Agenda packet — Modesto City Council, November 12, 2024 (part 3 of 3)

Resolution amending the Fiscal Year 2024-25 Capital Improvement Program budget to fund Project #100922 (Downey Shade Structure) in an amount not to exceed $141,802 in transfers, revenue, and to budget expenditures to fund the project, and authorizing the City Manager, or his designee, to implement the provisions of this resolution.

Approved by:

Jeremy Rogers, Director of Parks, Recreation and
Neighborhoods Manager
Joseph P. Lopez, City Manager
Attachments:

1. Resolutions (3)

2. Construction Contract & Financial Interest Disclosure Form– Westside Landscape & Concrete, Inc.

3. Bid Results
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MODESTO CITY COUNCIL
RESOLUTION NO. 2024-

RESOLUTION APPROVING THE PLANS AND SPECIFICATIONS FOR

DOWNEY SHADE STRUCTURE AND PARKING LOT REPLACEMENT

PROJECT, ACCEPTING THE BID AND AWARDING A CONSTRUCTION
CONTRACT TO WESTSIDE LANDSCAPE & CONCRETE, INC. OF NEWMAN, CA., IN THE AMOUNT OF $572,393 AUTHORIZING $45,791 FOR

CONTINGENCY (IF NEEDED), FOR A TOTAL PAYMENT AMOUNT NOT TO EXCEED $618,184, AND AUTHORIZING THE CITY MANAGER, OR HIS

DESIGNEE, TO EXECUTE THE AGREEMENT
WHEREAS, Proposition 68 authorized $4 billion in general obligation bonds for state and local parks, environmental protection and restoration projects, water infrastructure projects, and flood protection projects, with funding generated by the bonds being distributed to various state agencies to use or to administer grants to local agencies, and
WHEREAS, one such program is the Per Capita Program administered by California State Parks and on October 13, 2020, by Resolution 2020-425, Council accepted a California State Parks grant award under the Per Capita Program, in the amount of $177,952 and allocated $100,000 toward the replacement of the Downey Shade Structure in Capital Project #100922, and
WHEREAS, the project was advertised for bids on September 3, 2024, and WHEREAS, bids were publicly opened on October 8, 2024, pursuant to City Charter Section 1307, and three bids were received, and WHEREAS, Westside Landscape & Concrete, Inc. of Newman, CA, was determined to be the responsible bidder with the lowest responsive bid, and WHEREAS, Modesto Municipal Code Section 8-3.203 generally requires all purchases, which meet or exceed $100,000 for material, equipment, or contractual #14..
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services to be formally bid, and
WHEREAS, the award of contract for the construction of the Downey Shade Structure and Parking Lot Replacement Project, to Westside Landscape & Concrete, Inc., of Newman, CA, conforms to Modesto Municipal Code, 8-3.203, and WHEREAS, staff recommends awarding the contract to Westside Landscape & Concrete, Inc., of Newman, CA.

NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Modesto that it hereby approves the plans and specifications for the Downey Shade Structure and Parking Lot Replacement Project, accepts the Bid and awards a construction contract to Westside Landscape & Concrete, Inc., of Newman, CA, in the amount of $572,393 plus $45,791 in contingency (if needed), for a total amount not to exceed $618,184.

BE IT FURTHER RESOLVED that the City Manager, or his designee, is hereby authorized to execute the contract, in a form approved by the City Attorney. #14..
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The foregoing resolution was introduced at a regular meeting of the Council of the City of Modesto held on the 12th day of November 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 votes:

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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MODESTO CITY COUNCIL
RESOLUTION NO. 2024-
RESOLUTION APPROVING THE CITY’S PANDEMIC RECOVERY

