESOLUTION NO. 2024-
RESOLUTION APPROVING AN AMENDMENT TO THE FISCAL YEAR 2024- 25 MULTI-YEAR PROGRAM BUDGET IN THE AMOUNT OF $9,090,315
FROM WASTEWATER RESERVES TO FUND THE RIVER TRUNK, SOUTH
TRUNK, AND SANTA ROSA PHASE II SEWER TRUNK REHABILITATION
PROJECT AND AUTHORIZING THE CITY MANAGER, OR HIS DESIGNEE,
TO IMPLEMENT THE PROVISIONS OF THE RESOLUTION
WHEREAS, certain budgetary transactions are necessary in the amount of $9,090,315, in order to fund the River Trunk, South Trunk, and Santa Rosa Phase II Sewer Trunk Rehabilitation Project, and
WHEREAS, the Fiscal Year 2024-25 Multi-Year Program Budget must be amended.
NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Modesto that it hereby approves the amendment of the Fiscal Year 2024-25 Multi-Year Program Budget in the amount of $9,090,315.
BE IT FURTHER RESOLVED that the City Manager, or his designee, is hereby authorized to implement the provisions of this resolution. #13..
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2 2024-
The foregoing resolution was introduced at a regular meeting of the Council of the City of Modesto held on the 22nd day of October 2024, by Councilmember ?, who moved its adoption, which motion being duly seconded by Councilmember ?, was upon roll call carried and the resolution adopted by the following vote:
AYES: Councilmembers:
NOES: Councilmembers:
ABSENT: Councilmembers:
ATTEST:
DIANA NAYARES-PEREZ
CMC, City Clerk
(SEAL)
APPROVED AS TO FORM:
BY: ____________________________________
JOSE M. SANCHEZ, City Attorney
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ENGINEERING SERVICES AGREEMENTS WITH WOODARD ANDCURRAN RIVER
TRUNK, SOUTH TRUNK, AND SANTA ROSA PHASE II SEWER TRUNK
REHABILITATION PROJECT
THIS AGREEMENT, made and entered into in the City of Modesto, State of California, this day of , 2024, (“Effective Date”) by and between the CITY OF MODESTO, a municipal corporation of the State of California, hereinafter referred to as "City", and WOODARD & CURRAN, INC., a Maine corporation, hereinafter referred to as "Consultant".
This Agreement is made with regard to the following recitals:
A. The City has determined that Engineering Services are necessary for the River Trunk, South Trunk, and Santa Rosa Phase II Sewer Trunk Rehabilitation Project.
B. Consultant represents that it is qualified, willing, and able to provide the services to prepare said document(s).
NOW, THEREFORE, in consideration of this agreement, and the mutual promises, covenants, and stipulations hereinafter contained, the parties agree as follows:
1. SCOPE OF SERVICES.
Consultant shall undertake and complete the preparation of the scope of work as set forth and described in the documents attached hereto and referred to as Exhibit "A" or "project". The Consultant shall perform the services as described in Exhibit "A" in a manner compatible with the standards of its profession and shall produce a fully complete project that is acceptable to City.
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2. TERM OF AGREEMENT.
This Agreement is effective as of the date first written above and will continue in effect until City's acceptance of and payment for all services authorized by City and performed by Consultant, unless terminated earlier in accordance with the provisions of the termination clause in this Agreement.
Consultant shall undertake and complete the preparation of the scope of work as set forth and described in the documents commonly referred to as “project” attached hereto as Exhibit "A" and made a part hereof. City hereby gives Consultant notice to proceed with the preparation of the project in the manner described in Exhibit "A", as of the Effective Date of this agreement. Consultant shall diligently proceed with the preparation of the project and agrees to complete said preparation within the time period set forth in Exhibit "A".
3. COMPENSATION.
Consultant agrees to accept a sum not to exceed SEVEN HUNDRED THIRTY-SEVEN THOUSAND EIGHT HUNDRED SIXTY AND 00/100 DOLLARS ($737,860) (maximum compensation) as full remuneration for performing all services and furnishing all staffing and materials for Modesto in accordance with Exhibit "A" attached hereto and for performance by Consultant of all of its duties and obligations under this Agreement, except that additional services may be compensated as described below.
The Compensation shall be paid pursuant in the manner and at the times set forth below:
City shall pay Consultant on a time and materials basis for Consultant’s actual costs for all work called for in Exhibit “A” to this Agreement. All work to be performed under this Agreement shall be billed at the hourly rates set forth in Exhibit “B” attached hereto, #13..
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Consultant shall submit monthly invoices to City which include detailed tasks, hours worked, and billable rates for all work completed, and detailed receipts for any out-of-pocket costs paid by Consultant in connection with work performed on this project.
Additional services may be authorized by the City Manager in an amount up to, but not to exceed ten percent (10%) of the agreed maximum compensation, or SEVENTY- THREE THOUSAND SEVEN HUNDRED EIGHTY-SIX AND 00/100 DOLLARS ($73,786). In the event that additional services are deemed necessary, the Consultant shall provide a written request to the City Manager indicating the reason for additional work, scope and cost of such work. The City Manager shall provide a written response to the request, either approving or denying the additional expenditure. If additional services are requested and approved, they will be billed at the hourly rates set forth in Exhibit “B” and may not exceed the amount requested and approved in writing by the City Manager. In that event, the new total compensation shall not exceed EIGHT HUNDRED ELEVEN THOUSAND SIX HUNDRED FORTY-SIXAND 00/100 DOLLARS ($811,646). If additional services in excess of this amount are deemed necessary by City Staff, an amendment to this Agreement will be required and must be approved by the City Council prior to commencing the work, as provided in Paragraph 9 of this agreement.
4. OBLIGATIONS OF CONSULTANT.
Throughout the term of this Agreement, Consultant shall possess, or secure all licenses, permits, qualifications and approvals legally required to conduct business.
Consultant warrants that it has all of the necessary professional capabilities and experience, as well as all tools, instrumentalities, facilities and other resources necessary to provide the City with the services contemplated by this Agreement. Consultant further warrants that it will follow #13..
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the best current, generally accepted and professional practices to make findings, render opinions, prepare factual presentations, and provide professional advice and recommendations regarding this project.
Consultant is not responsible for damage or delay in performance caused by events beyond the reasonable control of Consultant. In the event Consultant’s services are suspended, delayed or interrupted for the convenience of the City or delays occur beyond the reasonable control of Consultant, an equitable adjustment in Consultant’s time of performance and cost of Consultant’s personnel and subcontractors may be made.
5. PERFORMANCE BY KEY EMPLOYEE.
Consultant has represented to City that Glenn Hermanson , will be the person primarily responsible for the performance of the services referred to in this Agreement.
City has entered into this Agreement in reliance on that representation by Consultant. Consultant therefore agrees that ten percent (10%) or more of the time to be devoted to the project that is the subject of this Agreement will be that of the above-named person.
6. OWNERSHIP OF DOCUMENTS/TITLE TO DATA.
Ownership of Documents
All reports, drawings, designs, graphics, working papers and other incidental work or materials furnished hereunder shall become and remain the property of the City, and may be used by City as it may require without any additional cost to City. No reports shall be used by the Consultant for purposes other than this contract without the express prior written consent of City.
Title to Data
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If, as a part of the agreement, Consultant is required to produce data such as, but not limited to, drawings, plans, specifications, calculations, models, flow diagrams, visual aids and other related materials, the originals of all such data generated under this agreement will be delivered to City upon the completion or termination of services under the contract.
All materials, documents, data or information obtained from the City data files or any City medium furnished to Consultant in the performance of this Agreement will at all times remain the property of the City. Such data or information may not be used or copied for direct or indirect use by Consultant after termination of this Agreement without written consent of the City.
7. NEWS AND INFORMATION RELEASE.
Consultant agrees that it will not issue any news releases in connection with either the award of this Agreement, or any subsequent amendment of or efforts under this Agreement, without first obtaining review and approval of said news releases from City through the City Manager.
8. INTEREST OF CONTRACTOR.
Consultant warrants that it presently has no interest and shall not acquire any interest, direct or indirect, which would conflict in any manner or degree with the performance of services required to be performed under this Agreement. Consultant warrants that, in performance of this Agreement, Consultant shall not employ any person having any such interest. Consultant agrees to file a Statement of Economic Interests with the City Clerk at the start and end of this contract if so required at the option of City.
9. AMENDMENTS.
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Both parties to this Agreement understand that it may become desirable or necessary during the execution of this Agreement, for City or Consultant to modify the scope of services provided for under this Agreement. Any material extension or change in the scope of work shall be discussed with City and the change and cost shall be memorialized in a written amendment to the original contract prior to the performance of the additional work.
Until a change order is so executed, City will not be responsible to pay any charges Consultant may incur in performing such additional services, and Consultant shall not be required to perform any such additional services.
10. INDEPENDENT CONTRACTOR.
All acts of Consultant, its agents, officers, and employees and all others acting on behalf of Consultant relating to the performance of this Agreement, shall be performed as independent contractors and not as agents, officers, or employees of City. Consultant, by virtue of this Agreement, has no authority to bind or incur any obligation on behalf of City.
Consultant has no authority or responsibility to exercise any rights or power vested in the City.
No agent, officer, or employee of the City is to be considered an employee of Consultant. It is understood by both Consultant and City that this Agreement shall not under any circumstances be construed or considered to create an employer-employee relationship or a joint venture.
Consultant, its agents, officers and employees are and, at all times during the terms of this Agreement, shall represent and conduct themselves as independent contractors and not as employees of City.
Consultant shall determine the method, details and means of performing the work and services to be provided by Consultant under this Agreement. Consultant shall be responsible to City only for the requirements and results specified in this Agreement, and, except #13..
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as expressly provided in this Agreement, shall not be subjected to City's control with respect to the physical action or activities of the Consultant in fulfillment of this Agreement. Consultant has control over the manner and means of performing the services under this Agreement.
Consultant is permitted to provide services to others during the same period service is provided to City under this Agreement. If necessary, Consultant has the responsibility for employing other persons or firms to assist Consultant in fulfilling the terms and obligations under this Agreement.
If in the performance of this Agreement any third persons are employed by Consultant, such persons shall be entirely and exclusively under the direction, supervision, and control of Consultant. All terms of employment including hours, wages, working conditions, discipline, hiring, and discharging or any other term of employment or requirement of law shall be determined by the Consultant.
11. INDEPENDENT CONTRACTOR.
It is understood and agreed that as an independent contractor and not an employee of City neither the Consultant or Consultant's assigned personnel shall have any entitlement as a City employee, right to act on behalf of the City in any capacity whatsoever as an agent, or to bind the City to any obligation whatsoever.
It is further understood and agreed that Consultant must issue W-2 forms or other forms as required by law for income and employment tax purposes for all of Consultant's personnel.
As an independent contractor, Consultant hereby indemnifies and holds City harmless from any and all claims that may be made against City based upon any contention by any third party that an employer-employee relationship exists by reason of this Agreement. #13..
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12. ASSIGNMENT.
Neither this Agreement nor any portion thereof shall be subcontracted or assigned without the express prior written consent of the City in each and every instance.
13. PATENT/COPYRIGHT MATERIALS.
Unless otherwise expressly provided in the contract, Consultant shall be solely responsible for obtaining the right to use any patented or copyrighted materials in the performance of this Agreement. Consultant shall furnish a warranty of such right to use to City at the request of City.
14. NOTICES.
Notice required by this Agreement shall be given in writing and shall be deemed given and effective upon receipt provided that such are delivered in accordance with the provisions of this Section. Notices shall be delivered either by: (a) personal delivery (including delivery by an overnight courier service which obtains confirmation of receipt); or (b) by facsimile, provided that such transmission is followed by delivery by an overnight courier service which obtains confirmation of receipt; or (c) postage prepaid, return receipt requested, certified mail; or (d) by electronic transmission subject to reasonable proof that the notice was both transmitted and received. Each such notice shall be sent to the parties at the address respectively set forth below or to such other address as a party may designate by written notice given in accordance with the provisions of this Section:
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FOR CONSULTANT: Name: Woodard & Curran, Inc.
Address: 801 T Street
Sacramento, CA 95811
Attention: Glenn Hermanson
Phone: (916) 999-8700
Email: [email protected]
FOR CITY: Name: City of Modesto
Address: 1010 10th Street
Suite 4600
Modesto, CA 95354
Attention: Cristian Ciotau
Phone: (209) 577-5260
Email: [email protected]
15. INSURANCE REQUIREMENTS.
Insurance. During the term of this Agreement, Contractor shall maintain in full force and effect at its own cost and expense the insurance coverage as set forth in the attached Exhibit (C) to this Agreement and shall otherwise comply with the other provisions of Exhibit (C) to this Agreement. The city utilizes a software program “PINS Advantage” where vendor is responsible for uploading and maintaining updated insurance.
16. TERMINATION OF AGREEMENT.
Termination by City for Default of Consultant
Should Consultant default in the performance of this Agreement or materially breach any of its provisions, at its option, City may terminate this Agreement by giving written notification to Consultant. The termination date shall be the effective date of the notice. For the purposes of this section, material breach of this Agreement shall include, but not be limited to, any of the following: failure to perform required services or duties, willful destruction of City's property by Consultant, dishonesty or theft. #13..
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Termination by City for Convenience
The City may also terminate the Consultant's performance under the Agreement, either in whole or in part, at its own discretion, or when conditions encountered during the Work make it impossible or impracticable to proceed, or when the City is prevented from proceeding with the Agreement by act of God, by law, or by official action of a public authority, or upon a determination by the City that such termination is in the best interest and convenience of the City, or whenever the City is prohibited from completing the Work for any reason. The City shall provide no less than ten (10) calendar days written notice of its intent to terminate the Agreement for convenience, and shall endeavor to provide the Consultant with consultation with the City prior to termination.
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Post-Termination Procedure
Upon receipt of a written notice of termination pursuant to either of the foregoing paragraphs, the Consultant shall:
a. Cease its work as directed in the notice of termination as of the termination date and see to it that its employees, subconsultants and agents are notified of such termination and act as specified in the notice of termination;
b. Terminate all orders and Subcontractors except as necessary to complete any portion of the Work that is not terminated; c. If directed in writing by the City to do so, assign all right, title and interest in subcontracts and materials in progress to City, in which case the City will have the right at its discretion to settle, or pay any or all claims arising out of the termination of such subconsultants, but in no event shall recovery by any Consultant or subconsultant include lost profits for portions of the Work not completed or undertaken, including materials not delivered; d. Deliver or otherwise make available to the City all data, drawings, specifications, reports, estimates, summaries and such other information and material as may have been accumulated by the Consultant in performing the Work whether completed or in process; e. Settle outstanding liabilities and claims, subject to the approval of City;
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terminated;
g. Take such other actions as may be necessary, or as may be directed by the City for the protection and preservation of the Work and/or property related to the Work;
h. If City so requests, and at City's cost, Consultant shall provide sufficient oral or written status reports to make City reasonably aware of the status of Consultant's work on the project. i. The Consultant understands and agrees that City may, in City's sole discretion, refuse to pay Consultant for that portion of Consultant's services which were performed by Consultant on the project prior to the termination date and which remain
unacceptable and/or not useful to City as of the termination date.
City will pay Consultant an amount based on the percentage of satisfactory work completed in accordance with the notice of termination. The final payment to the Consultant after termination for convenience shall be limited to amounts due and owing under the Agreement at time of termination, including the following:
a. The cost of settling and paying valid claims arising out of the termination of the Work such as subconsultant agreements or contracts for materials;
b. The Agreement price allocable to the portion of the Work properly performed or goods supplied to the work site by the Consultant as of the date of termination, as determined in accordance with the notice of termination, reduced by any sums #13..
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previously paid to the Consultant.
Authorization to Terminate Agreement
Termination of the Agreement may be invoked by the City Manager, or his/her designee, subject to the right of the Consultant to appeal the City Manager, or his/her designee’s, decision to the City Council. The Consultant shall appeal by notifying the City Clerk in writing within ten (10) calendar days of receipt of written notification from City of termination of the Agreement. In the event that termination of this Agreement is upheld by the City Council, any cessation of payment of delay claims, extended claims, Eichleay claims, or any other claims for delay shall be retroactive to the date of termination selected by the City Manager, or his/her designee.
17. CERTIFIED PAYROLL REQUIREMENT.
For consultants performing field work on public works contracts on which prevailing wages are required: The Consultant shall comply with the provisions of Section 1776 of the California Labor Code, regarding payroll records, and shall require its subconsultants and subcontractors to comply with that section as may be required by law.
18. INDEMNITY.
The Consultant shall hold the City, its agents, officers, employees, and volunteers, harmless from and save, defend and indemnify them against any and all claims, losses, liabilities, judgments or damages from every cause, including but not limited to injury to person or property or wrongful death, including reasonable costs and expenses of defense of any judicial or administrative action, arising directly or indirectly out of any negligent or intentional act or omission of Consultant, or its agents, officers, employees, or volunteers relating to or during the performance of its obligations under this Agreement. #13..
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Consultant's obligation to defend, indemnify, and hold the City, its agents, officers, and employees harmless under the provisions of this paragraph is not limited to or restricted by any requirement in this Agreement for Consultant to procure and maintain a policy of insurance.
19. DISPUTE RESOLUTION.
All claims, controversies, or disputes arising out of, or relating to the formation of this Agreement, or the breach, termination execution, enforcement, interpretation, or validity of this Agreement, including the determination of the scope or applicability of this contract provision shall be determined by binding arbitration in Modesto, California by one arbitrator, except as otherwise specified in this Agreement. The American Arbitration Association shall administer the arbitration under its Arbitration Rules then in effect, subject to the modifications of those rules contained in this paragraph. This agreement to arbitrate shall be specifically enforceable under the prevailing law of any court having jurisdiction, and the award rendered by the arbitrator may be entered in any court having jurisdiction. The appropriate venue for any arbitration or court proceeding relating to or arising out of this provision shall be in Stanislaus County, California.
This paragraph is not intended to and does not waive the claim filing requirements found in California Government Code section 900 et seq. In the event that a timely and legally sufficient, arbitrable claim is filed by Consultant with City, and the claim is rejected in whole or in part by City, this paragraph shall result in the conclusive, final, and binding resolution of all the issues presented in the claim by Consultant so long as any issues presented by the claim are arbitrable. Claims rejected by City or by operation of law, shall be submitted by Consultant to arbitration pursuant to the Arbitration Rules of the American Arbitration #13..
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Association within ninety (90) days after mailing of the written rejection by City to Consultant.
Otherwise, the claim or claims shall be deemed waived in their entirety.
The “fast track’ rules of the American Arbitration Association shall apply to any claim or counterclaim less than ONE HUNDRED FIFTY THOUSAND AND 00/100 ($150,000.00) DOLLARS. In arbitration not proceeding under the “fast track” rules, the arbitrator shall have the power to order that depositions be taken and other discovery be made.
Both City and Consultant shall have the right, upon written notice, to take no more than three (3) depositions of the other as a matter of right in an arbitration proceeding under the “fast track” rules.
Whether or not City and Consultant may be engaged in interstate commerce, any controversy or dispute mentioned above shall be determined by, and the parties shall be bound by, the substantive law of the State of California, and not the Federal Arbitration Act at 9 USC Section 1 et seq.
The arbitrator may grant any remedy or relief deemed by the arbitrator just and equitable under the circumstances, whether or not such relief could be awarded in a court of law. The arbitrator shall be empowered to award monetary sanctions against a party for failure of cooperation in the arbitration. The arbitrator shall, in written award, allocate all the costs of the arbitration, including the fees of the arbitrator and the reasonable attorney fees of the prevailing party, against the party who did not prevail. The prevailing party shall be the party in whose favor the majority of the central issues in the case are resolved.
Notwithstanding anything in this provision to the contrary, the arbitrator shall have no power to award punitive damages or other damages not measured by the party’s actual damages (excluding litigation costs and fees) against any party. This limitation of the #13..
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arbitrator’s powers under this Agreement shall not operate as an exclusion of the issue of punitive damages from this Agreement to Arbitrate sufficient to vest jurisdiction in a court with respect to that issue.
Consultant shall include in all subcontracts a specification whereby the subcontractor consents to being joined in an arbitration between City and Consultant involving the work of the subcontractor to be joined. Consultant’s failure to do so shall be a breach of this Agreement.
The parties hereby waive any rights provided by Title 9.2 of the California Code of Civil Procedure, Section 1296. The arbitrator’s award shall be deemed final, conclusive and binding to the fullest extent allowed by California law.
20. ENTIRE AGREEMENT.
This Agreement and its exhibits contain the entire understanding between Consultant and City. Additional or new terms contained in this Agreement which vary from Consultant's proposal are controlling and are deemed accepted by Consultant by shipment of any article or other commencement of performance hereunder. All previous proposals, offers and communications relative to this Agreement, whether oral or written, are hereby superseded except to the extent that they have been incorporated into this Agreement. No future waiver of or exception to any of the terms, conditions, and provisions of this Agreement shall be considered valid unless specifically agreed to in writing by all the parties.
21. 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. #13..
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22. 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.
23. AUDIT.
The City's duly authorized representative shall have access at all reasonable times to all reports, contract records, contract documents, contract files, and personnel necessary to audit and verify Consultant's charges to City under this Agreement.
Consultant agrees to retain reports, records, documents, and files related to charges under this Agreement for a period of four (4) years following the date of final payment for Consultant services. City's representative shall have the right to reproduce any of the aforesaid documents.
24. GOVERNING LAW.
This Agreement shall be governed according to the laws of the State of California.
25. HEADINGS NOT CONTROLLING.
Headings used in the Agreement are for reference purposes only and shall not be considered in construing this Agreement.
26. COMPLIANCE WITH LAWS.
Consultant shall insure compliance with all safety and hourly requirements for employees, in accordance with federal, state, and county safety and health regulations and laws. Consultant shall fully comply with all applicable federal, state, and local laws, ordinances, regulations and permits.
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27. CITY BUSINESS LICENSE.
Consultant will have a City of Modesto business license.
28. THIRD PARTIES.
The services to be performed by Consultant are intended solely for the benefit of the City. No person or entity not a signatory to this Agreement shall be entitled to rely on Consultant’s performance of its services hereunder, and no right to assert a claim against Consultant by assignment or indemnity rights or otherwise shall accrue to a third party as a result of this Agreement or the performance of Consultant’s services hereunder.
IN WITNESS WHEREOF, the City of Modesto, a municipal corporation, has authorized the execution of this Agreement in duplicate by its City Manager and attestation 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 WOODARD & CURRAN, INC. has caused this agreement to be duly executed in duplicate as of the Effective Date. #13..
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SCOPE OF SERVICES
TASK 1 – PROJECT MANAGEMENT
Task 1.1 – Project Management and Coordination
Woodard & Curran will provide regular project coordination, communication and updates to the City in order to obtain input and provide project updates. Woodard & Curran will track the project scope, budget, and schedule and communicate with the City regarding important changes or concerns. The project progress and budget status will be included in monthly progress reports that will be attached to billing invoices. Key work activities completed in the invoice period and meeting minutes from formal project status meetings will also be included in the monthly progress reports. This subtask also includes Woodard & Curran’s internal technical kickoff meeting with senior advisors and coordination with subconsultants.