STRATEGY, MODESTO FORWARD, FOR THE REALLOCATION OF

AMERICAN RESCUE PLAN ACT FUNDS FOR THE DOWNEY SHADE

STRUCTURE AND PARKING LOT REPLACEMENT PROJECT AND

AUTHORIZING THE CITY MANAGER, OR HIS DESIGNEE, TO CARRY OUT

THE NECESSARY STEPS TO IMPLEMENT THE PROGRAMS AND FUNDING

ALLOCATION
WHEREAS, in April 2021, President Biden signed into law the American Rescue Plan Act a $1.9 trillion emergency relief measure intended to provide relief to address the impact of COVID-19, and
WHEREAS, the American Rescue Plan Act is making available $45,897,056 to the City of Modesto to help address the local impact of COVID-19, and WHEREAS, the Treasury Department has released interim guidance to-date and considers the following 6 categories as allowable uses: Public Health Response, Address Negative Economic Impact, Supporting Hardest-Hit Communities and Families, Replacing Lost Public Sector Revenue, Investments in Water and Sewer Infrastructure, and Investments in Broadband, and
WHEREAS, on August 10, 2023, the Treasury Department released on its website the 2023 Interim Final Rule which implemented three new eligible uses authorized in the Consolidated Appropriations Act (CAA), 2023 which included Emergency Relief from Natural Disasters, Surface Transportation Projects and Title I projects, and WHEREAS, on May 25, 2021, by Resolution 2021-194, the City Council approved the original spending plan for the allocation made available in May 2021, and WHEREAS, under Resolution 2022-237 on July 12, 2022, Year 2 expenditure plan was approved based on soliciting priorities from the public and the Council at the #14..
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three standing City Council Committees: Economic Development, Safety and Communities, and Finance, and
WHEREAS, Council approved under Resolution 2023-251, several ARPA programs to be reallocated to new or existing ARPA programs based on these new funding sources available for these programs such as Measure H and other grant funding sources, and
WHEREAS, Council approved under Resolution 2024-194, additional ARPA programs to be reallocated to new or existing ARPA programs based upon City staff determination that the programs would be unable to meet the obligation deadline or new funding sources were identified to fund these programs, and WHEREAS, as the Treasury obligation deadline of December 31, 2024, is closely approaching, City staff have determined the below ARPA programs will be unable to meet the obligation deadline or new funding sources have been identified to fund these programs; and below is summary of the Council approved ARPA program funds being proposed to be reallocated to the Downey Shade Structure and Parking Lot Replacement Project, and
ARPA Project
Reason for
Reallocation Amount
Deferred Maintenance at Park &
Public Facilities Timeline Constraints $ 233,036
Total Funding $ 233,036
WHEREAS, staff evaluated that the Downey Shade Structure and Parking Lot Replacement Project will comply with the eligible expenses based on the guidance that had been made available by the Treasury Department.
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NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Modesto that it hereby approves the City’s Pandemic Recovery Strategy, Modesto Forward, for the reallocation of American Rescue Plan Act funds to the Downey Park Shade Structure and Parking Lot Replacement Project.

BE IT FURTHER RESOLVED that the City Manager, or his designee, to carry out the necessary steps to implement the programs and funding allocations. #14..
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The foregoing resolution was introduced at a regular meeting of the Council of the City of Modesto held on the 12th day of November, 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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11/12/2024/PRN/KPeterson/Item XX 1 2024-XX

MODESTO CITY COUNCIL
RESOLUTION NO. 2024-
RESOLUTION AMENDING THE FISCAL YEAR 2024-25 CAPITAL
IMPROVEMENT PROGRAM BUDGET TO FUND PROJECT #100922
(DOWNEY SHADE STRUCTURE) IN AN AMOUNT NOT TO EXCEED $141,802

IN TRANSFERS, REVENUE, AND TO BUDGET EXPENDITURES TO FUND

THE PROJECT, AND AUTHORIZING THE CITY MANAGER, OR HIS

DESIGNEE, TO IMPLEMENT THE PROVISIONS OF THIS RESOLUTION WHEREAS, the City plans to renovate the Downey Park Shade Structure, and WHEREAS, Parks & Air Quality Capital Facility Fund (CFF) funding of $141,802 must be allocated to fund a portion of the project, and WHEREAS, the Fiscal Year 2024-2025 Capital Improvement Budget must be amended to fund Project 100922 – Downey Shade Structure, in a total amount of $141,802 to establish transfers, recognize revenue, and increase expenditures.

NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Modesto that it hereby approves the amendments of the Fiscal Year 2024-2025 Capital Improvement Program Budget to fund project 100922 (Downey Shade Structure) in an amount not to exceed $141,802 in transfers, revenue and to budget expenditures to fund the project.

BE IT FURTHER RESOLVED that the City Manager, or his designee, is hereby authorized to take the necessary steps to implement the provisions of this resolution. #14..
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11/12/2024/PRN/KPeterson/Item XX 2 2024-XX
The foregoing resolution was introduced at a regular meeting of the Council of the City of Modesto held on the 12th day of November 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 votes:

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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Bid Tabulation Tuesday, October 15, 2024
Project Title: Downey Shade Structure and Parking Lot
Replacement Project
Project ID #: 2025-05
Fund #: 100922 & 101427
Vault ID #: 19-D-0393
Bid Opening: 10/8/2024 at 11:00 AM
Basis of Award: By Blind Bid Designer: Jason Ortega
Design Manager: Jason Ortega
Project Description: This project includes removal and replacement of existing concrete picnic area, picnic shelter, concrete walkway, picnic tables, barbeques, picnic area lighting, asphalt paving, and landscape installation.

Item # Item Description Units Quantity Unit Price Extension Low Bidder
Westside Landscape & Concrete, Inc.
(209) 427-5778 27107 CA-33, Newman, CA 95360
Base Bid
1 Mobilization and Demobilization LS 1 $6,979.00 $6,979.00 2 Site Preparation LS 1 $5,935.00 $5,935.00
3 Temporary Fencing LS 1 $6,432.00 $6,432.00
4 Clearing and Grubbing LS 1 $9,158.00 $9,158.00
5 Demolition LS 1 $25,970.00 $25,970.00
6 Earthwork and Grading LS 1 $9,400.00 $9,400.00
7 Storm Drain Inlet 12"x12" (Pre-Cast) EA 1 $3,878.00 $3,878.00 8 Storm Drain Outlet 6" (NDS) EA 1 $2,100.00 $2,100.00
9 4" Storm Drain Line LF 62 $30.64 $1,899.68
10 2" Asphalt Concrete Pavement SF 950 $49.47 $46,996.50 11 4" Pedestrian Concrete Pavement SF 3101 $16.58 $51,414.58 12 6" Vehicular Concrete Pavement SF 2738 $18.56 $50,817.28 13 6" Vertical Concrete Curb LF 14 $92.00 $1,288.00
14 ADA Ramp EA 1 $6,369.04 $6,369.04
15 Striping and Signage (ADA Parking Stalls) LS 1 $1,309.52 $1,309.52 16 Picnic Table EA 20 $1,304.35 $26,087.00
17 ADA Picnic Table EA 4 $1,500.75 $6,003.00
18 Service Table EA 2 $2,264.50 $4,529.00
19 Barbeque Grill EA 2 $1,540.00 $3,080.00
20 Trash Receptables EA 2 $1,052.50 $2,105.00
21 Site Lighting (Rotate Existing Fixtures) EA 1 $4,897.79 $4,897.79 22 Irrigation System (Spray Head Relocation) LS 1 $6,500.00 $6,500.00 23 Soil Preparation SF 1765 $2.99 $5,277.35
24 Turf Installation from Seed SF 1765 $3.18 $5,612.70