Task 1.2 – Project Kickoff and Status Meetings
To coordinate project tasks among the City, subconsultants, and other agencies, we will hold a project kick-off meeting and bi-weekly status meetings during the design phase. For formal project status meetings, Woodard & Curran will prepare meeting agendas and minutes. Formal project meetings are the kickoff meeting, 10% BODR meeting, 70% design review meeting, and 90% design review meeting. It is assumed up to two Woodard & Curran’s staff will attend each meeting and each status meeting will be 1 hour long. The hours for the formal status meetings are accounted for in the following design tasks. The bi-weekly status meetings will be virtual.
Task 1.03 – Quality Control
Woodard & Curran will perform internal QA/QC Reviews of the BODR, 70%, 90%, and 100% design documents as well as follow existing internal control procedures and hold project team review meetings designed to support project execution and deliverable quality. The hours for this subtask are shown with each item being reviewed.
Task 1 Deliverables
Monthly billing and status reports (total of 24).
Project kickoff meeting, formal project status meeting agendas and minutes.
TASK 2 – 10% BASIS OF DESIGN REPORT
Task 2.1 – Review Existing Information
Woodard & Curran will review existing information, record drawings, condition assessment reports, and closed-circuit television (CCTV) inspection videos for the trunks being rehabilitated. Furthermore, we will review surrounding sewer lines for bypass pumping opportunities.
Task 2.2 – Select Rehabilitation and Bypass Pumping Alternatives In this task we will apply our knowledge and experience with trenchless rehabilitation construction to evaluate CIPP, spiral wound lining, segmental sliplining, and continuous sliplining to determine the best rehab alternative. We will work closely with the City on developing evaluation criteria that will be used to decide on the most efficient and costeffective alternative, considering constructability and impacts on the surrounding community.
EXHIBIT A
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This task also includes planning for bypass pumping and construction sequencing.
Task 2.3 – Review Hydraulic Modeling Results by City Consultant The City of Modesto has Carollo as an on-call consultant to manage the City’s sewer hydraulic model. Under this task, Woodard & Curran will provide the City with the inside diameters of the rehabilitated sewer segments, so that Carollo can conduct a hydraulic analysis for the identified rehabilitation alternatives and return the results to Woodard & Curran for evaluation. This evaluation will confirm that the alternatives either meet the required hydraulic capacity or need to be improved for future required capacity.
In addition to the new sewer inside diameters, Woodard & Curran will also develop sewer bypass configurations for Carollo to model. For example, they will assess the feasibility of redirecting flow from Spokane Street to Imperial Avenue for bypassing purposes. Carollo will be responsible for performing the hydraulic modeling, while Woodard & Curran will analyze the resulting model output.
Task 2.4 – Prepare 10% Design Drawings
Under this task we will develop 10% design drawings to illustrate the intent of the project design. The plans will include plan view drawings and bypass pumping drawings. The drawings will also show the 38 manholes that are being rehabilitated. We will assume two bypass pumping design alternatives per trunk line. The sewers and manholes to be rehabilitated are shown in Attachment 1.
Task 2 Deliverables
10% Design Drawings (3 hard copies and a PDF copy)
TASK 3 – FIELD INVESTIGATIONS
Task 3.1 – Utility Research
Woodard & Curran will develop utility coordination letters and provide them to all known utility owners in the project area. Woodard & Curran will prepare a utility tracking database and re-contact utility owners who did not respond to the first request. The utility information will be shown on the drawings in accordance with the American Society of Civil Engineers (ASCE) 38-02 - Level “C” standard guidelines (no potholing).
Task 3.2 – Topographic Survey
This task encompasses several field and topographic survey activities, which will be carried out by our local subconsultant, O’Dell Engineering. These activities include:
• Sewer pipe invert elevations and diameter entering and exiting the manholes. • Existing utility locations (visible items such as valve covers, pull boxes, poles, etc.) • Rim and invert of the manholes within the 3 project areas including manholes that will likely be locations for bypass pumps.
• Point elevations for ground surface.
• Planimetrics (curb, gutter, sidewalk, trees, building edges). • Street right-of-way lines (approximate, not “property boundary quality”.
The topographic mapping will incorporate all features identified during the field survey in an AutoCAD dwg file.
EXHIBIT A
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Task 3.3 – Acquire Additional Title Reports (Optional)
Downstream of the south end of the Santa Rosa Trunk the alignment enters the Gallo facility.
The bypass pumping pipes may need to be laid across various private parcels to a manhole where the flow can be discharged. Understanding the location and widths of the existing sewer easement may be helpful when configuring the bypass piping.
Task 3 Deliverables:
Topographic map.
Optional Title Reports
TASK 4 – PERMITTING
Task 4.1 – Prepare Permit Applications
Construction projects of this size typically require a number of permits. The following is a quick discussion on anticipated permits for this project.
CDFW Streambed Alteration Agreement (SAA). This project rehabilitates the existing sewer under the Tuolumne River. As long as the work being performed stays outside the top of the riverbank and there is no chance of pollutants (for example drilling fluid from HDD) getting into the river, then a SAA is not required. Therefore, it is assumed that as long as we select a bypass piping alignment that isn’t in the river a SAA will not be required. It is assumed that putting the bypass pipes on the Carpenter Road bridge will not require a SAA.
Hours to prepare an SAA are not included in the fee estimate.
Modesto Irrigation District (MID) encroachment. One of the alternatives for the River Trunk (Spokane Street) bypass piping is to cross the MID ROW. The fee estimate assumes that this alignment will be used and therefore the hours necessary to apply for a MID encroachment permit are included in the fee estimate.
Caltrans encroachment. Yosemite Boulevard is a Caltrans highway. Work will need to be performed inside Caltrans ROW. Woodard & Curran will prepare a permit application to obtain a Caltrans encroachment permit.
Since no excavation (other than shallow burial of bypass pipes) will be required, a Regional Water Quality Control Board (RWQCB) permit will not be needed for this project.
Woodard & Curran will assist the City in obtaining a draft permit for work within the City right-of-way. Woodard & Curran will develop the permit application package. The Contractor will be responsible for obtaining the final permit and paying fees. Application fees for the draft permit, if any, will be paid by the City.
Task 4 Deliverables:
Permit coordination and applications for the following:
o MID encroachment
o Caltrans encroachment
o City of Modesto encroachment
TASK 5 – ENVIRONMENTAL AND PUBLIC OUTREACH ASSISTANCE
(Optional)
EXHIBIT A
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Task 5.1 – Environmental Clearance Assistance (Optional) The City is responsible for all aspects of environmental clearance except for writing the project description.. If the City requires environmental assistance, this subtask will be used to provide the assistance. The level of effort is limited to what is shown on the fee estimate.
This work cannot be performed without authorization by the City.
Task 5.2 – Public Outreach Assistance (Optional)
The majority of this project is located in residential neighborhoods. We are assuming that cured-in-place pipe (CIPP) lining will likely be the preferred rehabilitation alternative. At this diameter, CIPP does not require excavation, but the project will be disruptive since bypass piping will be needed along many streets to dewater the sewer. The Santa Rosa Trunk runs directly through the La Loma Neighborhood (LLN), a very active community with movie nights in the park and pollinator festivals. The City has other projects in the area and LLN might be experiencing “project fatigue”. An extra level of outreach may be necessary. Katie Evans with Woodard & Curran is an outreach specialist who loves engaging with neighborhoods, explaining the benefits of projects, listening to community concerns, and working with design engineers to develop acceptable solutions. If the City requires public outreach assistance, this subtask will be used to provide the assistance. The level of effort is limited to what is shown on the fee estimate. This work cannot be performed without authorization by the City.
Task 5 Deliverables:
To be determined.
TASK 6 –CONSTRUCTION DOCUMENTS
This task involves developing 70%, 90% and final construction drawings, technical specifications, and engineer’s estimate (PS&E).
Task 6.1 – Prepare 70% PS&E Submittal Package
Woodard & Curran will provide plans, technical specifications, and engineer’s estimate of construction cost at a 70% design level. Three copies of the plans (half-size), specifications, and engineer’s estimate will be delivered to the City for review.
Task 6.2 – Conduct 70% PS&E Review Meeting
Woodard & Curran will conduct a review meeting to discuss the 70% PS&E submittal and any questions that the City may have after the review period. The review meeting will take place at the City’s offices.
The review meeting will focus on key items such as bypass pumping for the project.
Woodard & Curran will hold a 70% review meeting to discuss the 70% PS&E submittal to address any questions the City may have following the initial review period. We anticipate holding this meeting in person at the City’s office.
Task 6.3 – Prepare 90% PS&E Submittal Package
Woodard & Curran will address the City’s 70% review comments and provide a comment response log.
Additionally, we will provide plans, technical specifications, marked-up front-end specifications (as provided by the City), and an engineer’s estimate of construction costs at the 90% design level. Three copies of the plans (half-size), specifications, and engineer’s estimate will be delivered to the City for review.
Task 6.4 – Conduct 90% PS&E Review Meeting
EXHIBIT A
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Woodard & Curran will hold a 90% review meeting to discuss the 90% PS&E submittal and address any questions the City may have following the review period. We anticipate holding this meeting in person at the City’s office.
Task 6.5 – Prepare Final PS&E Submittal Package
Woodard & Curran will respond to the City’s 90% review comments and provide a comment response log, plans, plans (half-size), specifications, and estimate to the City. This submittal will be for final bidready documents.
Woodard & Curran will address the City’s 90% review comments and provide a comment response log.
Additionally, we will provide bid ready final construction documents including plans, technical specifications, and an engineer’s estimate.
Task 6.6 – Prepare Grit Trap Design
Woodard & Curran will develop PS&E documents for grit trap(s) for this project. This task covers 70%, 90%, and 100% submittals.
Anticipated Drawing List
Sheet
Count Sheets Titles
1 G-1 Cover Sheet & Map
1 G-2 General Notes
1 G-3 Abbreviations and Symbols
1 G-4 Key Plan 1
1 G-5 Key Plan 2
5 TOTAL GENERAL SHEETS
1 ST-1 South Trunk Lining
3 ST-2 to 5 South Trunk Bypass Plans and Details*
2 R-1 to 2 River Trunk Lining
2 R-3 to 4 River Trunk Bypass Plans and Details*
6 SR-1 to 6 Santa Rosa Trunk Lining
5 SR-7 to 11 Santa Rosa Trunk Bypass Plans and Details* 1 GC-1 General Civil Details
20 TOTAL PIPELINE SHEETS
25 TOTAL SHEETS
*Since bypass pumps and pipes are temporary, the bypass plans may be shown on figures using GIS aerial mapping in the appendix to the specifications instead of CAD drawings.
Task 6 Deliverables:
70 percent PS&E submittal package (3 hard copies and one PDF file). 70 percent review meeting agenda and minutes.
70 percent review comment response log.
90 percent PS&E submittal package (3 hard copies and one PDF file). 90 percent review meeting agenda and minutes
90 percent review comment response log.
EXHIBIT A
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Final PS&E submittal package with 25 total sheets (3 hard copies and one PDF file).
TASK 7 – BID PHASE SERVICES
Task 7.1 – Attend Pre-Bid Meeting
If required, Woodard & Curran will attend a City’s pre-bid meeting to answer any questions the prospective bidders may have and explain the design intent.
Task 7.2 – Answer Bidder Questions/Provide Addenda
This task includes providing assistance to the City during the bidding period. Woodard & Curran will assist the City during the bidding period by responding to bidders’ questions and issuing up to one addendum. This scope assumes that Woodard & Curran will answer up to twenty (20) contractor questions at an average of 1.5 hours per question.
Task 7 Deliverables:
One Addendum in electronic format.
TASK 8 – ENGINEERING SERVICES DURING CONSTRUCTION (ESDC) Task 8.1 – Coordination with Construction Manager
During the construction phase, Woodard & Curran will coordinate all work with the construction manager, answering questions, etc.
Task 8.2 – Attend Pre-Construction Meeting
Woodard & Curran will support the City’s Construction manager (CM) by attending the preconstruction meeting to clarify any questions the contractor may have.
Task 8.3 – Review Submittals
Woodard & Curran will review up to 75 contractor’s submittals (assuming 60 ‘first time’ submittals plus 15 resubmittals) and will provide comments and clarifications back to the City’s CM.
Task 8.4 – Respond to Requests for Information (RFIs)
Woodard & Curran will review up to 40 technical requests for information (RFIs) to respond to questions during construction to clarify the contract documents and design intent, at an average of 2 hours per RFI plus 24 hours of CAD time (total).
Task 8.5 – Attend Site Visits and Construction Meetings Woodard & Curran anticipates conducting four full day site visits in support of the project to be available for construction manager and contractors, and to monitor the progress of the construction.
Additionally, Woodard & Curran will attend bi-weekly remote construction meetings to support the project (assuming 25 meetings at one hour each).
Task 8.6 –Provide Input on Change Orders
Woodard & Curran will be available to review requested change orders by the City’s contractor. We will review supporting information, support the City Construction Manager in discussions with the contractor, and assist the CM with the preparation of change orders. We assume 5 change orders at 16 hours each.
Task 8.7 – Final Project Acceptance
EXHIBIT A
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Woodard & Curran’s design staff will be available to provide input on the final project acceptance by providing a final check list of items to be completed. We will be available to support the CM on a final job walk.
Task 8.8 – Prepare Record Drawings
After final completion, Woodard & Curran will review the contractor’s as-built drawings and prepare a set of record drawings in AutoCAD Civil 3D.
Task 8 Deliverables:
Responses to up to 75 submittals
Responses to 40 RFIs.
Up to 5 Change order responses at 16hrs each
One set of record drawings in AutoCAD and 24x36 plan sheet size on bond paper and digital files.
Scope Assumptions:
• City will provide existing documents, CCTV tapes, and record drawings to be reviewed. • City will provide updated GIS files that show property lines. • Geotechnical information will not be necessary for this project as the assumed rehabilitation method is CIPP. No launch pit excavation is necessary for a 33” liner as it can be inserted through the existing access way with the cone removed.
• Up to two members of the Woodard & Curran design team will attend the field site visit. The visit plus travel time will take one day.
• City can provide access / right-of-entry to each manhole along the alignment. • The City will provide existing City utility information (water, sewer, storm, etc.). • To create an anticipated drawing list, it was assumed that CIPP lining is the construction method for the pipeline rehabilitation (to be confirmed by the hydraulic evaluation). • Manhole condition assessment will not be performed. The manholes to be rehabilitated have been identified in an existing condition assessment report.
• No traffic control plans or specifications will be developed as limited traffic control will be needed during construction.
• Preparation of lot line adjustments, legal descriptions, parcel maps or other similar mapping documents are not within this scope of services.
• The City will provide a consolidated list of review comments prior to any Design Review Meeting (70%, 90%).
• Applicable County and City CAD standards will be provided by the City. The drawing size is 22”x34” full-size (11”x17” half-size).
• Technical specifications will be provided by Woodard & Curran. Front-end specifications (Div 00 and 01) will be provided by the City.
• Cost estimates will be developed to AACE Class 3 level. • All permit fees to be paid directly by the City or Contractor. • City will reproduce contract documents and distribute contract documents to potential bidders. • City will coordinate with property owners as needed.
EXHIBIT A
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Client: City of Modesto Fee Estimate
Project: Final Design of the River Trunk, South Trunk, and Santa Rosa Phase 2 Sewer Trunk Rehabilitation Project 27-Aug-24 Tasks Total
Jim Graydon
Glenn
Hermanson Jen Glynn James Kohne
Madison
Veggian
Katie Evans
Engineering/
Project
Support
Kim Clyma
Chris van
Lienden
Drafter Admin. O'Dell
Engineering
PIC PM QA/QC PE TM2 STM E2 PM2 STM CAD PAC Surveying
$365 $360 $360 $315 $330 $350 $235 $330 $350 $155 $155
Task 1: Project Management1.1 Project Management and Coordination 1 40 2 28 1 2 1 24 99 $29,155 $0 $0 $29,1551.2 Project Kickoff and Bi-weekly Status Meetings 4 40 4 72 120 $39,980 $0 $300 $330 $40,310Subtotal Task 1: 5 80 6 100 1 0 2 1 0 0 24 219 $69,135 $0 $0 $300 $330 $69,465Task 2: 10% Basis of Design Report2.1 Review Existing Information / Record Documents 2 4 2 8 $2,450 $0 $0 $2,4502.2 Select Rehabilitation and Bypass Pumping Alternatives 6 2 12 10 30 $9,960 $0 $0 $9,9602.3 Review Hydraulic Modeling Results by City Consultant 6 6 $1,890 $0 $0 $1,8902.4 Prepare 10% Design Drawings 22 4 50 16 70 100 262 $62,340 $0 $100 $110 $62,450Subtotal Task 2: 0 30 6 72 26 0 72 0 0 100 0 306 $76,640 $0 $0 $100 $110 $76,750Task 3: Field Investigations3.1 Utility Research 4 40 44 $10,660 $0 $0 $10,6603.2 Topographic Survey 4 12 16 $4,080 $115,400 $126,940 $0 $131,0203.3 Acquire Additional Title Reports (Optional) 0 $0 $6,000 $6,600 $0 $6,600Subtotal Task 3 w/out Optional Tasks: 0 0 0 8 0 0 52 0 0 0 0 60 $14,740 $115,400 $126,940 $0 $0 $141,680Subtotal Task 3 Using Optional Tasks: 0 0 0 8 0 0 52 0 0 0 0 60 $14,740 $121,400 $133,540 $0 $0 $148,280Task 4: Permitting4.1 Prepare Permit Applications 2 40 40 82 $23,320 $0 $0 $23,320Subtotal Task 4: 0 0 2 0 0 0 40 40 0 0 0 82 $23,320 $0 $0 $0 $0 $23,320Task 5: Environmental and Public Outreach Assistance (Optional)5.1 Environmental Clearance Assistance (Optional) 40 40 $14,000 $0 $0 $14,0005.2 Public Outreach Assistance (Optional) 80 80 $28,000 $0 $900 $990 $28,990Subtotal Task 5 Using Optional Tasks: 0 0 0 0 0 120 0 0 0 0 0 120 $42,000 $0 $0 $900 $990 $42,990Task 6: Construction Documents6.1 Prepare 70% PS&E Submittal Package 30 8 40 60 60 184 382 $88,700 $0 $200 $220 $88,9206.2 Conduct 70% PS&E Review Meeting 8 16 24 $7,920 $0 $300 $330 $8,250
6.3 Prepare 90% PS&E Submittal Package 20 6 40 60 100 226 $51,560 $0 $200 $220 $51,780
6.4 Conduct 90% PS&E Review Meeting 8 16 24 $7,920 $0 $300 $330 $8,2506.5 Prepare Final PS&E Submittal Package 20 4 30 20 40 114 $28,990 $0 $200 $220 $29,2106.6 Prepare Grit Trap Design 8 20 16 44 $10,060 $0 $0 $10,060Subtotal Task 6: 0 94 18 142 60 0 160 0 0 340 0 814 $195,150 $0 $0 $1,200 $1,320 $196,470Task 11: ESDC7.1 Attend Pre-Bid Meeting 8 8 16 $5,400 $0 $200 $220 $5,620Answer Bidder Questions / Provide AddendaSubtotal Task 7: 0 29 0 29 0 0 0 0 0 12 0 70 $21,435 $0 $0 $200 $220 $21,655Task 8: Engineering Services During Construction (ESDC)8.1 Coordination with Construction Manager 40 40 $27,000 $0 $0 $27,0008.2 Attend Pre-Construction Meeting 6 6 $2,160 $0 $200 $220 $2,3808.3 Review Submittals 15 15 45 150 225 $60,225 $0 $0 $60,2258.4 Respond to Requests for Information (RFIs) 4 4 32 40 20 100 $25,460 $0 $0 $25,4608.5 Attend Site Visits and Construction Meetings 57 57 $17,955 $0 $400 $440 $18,3958.6 Provide Input on Change Orders 12 4 24 40 $13,320 $0 $0 $13,3208.7 Final Project Acceptance 8 8 16 $5,400 $0 $100 $110 $5,5108.8 Prepare Record Drawings 2 12 20 34 $6,640 $0 $0 $6,640Subtotal Task 8: 0 87 23 206 0 0 202 0 0 40 0 558 $158,160 $0 $0 $700 $770 $158,930TOTAL w/out Optional Tasks 5 320 55 557 87 0 528 41 0 492 24 2109 $558,580 $115,400 $126,940 $2,500 $2,750 $688,270TOTAL Using Optional Tasks 5 320 55 557 87 120 528 41 0 492 24 2229 $600,580 $121,400 $133,540 $3,400 $3,740 $737,860 2. Subconsultants will be billed at actual cost plus 10%. 5. Additional Woodard & Curran staff may perform work on the project, based on our standard billing rate schedule currently in effect.
3. Other direct costs (ODCs) such as reproduction, delivery, mileage (rates will be those allowed by current IRS guidelines), and travel expenses, will be billed at actual cost plus 10%.
4. W&C reserves the right to adjust its hourly rate structure and ODC markup at the beginning of the calendar year for all ongoing contracts.
Total
Fee
1. The individual hourly rates include salary, overhead and profit.
Labor Outside Services ODCs
Description
Total Hours
Total Labor
Costs (1)
Sub Consultant
Total Cost (2)
ODCs
Total ODCs
(3)
EXHIBIT B #13..
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1 Exhibit C:
Insurance Requirements for Professional Services
Contractor shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder and the results of that work by the Contractor, his agents, representatives, employees or subcontractors.
MINIMUM SCOPE AND LIMIT OF INSURANCE
Coverage shall be at least as broad as:
1. Commercial General Liability (CGL): Insurance Services Office Form CG 00 01 covering CGL on an “occurrence” basis, including products and completed operations, property damage, bodily injury and personal & advertising injury with limits no less than $1,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location (ISO CG 25 03 or 25 04) or the general aggregate limit shall be twice the required occurrence limit.
2. Automobile Liability: ISO Form Number CA 00 01 covering any auto (Code 1), or if Contractor has no owned autos, hired, (Code 8) and non-owned autos (Code 9), with limit no less than $1,000,000 per accident for bodily injury and property damage.
3. Workers’ Compensation: as required by the State of California, with Statutory Limits, and Employer’s Liability Insurance with limit of no less than $1,000,000 per accident for bodily injury or disease. (Not required if consultant provides written verification it has no employees)
4. Professional Liability (Errors and Omissions) Insurance appropriates to the Consultant’s profession, with limit no less than $2,000,000 per occurrence or claim, $2,000,000 aggregate.
If the contractor maintains broader coverage and/or higher limits than the minimums shown above, the City of Modesto requires and shall be entitled to the broader coverage and/or the higher limits maintained by the contractor. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City of Modesto.
Umbrella or Excess Coverage
The Contractor may use Umbrella or Excess Policies to provide the liability limits as required in this agreement.
This form of insurance will be acceptable provided that all of the Primary and Umbrella or Excess Policies shall provide all of the insurance coverages herein required, including, but not limited to, primary and noncontributory, additional insured, Self-Insured Retentions (SIRs), indemnity, and defense requirements. The Umbrella or Excess policies shall be provided on a true “following form” or broader coverage basis, with coverage at least as broad as provided on the underlying Commercial General Liability insurance. No insurance policies maintained by the Additional Insureds, whether primary or excess, and which also apply to a loss covered hereunder, shall be called upon to contribute to a loss until the Contractor’s primary and excess liability policies are exhausted.
The insurance policies are to contain, or be endorsed to contain, the following provisions:
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2 Additional Insured Status
The City of Modesto, its officers, officials, employees, and volunteers are to be covered as additional insureds on the CGL policy with respect to liability arising out of work or operations performed by or on behalf of the Contractor including materials, parts, or equipment furnished in connection with such work or operations.
General liability coverage can be provided in the form of an endorsement to the Contractor’s insurance with coverage equal to ISO form CG 2010. If Completed Operations endorsement is required, a separate endorsement equal to ISO form CG 2037 is required.
Primary Coverage
The Additional Insured coverage under the Contractor’s policy shall be “primary and non-contributory” and will not seek contribution from the City’s insurance or self-insurance and shall be at least as broad as CG 20 01 04 13. The City of Modesto does not accept endorsements limiting the Contractor’s insurance coverage to the sole negligence of the Named Insured.
Notice of Cancellation
Each insurance policy required above shall provide that coverage shall not be canceled, except with notice to the City of Modesto.
Waiver of Subrogation
Contractor hereby grants to City of Modesto a waiver of any right to subrogation which any insurer of said Contractor may acquire against the City of Modesto by virtue of the payment of any loss under such insurance.
Contractor agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not the City of Modesto has received a waiver of subrogation endorsement from the insurer.
Self-Insured Retentions
All Self-insured retentions must be disclosed to Risk Management for approval and shall not reduce the limits of liability. The City of Modesto may require the Contractor to purchase coverage with a lower retention or provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention. Any and all deductibles and SIRs shall be the sole responsibility of Contractor or subcontractor who procured such insurance and shall not apply to the Indemnified Additional Insured Parties.
Acceptability of Insurers
Insurance is to be placed with insurers with a current A.M. Best’s rating of no less than A:VII, unless otherwise acceptable to the City of Modesto.
Claims Made Policies (applicable to Professional Liability only) If any of the required policies provide claims-made coverage:
1. The Retroactive Date must be shown and must be before the date of the contract or the beginning of contract work.
2. Insurance must be maintained, and evidence of insurance must be provided for at least five (5) years after completion of the contract of work.
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3 3. If coverage is canceled or non-renewed, and not replaced with another claims-made policy form with a Retroactive Date prior to the contract effective date, the Contractor must purchase “extended reporting” coverage for a minimum of five (5) years after completion of work.
Verification of Coverage
Contractor shall furnish the City of Modesto with original certificates and amendatory endorsements or copies of the applicable policy language effecting coverage required by this clause and a copy of the Declarations and Endorsements Pages of the CGL and any Excess policies listing all policy endorsements. All certificates and endorsements are to be received and approved by the City of Modesto Risk Services before work commences.
However, failure to obtain the required documents prior to the work beginning shall not waive the Contractor’s obligation to provide them. The City of Modesto reserves the right to require complete, certified copies of all required insurance policies, including endorsements required by these specifications, at any time. City reserves the right to obtain a full certified copy of any insurance policy and endorsements. Failure to exercise this right shall not constitute a waiver of right to exercise later.
Subcontractors
Contractors shall require and verify that all subcontractors, or other parties hired for this work, purchase and maintain coverage for indemnity and insurance requirements as least as broad as specified in this agreement to the extent they apply to the scope of the subcontractor’s work with the same certificate of insurance requirements and naming as additional insureds all parties to this contract.
Special Risks or Circumstances
City of Modesto reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances.
Certificate Holder Address
Proper address for mailing certificates, endorsements and notices shall be:
City of Modesto
Attn: Risk Management
1010 10th Street
Modesto, CA 95354
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CITY OF MODESTO
COUNCIL AGENDA REPORT
DATE OF MEETING:
October 22, 2024
Date: September 17, 2024
TO: Mayor and City Council
THROUGH: Joseph P. Lopez, City Manager
FROM: Jessica Hill, Director of Community and Economic Development SUBJECT: Formation of City of Modesto Community Facilities District No. 2024-2 (Fairview Village #2)
CONTACT: Edgar Garcia, Community Development Manager
[email protected], 209-577-5211
DESCRIPTION:
Hearing to consider establishing City of Modesto Community Facilities District (CFD) No. 2024-2 (Fairview Village #2), authorizing the levy of special taxes therein, calling a special election; and declaring the results of the October 22, 2024, special election. (Funding Source: Developer Deposit)
STRATEGIC PLAN ELEMENT:
The recommended action supports the City Council’s 2020-2025 Strategic Plan, Goal D:
Provide Safe, Efficient, and Reliable Infrastructure through proactive community investment, maintenance, and sustainability efforts.
BACKGROUND:
In 1982, the Mello-Roos Community Facilities Act of 19821(Act) was adopted by the State of California as a method for financing infrastructure improvements and services associated with new developments. The Act allows infrastructure improvements and services to be funded through a special tax paid by property owners.
The Fairview Specific Plan area, approved by the City Council on December 12, 1995, encompasses approximately 360 acres, and is bounded by Whitmore Avenue to the south, Carpenter Road to the west, and Hatch Road to the north. 1 Mello Roos Act of 1982 5533-53368
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City Council, October 22, 2024
Formation of City of Modesto Community Facilities District No. 2024-2 (Fairview Village #2)
On October 28, 2003, the City Council adopted the resolution of intention to form City of Modesto Community Facilities District No. 2003-1 (Fairview Village) pursuant to the Mello-Roos Community Facilities Act of 1982.
On December 11, 2003, the City Council established City of Modesto Community Facilities District No. 2003-1 (Fairview Village) within the Fairview Specific Plan area through Resolution 2003-660.
On, December 20, 2021, the Planning Commission approved the Vesting Subdivision Map for Fairview Village Phase 1 Subdivision which consisted of 38.5 acres located east of Carpenter Road and north of Whitmore Avenue into 217 single-family residential lots and six landscape lots. More recently, on February 7, 2022, STL Company LLC, applied to form a new Community Facilities District (CFD).
DISCUSSION:
The Mello-Roos Community Facilities Act requires that within 90 days after receiving a petition, the legislative body shall adopt a Resolution of Intention (ROI). On September 10, 2024, the City adopted the ROI to establish CFD No. 2024-2 (Fairview Village #2).
While the boundaries of CFD No. 2024-2 will ultimately encompass the entire Fairview Village area, the initial boundaries will include a portion of APN: 056-027-009 totaling 40.15 acres, where STL Company LLC is the owner. Additional properties may annex to CFD No. 2024-2 as they are ready to develop. The proposed boundary map also identifies the future annexation area and is provided as Attachment 7.
The Facilities to be financed by CFD No. 2024-2 include development of a storm drain basin, Class 1 bike trail, road improvements, and canal crossings. The services to be financed by CFD No. 2024-2 encompass maintenance for landscaped lots, tree pruning, masonry wall maintenance, neighborhood park maintenance, storm drain basin maintenance and other services described in the CFD Report, included as Attachment 6.
CFD No. 2024-2 will not include any bonding authority. The Rate and Method of Apportionment (RMA) that identifies the maximum special tax rates for the parcel types within CFD No. 2024-2, as well as a description of how the special taxes are calculated and collected, is described in CFD Report (Attachment 6).
Only a portion of the Initial Parcel is requesting to be part of CFD No. 2024-2 and only the Initial Parcel will be subject to levy and collection of the special taxes, until additional properties annex to CFD No. 2024-2 in the future.
The Annual Maintenance Special Tax is only levied on a parcel after a building permit has been issued for that property (except for single family detached which commences after a final map is recorded). The One-Time Facilities Special Tax is levied after a building permit has been issued for that property. The maximum special tax rates for CFD No. 2024-2 are as follows:
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City Council, October 22, 2024
Formation of City of Modesto Community Facilities District No. 2024-2 (Fairview Village #2)
Maximum Special Tax Rates Fiscal Year 2024-25
Special Tax Category
Maximum Annual
Maintenance Special Tax
Fiscal Year 2024-25
Maximum One-Time
Facilities Special Tax
Fiscal Year 2024-25
Net Taxable Acre $45,702 $4,775
The CFD Administrator will allocate the above maximum taxes to successor parcels as provided in the RMA. The City has conditionally established an annual appropriations limit of $12,100,000 for the special tax levy.
On January 1, 2025, and on each January 1 thereafter, all figures shown in the table above shall be increased by the annual Escalation Factor. In any Fiscal Year, the annual Escalation Factor will be the greater of either, the percentage increase, if any, in the construction cost index for the San Francisco region for the prior twelve (12) month period as published in the Engineering News Record or other comparable source if the Engineering News Record is discontinued or otherwise not available, or four percent (4.0%).
At least thirty (30) days, and no more than sixty (60) days, following the date of the adoption of the ROI, the City Council schedules a public hearing to be held and will consider a Resolution of Formation (Attachment 1) and a Resolution Calling a Special Election (Attachment 2). The special tax may only be levied if approved by a two-thirds vote of the property owners within the boundaries at a special election scheduled.
The vote is a landowner vote because it was identified that there are fewer than twelve (12) persons who are registered to vote within the territory of the Community Facilities District for the ninety (90) days preceding the close of the public hearing. Accordingly, the vote shall be by the landowners of the Community Facilities District, and each owner of record at the close of such public hearing, shall have one (1) vote for each acre or portion of an acre that he or she owns within the Community Facilities District. The portion of the forming parcel for Fairview Village #2 is 40.15 acres, and accordingly will include 41 total ballots. Therefore, the City Council will consider a Resolution Declaring Results of the Special Election (Attachment 3) and the introduction of an Ordinance Authorizing the Levy of the Special Taxes (Attachment 4). The Ordinance will be brought back for a second reading and adoption at the next Council meeting.
For future annexations the unanimous written consent of the property owners via a signed Unanimous Consent to Annex, Waiver and Declaration of Landowner will be obtained without the need for a public hearing or election.
The Owner is not seeking bonding authorization for CFD No. 2024-2, just for the authority for the One-Time Facilities Special Tax and an Annual Maintenance Special Tax. Concurrently, with the proceedings to form CFD No. 2024-2, the Owner is pursuing proceedings under the state-wide BOLD Program for the formation of a second community facilities district over the property to finance fees and additional facilities with the levy of an annual facilities special tax which will secure bonded indebtedness. Additionally, the City may enter into an acquisition and shortfall agreement with the developer for infrastructure improvements within CFD No. 2024-2.
This agreement accounts for the Developer completing certain improvements and be reimbursed provided that the improvements are acceptable to the City. #14..
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City Council, October 22, 2024
Formation of City of Modesto Community Facilities District No. 2024-2 (Fairview Village #2)
By Resolution No. 2020-223, the City Council previously approved participation in the BOLD Program, and this action is sufficient to approve participation in the BOLD program in partnership with California Municipal Finance Authority (CMFA). The California Municipal Finance Authority2 (CMFA) is a joint powers agency, of which the City is a member. CFMA administers the BOLD Program and works with City Staff to ensure the program is meeting the City’s objectives.3 Under the BOLD Program, bonds are issued by a community facilities district formed by CMFA (BOLD CFD) under the Mello-Roos Act. The City Council previously approved participation in the BOLD program, and this prior action is sufficient to approve participation in the BOLD program in partnership with CMFA. CMFA and its consultant team will form and approve the BOLD CFD, CMFA will issue bonds on behalf of the BOLD CFD, and levy and collect the special taxes each year. Using the BOLD Program for bonds alleviates local agency staff time constraints.
FISCAL IMPACT:
The formation of CFD No. 2024-2 is paid by the applicant through a developer deposit. There is no impact to the General Fund.
COMMITTEE RECOMMENDATION:
This item was presented to the Economic Development Committee on September 9, 2024, and was recommended to forward to the City Council for approval.
RECOMMENDED COUNCIL ACTION:
Staff Recommendations:
Resolution declaring the formation of the City of Modesto Community Facilities District No. 2024-2 (Fairview Village #2), conditionally authorizing the levy of special taxes therein, and conditionally establishing an annual appropriations limit of $12,100,000.
Resolution of the City Council of the City of Modesto, California, acting as the legislative body of the City of Modesto Community Facilities District No. 2024-2 (Fairview Village #2), calling for a special election.
Resolution declaring the results of October 22, 2024, special election and approving certain related actions pertaining to City of Modesto Community Facilities District No. 2024-2 (Fairview Village #2).
Motion introducing an ordinance authorizing the levy of special taxes within the City of Modesto held within City of Modesto Community Facilities District No. 2024-2 (Fairview Village #2).
Approved by:
Jessica Hill, Director of Community and
Economic Development
Joseph P. Lopez, City Manager
2 California Municipal Finance Authority
3 CMFA Bold Financing
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City Council, October 22, 2024
Formation of City of Modesto Community Facilities District No. 2024-2 (Fairview Village #2)
Attachments:
1. Resolution- Formation of CFD 2024-2
2. Resolution- Calling a Special Election
3. Resolution- Declaring Results of A Special Election
4. Ordinance - Authorizing Special Taxes
5. List of Facilities and Services
6. Rate and Method of Apportionment
7. Proposed Boundary Map for CFD No. 2024-2 (Fairview Village #2)
8. Certificate of City Clerk
9. Concurrence for CFD No. 2024-2
10. Acquisition and Shortfall Agreement - Draft
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10/22/2024/CEDD/EGarcia/Item # 1 2024-xxx
MODESTO CITY COUNCIL
RESOLUTION NO. 2024- XXX
RESOLUTION DECLARING THE FORMATION OF CITY OF MODESTO
COMMUNITY FACILITIES DISTRICT NO. 2024-2 (FAIRVIEW
VILLAGE #2), CONDITIONALLY AUTHORIZING THE LEVY OF
SPECIAL TAXES THEREIN, AND CONDITIONALLY ESTABLISHING
AN ANNUAL APPROPRIATIONS LIMIT OF $12,100,000
WHEREAS, on September 10, 2024, pursuant to a petition filed by STL Company LLC (the “Petitioner”) this City Council adopted Resolution No. 2024-318 (the “Resolution of Intention”), stating its intention to form City of Modesto Community Facilities District No. 2024-2 (Fairview Village #2) (the “Community Facilities District”), and designate certain property within the Fairview Specific Plan as future annexation to the Community Facilities District (the “Future Annexation Area”), all pursuant to the Mello-Roos Community Facilities Act of 1982, as amended (the “Act”); and
WHEREAS, a copy of the Resolution of Intention, setting forth (a) the description of the proposed boundaries of the Community Facilities District and the Future Annexation Area for the Community Facilities District, (b) the description of the proposed facilities and services to be financed by the Community Facilities District, (c) the rate and method of apportionment of the annual maintenance special taxes and one-time facilities special tax proposed to be levied within the Community Facilities District, and (d) setting a public hearing to consider this matter, is on file with the City Clerk and is incorporated herein by reference; and WHEREAS, the City Clerk has confirmed that a notice was published and mailed as required by law relative to the intention of the City to form the Community Facilities District at a public hearing to be held on October 22, 2024; and
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10/22/2024/CEDD/EGarcia/Item # 2 2024-xxx
WHEREAS, there has been filed with the City Clerk a report containing a description of the facilities and services necessary to meet the needs of the Community Facilities District and an estimate of the cost of such facilities and services as required by Section 53321.5 of the Government Code (the “Report”); and
WHEREAS, the City Council has held a public hearing on this same date as required by law to determine whether it should proceed with the formation of the Community Facilities District, the designation of the Future Annexation Area, and the authorization of the rate and method of apportionment of special taxes to be levied within the Community Facilities District for the purposes described in the aforesaid resolution; and WHEREAS, at said hearing all persons desiring to be heard on all matters pertaining to the Community Facilities District were heard, and a full and fair hearing was held; and WHEREAS, at the public hearing evidence was presented to the City Council on the matters before it, and there was not precluded by a majority protest of the type described in Government Code Sections 53324 and 53339.6, and the City Council is sufficiently advised as to all matters relating to the formation of the Community Facilities District, the designation of the Future Annexation Area, and the levy of special taxes; and WHEREAS, there have been fewer than twelve (12) registered voters residing in the proposed boundaries of the Community Facilities District for the statutory period, and the qualified electors in the Community Facilities District are the landowners the Community Facilities District; and
WHEREAS, on the basis of all of the foregoing, the City Council has determined at this time to proceed with the establishment of the Community Facilities District and to call an election therein to authorize (i) the levy of special taxes pursuant to the rate and method of apportionment #14..
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10/22/2024/CEDD/EGarcia/Item # 3 2024-xxx
of special tax, as set forth in the Rate and Method of Apportionment of Special Tax (the “Rate and Method”) attached hereto as Attachment A, and (ii) the establishment of an appropriations limit of $12,100,000 for the Community Facilities District; and WHEREAS, by Resolution No. 2020-223, the City Council previously approved participation in the BOLD Program, for the formation of a second community facilities district over the property by California Municipal Finance Authority to finance fees and additional facilities with the levy of an annual facilities special tax which will secure bonded indebtedness; and
WHEREAS, pursuant to Sections 53313.5 and 53314.9 of the Act, there has been submitted to this City Council an Acquisition and Shortfall Agreement, by and between the City, acting on behalf of the District, and developers (the “Acquisition and Shortfall Agreement”), relating to the construction, acquisition, payment and reimbursement of the Facilities (as defined herein) and facilities under the BOLD Program, and this City Council, with the aid of its staff, has reviewed said document and found it to be in proper order.
NOW, THEREFORE, BE IT RESOLVED that the Council of the City of Modesto hereby finds and determines as follows:
SECTION 1. The above recitals are true and correct.
SECTION 2. A community facilities district designated “City of Modesto Community Facilities District No. 2024-2 (Fairview Village #2)” is hereby established pursuant to the Act.
The City Council hereby finds and determines that all prior proceedings taken with respect to the establishment of the Community Facilities District were valid and in conformity with the requirements of law, including the Act. This finding is made in accordance with the provisions of Section 53325.1(b) of the Act.
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10/22/2024/CEDD/EGarcia/Item # 4 2024-xxx
SECTION 3. The boundaries of the Community Facilities District, including the Future Annexation Area to the Community Facilities District, are established as shown on the map designated “Map of Proposed Boundaries and Future Annexation Area of the City of Modesto Community Facilities District No. 2024-2 (Fairview Village #2),” which map is on file in the office of the City Clerk and, pursuant to Sections 3111 and 3113 of the Streets and Highways Code, was recorded in the Book of Maps of Assessment and Community Facilities Districts in the Office of the County Recorder of Stanislaus County in Book No. 7, at Page 31 as Instrument No. DOC2024-0045353.
SECTION 4. The facilities and services authorized to be paid for within the Community Facilities District are services or facilities, as the case may be, which the City is authorized by law to construct, acquire, own and operate, or to provide, as set forth in Appendix A to the Resolution of Intention (the “Facilities and Services”), including all costs associated with the creation of the Community Facilities District and administering the Community Facilities District and any debt obligations of the Community Facilities District (collectively, the “Incidental Expenses”). The City Council hereby finds that the Facilities and Services are necessary to meet increased demands put upon the City as a result of the new development within the Community Facilities District, and when annexed, the Future Annexation Area.
SECTION 5. It is the intention of the City Council, subject to the approval of the qualified electors within the Community Facilities District, to levy the proposed special taxes at the rates set forth in the Rate and Method on all non-exempt property within Improvement Area No. 1 of the Community Facilities District sufficient to pay for all or a portion of (i) the Facilities, (ii) the Services, and (iii) the Incidental Expenses.
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10/22/2024/CEDD/EGarcia/Item # 5 2024-xxx
The description of the Facilities and Services may be modified upon the annexation of property into the Community Facilities District, provided such modified description shall only apply to such annexed areas. Additional improvement areas may be designated when property is annexed into the Community Facilities District.
The City expects to incur, and in certain cases has already incurred, Incidental Expenses in connection with the creation of the Community Facilities District, the levying and collecting of the facilities special taxes, the provision of the Services, the completion and inspection of the Facilities and the annual administration of the Community Facilities District. The Rate and Method is described in detail on Attachment A hereto and incorporated herein by this reference, and the City Council hereby finds that the Rate and Method contains sufficient detail to allow each landowner within the Community Facilities District to estimate the maximum amount that may be levied against each parcel. As described in greater detail in the Report, which is incorporated by reference herein, the special taxes are based generally on area of each parcel of real property within the Community Facilities District (except to the extent that certain single family detached lots may be taxed at the same rate regardless of land area) and, accordingly, is hereby determined to be reasonable. The special taxes are apportioned to each parcel on the foregoing basis pursuant to Section 53325.3 of the Act, and such special taxes are not on or based upon the ownership of real property.
Under no circumstances shall the special taxes against any parcel used for private residential purposes be increased by more than 10% as a consequence of delinquency or default by the owner of any other parcel or parcels within the Community Facilities District, or within each additional improvement area from the Future Annexation Area, when annexed. #14..
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10/22/2024/CEDD/EGarcia/Item # 6 2024-xxx
The City’s Community Development Manager, located at 1010 Tenth Street, Modesto, California 95353, telephone number (209) 577-5211, will be responsible for preparing annually, or authorizing a designee to prepare, a current roll of special tax levy obligations by assessor’s parcel number and will be responsible for estimating future special tax levies pursuant to Section 53340.2 of the Act.
SECTION 6. In the event that a portion of the property within the Community Facilities District shall become for any reason exempt, wholly or partially, from the levy of the special taxes specified in the Rate and Method, the City Council shall, on behalf of the Community Facilities District, increase the levy (to the extent necessary and permitted by law and these proceedings) upon the remaining property within the Community Facilities District, or within each additional improvement area from the Future Annexation Area, when annexed, if applicable, which is not exempt in order to prevent the Community Facilities District from defaulting on any of its other obligations or liabilities. The amount of the special taxes will be set in accordance with the Rate and Method.
Pursuant to Section 53340 of the Act, and except as provided in Section 53317.3 of the Act or in the Rate and Method, properties of entities of the state, federal, and local governments shall be exempt from the levy of the special taxes.
SECTION 7. Upon recordation of a notice of special tax lien pursuant to Section 3114.5 of the Streets and Highways Code, a continuing lien to secure each levy of the special taxes shall attach to all non-exempt real property in the Community Facilities District, and when annexed, the Future Annexation Area, and this lien shall continue in force and effect until the special tax obligation is prepaid and permanently satisfied and the lien canceled in accordance with law or until collection of the special tax by the Community Facilities District ceases. #14..