25 3" Bark Mulch SF 1439 $4.00 $5,756.00
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26 Landscape Establishment and Maintenance EA 4 $1,750.00 $7,000.00 Period (Monthly)
Subtotal: $306,794.44
Bid Alternate 1
101 Shade Structure LS 1 $245,598.00 $245,598.00
102 Shade Shelter Lighting LS 1 $20,000.00 $20,000.00
Subtotal: $265,598.00
Total: $572,392.44
Percent From Engineer's Estimate: -3.28%
Sinclair General Engineering Construction, Inc.
(209) 847-6100 P.O. Box 1453, Oakdale, CA 95361
Base Bid
1 Mobilization and Demobilization LS 1 $15,000.00 $15,000.00 2 Site Preparation LS 1 $11,100.00 $11,100.00
3 Temporary Fencing LS 1 $12,600.00 $12,600.00
4 Clearing and Grubbing LS 1 $4,650.00 $4,650.00
5 Demolition LS 1 $25,700.00 $25,700.00
6 Earthwork and Grading LS 1 $49,700.00 $49,700.00
7 Storm Drain Inlet 12"x12" (Pre-Cast) EA 1 $3,800.00 $3,800.00 8 Storm Drain Outlet 6" (NDS) EA 1 $500.00 $500.00
9 4" Storm Drain Line LF 62 $113.27 $7,022.74
10 2" Asphalt Concrete Pavement SF 950 $11.60 $11,020.00 11 4" Pedestrian Concrete Pavement SF 3101 $9.68 $30,017.68 12 6" Vehicular Concrete Pavement SF 2738 $13.25 $36,278.50 13 6" Vertical Concrete Curb LF 14 $227.09 $3,179.26
14 ADA Ramp EA 1 $3,570.00 $3,570.00
15 Striping and Signage (ADA Parking Stalls) LS 1 $5,300.00 $5,300.00 16 Picnic Table EA 20 $1,497.15 $29,943.00
17 ADA Picnic Table EA 4 $1,717.49 $6,869.96
18 Service Table EA 2 $1,818.49 $3,636.98
19 Barbeque Grill EA 2 $1,654.10 $3,308.20
20 Trash Receptables EA 2 $3,292.53 $6,585.06
21 Site Lighting (Rotate Existing Fixtures) EA 1 $6,650.00 $6,650.00 22 Irrigation System (Spray Head Relocation) LS 1 $11,900.00 $11,900.00 23 Soil Preparation SF 1765 $2.31 $4,077.15
24 Turf Installation from Seed SF 1765 $2.14 $3,777.10
25 3" Bark Mulch SF 1439 $1.21 $1,741.19
26 Landscape Establishment and Maintenance EA 4 $1,536.84 $6,147.36 Period (Monthly)
Subtotal: $304,074.18
Bid Alternate 1
101 Shade Structure LS 1 $289,000.00 $289,000.00
102 Shade Shelter Lighting LS 1 $18,670.00 $18,670.00
Subtotal: $307,670.00
Total: $611,744.18
Percent From Engineer's Estimate: 3.37%
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Frontline General Engineering Construction, Inc.
(510) 954-0739 4448 W. Pine Haven Drive, Tracy, CA 95304 Base Bid
1 Mobilization and Demobilization LS 1 $36,122.93 $36,122.93 2 Site Preparation LS 1 $9,333.40 $9,333.40
3 Temporary Fencing LS 1 $10,567.35 $10,567.35
4 Clearing and Grubbing LS 1 $10,267.20 $10,267.20
5 Demolition LS 1 $22,230.22 $22,230.22
6 Earthwork and Grading LS 1 $31,050.00 $31,050.00
7 Storm Drain Inlet 12"x12" (Pre-Cast) EA 1 $3,442.24 $3,442.24 8 Storm Drain Outlet 6" (NDS) EA 1 $1,177.32 $1,177.32
9 4" Storm Drain Line LF 62 $76.23 $4,726.26
10 2" Asphalt Concrete Pavement SF 950 $7.16 $6,802.00