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10/22/2024/CEDD/EGarcia/Item # 7 2024-xxx
SECTION 8. The City may accept advances of funds or work-in-kind from any source, including, but not limited to, the Petitioner and other private persons or private entities, for any authorized purpose, including, but not limited to, paying any cost incurred by it in creating the Community Facilities District.
The City may enter into an agreement with the person or entity advancing the funds or work-in-kind, to repay all or a portion of the funds advanced, or to reimburse the person or entity for the value, or cost, whichever is less, of the work-in-kind, as determined by the City, with or without interest.
The form of the Acquisition and Shortfall Agreement presented at this meeting and on file with the City Clerk be and is hereby approved, with such changes as may be approved by the Mayor, City Manager or Finance Director, said officer’s execution thereof to evidence approval of the changes. The Mayor, City Manager or Finance Director is hereby authorized and directed to execute the Acquisition and Shortfall Agreement on behalf of the Community Facilities District with such execution to be attested to by the City Clerk.
SECTION 9. Written protests against the establishment of the Community Facilities District or the designation of the Future Annexation Area have not been filed by one-half or more registered voters within the boundaries of the Community Facilities District, or the Future Annexation Area, as applicable, or by the property owners of one-half (1/2) or more of the area of land within the Community Facilities District or the Future Annexation Area, as applicable. The City Council hereby finds that the proposed special taxes have not been precluded by a majority protest pursuant to Section 53324 of the Act.
SECTION 10. Subject to voter approval required by the Act, the annual appropriations limit of $12,100,000 (as defined in Section 8(h) of Article XIII B of the California Constitution) #14..
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10/22/2024/CEDD/EGarcia/Item # 8 2024-xxx
of the Community Facilities District is hereby established through the Rate and Method of Apportionment, as adjusted for changes in the cost of living and changes in population.
SECTION 11. An election will be called for the Community Facilities District on the propositions of levying the special taxes on the property within the Community Facilities District and establishing the appropriations limit of $12,100,000 for the Community Facilities District pursuant to Section 53325.7 of the Act. The City Clerk shall conduct the election.
SECTION 12. Pursuant to and in compliance with the provisions of Government Code Section 50075.1, and the provisions of Article 1.5 (commencing with Section 53410) of Chapter 3 of Part 1 of Division 2 of Title 5 of the Government Code, the City Council hereby establishes the following accountability measures pertaining to the levy by the Community Facilities District of the special taxes:
a. Such special taxes shall be levied for the specific purposes set forth in Section 4 hereof.
b. The proceeds of the levy of such special taxes shall be applied only to the specific purposes set forth in Sections 4 and 5 hereof.
c. The District shall establish accounts into which the proceeds of such special taxes shall be deposited.
d. The City Manager or Finance Director will provide for such accounting and reporting for the special taxes as required by law.
e. The City Manager, or his or her designee, acting for and on behalf of the Community Facilities District, shall annually file a report with the City Council as required pursuant to Government Code Sections 50075.3 and 53411. #14..
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10/22/2024/CEDD/EGarcia/Item # 9 2024-xxx
SECTION 13. Pursuant to Section 53339.7(a) of the Act, the City Council provides for the annexation of all or a portion of the Future Annexation Area to the Community Facilities District without additional hearings or further action from the City Council. The Future Annexation Area will be annexed into the Community Facilities District only at such time as the Community Facilities District receives unanimous written approval to be annexed from the owner or owners of each parcel or parcels of the portion of the Future Annexation Area proposed to be annexed at that time. Annexations to the Community Facilities District may include separate and distinct improvement areas, modified descriptions of facilities and services and/or modified special tax rates as set forth in a modified or separate Rate and Method at the time of annexation.
SECTION 14. The preparation of the Report is hereby ratified. The Report, as submitted, is hereby approved and is made a part of the record of the public hearing regarding the formation of the Community Facilities District, and is ordered to be kept on file with the transcript of these proceedings and open for public inspection. This City Council now finds and determines that all proceedings up to and including the adoption of this resolution were and are valid and in conformity with the requirements of the Act.
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10/22/2024/CEDD/EGarcia/Item # 10 2024-xxx
The foregoing resolution was introduced at a regular meeting of the Council of the City of Modesto held on the ____ day of October, 2024, by Councilmember ____________, who moved its adoption, which motion being duly seconded by Councilmember ___________, was upon roll call carried and the resolution adopted by the following vote:
AYES: Councilmembers:
NOES: Councilmembers:
ABSTAIN: Councilmembers:
ABSENT: Councilmembers:
ATTEST:
DIANE NAYARES-PEREZ, City Clerk
APPROVED AS TO FORM:
By:
JOSE M. SANCHEZ, City Attorney
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CFD No. 2024-2
(FV #2)
1 June 27, 2024
APPENDIX A
RATE AND METHOD OF APPORTIONMENT OF SPECIAL TAX
CITY OF MODESTO
COMMUNITY FACILITIES DISTRICT NO.
2024-2 (FAIRVIEW VILLAGE #2)
RATE AND METHOD OF APPORTIONMENT OF SPECIAL TAX
Special Taxes applicable to each Assessor’s Parcel in the City of Modesto Community Facilities District No. 2024-2 (Fairview Village #2) shall be levied and collected according to the tax liability determined by the City Council through the application of the appropriate amount or rate for Taxable Property, as described below. All of the property in the CFD, unless exempted by law or by the provisions of Section G below, shall be taxed for the purposes, to the extent, and in the manner herein provided, including property subsequently annexed into the CFD unless a separate Rate and Method of Apportionment is adopted for the annexation area.
A. DEFINITIONS
The terms hereinafter set forth have the following meanings:
“Acre” or “Acreage” means the land area of an Assessor’s Parcel as shown on an Assessor’s Parcel Map, or if the land area is not shown on an Assessor’s Parcel Map, the land area shown on the applicable Final Map or other Development Plan. “Act” means the Mello-Roos Community Facilities Act of 1982, as amended, being Chapter 2.5, (commencing with Section 53311), Part 1, Division 2 of Title 5 of the California Government Code.
“Administrative Expenses” means any or all of the following: the expenses of the City in carrying out its duties with respect to the CFD, including, but not limited to, the levy and collection of Special Taxes, the fees and expenses of its counsel, charges levied by the County in connection with the levy and collection of Special Taxes, costs related to property owner inquiries regarding the Special Taxes, costs associated with appeals or requests for interpretation associated with the Special Taxes and this RMA, costs associated with foreclosure and collection of delinquent Special Taxes, and all other costs and expenses of the City in any way related to the establishment or administration of the CFD.
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CFD No. 2024-2
(FV #2)
2 June 27, 2024
“Administrator” means the person or firm designated by the City to administer the Special Taxes according to this RMA.
“Annual Maintenance Special Tax” means a special tax levied in any Fiscal Year to pay the Maintenance Special Tax Requirement, as defined below. “Assessor’s Parcel” or “Parcel” means a lot or parcel shown on an Assessor’s Parcel Map with an assigned Assessor’s Parcel number.
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- 544 -
CFD No. 2024-2
(FV #2)
3 June 27, 2024
“Assessor’s Parcel Map” means an official map of the County Assessor designating parcels by Assessor’s Parcel Number.
“Assessor’s Parcel Number” means a unique number assigned to an Assessor’s Parcel by the County Assessor for purposes of identifying a property. “Authorized Facilities” means the public facilities authorized to be funded by the CFD as set forth in the documents adopted by the City Council when the CFD was formed. “Authorized Services” means the public services authorized to be funded by the CFD as set forth in the documents adopted by the City Council when the CFD was formed. “Building Permit” means a permit that allows for vertical construction of a building or buildings, which shall not include a separate permit issued for construction of the foundation thereof.
“CFD” means the City of Modesto Community Facilities District No. 2024-2 (Fairview Village #2).
“CFD Formation” means the date on which the Resolution of Formation to form the CFD was adopted by the City Council.
“City” means the City of Modesto.
“City Council” means the City Council of the City of Modesto, acting as the legislative body of the CFD.
“County” means the County of Stanislaus.
“Developed Property” means, in any Fiscal Year, the following:
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CFD No. 2024-2
(FV #2)
4 June 27, 2024
For purposes of levying the Annual Maintenance Special Tax:
• for Single Family Detached Property, all Parcels for which a Final Map was recorded prior to June 30 of the preceding Fiscal Year but not prior to June 30, 2023; • for Single Family Attached Property, all Parcels for which a Building Permit was issued prior to June 30 of the preceding Fiscal Year but not prior to June 30, 2023; • for Other Property, all parcels for which a Building Permit was issued prior to June 30 of the preceding Fiscal Year.
For purposes of levying the One-Time Facilities Special Tax: all Parcels for which a Building Permit was issued prior to June 30 of the preceding Fiscal Year but not prior to June 30, 2023.
“Development Class” means, individually, Developed Property and Undeveloped Property. #14..
- 546 -
CFD No. 2024-2
(FV #2)
5 June 27, 2024
“Development Plan” means a condominium plan, apartment plan, site plan or other development plan that identifies such information as the type of structure, the acreage, the square footage, and/or the number of Units that will be developed on Single Family Attached Property or Other Property.
“Escalation Factor” means, in any Fiscal Year, the greater of (i) the percentage increase, if any, in the construction cost index for the San Francisco region for the prior twelve (12) month period as published in the Engineering News Record or other comparable source if the Engineering News Record is discontinued or otherwise not available, or (ii) four percent (4.0%). “Final Map” means a final map, or portion thereof, approved by the City pursuant to the Subdivision Map Act (California Government Code Section 66410 et seq) that creates Single Family Detached Lots. The term “Final Map” shall not include any large-lot subdivision map, Assessor’s Parcel Map, or subdivision map or portion thereof, that does not create Single Family Detached Lots, including Assessor’s Parcels that are designated as remainder parcels. “Fiscal Year” means the period starting July 1 and ending on the following June 30. “Future Annexation Area” means that geographic area that, at the time of CFD Formation, was considered potential annexation area for the CFD and which was, therefore, identified as “future annexation area” on the recorded CFD boundary map. Such designation does not mean that any or all of the Future Annexation Area will annex into the CFD, but should property designated as Future Annexation Area choose to annex, the annexation may be processed pursuant to the streamlined annexation procedures provided in the Act. “Maintenance Special Tax Requirement” means the amount of revenue needed in any Fiscal Year to pay for: (i) Authorized Services, (ii) establishment of reserves, (iii) Administrative Expenses, and (iv) amounts needed to cure any delinquencies in the payment of Annual Maintenance Special Taxes which have occurred in prior Fiscal Years. “Maximum Annual Maintenance Special Tax” means the greatest amount of Annual Maintenance Special Tax that can be levied on an Assessor’s Parcel in any Fiscal Year determined in accordance with Sections C and D below.
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CFD No. 2024-2
(FV #2)
6 June 27, 2024
“Maximum One-Time Facilities Special Tax” means the greatest amount of One-Time Facilities Special Tax that can be levied on an Assessor’s Parcel in any Fiscal Year determined in accordance with Sections C and D below.
“Maximum Special Taxes” means, collectively, the Maximum One-Time Facilities Special Tax and Maximum Annual Maintenance Special Tax. “One-Time Facilities Special Tax” means a special tax, levied on Taxable Property to pay the One-Time Facilities Special Tax Requirement and collected by the City prior to a Building Permit being issued on a Parcel of Taxable Property.
“One-Time Facilities Special Tax Requirement” means, for a Parcel of Taxable Property in the CFD, the amount needed to pay the Parcel’s share of the cost of Authorized Facilities as
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CFD No. 2024-2
(FV #2)
7 June 27, 2024
determined by the City, which amount shall not exceed the Maximum One-Time Facilities Special Tax assigned to the Parcel pursuant to this RMA. “Original Parcel” means an Assessor’s Parcel in the CFD at the time of CFD Formation, or added to the CFD upon annexation, as identified in Attachment 1 (which shall be updated after each annexation). A Successor Parcel that is being further subdivided shall also be considered an Original Parcel for purposes of determining the Maximum Special Taxes pursuant to Section C below.
“Owners Association” means a homeowners association or property owners association that provides services to, and collects assessments, fees, dues, or charges from, property within the CFD.
“Owners Association Property” means any property within the boundaries of the CFD that is owned in fee or through easement by the Owners Association, not including any such property that is located directly under a residential structure. “Other Property” means any Parcel of Developed Property in the CFD that is not Single Family Attached Property or Single Family Detached Property. “Proportionately” means, for each Development Class, that the ratio of the actual Annual Maintenance Special Tax levied in any Fiscal Year to the Maximum Annual Maintenance Special Tax authorized to be levied in that Fiscal Year is equal for all parcels assigned to the Development Class.
“Public Property” means any property within the boundaries of the CFD that is owned by the federal government, State of California, County, City, or other public agency. “RMA” means this Rate and Method of Apportionment of Special Taxes. “SFD Unit” means a residential dwelling unit that does not share a common wall with another residential dwelling unit.
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- 549 -
CFD No. 2024-2
(FV #2)
8 June 27, 2024
“Single Family Attached Property” means, in any Fiscal Year, all Parcels of Developed Property for which a building permit was issued for construction of a residential structure consisting of two or more Units that share common walls and are offered as for-sale Units, including such residential structures that meet the statutory definition of a condominium contained in Civil Code Section 1351.
“Single Family Detached Lot” means an individual residential lot, identified and numbered on a recorded Final Map, on which a Building Permit has been or is permitted to be issued for construction of an SFD Unit without further subdivision of the lot and for which no further subdivision of the lot is anticipated pursuant to an approved Tentative Map. “Single Family Detached Property” means, in any Fiscal Year, all Parcels of Developed Property for which a Building Permit was issued or will be issued for construction of a SFD Unit. #14..
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CFD No. 2024-2
(FV #2)
9 June 27, 2024
“Special Taxes” means, collectively, the One-Time Facilities Special Tax and the Annual Maintenance Special Tax.
“Subdivision Map” means a Final Map, large lot subdivision map, or other map recorded with the County that results in the subdivision of an Original Parcel into two or more Successor Parcels.
“Successor Parcel” means an Assessor’s Parcel of Taxable Property created by the subdivision or reconfiguration of an Original Parcel on which construction of a residential or nonresidential structure is permitted. “Taxable Property” means all Assessor’s Parcels within the boundaries of the CFD that are not exempt from the Special Tax pursuant to law or Section G below. “Tentative Map” means a tentative map or substantial conformance exhibit for property in the CFD, including any adjustments or amendments thereto. “Undeveloped Property” means, in any Fiscal Year, all Parcels of Taxable Property within the CFD that are not Developed Property.
“Unit” means (i) for Single Family Detached Property, an SFD Unit and (ii) for Single Family Attached Property, an individual residential unit within a duplex, triplex, fourplex, townhome, or condominium structure.
B. DATA FOR ANNUAL ADMINISTRATION
On or about July 1 of each Fiscal Year, the Administrator shall identify the current Assessor’s Parcel numbers for all Parcels of Taxable Property. The Administrator shall also: (i) assign each Parcel of Taxable Property to the appropriate Development Class; (ii) determine whether each Assessor’s Parcel of Taxable Property is Developed Property or Undeveloped Property, (iii) for Developed Property, categorize each Parcel as Single Family Detached Property, Single Family Attached Property, or Other Property, (iv) for Parcels of Single Family Attached Property, determine the number of Units on each Parcel, (v) for Other Property, determine the Acreage of each Parcel, and (vi) determine the Maintenance Special Tax Requirement. #14..
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CFD No. 2024-2
(FV #2)
1 0
June 27, 2024
For Single Family Attached Property, the number of Units shall be determined by referencing the relevant Development Plan. If, in any Fiscal Year, an Assessor’s Parcel includes both Developed Property and Undeveloped Property, the Administrator shall determine the acreage associated with the Developed Property, subtract this acreage from the total Acreage of the Assessor’s Parcel, and use the remaining acreage to calculate the Special Tax that will apply to Undeveloped Property within the Assessor’s Parcel. The Special Tax shall then be calculated for Developed Property on the Parcel, and the total Special Tax levied on the Assessor’s Parcel shall be the sum of the Special Taxes determined separately for the Undeveloped Property and Developed Property on the Parcel.
C. CALCULATING THE MAXIMUM SPECIAL TAXES
The Administrator shall use the procedures set forth below to calculate the Maximum Special Taxes for each Parcel in the CFD in each Fiscal Year. #14..
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CFD No. 2024-2
(FV #2)
1 1
June 27, 2024
1. Original Parcels
The Maximum Special Taxes for each Original Parcel in the CFD as of CFD Formation are identified in Attachment 1. Attachment 1 will be updated by the Administrator as needed to reflect Original Parcels added to the CFD due to annexations.
2. Successor Parcels
a. All Successor Parcels are Single Family Detached Lots If the Parcels created by a recorded Subdivision Map are all Single Family Detached Lots, the Administrator shall apply the following steps to allocate the Maximum Special Taxes assigned to the Original Parcel to each of the Successor Parcels created by the subdivision:
Step 1: Identify the Maximum Special Taxes assigned to the Original Parcel;
Step 2: Divide the Maximum Special Taxes from Step 1 by the number of Single Family Detached Lots created by the Subdivision Map to determine the Maximum Special Taxes for each Single Family Detached Lot. b. No Successor Parcels are Single Family Detached Lots If none of the Successor Parcels created by recordation of a Subdivision Map are Single Family Detached Lots, the Administrator shall apply the following steps to allocate the Maximum Special Taxes assigned to the Original Parcel to each of the Successor Parcels:
Step 1: Identify the Maximum Special Taxes assigned to the Original Parcel;
Step 2: Determine the total Acreage of Taxable Property created by subdivision of the Original Parcel;
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- 553 -
CFD No. 2024-2
(FV #2)
1 2
June 27, 2024
Step 3: Divide the Maximum Special Taxes from Step 1 by the Acreage from Step 2 to calculate Maximum Special Taxes per acre;
Step 4: Multiply the per-acre Maximum Special Taxes from Step 3 by the Acreage in each Successor Parcel to calculate the Maximum Special Taxes for each Successor Parcel.
If, after subdivision of an Original Parcel, a Successor Parcel is further subdivided, the Successor Parcel shall be treated as an Original Parcel for purposes of allocating Maximum Special Taxes pursuant to Section C.2a, C.2b, or C.2c, as appropriate. c. Some, But Not All, Successor Parcels are Single Family Detached Lots If a Subdivision Map divides an Original Parcel into Successor Parcels, of which some are Single Family Detached Lots and some are not, the Administrator shall apply the following
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- 554 -
CFD No. 2024-2
(FV #2)
1 3
June 27, 2024
steps to allocate the Maximum Special Taxes assigned to the Original Parcel to each of the Successor Parcels:
Step 1: Identify the Maximum Special Taxes assigned to the Original Parcel;
Step 2: Determine the total Acreage of Taxable Property created by subdivision of the Original Parcel;
Step 3: Determine the total Acreage of Single Family Detached Property created by the subdivision by taking the sum of the Acreage in the individual Single Family Detached Lots;
Step 4: Divide the Maximum Special Taxes from Step 1 by the Acreage calculated in Step 2 to calculate Maximum Special Taxes per acre;
Step 5: Multiply the per-acre Maximum Special Taxes calculated in Step 4 by the Acreage of Single Family Detached Property calculated in Step 3 to determine the total Maximum Special Taxes to be assigned to the Single Family Detached Property created by the subdivision; Step 6: Divide the amount calculated in Step 5 by the number of Single Family Detached Lots created by the subdivision to determine the Maximum Special Taxes for each Single Family Detached Lot;
Step 7: Multiply the per-acre Maximum Special Taxes calculated in Step 4 by the Acreage of each Successor Parcel that is not Single Family Detached Property to calculate the Maximum Special Taxes for such Parcels.
If, after subdivision of an Original Parcel, a Successor Parcel is further subdivided, the Successor Parcel shall be treated as an Original Parcel for purposes of allocating Maximum Special Taxes pursuant to Section C.2a, C.2b, or C.2c, as appropriate.
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- 555 -
CFD No. 2024-2
(FV #2)
1 4
June 27, 2024
After each reallocation of the Maximum Special Taxes upon subdivision or reconfiguration of Original Parcels, the sum of the Maximum Special Taxes assigned to Successor Parcels shall never be less than the Maximum Special Taxes assigned to the Original Parcels prior to such reallocation.
D. ESCALATION OF MAXIMUM SPECIAL TAXES
1. One-Time Facilities Special Tax
Beginning in January 2025 and each January thereafter, the Maximum One-Time Facilities Special Tax assigned to each Parcel shall be adjusted by the Escalation Factor. Each annual adjustment of the Maximum One-Time Facilities Special Tax shall become effective on the subsequent July 1.
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- 556 -
CFD No. 2024-2
(FV #2)
1 5
June 27, 2024
2. Annual Maintenance Special Tax
Beginning in January 2025 and each January thereafter, the Maximum Annual Maintenance Special Tax shall be adjusted by the Escalation Factor. Each annual adjustment of the Maximum Annual Maintenance Special Tax shall become effective on the subsequent July 1.
E. METHOD OF LEVY OF SPECIAL TAXES
1. One-Time Facilities Special Tax
Prior to issuance of a Building Permit for a Parcel of Taxable Property, the One-Time Facilities Special Tax shall be levied on the Parcel in the amount of the One-Time Special Tax Requirement for the Parcel, as determined by the City.
2. Annual Maintenance Special Tax
Each Fiscal Year, the Administrator shall determine the Maintenance Special Tax Requirement for that Fiscal Year. The Annual Maintenance Special Tax shall then be levied on all Parcels of Taxable Property as follows:
Step 1: The Annual Maintenance Special Tax shall be levied Proportionately on each Parcel of Developed Property within the CFD up to 100% of the Maximum Annual Maintenance Special Tax for each Parcel for such Fiscal Year; Step 2: If additional revenue is needed after Step 1, the Annual Maintenance Special Tax shall be levied Proportionately on each Assessor’s Parcel of Undeveloped Property within the CFD, up to 100% of the Maximum Annual Maintenance Special Tax for each Parcel of Undeveloped Property for such Fiscal Year.
F. COLLECTION OF SPECIAL TAXES
The One-Time Facilities Special Tax shall be collected prior to a Building Permit being issued for any residential or non-residential structure on Taxable Property and shall be immediately delinquent if not so paid.
The Annual Maintenance Special Tax shall be collected in the same manner and at the same time as ordinary ad valorem property taxes, provided, however, that the City may directly bill, collect at a different time or in a different manner, and/or collect delinquent Annual Maintenance Special Taxes through foreclosure or other available methods. The Annual Maintenance Special Tax will continue to be levied and collected unless and until the City determines that Annual Maintenance Special Tax revenues are no longer needed to pay for Authorized Services.
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- 557 -
CFD No. 2024-2
(FV #2)
1 6
June 27, 2024
G. EXEMPTIONS
No Special Taxes shall be levied on Public Property or Owners Association Property, as defined herein. Notwithstanding the foregoing, if in any Fiscal Year, a Parcel of Public Property is converted to private use, such Parcel shall be subject to the levy of Special Taxes. In such case the City shall determine the appropriate Maximum Special Taxes for the Parcel based on the land uses to be constructed on the Parcel.