11 4" Pedestrian Concrete Pavement SF 3101 $11.44 $35,475.44 12 6" Vehicular Concrete Pavement SF 2738 $16.88 $46,217.44 13 6" Vertical Concrete Curb LF 14 $299.68 $4,195.52
14 ADA Ramp EA 1 $6,371.52 $6,371.52
15 Striping and Signage (ADA Parking Stalls) LS 1 $6,668.28 $6,668.28 16 Picnic Table EA 20 $1,912.07 $38,241.40
17 ADA Picnic Table EA 4 $1,971.10 $7,884.40
18 Service Table EA 2 $2,174.01 $4,348.02
19 Barbeque Grill EA 2 $687.13 $1,374.26
20 Trash Receptables EA 2 $3,061.45 $6,122.90
21 Site Lighting (Rotate Existing Fixtures) EA 1 $5,448.70 $5,448.70 22 Irrigation System (Spray Head Relocation) LS 1 $16,497.90 $16,497.90 23 Soil Preparation SF 1765 $3.90 $6,883.50
24 Turf Installation from Seed SF 1765 $3.01 $5,312.65
25 3" Bark Mulch SF 1439 $2.38 $3,424.82
26 Landscape Establishment and Maintenance EA 4 $2,455.25 $9,821.00 Period (Monthly)
Subtotal: $340,006.67
Bid Alternate 1
101 Shade Structure LS 1 $249,509.06 $249,509.06
102 Shade Shelter Lighting LS 1 $25,612.80 $25,612.80
Subtotal: $275,121.86
Total: $615,128.53
Percent From Engineer's Estimate: 3.94%
Engineer's Estimate
Base Bid
1 Mobilization and Demobilization LS 1 $5,000.00 $5,000.00 2 Site Preparation LS 1 $5,000.00 $5,000.00
3 Temporary Fencing LS 1 $3,000.00 $3,000.00
4 Clearing and Grubbing LS 1 $5,000.00 $5,000.00
5 Demolition LS 1 $25,000.00 $25,000.00
6 Earthwork and Grading LS 1 $15,000.00 $15,000.00
7 Storm Drain Inlet 12"x12" (Pre-Cast) EA 1 $2,500.00 $2,500.00 8 Storm Drain Outlet 6" (NDS) EA 1 $1,500.00 $1,500.00
9 4" Storm Drain Line LF 62 $22.00 $1,364.00
10 2" Asphalt Concrete Pavement SF 950 $2.25 $2,137.50
11 4" Pedestrian Concrete Pavement SF 3101 $21.00 $65,121.00 #14..
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12 6" Vehicular Concrete Pavement SF 2738 $27.00 $73,926.00 13 6" Vertical Concrete Curb LF 14 $15.00 $210.00
14 ADA Ramp EA 1 $8,000.00 $8,000.00
15 Striping and Signage (ADA Parking Stalls) LS 1 $2,500.00 $2,500.00 16 Picnic Table EA 20 $2,500.00 $50,000.00
17 ADA Picnic Table EA 4 $2,500.00 $10,000.00
18 Service Table EA 2 $2,500.00 $5,000.00
19 Barbeque Grill EA 2 $3,500.00 $7,000.00
20 Trash Receptables EA 2 $2,500.00 $5,000.00
21 Site Lighting (Rotate Existing Fixtures) EA 1 $2,500.00 $2,500.00 22 Irrigation System (Spray Head Relocation) LS 1 $5,004.28 $5,004.28 23 Soil Preparation SF 1765 $1.26 $2,223.90
24 Turf Installation from Seed SF 1765 $2.00 $3,530.00
25 3" Bark Mulch SF 1439 $0.88 $1,266.32
26 Landscape Establishment and Maintenance EA 4 $1,750.00 $7,000.00 Period (Monthly)
Subtotal: $313,783.00
Bid Alternate 1
101 Shade Structure LS 1 $258,000.00 $258,000.00
102 Shade Shelter Lighting LS 1 $20,000.00 $20,000.00
Subtotal: $278,000.00
Total: $591,783.00
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CITY OF MODESTO