H. INTERPRETATION OF SPECIAL TAX FORMULA
The City reserves the right to make minor administrative and technical changes to this document that does not materially affect the rate and method of apportioning the Special Taxes. In addition, the interpretation and application of any section of this document shall be left to the City’s discretion. Interpretations may be made by the City by ordinance or resolution for purposes of clarifying any vagueness or ambiguity in this RMA.
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- 558 -
CFD No. 2024-2
(FV #2)
1 7
June 27, 2024
ATTACHMENT 1
CITY OF MODESTO
COMMUNITY FACILITIES DISTRICT NO.
2024-2 (FAIRVIEW VILLAGE #2)
Maximum Special Taxes Assigned to Each Original Parcel
Assessor’s
Parcel
Number
Fiscal Year
2024-25
Maximum One-Time
Facilities Special Tax [1]
Fiscal Year
2024-25
Maximum Annual
Maintenance Special Tax [2]
056-027-009 $1,834,935 $191,716
1. Beginning in January 2025 and each January thereafter, the Maximum One-Time Facilities Special Tax shall be adjusted by the Escalation Factor. Each annual adjustment of the Maximum One-Time Facilities Special Tax shall become effective on the subsequent July 1.
2. Beginning January 2025 and each January thereafter, the Maximum Annual Maintenance Special Tax shall be adjusted annually by the Escalation Factor. Each annual adjustment of the Maximum Annual Maintenance Special Tax shall become effective on the subsequent July 1. #14..
- 559 -
CFD No. 2024-2
(FV #2)
1 8
June 27, 2024
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10/22/2024/CEDD/EGarcia/Item # 1 2024-xxx
MODESTO CITY COUNCIL
RESOLUTION NO. 2024-XXX
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF MODESTO,
CALIFORNIA, ACTING AS THE LEGISLATIVE BODY OF THE CITY OF MODESTO COMMUNITY FACILITIES DISTRICT NO. 2024-2
(FAIRVIEW VILLAGE #2), CALLING FOR A SPECIAL ELECTION
WHEREAS, the City Council (the “City Council”) of the City of Modesto (the “City”), has heretofore adopted Resolution No. 2024-318 (the “Resolution of Intention”), stating the City Council’s intention to establish City of Modesto Community Facilities District No. 2024-2 (Fairview Village #2) (the “Community Facilities District”), pursuant to the Mello-Roos Community Facilities Act of 1982, as amended, commencing with Section 53311 of the Government Code of the State of California (the “Act”); and WHEREAS, on October 22, 2024, the City Council held a public hearing as required by law and the Act on all matters pertaining to the formation of the Community Facilities District, the special taxes relating to the Community Facilities District (the “Special Taxes”), including the special tax for certain facilities (the “One-Time Facilities Special Tax”) and the special tax for certain services (the “Annual Maintenance Special Tax”) within the Community Facilities District, the description of the authorized facilities (the “Facilities”) and the authorized services (the “Services”); and
WHEREAS, at said hearing all persons not exempt from the special taxes of the Community Facilities District desiring to be heard on all matters pertaining to the Community Facilities District were heard and a full and fair hearing was held, and such matters were not precluded by a majority protest; and
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10/22/2024/CEDD/EGarcia/Item # 2 2024-xxx
WHEREAS, following said public hearing, the City Council adopted its resolution establishing the Community Facilities District, authorizing the levy of the Special Taxes within the Community Facilities District to fund the Facilities and Services and establishing an appropriations limit (the “Resolution of Formation”); and WHEREAS, the map of the boundaries of the Community Facilities District, including Improvement Area No. 1 and the Future Annexation Area (the “Map”) has been recorded in the Office of the County Recorder of Stanislaus County, California in Book 7, Page 31 of the Book of Maps of Assessment and Community Facilities Districts, as Document Number DOC-2024- 0045353; and
WHEREAS, pursuant to the provisions of the Resolution of Formation and this Resolution, the City Council wishes to present to the qualified electors of the Community Facilities District propositions for the levy of the Special Taxes on property within the Community Facilities District and the establishment of an annual appropriations limit for the Community Facilities District as defined by subdivision (h) of Section 8 of Article XIIIB of the California Constitution.
NOW, THEREFORE, BE IT RESOLVED that the Council of the City of Modesto, acting as the legislative body of the City of Modesto Community Facilities District No. 2024-2 (Fairview Village #2), hereby finds and determines as follows:
SECTION 1. The above recitals are true and correct and are incorporated herein by reference.
SECTION 2. Pursuant to the Act the propositions to authorize the levy of special taxes within the Community Facilities District and establish an appropriations limit of the Community #14..
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10/22/2024/CEDD/EGarcia/Item # 3 2024-xxx
Facilities District shall be combined into one ballot proposition and submitted to the qualified electors of the Community Facilities District as provided herein.
SECTION 3. The City Council has heretofore found that fewer than twelve (12) persons have been registered to vote within the territory of the Community Facilities District for the ninety (90) days preceding the close of the public hearing heretofore held by the City Council for the purposes of these proceedings. Accordingly, the vote shall be by the land owners of the Community Facilities District, and each owner of record at the close of such public hearing, or the authorized representative thereof, shall have one (1) vote for each acre or portion of an acre that he or she owns within the Community Facilities District.
SECTION 4. The date of the election shall be October 22, 2024, and the City Clerk shall conduct the election. The election shall be conducted by personally delivered or mailed ballots and in accordance with the provisions of law regulating elections of the City insofar as such provisions are determined by the City Clerk to be applicable. The voted ballots shall be returned to the City Clerk no later than 5:30 p.m. on October 22, 2024; provided that if all of the qualified electors have voted prior to such time, the election may be closed by the City Clerk.
SECTION 5. The form of the ballot for the election is attached hereto as Attachment A and by this reference incorporated herein. The City Clerk shall cause to be delivered to each of the qualified electors of the Community Facilities District a ballot in said form. Each ballot shall indicate the number of votes to be voted by the respective elector based upon the number of acres of land owned by such elector as set forth above. The identification envelope for return of the ballot shall been closed with the ballot, shall have the postage prepaid and shall contain (a) the name and address of the landowner, (b) a declaration, under penalty of perjury, stating that the elector is the owner of record, or the authorized representative thereof, and is the person whose #14..
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10/22/2024/CEDD/EGarcia/Item # 4 2024-xxx
name appears on the identification envelope, (c) the printed name, signature and address of the elector, (d) the date of signing and place of execution of the declaration described above and (e) a notice that the envelope contains an official ballot and is to be opened only by the canvassing board. Analysis and arguments with respect to the ballot proposition are hereby waived.
SECTION 6. The City Clerk shall accept the ballots of the qualified electors in the office of the City Clerk to and including 5:30 p.m. on October 22, 2024, whether said ballots shall be personally delivered or received by mail.
SECTION 7. There is on file with the City Clerk a written instrument executed by each qualified elector of the Community Facilities District requesting a shortening of the time for the special election in order to expedite the process of formation of the Community Facilities District and waiving any requirement for analysis and arguments in connection therewith. #14..
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10/22/2024/CEDD/EGarcia/Item # 5 2024-xxx
The foregoing resolution was introduced at a regular meeting of the Council of the City of Modesto held on the ____ day of October, 2024, by Councilmember ____________, who moved its adoption, which motion being duly seconded by Councilmember ___________, was upon roll call carried and the resolution adopted by the following vote:
AYES: Councilmembers:
NOES: Councilmembers:
ABSTAIN: Councilmembers:
ABSENT: Councilmembers:
ATTEST:
DIANE NAYARES-PEREZ, City Clerk
APPROVED AS TO FORM:
By:
JOSE M. SANCHEZ, City Attorney
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10/22/2024/CEDD/EGarcia/Item # 6 2024-xxx
ATTACHMENT A
FORM OF OFFICIAL BALLOT
CITY OF MODESTO
COMMUNITY FACILITIES DISTRICT NO. 2024-2 (FAIRVIEW VILLAGE #2)
SPECIAL ELECTION
SPECIAL TAX AND APPROPRIATIONS LIMIT
October 22, 2024
NUMBER OF VOTES ENTITLED TO BE CAST: ___
(VOTER MAY REMOVE AND RETAIN THIS STUB)
--------------------------------------------------------------------------------------------------------------------- This ballot is for a special, landowner election. You must return this ballot in the enclosed envelop to the office of the City Clerk of the City of Modesto no later than 5:30 p.m. on October 22, 2024, either by mail or in person. The City Clerk’s offices are located at 1010 Tenth Street, Modesto, California 95353.
INSTRUCTIONS TO VOTERS
To vote, make a mark (x) in the voting area to the right of the word “YES” or “NO.” All distinguishing marks or erasures are forbidden and make the ballot void. If you wrongly mark, tear or deface this ballot, telephone the Office of the City Clerk of the City of Modesto for instructions as soon as possible at (209) 577-5200, Monday through Friday, between the hours of 9:00 a.m. and noon.
MARK YOUR CHOICE IN THIS MANNER ONLY:
MEASURE SUBMITTED TO VOTE OF VOTERS:
Shall the City of Modesto Community Facilities Disttict No. 2024-2 (Fairview Village #2) (the “CFD”) be authorized to levy special taxes in order to finance certain facilities and services and shall the annual appropriations limit of the CFD be established in the amount of $12,100,000 all as specified in the Resolution entitled “A Resolution Declaring the Formation of City of Modesto Community Facilities District No. 2024-2 (Fairview Village #2), Conditionally Authorizing the Levy of Special Taxes Therein, and Conditionally Establishing an Annual Appropriations Limit of $12,100,000” adopted by the City Council of the City of Modesto on October 22, 2024? YES
NO
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10/22/2024/CEDD/EGarcia/Item # 1 2024-xxx
MODESTO CITY COUNCIL
RESOLUTION NO. 2024-XXX
RESOLUTION DECLARING THE RESULTS OF OCTOBER 22, 2024,
SPECIAL ELECTION AND APPROVING CERTAIN RELATED ACTIONS
PERTAINING TO CITY OF MODESTO COMMUNITY FACILITIES
DISTRICT NO. 2024-2 (FAIRVIEW VILLAGE #2)
WHEREAS, this City Council, acting as the legislative body of the City of Modesto Community Facilities District No. 2024-2 (Fairview Village #2) (the “Community Facilities District”), called and duly held an election within the Community Facilities District pursuant to resolutions adopted by the City Council on October 22, 2024, for the purpose of presenting to the qualified electors within the Community Facilities District a proposition (the “Proposition”) for (a) the levy of special taxes in accordance with the rate and method of apportionment of special tax set forth in the resolution forming the Community Facilities District, and (b) the establishment of an appropriations limit for the Community Facilities District; and WHEREAS, a Certificate of the City Clerk as to the Results of the Canvass of the Election Returns has been presented to City Council, a copy of which is attached hereto as Attachment A.
NOW, THEREFORE, BE IT RESOLVED that the Council of the City of Modesto, acting as the legislative body of the City of Modesto Community Facilities District No. 2024-2 (Fairview Village #2), hereby finds and determines as follows:
SECTION 1. The above recitals are true and correct and are incorporated herein by reference.
SECTION 2. Two-thirds or more of the votes of the qualified electors of the Community Facilities District at the special election held on October 22, 2024 were cast in favor of the Proposition, and the Proposition carried. The City Council, acting as the legislative body of the #14..
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10/22/2024/CEDD/EGarcia/Item # 2 2024-xxx
Community Facilities District, is hereby authorized to take the necessary steps to levy the special taxes authorized by the Proposition.
SECTION 3. The City Clerk is hereby authorized and directed to execute and cause to be recorded in the office of the County Recorder of Stanislaus County a notice of special tax lien in the form required by law, said recording to occur no later than fifteen days following adoption of this Resolution.
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10/22/2024/CEDD/EGarcia/Item # 3 2024-xxx
The foregoing resolution was introduced at a regular meeting of the Council of the City of Modesto held on the ____ day of October, 2024, by Councilmember ____________, who moved its adoption, which motion being duly seconded by Councilmember ___________, was upon roll call carried and the resolution adopted by the following vote:
AYES: Councilmembers:
NOES: Councilmembers:
ABSTAIN: Councilmembers:
ABSENT: Councilmembers:
ATTEST:
DIANE NAYARES-PEREZ, City Clerk
APPROVED AS TO FORM:
By:
JOSE M. SANCHEZ, City Attorney
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10/22/2024/CEDD/EGarcia/Item # 4 2024-xxx
ATTACHMENT A
CERTIFICATE OF CITY CLERK
AS TO RESULTS OF THE CANVAS OF ELECTION RETURNS
STATE OF CALIFORNIA )
) ss.
COUNTY OF STANISLAUS )
As City Clerk of the City of Modesto, I do hereby certify that I have examined the returns of the special election for City of Modesto Community Facilities District No. 2024-2 (Fairview Village #2) (the “Community Facilities District”). With my concurrence, the election was conducted on October 22, 2024. On or prior to said date I had mailed or personally delivered, or caused to be mailed or personally delivered, a ballot to the landowner listed on the latest equalized assessment roll prepared by the Stanislaus County Assessor prior to October 22, 2024 or otherwise known by me to own the property within the boundaries of the Community Facilities District. The landowner was given one vote for each acre, or portion thereof, that the landowner owns within the Community Facilities District.
I further certify that the results of said election and the number of votes cast for and against the Proposition are as follows:
YES:____________
NO: ____________
TOTAL NUMBER OF VOTES CAST:________
Dated this ______ day of October, 2024.
____________________________________
Diane Nayares-Perez,
City Clerk of the City of Modesto
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ORDINANCE NO. _____
AN ORDINANCE AUTHORIZING THE LEVY OF SPECIAL TAXES
WITHIN THE CITY OF MODESTO HELD WITHIN CITY OF MODESTO
COMMUNITY FACILITIES DISTRICT NO. 2024-2 (FAIRVIEW
VILLAGE #2)
The Council of the City of Modesto does ordain as follows:
WHEREAS, on September 10, 2024, this City Council adopted Resolution No. 2024-318, stating its intention to form City of Modesto Community Facilities District No. 2024-2 (Fairview Village #2) (the “Community Facilities District”), and designate certain property for future annexation to the Community Facilities District (the “Future Annexation Area”), pursuant to the Mello-Roos Community Facilities Act of 1982, as amended (the “Act”) in order to finance certain facilities and services and incidental expenses to be incurred in connection with financing the foregoing; and
WHEREAS, the City Council has held a noticed public hearing concerning the establishment of the Community Facilities District, including the designation the Future Annexation Area, as required by the Act; and
WHEREAS, subsequent to said hearing, the City Council adopted resolutions entitled “A Resolution Declaring the Formation of City of Modesto Community Facilities District No. 2024- 2 (Fairview Village #2), Conditionally Authorizing the Levy of Special Taxes Therein, and Conditionally Establishing an Annual Appropriations Limit of $12,100,000” (the “Resolution of Formation”), and Resolution of the City Council of the City of Modesto, California, acting as the Legislative Body of the City of Modesto Community Facilities District No. 2024-2 (Fairview Village #2), Calling a Special Election,” which resolutions established the Community Facilities #14..
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2 District, authorized the levy of special taxes therein, and called an election within the Community Facilities District on the propositions of (a) the levy of special taxes in accordance with the rate and method of apportionment of special tax set forth in the Resolution of Formation (the “Special Taxes”), and (b) the establishment of an appropriations limit for the Community Facilities District (the “Proposition”); and
WHEREAS, an election was held on October 22, 2024, within the Community Facilities District at which the qualified electors approved by more than a two-thirds vote the Proposition.
NOW, THEREFORE, the Council of the City of Modesto, acting as the legislative body of the City of Modesto Community Facilities District No. 2024-2 (Fairview Village #2), DOES ORDAIN as follows:
SECTION 1. The above recitals are true and correct and are incorporated herein by reference.
SECTION 2. By the passage of this Ordinance, the City Council authorizes and levies special taxes within the Community Facilities District at the rates and in accordance with the methods of apportionment set forth in Attachment A to the Resolution of Formation and which, for reference purposes, is attached hereto as Attachment A and incorporated by this reference, or as may be modified or amended from time to time by a resolution of change or resolution of annexation adopted pursuant to the provisions of the Act (the “Rate and Method”).
By passage of this Ordinance, the City Council authorizes the levy of a special tax for any approved future annexations in accordance with the then-existing Rate and Method.
SECTION 3. The City’s Community Development Manager shall be responsible for annually preparing, or causing the preparation of, the current roll of special tax levy obligations by assessor’s parcel number on non-exempt property within the Community Facilities District. #14..
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3 The City Council or, to the maximum extent permitted by law, the City’s Community Development Manager is authorized to determine the specific special taxes to be levied on each parcel of land in the Community Facilities District, in the manner and as provided in the Rate and Method. In connection with the foregoing, the Administrator of the Infrastructure Financing Program of the City shall take any and all steps necessary in order to deliver to the Stanislaus County Tax Collector, on or before the date specified in Section 53340, a certified list of all parcels subject to the Annual Maintenance Special Tax (as defined in the Rate and Method) levies, including the amount of each such tax to be levied on each parcel for the applicable tax year. The special taxes to be levied shall not exceed the maximum rates set forth in the Rate and Method, but the special taxes may be levied at lower rates.
SECTION 4. Properties of entities of the state, federal or other local governments shall be exempt from the above-referenced special taxes only to the extent set forth in the Rate and Method, and otherwise shall be subject to tax consistent with the provisions of Section 53317.3 of the Act in effect as of the date of adoption of this Ordinance.
SECTION 5. All of the collections of the special taxes shall be used only as provided for in the Act and the Resolution of Formation and any resolution of change or resolution of annexation adopted from time to time by the City Council. The special taxes shall be levied only so long as needed to accomplish the purposes described in the Resolution of Formation and the Rate and Method, and to be described in any resolution of change or resolution of annexation adopted from time to time by the City Council.
SECTION 6. The Annual Maintenance Special Tax shall be collected in the same manner as ordinary ad valorem taxes are collected and shall be subject to the same penalties and the same procedure and sale in cases of delinquency as provided for ad valorem taxes as such collection #14..
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4 procedure may be modified by law or this City Council from time to time. Notwithstanding the foregoing, the City’s Community Development Manager may collect, or cause to be collected, one or more installments of such special taxes by means of direct billing of the property owners within the Community Facilities District if, in the judgment of the City’s Community Development Manager, such means of collection will reduce the burden of administering the Community Facilities District or is otherwise appropriate in the circumstances. In such event, such special taxes shall become delinquent if not paid when due as set forth in any such respective billing to the property owners.
The One-Time Facilities Special Tax shall be collected at the times as provided in the Rate and Method.
SECTION 7. This Ordinance relating to the levy of the special tax takes effect and shall be in force immediately after the date of final passage pursuant to Government Code Section 36937(a).
SECTION 8. At least two (2) days prior to its final adoption, copies of this Ordinance shall be posted in at least three (3) prominent and distinct locations in the City; and a notice shall be published once in The Modesto Bee, the official newspaper of the City of Modesto, setting forth the title of this Ordinance, the date of its introduction and the places where this Ordinance is posted. #14..
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5 The foregoing Ordinance was introduced at a regular meeting of the Council of the City of Modesto held on the ____ day of October, 2024, by Councilmember ____________, who moved its introduction and passage to print, its which motion being duly seconded by Councilmember ___________, was upon roll call carried and ordered printed and published by the following vote:
AYES: Councilmembers:
NOES: Councilmembers:
ABSTAIN: Councilmembers:
ABSENT: Councilmembers:
APPROVED:
SUE ZWAHLEN, Mayor
ATTEST:
By:
DIANE NAYARES-PEREZ, City Clerk
APPROVED AS TO FORM:
By:
JOSE M. SANCHEZ, City Attorney
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6 FINAL ADOPTION CLAUSE
The foregoing ordinance, having been published as required by the Charter of the City of Modesto, and coming on for final consideration at the regular meeting of the Council of the City of Modesto held on the _____ day of ___________, 2024, Councilmember ____________ moved its final adoption, which motion being duly seconded by Councilmember ______________, was upon roll carried and the ordinance adopted by the following vote:
AYES: Councilmembers:
NOES: Councilmembers:
ABSTAIN: Councilmembers:
ABSENT: Councilmembers:
APPROVED:
SUE ZWAHLEN, Mayor
ATTEST:
By:
DIANE NAYARES-PEREZ, City Clerk
Effective Date: [date of adoption]
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CITY OF MODESTO
COMMUNITY FACILITIES DISTRICT NO. 2024-2
(FAIRVIEW VILLAGE #2)
LIST OF FACILITIES
The types of Facilities and Services proposed to be financed by Community Facilities District No. 2024-2 (CFD) are as follows:
Authorized Facilities:
The CFD shall be authorized to finance all or any part of the costs of acquisition, construction and improvement of the following facilities (the “Facilities”):
Water System
Wastewater System
Storm Drain System
Road Improvements
Canal Crossing Improvements
The Facilities shall include all hard and soft costs associated with the improvements, including the costs of acquisition of land and rights-of-way, the costs of design, engineering and planning, the costs of environmental or traffic studies, surveys or other reports, costs related to landscaping and irrigation, soils testing, permits, plan check, and inspection fees, insurance, legal and related overhead costs, coordination and supervision and any other costs or appurtenances related to any of the foregoing. The CFD may also fund, and the special taxes may also be used to directly pay for, the purchase, construction, expansion, improvement or rehabilitation of any of the Facilities, and to reimburse the City or any third parties for advances made to purchase, construct, expand, improve or rehabilitate any of the Facilities. #14..
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LIST OF SERVICES
Maintenance of the Neighborhood Park(s), arterial road parkway, median and roundabout landscaping, tree pruning, connector street parkway, median landscaping, bike trails, masonry walls, central basin and storm drain facilities.
The services to be provided include, but are not limited to, litter and debris removal, pruning, staking, fertilizing, plant replacement and restoration, fire and weed control, erosion control, trimming of vegetation, and storm drain system maintenance. Authorized services shall also include the following: (i) related reserves for the replacement of plants and materials, replacement of storm water treatment filters and other storm drainage facilities, and (ii) a sinking fund for services that could not otherwise be funded in a given fiscal year.
The services to be financed by the CFD are in addition to those provided in the territory of the CFD before the date of creation of the CFD and will not supplant services already available within that territory when the CFD was created.
Administrative Expenses
The administrative expenses to be funded by the CFD include the direct and indirect expenses incurred by the City in carrying out its duties with respect to the CFD including, but not limited to, the levy and collection of special taxes, fees and expenses of attorneys, any fees of the County of Stanislaus related to the CFD or the collection of special taxes, an allocable share of the salaries of the City staff related thereto, and expenses incurred by the City in undertaking action to foreclose on properties for which the payment of special taxes is delinquent, and all other costs and expenses of the City in any way related to the CFD.
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CFD No. 2024-2 (FV #2) 1 June 27, 2024
APPENDIX C
CITY OF MODESTO
COMMUNITY FACILITIES DISTRICT NO. 2024-2
(FAIRVIEW VILLAGE #2)
RATE AND METHOD OF APPORTIONMENT OF SPECIAL TAX
Special Taxes applicable to each Assessor’s Parcel in the City of Modesto Community Facilities District No. 2024-2 (Fairview Village #2) shall be levied and collected according to the tax liability determined by the City Council through the application of the appropriate amount or rate for Taxable Property, as described below. All of the property in the CFD, unless exempted by law or by the provisions of Section G below, shall be taxed for the purposes, to the extent, and in the manner herein provided, including property subsequently annexed into the CFD unless a separate Rate and Method of Apportionment is adopted for the annexation area.
A. DEFINITIONS
The terms hereinafter set forth have the following meanings:
“Acre” or “Acreage” means the land area of an Assessor’s Parcel as shown on an Assessor’s Parcel Map, or if the land area is not shown on an Assessor’s Parcel Map, the land area shown on the applicable Final Map or other Development Plan.
“Act” means the Mello-Roos Community Facilities Act of 1982, as amended, being Chapter 2.5, (commencing with Section 53311), Part 1, Division 2 of Title 5 of the California Government Code.
“Administrative Expenses” means any or all of the following: the expenses of the City in carrying out its duties with respect to the CFD, including, but not limited to, the levy and collection of Special Taxes, the fees and expenses of its counsel, charges levied by the County in connection with the levy and collection of Special Taxes, costs related to property owner inquiries regarding the Special Taxes, costs associated with appeals or requests for interpretation associated with the Special Taxes and this RMA, costs associated with foreclosure and collection of delinquent Special Taxes, and all other costs and expenses of the City in any way related to the establishment or administration of the CFD.
“Administrator” means the person or firm designated by the City to administer the Special Taxes according to this RMA.
“Annual Maintenance Special Tax” means a special tax levied in any Fiscal Year to pay the Maintenance Special Tax Requirement, as defined below.
“Assessor’s Parcel” or “Parcel” means a lot or parcel shown on an Assessor’s Parcel Map with an assigned Assessor’s Parcel number.
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CFD No. 2024-2 (FV #2) 2 June 27, 2024
“Assessor’s Parcel Map” means an official map of the County Assessor designating parcels by Assessor’s Parcel Number.
“Assessor’s Parcel Number” means a unique number assigned to an Assessor’s Parcel by the County Assessor for purposes of identifying a property. “Authorized Facilities” means the public facilities authorized to be funded by the CFD as set forth in the documents adopted by the City Council when the CFD was formed. “Authorized Services” means the public services authorized to be funded by the CFD as set forth in the documents adopted by the City Council when the CFD was formed. “Building Permit” means a permit that allows for vertical construction of a building or buildings, which shall not include a separate permit issued for construction of the foundation thereof. “CFD” means the City of Modesto Community Facilities District No. 2024-2 (Fairview Village #2).
“CFD Formation” means the date on which the Resolution of Formation to form the CFD was adopted by the City Council.
“City” means the City of Modesto.
“City Council” means the City Council of the City of Modesto, acting as the legislative body of the CFD.
“County” means the County of Stanislaus.
“Developed Property” means, in any Fiscal Year, the following:
For purposes of levying the Annual Maintenance Special Tax:
• for Single Family Detached Property, all Parcels for which a Final Map was recorded prior to June 30 of the preceding Fiscal Year but not prior to June 30, 2023; • for Single Family Attached Property, all Parcels for which a Building Permit was issued prior to June 30 of the preceding Fiscal Year but not prior to June 30, 2023; • for Other Property, all parcels for which a Building Permit was issued prior to June 30 of the preceding Fiscal Year.
For purposes of levying the One-Time Facilities Special Tax: all Parcels for which a Building Permit was issued prior to June 30 of the preceding Fiscal Year but not prior to June 30, 2023.
“Development Class” means, individually, Developed Property and Undeveloped Property. #14..
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CFD No. 2024-2 (FV #2) 3 June 27, 2024
“Development Plan” means a condominium plan, apartment plan, site plan or other development plan that identifies such information as the type of structure, the acreage, the square footage, and/or the number of Units that will be developed on Single Family Attached Property or Other Property. “Escalation Factor” means, in any Fiscal Year, the greater of (i) the percentage increase, if any, in the construction cost index for the San Francisco region for the prior twelve (12) month period as published in the Engineering News Record or other comparable source if the Engineering News Record is discontinued or otherwise not available, or (ii) four percent (4.0%). “Final Map” means a final map, or portion thereof, approved by the City pursuant to the Subdivision Map Act (California Government Code Section 66410 et seq) that creates Single Family Detached Lots. The term “Final Map” shall not include any large-lot subdivision map, Assessor’s Parcel Map, or subdivision map or portion thereof, that does not create Single Family Detached Lots, including Assessor’s Parcels that are designated as remainder parcels. “Fiscal Year” means the period starting July 1 and ending on the following June 30. “Future Annexation Area” means that geographic area that, at the time of CFD Formation, was considered potential annexation area for the CFD and which was, therefore, identified as “future annexation area” on the recorded CFD boundary map. Such designation does not mean that any or all of the Future Annexation Area will annex into the CFD, but should property designated as Future Annexation Area choose to annex, the annexation may be processed pursuant to the streamlined annexation procedures provided in the Act.
“Maintenance Special Tax Requirement” means the amount of revenue needed in any Fiscal Year to pay for: (i) Authorized Services, (ii) establishment of reserves, (iii) Administrative Expenses, and (iv) amounts needed to cure any delinquencies in the payment of Annual Maintenance Special Taxes which have occurred in prior Fiscal Years. “Maximum Annual Maintenance Special Tax” means the greatest amount of Annual Maintenance Special Tax that can be levied on an Assessor’s Parcel in any Fiscal Year determined in accordance with Sections C and D below.
“Maximum One-Time Facilities Special Tax” means the greatest amount of One-Time Facilities Special Tax that can be levied on an Assessor’s Parcel in any Fiscal Year determined in accordance with Sections C and D below.
“Maximum Special Taxes” means, collectively, the Maximum One-Time Facilities Special Tax and Maximum Annual Maintenance Special Tax.
“One-Time Facilities Special Tax” means a special tax, levied on Taxable Property to pay the One-Time Facilities Special Tax Requirement and collected by the City prior to a Building Permit being issued on a Parcel of Taxable Property.
“One-Time Facilities Special Tax Requirement” means, for a Parcel of Taxable Property in the CFD, the amount needed to pay the Parcel’s share of the cost of Authorized Facilities as #14..
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CFD No. 2024-2 (FV #2) 4 June 27, 2024
determined by the City, which amount shall not exceed the Maximum One-Time Facilities Special Tax assigned to the Parcel pursuant to this RMA.
“Original Parcel” means an Assessor’s Parcel in the CFD at the time of CFD Formation, or added to the CFD upon annexation, as identified in Attachment 1 (which shall be updated after each annexation). A Successor Parcel that is being further subdivided shall also be considered an Original Parcel for purposes of determining the Maximum Special Taxes pursuant to Section C below.
“Owners Association” means a homeowners association or property owners association that provides services to, and collects assessments, fees, dues, or charges from, property within the CFD.
“Owners Association Property” means any property within the boundaries of the CFD that is owned in fee or through easement by the Owners Association, not including any such property that is located directly under a residential structure.
“Other Property” means any Parcel of Developed Property in the CFD that is not Single Family Attached Property or Single Family Detached Property.
“Proportionately” means, for each Development Class, that the ratio of the actual Annual Maintenance Special Tax levied in any Fiscal Year to the Maximum Annual Maintenance Special Tax authorized to be levied in that Fiscal Year is equal for all parcels assigned to the Development Class.
“Public Property” means any property within the boundaries of the CFD that is owned by the federal government, State of California, County, City, or other public agency. “RMA” means this Rate and Method of Apportionment of Special Taxes. “SFD Unit” means a residential dwelling unit that does not share a common wall with another residential dwelling unit.
“Single Family Attached Property” means, in any Fiscal Year, all Parcels of Developed Property for which a building permit was issued for construction of a residential structure consisting of two or more Units that share common walls and are offered as for-sale Units, including such residential structures that meet the statutory definition of a condominium contained in Civil Code Section 1351.
“Single Family Detached Lot” means an individual residential lot, identified and numbered on a recorded Final Map, on which a Building Permit has been or is permitted to be issued for construction of an SFD Unit without further subdivision of the lot and for which no further subdivision of the lot is anticipated pursuant to an approved Tentative Map. “Single Family Detached Property” means, in any Fiscal Year, all Parcels of Developed Property for which a Building Permit was issued or will be issued for construction of a SFD Unit. #14..
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CFD No. 2024-2 (FV #2) 5 June 27, 2024
“Special Taxes” means, collectively, the One-Time Facilities Special Tax and the Annual Maintenance Special Tax.
“Subdivision Map” means a Final Map, large lot subdivision map, or other map recorded with the County that results in the subdivision of an Original Parcel into two or more Successor Parcels. “Successor Parcel” means an Assessor’s Parcel of Taxable Property created by the subdivision or reconfiguration of an Original Parcel on which construction of a residential or non-residential structure is permitted.
“Taxable Property” means all Assessor’s Parcels within the boundaries of the CFD that are not exempt from the Special Tax pursuant to law or Section G below. “Tentative Map” means a tentative map or substantial conformance exhibit for property in the CFD, including any adjustments or amendments thereto.
“Undeveloped Property” means, in any Fiscal Year, all Parcels of Taxable Property within the CFD that are not Developed Property.
“Unit” means (i) for Single Family Detached Property, an SFD Unit and (ii) for Single Family Attached Property, an individual residential unit within a duplex, triplex, fourplex, townhome, or condominium structure.
B. DATA FOR ANNUAL ADMINISTRATION
On or about July 1 of each Fiscal Year, the Administrator shall identify the current Assessor’s Parcel numbers for all Parcels of Taxable Property. The Administrator shall also: (i) assign each Parcel of Taxable Property to the appropriate Development Class; (ii) determine whether each Assessor’s Parcel of Taxable Property is Developed Property or Undeveloped Property, (iii) for Developed Property, categorize each Parcel as Single Family Detached Property, Single Family Attached Property, or Other Property, (iv) for Parcels of Single Family Attached Property, determine the number of Units on each Parcel, (v) for Other Property, determine the Acreage of each Parcel, and (vi) determine the Maintenance Special Tax Requirement.
For Single Family Attached Property, the number of Units shall be determined by referencing the relevant Development Plan. If, in any Fiscal Year, an Assessor’s Parcel includes both Developed Property and Undeveloped Property, the Administrator shall determine the acreage associated with the Developed Property, subtract this acreage from the total Acreage of the Assessor’s Parcel, and use the remaining acreage to calculate the Special Tax that will apply to Undeveloped Property within the Assessor’s Parcel. The Special Tax shall then be calculated for Developed Property on the Parcel, and the total Special Tax levied on the Assessor’s Parcel shall be the sum of the Special Taxes determined separately for the Undeveloped Property and Developed Property on the Parcel.
C. CALCULATING THE MAXIMUM SPECIAL TAXES
The Administrator shall use the procedures set forth below to calculate the Maximum Special Taxes for each Parcel in the CFD in each Fiscal Year.
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CFD No. 2024-2 (FV #2) 6 June 27, 2024
1. Original Parcels
The Maximum Special Taxes for each Original Parcel in the CFD as of CFD Formation are identified in Attachment 1. Attachment 1 will be updated by the Administrator as needed to reflect Original Parcels added to the CFD due to annexations.
2. Successor Parcels
a. All Successor Parcels are Single Family Detached Lots If the Parcels created by a recorded Subdivision Map are all Single Family Detached Lots, the Administrator shall apply the following steps to allocate the Maximum Special Taxes assigned to the Original Parcel to each of the Successor Parcels created by the subdivision:
Step 1: Identify the Maximum Special Taxes assigned to the Original Parcel; Step 2: Divide the Maximum Special Taxes from Step 1 by the number of Single Family Detached Lots created by the Subdivision Map to determine the Maximum Special Taxes for each Single Family Detached Lot.
b. No Successor Parcels are Single Family Detached Lots If none of the Successor Parcels created by recordation of a Subdivision Map are Single Family Detached Lots, the Administrator shall apply the following steps to allocate the Maximum Special Taxes assigned to the Original Parcel to each of the Successor Parcels:
Step 1: Identify the Maximum Special Taxes assigned to the Original Parcel; Step 2: Determine the total Acreage of Taxable Property created by subdivision of the Original Parcel;
Step 3: Divide the Maximum Special Taxes from Step 1 by the Acreage from Step 2 to calculate Maximum Special Taxes per acre;
Step 4: Multiply the per-acre Maximum Special Taxes from Step 3 by the Acreage in each Successor Parcel to calculate the Maximum Special Taxes for each Successor Parcel.
If, after subdivision of an Original Parcel, a Successor Parcel is further subdivided, the Successor Parcel shall be treated as an Original Parcel for purposes of allocating Maximum Special Taxes pursuant to Section C.2a, C.2b, or C.2c, as appropriate. c. Some, But Not All, Successor Parcels are Single Family Detached Lots If a Subdivision Map divides an Original Parcel into Successor Parcels, of which some are Single Family Detached Lots and some are not, the Administrator shall apply the following #14..
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CFD No. 2024-2 (FV #2) 7 June 27, 2024
steps to allocate the Maximum Special Taxes assigned to the Original Parcel to each of the Successor Parcels:
Step 1: Identify the Maximum Special Taxes assigned to the Original Parcel; Step 2: Determine the total Acreage of Taxable Property created by subdivision of the Original Parcel;
Step 3: Determine the total Acreage of Single Family Detached Property created by the subdivision by taking the sum of the Acreage in the individual Single Family Detached Lots;
Step 4: Divide the Maximum Special Taxes from Step 1 by the Acreage calculated in Step 2 to calculate Maximum Special Taxes per acre; Step 5: Multiply the per-acre Maximum Special Taxes calculated in Step 4 by the Acreage of Single Family Detached Property calculated in Step 3 to determine the total Maximum Special Taxes to be assigned to the Single Family Detached Property created by the subdivision; Step 6: Divide the amount calculated in Step 5 by the number of Single Family Detached Lots created by the subdivision to determine the Maximum Special Taxes for each Single Family Detached Lot;
Step 7: Multiply the per-acre Maximum Special Taxes calculated in Step 4 by the Acreage of each Successor Parcel that is not Single Family Detached Property to calculate the Maximum Special Taxes for such Parcels.
If, after subdivision of an Original Parcel, a Successor Parcel is further subdivided, the Successor Parcel shall be treated as an Original Parcel for purposes of allocating Maximum Special Taxes pursuant to Section C.2a, C.2b, or C.2c, as appropriate.
After each reallocation of the Maximum Special Taxes upon subdivision or reconfiguration of Original Parcels, the sum of the Maximum Special Taxes assigned to Successor Parcels shall never be less than the Maximum Special Taxes assigned to the Original Parcels prior to such reallocation.
D. ESCALATION OF MAXIMUM SPECIAL TAXES
1. One-Time Facilities Special Tax
Beginning in January 2025 and each January thereafter, the Maximum One-Time Facilities Special Tax assigned to each Parcel shall be adjusted by the Escalation Factor. Each annual adjustment of the Maximum One-Time Facilities Special Tax shall become effective on the subsequent July 1. #14..
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CFD No. 2024-2 (FV #2) 8 June 27, 2024
2. Annual Maintenance Special Tax
Beginning in January 2025 and each January thereafter, the Maximum Annual Maintenance Special Tax shall be adjusted by the Escalation Factor. Each annual adjustment of the Maximum Annual Maintenance Special Tax shall become effective on the subsequent July 1.
E. METHOD OF LEVY OF SPECIAL TAXES
1. One-Time Facilities Special Tax
Prior to issuance of a Building Permit for a Parcel of Taxable Property, the One-Time Facilities Special Tax shall be levied on the Parcel in the amount of the One-Time Special Tax Requirement for the Parcel, as determined by the City.
2. Annual Maintenance Special Tax
Each Fiscal Year, the Administrator shall determine the Maintenance Special Tax Requirement for that Fiscal Year. The Annual Maintenance Special Tax shall then be levied on all Parcels of Taxable Property as follows:
Step 1: The Annual Maintenance Special Tax shall be levied Proportionately on each Parcel of Developed Property within the CFD up to 100% of the Maximum Annual Maintenance Special Tax for each Parcel for such Fiscal Year; Step 2: If additional revenue is needed after Step 1, the Annual Maintenance Special Tax shall be levied Proportionately on each Assessor’s Parcel of Undeveloped Property within the CFD, up to 100% of the Maximum Annual Maintenance Special Tax for each Parcel of Undeveloped Property for such Fiscal Year.
F. COLLECTION OF SPECIAL TAXES
The One-Time Facilities Special Tax shall be collected prior to a Building Permit being issued for any residential or non-residential structure on Taxable Property and shall be immediately delinquent if not so paid.
The Annual Maintenance Special Tax shall be collected in the same manner and at the same time as ordinary ad valorem property taxes, provided, however, that the City may directly bill, collect at a different time or in a different manner, and/or collect delinquent Annual Maintenance Special Taxes through foreclosure or other available methods. The Annual Maintenance Special Tax will continue to be levied and collected unless and until the City determines that Annual Maintenance Special Tax revenues are no longer needed to pay for Authorized Services.
G. EXEMPTIONS
No Special Taxes shall be levied on Public Property or Owners Association Property, as defined herein. Notwithstanding the foregoing, if in any Fiscal Year, a Parcel of Public Property is converted to private use, such Parcel shall be subject to the levy of Special Taxes. In such case, #14..
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CFD No. 2024-2 (FV #2) 9 June 27, 2024
the City shall determine the appropriate Maximum Special Taxes for the Parcel based on the land uses to be constructed on the Parcel.
H. INTERPRETATION OF SPECIAL TAX FORMULA
The City reserves the right to make minor administrative and technical changes to this document that does not materially affect the rate and method of apportioning the Special Taxes. In addition, the interpretation and application of any section of this document shall be left to the City’s discretion. Interpretations may be made by the City by ordinance or resolution for purposes of clarifying any vagueness or ambiguity in this RMA.
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ATTACHMENT 1
CITY OF MODESTO
COMMUNITY FACILITIES DISTRICT NO. 2024-2
(FAIRVIEW VILLAGE #2)
Maximum Special Taxes Assigned to Each Original Parcel
Assessor’s
Parcel
Number
Fiscal Year
2024-25
Maximum One-Time
Facilities Special Tax [1]
Fiscal Year
2024-25
Maximum Annual
Maintenance Special Tax [2]
056-027-009 $1,834,935 $191,716
1. Beginning in January 2025 and each January thereafter, the Maximum One-Time Facilities Special Tax shall be adjusted by the Escalation Factor. Each annual adjustment of the Maximum One-Time Facilities Special Tax shall become effective on the subsequent July 1.
2. Beginning January 2025 and each January thereafter, the Maximum Annual Maintenance Special Tax shall be adjusted annually by the Escalation Factor. Each annual adjustment of the Maximum Annual Maintenance Special Tax shall become effective on the subsequent July 1. #14..
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APN
056-027-009
APN
056-028-010
APN
056-028-014
APN
056-028-012
APN
056-028-015
APN
056-027-010
APN
056-028-013
APN
056-028-008
APN
056-028-007
N00°31'14"E 1309.42'
N89°57'49"W 2457.12'
N00°15'49"W 2604.35'
N89°52'30"W 1262.83'
N00°17'10"W 802.56'
N89°52'30"W 542.77'
N00°17'15"W 772.58'
S00°15'01"E 29.98'
N89°52'30"W 1990.17'
N45°05'00"W 21.13'
S00°17'30"E 2123.51'
N00°17'30"W
460.10' N00°17'36"W 1176.77'
R=6050 0. 0' Δ=1°54 3' 3" L=201.59 N02°11'54"W 392.50'
N43°04'02"E 21.11'
N88°19'57"E 187.63'
Δ=R
3=450.00'
L=2
2 5
°25'40" 4.69
N59°14'23"W
401.75'
R=1650.00' Δ=22°20'21" L=643.33
50'
50'
ST SALAZAR CIR
ST THERESA WAY
CARPENTER ROAD
HATCH ROAD
WHITMORE AVE
TUOLUMNE RIVER
ST SEBASTIAN WAY
TID LATERAL NO. 1
FUTURE ANNEXATION AREA
204.89 ACRES
FAIRVIEW VILLAGE #2
40.15 ACRES
FUTURE ANNEXATION AREA
21.99 ACRES
N89°51'42"W 1075.06'
N28°37'09"E 525.20'
R=417.50'
Δ=6°46'53"
L=49.41
N89°28'46"W 1106.02'
888.03'
830.41'
N89°28'46"W
141.26'
N87°05'35"W 120.09'
1 1
WHITMORE AVE
CARPENTER RD
TUOLUMNE RIVER
HATCH RD
ST SALAZAR CIR
TID
SITE
MODESTO SEWAGE
DISPOSAL PLANT
IRONSIDE DR
USTICK RD
PROPOSED BOUNDARIES OF
CITY OF MODESTO COMMUNITY FACILITIES DISTRICT NO. 2024-2 (FAIRVIEW VILLAGE #2)
CITY OF MODESTO, COUNTY OF STANISLAUS, STATE OF CALIFORNIA FILED THIS DAY OF , 2024, AT THE HOUR OF O'CLOCK .M.
IN BOOK OF MAPS OF ASSESSMENT AND COMMUNITY FACILITIES DISTRICTS AT PAGE(S) , IN THE OFFICE OF THE COUNTY RECORDER OF THE COUNTY OF STANISLAUS, STATE OF CALIFORNIA.
DONNA LINDER, COUNTY RECORDER OF THE COUNTY OF STANISLAUS, STATE OF CALIFORNIA BY: ____________________________________ PRINT NAME
COUNTY RECORDER'S STATEMENT
I HEREBY CERTIFY THAT THIS MAP SHOWING THE PROPOSED BOUNDARIES OF CITY OF MODESTO COMMUNITY FACILITIES DISTRICT 2024-2 (FAIRVIEW VILLAGE #2), CITY OF MODESTO, COUNTY OF
STANISLAUS, STATE OF CALIFORNIA, WAS APPROVED BY THE COUNCIL OF THE CITY OF MODESTO AT A REGULAR MEETING THEREOF, HELD ON THE _____ DAY OF _________________, 2024, BY ITS RESOLUTIONS NO. 2024-________________.
DIANE NAYARES-PAREZ, CITY CLERK
BY: _________________________________ __________________________________
PRINT NAME
FILED IN THE OFFICE OF THE CITY CLERK OF THE CITY OF MODESTO SHOWING THIS ______ DAY OF ___________________, 2024.
DIANE NAYARES-PAREZ, CITY CLERK
BY: ________________________________ ___________________________________
PRINT NAME
CITY CLERK'S STATEMENTS
odellengineering.com
1165 Scenic Drive, Suite A
Modesto, CA 95350
LEGEND
PROPOSED BOUNDARIES OF COMMUNITY
FACILITIES DISTRICT NO. 2024-2
125 250 500
SCALE: 1" = 250'
0 NOT TO SCALE
VICINITY MAP
FUTURE ANNEXATION AREA
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CERTIFICATE OF CITY CLERK
AS TO RESULTS OF THE CANVAS OF ELECTION RETURNS
STATE OF CALIFORNIA )
) ss.
COUNTY OF STANISLAUS )
As City Clerk of the City of Modesto, I do hereby certify that I have examined the returns of the special election for City of Modesto Community Facilities District No. 2024-2 (Fairview Village #2) (the “Community Facilities District”). With my concurrence, the election was conducted on October 22, 2024. On or prior to said date I had mailed or personally delivered, or caused to be mailed or personally delivered, a ballot to the landowner listed on the latest equalized assessment roll prepared by the Stanislaus County Assessor prior to October 22, 2024 or otherwise known by me to own the property within the boundaries of the Community Facilities District. The landowner was given one vote for each acre, or portion thereof, that the landowner owns within the Community Facilities District.
I further certify that the results of said election and the number of votes cast for and against the Proposition are as follows:
YES:____________
NO: ____________
TOTAL NUMBER OF VOTES CAST:________
Dated this ____ day of October, 2024.
____________________________________
Diane Nayares-Perez,
City Clerk of the City of Modesto
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202799803.1
CONCURRENCE ON HOLDING SPECIAL ELECTION LESS THAN 125
DAYS FOLLOWING PUBLIC HEARING
As the elections official of the special election (the “Election”) called for by the Resolution of the City of Modesto, acting as the Legislative Body of the City of Modesto Community Facilities District No. 2024-2 (Fairview Village #2) (the “District”), Calling a Special Election Related to the Special Tax and Appropriations Limit for said District, I hereby concur on holding the Election less than 125 days following the holding of the public hearing related thereto.
Dated: October 22, 2024
By:
Diane Nayares-Perez, City Clerk
City of Modesto, California
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A&S __________ (__/__/__) - FINAL 1
ACQUISITION AND SHORTFALL AGREEMENT
AMONG THE CITY OF MODESTO,
COMMUNITY FACILITIES DISTRICT NO. 2024-2 (FAIRVIEW VILLAGE #2) AND _____________________________
This Acquisition and Shortfall Agreement (“Agreement”) is made and entered into in the City of Modesto, County of Stanislaus, State of California, this _________ day of _________________, 20XX, by and among the City of Modesto, a municipal corporation organized and existing under its Charter and the Constitution and laws of the State of California (“City”), Community Facilities District No. 2024-2 (FAIRVIEW VILLAGE #2), City of Modesto, County of Stanislaus, State of California, a community facilities district organized and existing under the laws of the State of California (“District”), and _________________________________, a ______________ organized and existing under the laws of the State of California (“Developer”).
1. General
a. At the request of Developer, City has formed District under and pursuant to the Mello-Roos Community Facilities District Act of 1982 (the “Act”) for the purpose, among others, of financing some or all of the cost of certain infrastructure including the improvements described in Exhibit “A” hereto (the “Improvements”) and paying the cost of certain public services necessary or desirable in connection with the development of property located within District. b. It is contemplated that the Improvements will be constructed under one or more contracts to be awarded by Developer and that, upon their completion, the Improvements will be conveyed to and accepted for ownership by City.
c. Pursuant to section 53314.9 of the Act, the City Council of City (the “City Council”) is authorized to accept advances of funds or work-in-kind from any source, including, but not limited to, private persons or private entities, and may provide, by resolution, for the use of those funds or work-in-kind for any authorized purpose. Pursuant to section 53314.9 of the Act, the City Council is also authorized to enter into an agreement, by resolution, with the person or entity advancing the funds or work-in-kind to repay all or a portion of the funds advanced or to reimburse the person or entity for the cost or value of the work-in-kind provided that certain conditions are met.
The conditions to be satisfied with respect to funds advanced require that (i) the proposal to repay the funds or to pay the cost or value of the work-in-kind must be included in the resolution of intention relating to District and in the resolution of formation of District, (ii) that any proposed special tax is approved by the qualified electors of District pursuant to the Act and that, if a proposed special tax is not approved, any funds advanced which have not been committed for any authorized purpose by the time of the election must be returned to the person or entity advancing funds and (iii) any work-inkind accepted shall have been performed or constructed as if the work had been performed or constructed under the direction and supervision, or under the authority, of City. d. The parties desire to establish the terms, prices, conditions pursuant to which the Improvements will be constructed by Developer and acquired by City. e. Any short-fall between the total cost of the Improvements, incidental expenses, and any change orders issued and approved in accordance with paragraph 3.i., below, and the amount of moneys, if any, generated by special facilities taxes in District or by Bonds, or #14..
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otherwise, resulting in an insufficient amount of moneys available to pay the cost of the Improvements and incidental expenses, shall be deemed a contribution by Developer toward the cost of the Improvements and work in-kind accepted by City.
f. Whether or not District issues Bonds, Developer agrees to construct, or cause to be constructed, all of the Improvements and to convey them, along with all interests in real property necessary for the operation, maintenance and ownership thereof, to City. Developer agrees to complete the construction of all of the Improvements regardless of whether the cost of such construction exceeds the amount of moneys available to District for the purchase thereof. In no event shall any shortfall described in paragraph 1.f. above and in this paragraph 1.g. become a debt of City or District or any of the officers or employees of either of them.
2. Issuance of Bonds and Use of Bond Proceeds; Special Facilities Tax.
To the maximum extent permitted by law, Developer agrees to cooperate with City and District and to take all steps that are necessary or convenient in connection with the issuance of Bonds in one or more series. Such steps shall include, but shall not be limited to (a) providing such information concerning Developer, the property within District, Developer’s plans for the development of such property, and the financial resources available to Developer in order to implement those plans as may be required by City, District, bond counsel, disclosure counsel, the underwriter of the Bonds (the “Underwriter”), counsel to the Underwriter and the appraiser retained by District in connection with the preparation of the appraisal of the property in the District and the offering of the Bonds; (b) the execution and delivery to the Underwriter of a continuing disclosure agreement in form and substance satisfactory to the Underwriter and its counsel, and (c) the execution and delivery to City, District and the Underwriter and their respective counsel of such certificates and opinions of counsel to Developer relating to the contents of the Preliminary Official Statement and the final Official Statement and matters relating thereto as may be required by such parties. District agrees to proceed in good faith with the steps necessary or convenient to the issuance of Bonds from time to time, provided that District shall not be required to issue Bonds if it determines, in its sole discretion that to do so would be inconsistent with City’s “Policies & Procedures for the Formation, Annexation, and Administration of Community Facilities Districts Created Pursuant to the Provisions of the Mello Roos Community Facilities Act Of 1982” (as it exists on the date of this Agreement and as it may be amended from time to time, “City’s CFD Policies and Procedures”) or with reasonable and prudent municipal bond market practices or if City’s financial advisor and/or Underwriter advise City not to sell Bonds. a. Bond Proceeds. If Bonds are sold, it is expected that; (i) the proceeds of the Bonds will be deposited, held, invested, and disbursed as provided in the Indenture pursuant to which the Bonds are issued (the “Indenture”), (ii) a portion of the proceeds of the Bonds will be set aside under the Indenture in a separate fund (the “Project Fund”) and (iii) moneys in the Project Fund will be withdrawn therefrom, in accordance with the provisions of the Indenture, to pay for all or a portion of the costs of the acquisition of the Improvements from Developer, and incidental expenses, all as determined by City and District and as herein and in the Indenture provided. b. Improvements to be Acquired. Pursuant to the provisions hereof and its usual and customary procedures and standards applicable to accepting public improvements, City agrees to accept the Improvements.
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If Bonds are issued, then any obligation of City or District to use Bond proceeds to pay for the acquisition of the Improvements, and incidental expenses, shall be limited to moneys in the Project Fund. It is recognized that the amount of moneys in the Project Fund available to pay for the acquisition of the Improvements, and incidental expenses, may be less than the total cost thereof.
3. Construction of Improvements.
a. Plans and Specifications. Developer represents and agrees that it has obtained or will obtain approval of the plans and specifications for the Improvements from the Development Services Division of City as a part of the permit approval process for the construction of the Improvements. Developer covenants that the Improvements will be constructed in full compliance with such approved plans and specifications and any change orders thereto approved by City. The Improvements shall also be completed in accordance with the currently effective City of Modesto Standard Construction Specifications and Improvement Standards including “Engineer Design Standards”, “General Provisions” (portions applicable to developers), “Standards” and “Details”. Copies of all plans and specifications shall be provided by the Developer to the City’s Engineer or his or her designee (the “City’s Engineer”). b. Competitive Bidding. Developer covenants that all contracts to be awarded pursuant to this Agreement shall be awarded to the contractor who is the lowest responsible bidder for the work to be performed. Prior to commencement of any reimbursable work, other than engineering and design, Developer shall solicit public bids and award a contract for construction of the Improvements in accordance with section 3(l) of City’s CFD Policies and Procedures. c. Prevailing Wages. Developer covenants that, with respect to the construction of the Improvements, it will assure complete compliance with any applicable law or regulation for the payment of prevailing wages. Developer shall require the payment of prevailing wages based on rates as determined by the California Director of Industrial Relations and as defined by Section 1773 of the California Labor Code. Unless otherwise directed by the City’s Engineer, Developer’s construction schedule shall provide adequate time for completion of the work such that no holiday or overtime labor shall be required. City shall not reimburse Developer for any labor costs which exceed the normal and customary straight time rates, as described in the City of Modesto General Provisions, section 4.19, for the work performed unless the City’s Engineer authorizes the use of overtime or legal holiday time, in advance and in writing.
Developer shall maintain, or require to be maintained, certified payroll records for all labor costs incurred on all City reimbursable work for a minimum period of four (4) years from the issuance of the Notice of Completion. Said payroll records shall be made available to City and any state regulatory agency for review, audit, inspection or copying upon request. d. CEQA. Developer further covenants that it will pay or reimburse City for the cost, if any, of compliance with the California Environmental Quality Act (“CEQA”) in conjunction with the construction of the Improvements and their conveyance pursuant hereto. CEQA documentation may be arranged through the District Administrator or his or her designee (“District Administrator”).
e. Contractor Licenses. Developer shall insure that all contractors and subcontractors are licensed in accordance with sections 7000 through 7191 inclusive, of the #14..
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4 A&S __________ (__/__/__) - FINAL
California Business and Professions Code and that they maintain adequate insurance for any work or services performed.
f. Inspection. Developer covenants that City and its officers and agents will be permitted to inspect the Improvements using the same standards, and with the same frequency and detail, that would be applicable to a public works project undertaken by City. However, Developer shall pay for the cost of inspections and material testing, unless such costs are expressly incorporated into the purchase price of an Improvement. Developer shall also obtain and pay for the cost of an encroachment permit for any work in the existing public right-of-way. g. Performance, Payment and Warranty Securities. Concurrently with the execution and delivery of this Agreement, Developer shall file with the City’s Engineer two (2) improvement securities, each to be in an amount based upon the total reimbursable cost of the Improvements as determined by the City’s Engineer. One improvement security shall secure faithful performance of this Agreement as required by section 66499.3(a) of the California Government Code and shall be in an amount equal to one hundred (100%) percent of the estimated cost of the Improvements, including all construction management and design costs, as shown in Exhibit “A” (the “Estimated Cost of the Improvements”). The second improvement security shall, as required by section 66499.3(b) of the California Government Code, secure the obligations set forth in Title 1 (commencing with section 8000) of Part 6 of Division 4 of the California Civil Code for payment to the contractor, its subcontractors and to persons renting equipment or furnishing labor or materials to them for the Improvements, and shall be in an amount equal to one hundred (100%) percent of the total Estimated Cost of the Improvements. Developer shall secure and maintain such improvement securities until all Improvements have been completed and accepted by City unless otherwise agreed by City in writing.
Prior to issuance of a Notice of Completion for the Improvements, Developer shall file with City a guarantee and warranty security as set forth in section 66499.3(d) of the California Government Code in the amount of ten percent (10%) of the Estimated Cost of the Improvements to guarantee and warrant the Improvements for a period of one (1) year following the completion and acceptance thereof against any defective work or labor done or defective materials furnished.
Any bond(s) delivered to the City’s Engineer in satisfaction of the requirements of this paragraph 3.g. shall be executed by a surety company authorized to transact a surety business in the State of California. All securities required by this paragraph 3.g shall be in such form and substance as may be reasonably required by City. In the event that any such security is not renewed or maintained, or otherwise lapses or expires, prior to completion of the Improvements, Developer shall notify City, in writing by personal delivery or certified mail, return receipt requested, of said lapse or expiration at least thirty (30) calendar days prior to the last effective date of said security. At least ten (10) calendar days prior to the lapse or expiration of said security, Developer shall renew said security or secure alternative security sufficient to satisfy Developer’s duties and obligations under this paragraph 3.g., in a form approved by City. Should Developer fail to (a) renew or maintain security, (b) give notice prior to the lapse or expiration of said security, or (c) otherwise comply with any provision in this paragraph 3.g., City may, in its sole discretion, deem any such failure to be a material breach of this Agreement and/or may immediately terminate this Agreement. h. Insurance. With respect to the construction of the Improvements, Developer shall furnish to City a policy or policies of insurance issued by an insurance carrier acceptable to City in a form satisfactory to City, evidencing insurance consistent with the provisions hereof. Each #14..
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policy shall bear an endorsement precluding the cancellation or reduction in coverage before the expiration of thirty (30) days after City shall receive notification of such cancellation or reduction by registered mail.
The minimum insurance coverage shall be as follows:
(1) Worker’s Compensation - in compliance with the statutes of the State of California plus employer’s liability with a minimum limit of liability of $1,000,000. (2) Commercial General Liability insurance with a minimum limit of liability per occurrence of $2,000,000 for bodily injury and property damage. This insurance shall indicate on the certificate of insurance the following coverages and indicate the policy aggregate limit applying to: premises and operations; broad form contractual; independent consultants and subcontractors; products and completed operations; and professional liability. (3) Automobile Liability insurance with a minimum limit of liability per occurrence of $1,000,000 for bodily injury and property damage. This insurance shall cover any automobile for bodily injury and property damage.
The required coverages and verification of coverage set forth in the “General Provisions” of the Standard Specifications are included herein by this reference as though set forth in full. This insurance shall directly protect City and District as well as Developer and its agents. The insurer shall assume the defense of City and District and their respective officers, employees and agents from suits, actions, damages or claims of every type and description to which they may be subjected or put by reason of, or resulting from the construction or installation of the Improvements or other Developer duties or obligations arising out this Agreement. The insurance policy shall expressly state that the above terms are in effect.
Each policy of insurance shall be placed with insurers with a Best’s rating of no less than A:VII, and specify that:
(1) The inclusion of more than one insured shall not operate to impair the rights of one insured against another insured, and the coverage afforded shall apply as if separate policies had been issued to each insured, and
(2) It acts as primary insurance and that no insurance held by City or District shall be called upon to cover either in full or in part, any loss covered under the policy. (3) The issuing insurance company waives its rights of subrogation against City and District.
If Developer fails to maintain such insurance, City and District each may, among its other options, take out insurance to cover damages of the above mentioned classes for which it might be held liable, and recover the amount of the premiums for such insurance from Developer or retain such amount from any moneys due the Developer under this Agreement. Failure of City or District to obtain insurance shall in no way relieve Developer from any of its responsibilities under this Agreement. The provisions of this paragraph 3.h. shall be in addition to, and not in lieu of, indemnification insurance requirements imposed under any governmental approval or permit, or imposed by any financing mechanism participated in by Developer in connection with its obligations #14..
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under this Agreement. Developer shall also furnish or cause to be furnished evidence satisfactory to City that any contractor with whom it has contracted for the work carries Worker’s Compensation Insurance as set forth in the “General Provisions”.
i. Change Orders. Developer shall make any changes or alterations in the construction and installation of the Improvements as reasonably requested by the City’s Engineer provided that the combined total of such changes and alterations do not exceed 15% of the Engineer’s Estimate for all Improvements that is set forth in Exhibit “A” attached hereto and incorporated herein.
In the event that any changes or alterations are deemed necessary, the party requesting the change order shall provide the other parties to this Agreement with a written statement indicating the scope and reason for the change or alteration. Prior to making any change or alteration, City and Developer shall determine which party is responsible for payment of the extra costs, and shall mutually agree upon the additional cost, if any, for making said changes or alterations, and the method and means of payment for such changes or alterations. Said agreement shall be set forth in writing and signed by all affected parties. Developer will not be obligated to make, and City and District will be obligated to approve or pay for, any changes or alterations which are not approved in writing by the City’s Engineer.
j. Independent Contractor. In performing this Agreement, Developer is an independent contractor and not the agent or employee of City or District. Neither City nor District shall be responsible for making any payments to any contractor, subcontractor, agent, employee or supplier of Developer. Developer shall in all instances conduct itself as an independent contractor, and shall hold City and District harmless from any and all claims made against either or both of them. This covenant is entered into in the mutual understanding that pursuant to section 53314.9(b) of the Act, this Agreement can never constitute a debt or liability of City. k. Time for Completion of the Improvements. Developer agrees that this Agreement is for the benefit of City and Developer; and, therefore, Developer represents that it will complete the construction of the Improvements and request final reimbursement therefor under this Agreement on or before __________________________, subject to delays due to Force Majeure, as defined in paragraph 3.l. below. If during the performance of this Agreement, City determines that Developer is not proceeding with such diligence as to complete the Improvements within such period of time, Developer agrees to meet and confer with City as to options available to City to assure the timely completion of such Improvements. Such options, any of which may be taken in the discretion of City, may include, but not be limited to, the termination of this Agreement under paragraph 8(g), or its assignment by Developer to others under paragraph 8(e) subject to the approval of City, and, in any event, the payment of liquidated damages by Developer pursuant to Standard Specification procedures in the amount of FIVE HUNDRED AND 00/100 ($500.00) DOLLARS per day commencing on ____________________.
(1) Work on the Improvements shall in no event commence prior to receipt by Developer of a written Notice To Proceed from the City’s Engineer, which Notice shall not be given in the absence of all approvals required in paragraph 3., above. (2) Work on the facilities shall be completed by Developer on or before the date specified in City’s Notice To Proceed.
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l. Force Majeure. Notwithstanding anything in this Agreement to the contrary, the parties hereto shall not be liable to each other or any other party for any failure to perform, or delay in performance of that party’s obligations hereunder and the doing or performing of such act or thing shall be extended for the period of such delay, when such failure to perform or delay in performance is caused by an event of Force Majeure; provided, however, that the party whose performance is prevented or delayed by such event of Force Majeure shall give prompt written notice thereof to the other party. For purposes of this Section, the term “Force Majeure” shall include war, embargo, rebellion, riot, civil disturbance, earthquake, fire, flood, strike, lockout, labor unrest, vandalism, acts of governmental authorities, acts of God, acts of public enemy, terrorism, and in general, any other causes or conditions beyond the reasonable control of the parties. m. Dispute Resolution. All claims, controversies, or disputes arising out of, or relating to the formation of this Agreement, or the breach, termination, execution, enforcement, interpretation, or validity of this Agreement, including the determination of the scope or applicability of this contract provision, shall be determined by binding arbitration in Modesto, California by one arbitrator, except as otherwise specified in this Agreement. The American Arbitration Association shall administer the arbitration under its Construction Industry Arbitration Rules then in effect, subject to the modifications of those rules contained in this paragraph 3.m. This agreement to arbitrate shall be specifically enforceable under the prevailing law of any court having jurisdiction, and the award rendered by the arbitrator may be entered in any court having jurisdiction. The appropriate venue for any arbitration or court proceeding relating to or arising out of this provision shall be in Stanislaus County, California.
This paragraph 3.m. is not intended to and does not waive the claim filing requirements found in California Government Code section 900 et seq. In the event that a timely and legally sufficient, arbitrable claim is filed by Developer with City and/or District, and the claim is rejected in whole or in part by City and/or District, as the case may be, this paragraph 3.m. shall result in the conclusive, final, and binding resolution of all the issues presented in the claim by Developer so long as any issues presented by the claim are arbitrable. Claims rejected by City and/or District, as applicable, or by operation of law, shall be submitted by Developer to arbitration pursuant to the Construction Industry Arbitration Rules of the American Arbitration Association within ninety (90) days after mailing of the written rejection by City and/or District, as applicable, to Developer.
Otherwise, the claim or claims shall be deemed waived in their entirety.
The “fast track” rules of the American Arbitration Association shall apply to any claim or counterclaim less than ONE HUNDRED FIFTY THOUSAND AND 00/100 ($150,000.00) DOLLARS. In arbitration not proceeding under the “fast track” rules, the arbitrator shall have the power to order that depositions be taken and other discovery be made. City, District and Developer shall have the right, upon written notice, to take no more than three (3) depositions of the other as a matter of right in an arbitration proceeding under the “fast track” rules.
Whether or not City, District and Developer may be engaged in interstate commerce, any controversy or dispute mentioned above shall be determined by, and the parties shall be bound by, the substantive law of the State of California, and not the Federal Arbitration Act at 9 USC Section 1 et seq.
The arbitrator may grant any remedy or relief deemed by the arbitrator just and equitable under the circumstances, whether or not such relief could be awarded in a court of law.
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cooperation in the arbitration. The arbitrator shall, in the written award, allocate all the costs of the arbitration, including the fees of the arbitrator and the reasonable attorney fees of the prevailing party, against the party who did not prevail. The prevailing party shall be the party in whose favor the majority of the central issues in the case are resolved.
Notwithstanding anything in this provision to the contrary, the arbitrator shall have no power to award punitive damages or other damages not measured by the party’s actual damages (excluding litigation costs and fees) against any party. This limitation of the arbitrator’s powers under this Agreement shall not operate as an exclusion of the issue of punitive damages from this Agreement sufficient to vest jurisdiction in a court with respect to that issue.
Developer shall include in all contracts and subcontracts a specification whereby the contractor or subcontractor consents to being joined in an arbitration between City and/or District and Developer involving the work of the subcontractor to be joined. Developer’s failure to do so shall be a breach of this Agreement.
The parties to any contract of which this paragraph 3.m. is made a part by reference otherwise shall, and hereby do, waive any rights provided by Title 9.2 of the California Code of Civil Procedure, Section 1296. The arbitrator’s award shall be deemed final, conclusive and binding to the fullest extent allowed by California law.
4. Payment/Reimbursement for the Improvements.
a. Final Inspection and Acceptance. No reimbursement shall be made by City or District to Developer for any Improvement until it has been inspected and accepted for public use on behalf of the public by City. Developer shall request final inspection using applicable procedures, and City shall cause the final inspection to be made within fifteen (15) business days from the date of actual receipt of the request by the City’s Engineer. The City’s Engineer shall notify Developer in writing of the results of the inspection within fifteen (15) business days from the date of such inspection. Within fifteen (15) business days after the City’s Construction Administration Office has certified that an Improvement is complete and ready for acceptance, City will initiate the process for formal acceptance by City; provided, however, that if an Improvement is only a portion of the improvements required to be constructed in connection with a specified development, then City will not initiate the formal acceptance process until fifteen (15) business days after the City’s Construction Administration Office certifies that all of the improvements required for the development are complete and ready for acceptance.
b. Request for Payment. The request for payment by Developer shall be substantially in the form attached as Exhibit “B” hereto, or as otherwise acceptable to the City’s Engineer, and shall include such supporting documentation to substantiate the request as the City’s Engineer may require. Within fifteen (15) business days of receipt of any such request, the City’s Engineer shall review the request and advise Developer in writing of its acceptance or its denial, in whole or in part, setting forth the reasons for denial. Developer shall be entitled to resubmit any such request or portion thereof so denied if it is able to address the reasons for the payment denial. In the event of final denial by the City’s Engineer, Developer agrees that its sole appeal shall be to the City Council, whose decision shall be final and binding on the parties. For requests for payment, the following conditions shall apply:
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i. Improvements are Complete and Accepted. City shall not make any reimbursement to Developer for an Improvement to be acquired until it is completed in accordance with approved plans and specifications and approved contracts and change orders, and formally accepted by City. Any Improvement to be acquired by City must be in such condition that it is ready for use by City as determined by the City’s Engineer, based on current, applicable City standards.
Accordingly, District Administrator will execute and file a Notice of Completion based upon the City’s Engineer’s final determination, after the Improvements have been formally accepted by City in accordance with paragraph 4.a., above.
ii. Substantiation of Improvements. Developer shall provide any documentation substantiating the construction and completion, and Developer’s costs for constructing the Improvement as may be reasonably requested by the City’s Engineer. iii. Payment of Claims. Developer shall provide, in a form satisfactory to City’s Engineer, evidence that all of the costs for constructing the Improvement have been fully paid, including all lien claims, or that lien releases have been obtained. If required by, and in forms acceptable to the City’s Engineer, Developer shall provide unconditional lien releases under California Civil Code section 8134 if for progress payment and section 8138 if for final payment. to assure that payment of outstanding claims of Developer’s contractors, subcontractors and suppliers has been made.
iv. As-built Drawings and Warranty Security. Developer shall provide as-built drawings or equivalent plans and specifications in a form acceptable to the Development Services Division of City. Developer shall also provide a warranty security in accordance with paragraph 3.g., above.
v. Purchase Price. The amount to be paid to Developer by City for an Improvement (hereafter the “Purchase Price”) shall be determined only after the City’s Engineer confirms completion of the criteria of paragraphs 4.a. and 4.b.(i)-(iv) above. The Purchase Price of an Improvement will be the lesser of (a) the amount of Bond and/or Special Facilities Tax proceeds available for the acquisition of the Improvement or (b) Developer’s substantiated costs related to the Improvement, including, but not limited to, related costs of engineering, surveying, environmental compliance, preparation of plans, specifications, contracts, acquisitions of land, rights of way, easements, licenses, franchises, permits and related project administration, but shall not include costs attributable to Developer’s overhead, interest payments paid or owing by Developer, or other carrying costs for the Improvement prior to its acquisition by City pursuant hereto. As suggested by the foregoing, individual components of the Purchase Price including, but not limited to, plans and specifications and land, rights of way and easements will not be acquired separately, but only as a part of the Improvement to which they relate.
vi. Non-governmental Improvements. No payment or reimbursement shall be made for any non-governmental improvement (e.g. those to be conveyed to regulated public utility companies, homeowner’s associations, etc.) or any incidental expenses related thereto, except for utility improvements approved by City.
vii. Summary of Tax Financed Reimbursement. It is anticipated that infrastructure will be financed by the sale of Bonds and/or by taxes paid on a one-time basis as development occurs and that Developer will be paid for Improvements in cash. Subject to each of the relevant conditions specified in paragraphs 4.a. and 4.b.(i) – 4.b.(vi) above, payment for #14..
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Improvements will be solely in the form of cash payments. Except in the case of reimbursements to Developer from the Costs of Issuance Fund described in paragraph 5, below, such payments may only be made with moneys in the Project Fund or to the limit of the Special Facilities Tax allocated for such payment, based on the Priority List established by the City Council and amended from time to time, and in no event shall any amount owed to Developer or substantiated by Developer in excess of the moneys in the Project Fund and/or the applicable Special Facilities Taxes owed or to be owed by Developer become a debt of City or District or of any of their respective officers or employees.
The sole exceptions to this “excess cost” limit shall be where City requests oversizing or provision of facilities such that their total cost exceeds the total facilities tax Developer is or will be obligated to pay and for any change order which has been issued and approved in accordance with paragraph 3.i., above. In these cases, City will consider appropriate methods of recovering such costs from the properties benefited thereby and reimbursing Developer if and to the extent that funds are available from such properties for that purpose.
5. Other Reimbursements to Developer.
It is recognized that certain incidental expenses, such as costs incurred in connection with the formation of District and the issuance of the Bonds which have been advanced by Developer, may be reimbursed to Developer pursuant to the applicable provisions of the Indenture from moneys in the Project Fund or the Costs of Issuance Fund established under the Indenture and/or pursuant to the terms of the Special Facilities Tax and subject to the availability of Special Facilities Tax moneys.
6. Ownership and Transfer of the Improvements.
a. Transfer of Ownership:
i. Land. For purposes hereof, the term “Land” includes fee simple title or such lesser real property interests (including easements and/or rights of way) as City determines are necessary or convenient to the Improvements to be acquired. Developer agrees to execute and deliver, or cause to be executed and delivered, to City the documents required to complete the transfer of such Land, free and clear of all liens, taxes, assessments, easements, leases, or other encumbrances (whether recorded or not), except for those which District Administrator determines in writing will not interfere with the intended use of the Land or the Improvements. Completion of the transfer of title to the Land shall be evidenced by recordation of title in City’s name by District Administrator.
ii. Improvements Constructed on Private Property. If any Improvement is to be constructed on private property, Developer shall retain title to the Land and the completed Improvement until acceptance by City under paragraphs 4.a. and 4(b)(i) above, which shall apply to the transfer. Pending the completion of the transfer, Developer shall be responsible for maintaining the Land and any such Improvement in good and safe condition. iii. Improvements. Upon satisfaction of the other conditions set forth in this Agreement and City’s receipt of an appropriate instrument of conveyance conveying title to an Improvement to City, executed and delivered to City, which instrument is acceptable to District Administrator the Improvement may be accepted in accordance with paragraphs 4.a. and 4.b.i. above. #14..
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b. Improvements Constructed on City Property. If any Improvement is to be constructed on property owned by City, City will not unreasonably refuse to grant to Developer a license to enter upon such property for purposes related to the construction and maintenance (prior to acceptance by City) of such Improvement. The provisions for inspection and acceptance of such Improvement otherwise provided herein shall apply.
c. Warranties; Maintenance. Developer hereby warrants all of the Improvements as to materials and workmanship; and should any failure of the Improvements or any part thereof occur within a period of one (1) year after their final acceptance by City, Developer shall promptly cause the needed repairs to be made without any expense or cost to City or District and without further reimbursement from City or District.
i. City Repairs. City is hereby authorized to make repairs if Developer fails to make, or undertake with due diligence, the aforesaid repairs within twenty (20) days after it is given written notice of such failure. In case of emergency where, in the opinion of the City’s Engineer, delay would cause serious hazard to the public, the necessary repairs may be made by City without prior notice to Developer. In all cases of failure of the Improvements within the warranty period where City has taken action in accordance with this paragraph 6, Developer shall reimburse City for any and all costs or expenses, direct and indirect, incurred by City. ii. Third Party Warranties. Any warranties, guarantees or other evidences of contingent obligations of third persons with respect to the Improvements shall be delivered to District Administrator as part of the conveyance of the Improvements.
7. Limitation of Liability; Excess Costs.
a. City and District Obligations Limited. Developer agrees that any and all obligations of City and District arising out of or related to this Agreement are special and limited obligations; and obligations, if any, to make payments or reimbursements hereunder, and are restricted entirely to cash reimbursement from the Project Fund and the Costs of Issuance Fund, if any, and/or from reimbursement from Special Facilities Tax moneys, and from no other source. No officer, employee or agent of City or District shall incur any liability arising out of this Agreement to the Developer or any other party in their individual capacities by reason of their actions hereunder or the execution hereof.
b. Indemnification and Hold Harmless. Developer shall assume the defense of, indemnify and save harmless City and District and their respective officers, directors, employees and agents, and each and every one of them, from and against all third-party actions, damages, claims, losses or expenses of every type and description to which they may be subjected or put, including payment of attorneys’ fees and costs, by reason of, or arising out of, this Agreement, Developer’s design, engineering and construction of the Improvements, if any, Developer’s non-compliance with all local, state and federal statutory requirements during the construction of the Improvements, including but not limited to, requirements relating to payment of prevailing wage, licensing of contractors and subcontractors, and public bidding, and any claims of persons employed by Developer to construct the Improvements. No provision of this Agreement shall in any way limit the extent of the responsibility of Developer for payment of damages resulting from the operations of Developer or its contractors, nor shall the existence of any policy of insurance in any way limit Developer’s indemnity obligation hereunder. The obligations contained in this paragraph 7.b. shall survive termination of this Agreement.
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8. Miscellaneous.
a. Audit. District Administrator and the City’s Engineer shall have the right to review all books and records of Developer pertaining to costs and expenses incurred by Developer in constructing the Improvements, including but not limited to any contracts, subcontracts, change orders, invoices and payroll records.
b. 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:
Developer:
City: City Manager
City of Modesto
P.O. Box 642
Modesto, California 95353
Phone: 209-577-5211
Facsimile: 209-571-5128
District: Infrastructure Financing Program, Administrator City of Modesto
P.O. Box 642
Modesto, California 95353
Phone: 209-577-5211
Facsimile: 209-571-5128
Each party may change its address for delivery of notice by delivering written notice of such change of address to the other party.
c. Hazardous Materials.
(1) Developer and those subject to Developer’s control, shall not use, generate, manufacture, store or dispose of on, under or about City’s facilities or property, or transport to, from or across City’s facilities or property, any flammable, explosive or radioactive material, toxic substance, hazardous waste, hazardous material, hazardous substance, or the equivalent, as those terms may now or in the future be defined by common practice or by any federal, state or local statute, ordinance or regulation or any governmental body or agency (hereinafter “Hazardous Substance”). Exception: appropriate and lawful use of petroleum products in Developer’s vehicles and machinery.
(2) Without limiting any remedies City may have, in the event any escape disposal, release, discharge or spill of a Hazardous Substance or other contamination (collectively an “Occurrence”) occurs within City’s facilities or property, Developer shall immediately notify City and take all action to mitigate the effects of such Occurrence, to the extent such Occurrence is #14..
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attributable to or caused by Developer or its agents, employees, representatives or contractors.
Furthermore, to the extent such Occurrence is attributable to or caused by Developer or its agents, employees, representatives or contractors, Developer shall (at Developer’s own expense), unless otherwise directed by City, remediate such Occurrence to City’s reasonable satisfaction and in compliance with all applicable laws, rules and regulations. City shall have the option to perform the remediation themselves or through any contractor, and Developer shall cooperate with City to complete the remediation and shall reimburse City, as the case may be, for all reasonable costs and expenses incurred in connection with the remediation of an Occurrence to the extent such Occurrence is attributable to or caused by Developer or its agents, employees, representatives or contractors, their operations or security provisions.
(3) In the event Developer observes any material Developer believes or has reason to believe may be a Hazardous Substance or encounters any unknown physical condition of any unusual nature in or on City’s facilities or property, other than disposal, releases, discharges, spills or contamination covered in paragraph 8.c.(2) above, Developer shall, without disturbing the condition, immediately notify City. City may investigate the condition and take any clean-up or other remedial action City deems necessary in their sole discretion. (4) In the event City or its contractor elects to perform remediation work, City will notify Developer when the condition has been resolved, at which time, but not before, Developer may resume earth removal and construction in accordance with this Agreement. (5) As a supplement to other indemnity protections provided to City or District by Developer in this Agreement, Developer agrees to assume liability for and to defend and hold harmless City and District from and against any and all injuries or death to any person and damage to any property, and all related expense, including without limitation reasonable attorneys’ fees, investigators’ fees, litigation expenses and any judgments, fines, penalties or other charges assessed against City or District resulting from Developer’s failure to comply with this paragraph
8.c., and any laws, rules or regulations concerning the subject matter hereof. The provisions of this paragraph 8.c.(5), shall survive the expiration and termination of this Agreement. d. Severability. If any part of this Agreement is held to be illegal or unenforceable by a court of competent jurisdiction or by an arbitrator, the remainder of this Agreement shall be given legal effect to the fullest extent practicable. e. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the successors and assigns of the parties. This Agreement may not be assigned by Developer without the prior written consent of City. In connection with any such consent of City, City may condition its consent upon the acceptability of the financial condition of the proposed assignee and upon any other factor which City deems relevant in the circumstances in its sole discretion, which discretion shall be absolute.
f. Waiver. Failure by a party to insist upon the strict performance of any of the provisions of this Agreement by the other party, or the failure by a party to exercise its rights upon the default of the other party, shall not constitute a waiver of such party’s right to insist on and demand strict compliance by the other party with the terms of this Agreement thereafter. #14..
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g. Termination.
(1) Mutual Consent. This Agreement may be terminated by the mutual, written consent of City, District and Developer, in which event City may, but shall not be obligated to, let contracts for any remaining work related to the Improvements listed in Exhibit “A” not theretofore acquired from Developer hereunder, and use all or any portion of the moneys which could otherwise be reimbursed to Developer to pay for such remaining Improvements, and Developer shall have no claim or right to any reimbursement for any work in progress at the termination date except as otherwise may be provided in such written consent. (2) City Election for Cause. The following events shall constitute grounds for City, at its option, to terminate this Agreement, without the consent of Developer. (i) Developer shall voluntarily file for reorganization or other relief under any Federal or State bankruptcy or insolvency law. (ii) Developer shall have any involuntary bankruptcy or insolvency action filed against it, or shall suffer a trustee in bankruptcy or insolvency or receiver to take possession of the assets of Developer, or shall suffer an attachment or levy of execution to be made against the property it owns within District unless, in any of such cases, such circumstance shall have been terminated or released within sixty (60) days thereafter. (iii) Developer shall abandon construction of the Improvements.
Failure for a period of three (3) consecutive months to undertake substantial work related to the construction of the Improvements following City’s approval of the improvement plans and specifications shall constitute a noninclusive example of such abandonment. For purposes hereof, Developer shall be deemed to have abandoned the construction of the Improvements if it fails, for a period of six (6) months from the date hereof, to commence actual construction thereof, unless such failure is excused due to Force Majeure, as set forth in paragraph 3.l. above. (iv) Developer shall breach any material covenant or default in the performance of any material obligation hereunder.
(v) Developer shall transfer any of its rights or obligations under this Agreement without the prior written consent of City. (vi) Developer shall have made any material misrepresentation or omission in any written materials furnished in connection with the completion of Developer’s CFD application package or in the submission of any information required pursuant to this Agreement. (vii) Developer or any of its successors or assigns shall at any time challenge the validity of District, the Bonds, the special tax lien, or the levy of any special tax within District.
(viii) Developer shall fail to complete the Improvements as contemplated in this Agreement.
If any such event occurs, City shall give written notice of its knowledge thereof to Developer; and, if requested to do so by City, Developer shall meet and confer with #14..
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District Administrator and other appropriate City staff and consultants as to options available to assure timely completion of the Improvements. Such options may include, but not be limited to the termination of this Agreement by City. If City elects to terminate this Agreement, City shall first notify Developer (and any mortgagee or trust deed beneficiary specified in writing by Developer to City to receive such notice) of the grounds for such termination and allow Developer a minimum of thirty (30) days to eliminate or mitigate to the satisfaction of District Administrator the grounds for such termination. Such period may be extended, at the sole, absolute, discretion of City, if Developer, to the satisfaction of City, is proceeding with diligence to eliminate or mitigate such grounds for termination. If at the end of such period (and any extension thereof), as determined solely by City, Developer has not eliminated or completely mitigated such grounds, to the satisfaction of City, City may then terminate this Agreement. h. Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the matters provided for herein. i. Amendments. Amendments to this Agreement shall be made only by written instrument executed by both of the parties hereto.
j. Assumption of Risk. Developer, and its authorized representatives, shall enter any parcel for construction of the Improvements and perform the work on that parcel at their own risk and subject to whatever hazards exist on that parcel. Before entering upon the parcel to do any work under this Agreement, Developer shall make, or cause its contractors and subcontractors to make, a thorough inspection of the site for the purpose of locating conditions which might be hazardous to the safety of those entering upon the parcel. Developer shall take, or cause its contractors and subcontractors to take, whatever steps may be necessary to eliminate such hazards and to make them known to persons entering upon the parcel. k. No Interests in Real Property. Developer shall not obtain any interest whatsoever in any real property by virtue of this Agreement or by virtue of the work upon any parcel.
Developer’s rights and obligations relating to any parcel owned by City shall be those set forth herein.
l. Other Agreements. Nothing in this Agreement is intended to supersede, terminate, modify or otherwise affect any provision of any other agreement currently existing between Developer and City except to the extent that a provision of this Agreement is directly contradictory to a provision of such agreement. Then, and in that event, the provisions of this Agreement shall prevail over the provisions of any such agreement to the contrary. However, the execution of this Agreement by the parties hereto shall in no way otherwise affect the validity of any or all of the provisions of any such other agreement.
m. No Joint Venture. Nothing in this Agreement is intended or shall be construed as creating or establishing the relationship of copartners or joint venturers between the parties hereto, or as constituting Developer as an agent or representative of City for any purpose or in any manner whatsoever.
n. Waiver. Any waiver of any breach of covenants or conditions contained in this Agreement by either party shall be effective only if in writing and shall not be deemed or considered as a continuing waiver shall not constitute a waiver of any other conditions or covenants #14..
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and shall not operate to bar or prevent the other party from declaring a forfeiture or exercising its rights for any succeeding breach of either the same or other condition or covenant. o. Limited Obligation. The parties to this Agreement understand and intend that any obligation of City or District to reimburse Developer shall be limited to the assets and revenues of City or District that are specified herein as a source of payment to Developer; and this Agreement shall not in any way be construed to be a debt of City or District, nor shall anything contained herein be construed as a pledge of the general tax revenues, funds or other money of City. City has not pledged any asset or revenue of, or the full faith and credit of City, or any agency or department of the City, to any reimbursement that may be due under this Agreement. p. Governing Law. The parties hereto acknowledge that this Agreement has been negotiated and entered into in the State of California, and shall be construed and enforced in accordance with its laws. Venue for any action with respect to this Agreement shall be in Stanislaus County, California.
q. Language Construction. The language of each and all paragraphs, terms and/or provisions of this Agreement shall, in all cases and for any and all purposes, be construed as a whole according to its fair meaning, and not for or against any party hereto and with no regard whatsoever to the identity or status of any person or persons who drafted all or any portion of this Agreement.
r. Titles of Parts and Sections. Any titles of the sections or subsections of this Agreement are inserted for convenience of reference only and shall be disregarded in interpreting any part of Agreement’s provisions.
s. Discretion of City. City’s execution of this Agreement in no way limits the discretion of City in the permit and approval process in connection with any construction or improvements which are within City’s jurisdiction.
t. No Third Party Beneficiaries. No person or entity shall be deemed to be a third party beneficiary hereof; and nothing in this Agreement (either express or implied) is intended to confer upon any person or entity, other than City and District (and their respective officers, directors, employees and agents providing services under this Agreement) and Developer, any rights, remedies, obligations or liabilities or by reason of this Agreement. u. Representations of Authority. Each person is signing this Agreement on behalf of a party which is not a natural person hereby represents and warrants to the other party that all necessary legal prerequisites to that party’s execution of this Agreement have been satisfied and that he or she has been authorized to sign this Agreement and bind the party on whose behalf he or she signs.
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IN WITNESS WHEREOF, the City of Modesto, a municipal corporation, has authorized the execution of this Agreement in duplicate by its City Manager and attestation by its City Clerk under authority of Resolution No. 2017-___________, adopted by the Council of the City of Modesto on the ____ day of ___________________, 2017 and Developer has caused this Agreement to be duly executed in duplicate as of the effective date.
CITY OF MODESTO:
By: _______________________________
____________________, City Manager &
District Administrator
____________________________
By:
Name:
Title:
SEAL
APPROVED AS TO FORM:
ADAM U. LINDGREN, City Attorney
By: _______________________________
Jose Sanchez,
Assistant City Attorney
By:
Name:
Title:
Federal Tax ID #
APPROVED AS TO FORM:
By:
__________, Risk Manager
Certificate of Acknowledgment pursuant to Civil Code Section 1189, must be attached.
Signature Requirements
* Corporation – signature of two officers or one (1) officer plus the corporate seal
* Partnership - signature of one partner
* Sole Proprietorship - signature of proprietor
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CITY OF MODESTO
COUNCIL AGENDA REPORT
DATE OF MEETING:
October 22, 2024
Date: September 20, 2024
TO: Mayor and City Council
THROUGH: Joseph P. Lopez, City Manager
FROM: Kevin Wise, Fire Chief
SUBJECT: Purchase of Five Pierce Fire Engines and Two Pierce Fire Trucks CONTACT: Kevin Wise, Fire Chief, [email protected], 209-572-9590 DESCRIPTION:
Consider approving the purchase of five (5) Pierce Velocity 1500 GPM Type 1 Fire Engines and two (2) Pierce 107’ Velocity Tractor Drawn Aerial Fire Trucks for a total amount not to exceed $9,246,959. (Funding Source: Measure H)
STRATEGIC PLAN ELEMENT:
This action supports the City of Modesto 2020-2025 Strategic Plan focus on quality of life under Goal A: Improve Community Safety.
BACKGROUND:
For fire engines (pumpers) and fire trucks (tillers), the current industry standard timelines from the point of order to delivery is 48 months and 51 months, respectively. Some factors contributing to the delay are supply chain deficiencies, labor shortages, and various other manufacturers’ complications in catching up with the influx of orders after COVID. Modesto Fire Department’s standard lifespan for frontline fleet is ten years for engines (five years reserve) and fifteen years for trucks (five years reserve). Because of the extensive lead time on production, the department’s 2016 model engines will exceed the frontline standard, while the trucks will be nearing the standard. Any additional delay in ordering the trucks could also result the exceeding the truck’s frontline standard.
Last year, the Modesto Fire Department responded to 33,149 calls for service within its area of jurisdiction. The fire engines are the first to respond in most of those calls. In 2023, Modesto Fire was the first responding unit to arrive to all emergencies within 5 minutes of dispatch 74% of the time. Our community relies heavily on these fire apparatuses to deliver critical service responses.
Evaluations are continuously conducted to determine the condition of the fleet based on mileage and need. These evaluations will help determine which stations will receive the newest apparatuses as they become available from Golden State Fire Apparatus. #15..
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City Council, October 22, 2024
Purchase of Five Pierce Fire Engines and Two Pierce Fire Trucks