COUNCIL AGENDA REPORT
DATE OF MEETING:

November 12, 2024
Date: October 22, 2024
TO: Mayor and City Council
THROUGH: Joseph P. Lopez, City Manager
FROM: Jeremy Rogers, Director of Parks, Recreation and Neighborhoods SUBJECT: Reject Bids for the Virginia Corridor Phase 7 Project CONTACT: Ken Peterson, Acting Parks Planning and Development Manager, [email protected], 209-571-5573
DESCRIPTION:

Consider rejecting all bids received for the Virginia Corridor Phase 7 Project and authorizing staff to readvertise the project for bids at a future date. (Funding Source: Non-Motorized Local Transportation Funds, Parks & Air Qualify CFF, and Various Grants) STRATEGIC PLAN ELEMENT:

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

BACKGROUND:

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

On June 5, 2018, by Resolution No. 2018-211, Council accepted $3,193,401 from the California Urban Greening Grant Program to fund construction of the Virginia Corridor Phase 7 Trail. The Urban Greening Grant Program is funded by the California Climate Investments Fund (Carbon Cap and Trade tax dollars), which have been awarded to environmentally beneficial projects.

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

The construction of the Virigina Corridor has been completed in phases, with Phases 1 through 6 are complete. Phase 7 will be continuing the corridor from Woodrow Avenue to West Union Avenue.
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City Council, November 12, 2024
Reject Bids for the Virginia Corridor Phase 7 Project

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DISCUSSION:

The project was advertised for bids on August 15, 2024. Bids were publicly opened on September 24, 2024, pursuant to City Charter Section 1307, and three bids were received. All three bids received were above the engineer’s estimate.

In reviewing the bids submitted for the Virigina Corridor Phase 7 project, staff identified an error in the bid documents that necessitates the rejection of all received bids. For this reason, staff recommends the rejection of the three bids received and recommends re-advertising the project at a later date.

If approved, staff anticipates the re-advertisement of the project in early 2025 with the expectation that construction of this project to begin in spring 2025.

In accordance with Modesto Municipal Code Sec. 8-3.203, Formal Bid Procedures, the Council shall have the authority to accept or reject any or all bids. The rejection of all bids for the Virginia Corridor Phase 7 project conforms to Modesto Municipal Code 8-3.203, subsection (e).

FISCAL IMPACT:

If Council approves rejecting all bids, the additional expense to re-bid the project will be nominal, as it will only include a minor change to the bid documents, advertising and bidding the project, answering requests for information, and processing the item through to the award of the construction contract.

COMMITTEE RECOMMENDATION:

This project was presented to the Safety & Communities Committee on April 15, 2024, as a report on upcoming Parks, Recreation and Neighborhoods Capital Improvement construction projects and was recommended to be forward to Council for future award of construction. As stated in that Committee report, as bids are received, staff will present projects directly to Council for award of construction.

CEQA/NEPA REQUIREMENTS:

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

RECOMMENDED COUNCIL ACTION:

Staff Recommendations:

Resolution rejecting all bids for the Virginia Corridor Phase 7 Project, and authorizing staff to readvertise the project for bids at a future date. #15..
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City Council, November 12, 2024
Reject Bids for the Virginia Corridor Phase 7 Project

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Approved by:

Jeremy Rogers, Director of Parks, Recreation and
Neighborhoods Manager
Joseph P. Lopez, City Manager
Attachments:

1. Resolution
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MODESTO CITY COUNCIL
RESOLUTION NO. 2024-XX

RESOLUTION REJECTING ALL BIDS FOR THE VIRGINIA CORRIDOR PHASE 7 PROJECT, AND AUTHORIZING STAFF TO RE-ADVERTISE THE

PROJECT FOR BIDS AT A FUTURE DATE
WHEREAS, the project was advertised for bids on August 15, 2024, and WHEREAS, the bids were publicly opened on September 24, 2024, pursuant to City Charter Section 1307, and three bids were received, and WHEREAS, all three bids received were above the engineer’s estimate, and WHEREAS, in reviewing the bids submitted for the Virigina Corridor Phase 7 project, staff identified an error in the bid documents that necessitates the rejection of all received bids, and
WHEREAS, staff recommends the rejection of the three bids received and recommends re-advertising the project at a later date, and WHEREAS, in accordance with Modesto Municipal Code Sec. 8-3.203, Formal Bid Procedures, the Council shall have the authority to accept or reject any or all bids and WHEREAS, the rejection of all bids for the Virginia Corridor Phase 7 project conforms to Modesto Municipal Code 8-3.203, subsection (e).

NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Modesto that it hereby rejects all bids received for the Virginia Corridor Phase 7 Project.

BE IT FURTHER RESOLVED that staff is hereby authorized to re-advertise the project.
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The foregoing resolution was introduced at a regular meeting of the Council of the City of Modesto held on the 12th day of November, 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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CITY OF MODESTO

COUNCIL AGENDA REPORT
DATE OF MEETING:

November 12, 2024
Date: October 23, 2024
TO: Mayor and City Council
THROUGH: Joseph P. Lopez, City Manager
FROM: Jeremy Rogers, Director of Parks, Recreation and Neighborhoods Department SUBJECT: Second Amendment to Lease Agreement with Williams Scotsman, Inc. for Modular Building at Dryden Golf Course
CONTACT: Jessica Franco, Administrative Analyst II, [email protected], 209-577- 5278
DESCRIPTION:

Consider approving the Second Amendment with Williams Scotsman, Inc., Fresno, California, for the Modular Building at Dryden Golf Course increasing the Agreement amount by $35,000 and extending the term of the Agreement from December 28, 2024, to June 14, 2026. (Funding Source: Golf Fund)
STRATEGIC PLAN ELEMENT:

This item supports the City of Modesto 2020-2025 Strategic Plan focus on Quality of Life, Goal D: provide safe, efficient, and reliable infrastructure through proactive community investment, maintenance and sustainability efforts.

BACKGROUND:

On August 4, 2020, the Dryden Golf Park Clubhouse was heavily damaged by a fire. The Modesto Fire Department responded to the fire located at 920 Sunset Avenue and extinguished the blaze before the building was a complete loss.

The City contacted Alliant, the City’s property insurance provider, to establish a claim and to identify the next steps. The insurance provider contacted Williams Scotsman, Inc. (WillScot) to lease a modular building for Golf Course operations while the building was being secured. The office modular allowed for Golf Course operations to continue with minimal impact to the Golfers.

On March 16, 2021, the City assumed ownership of the lease to prevent an interruption in golf operations and loss of green fee revenue while the Clubhouse was to be rebuilt. #16..
- 472 -
City Council, November 12, 2024
Second Amendment to Lease Agreement with Williams Scotsman, Inc. for Modular Building at Dryden Golf Course

Page 2 of 3 ends

On December 6, 2022, the City amended the Lease Agreement to increase the amount by $45,362 to a revised total not to exceed $95,000. It also extended the Lease to December 28, 2024, as staff had anticipated the Clubhouse to be rebuilt by then.

DISCUSSION:

The Clubhouse project remains in its design phase due to the expansion of the project from a rebuild to a complete renovation. This expansion has delayed construction to late 2024 or early 2025.

The lease agreement for the Modular at Dryden Golf Course is nearing its end. Due to delayed construction, the agreement must be extended for an additional eighteen (18) months to the end of June 2026. Staff are confident this will be an adequate extension since construction is expected to take 8-10 months once it begins.

The monthly cost for this extension is estimated at $1,947 per month. Staff are requesting the current lease agreement to be increased by $35,000 from $95,000 to $130,000. This increase will cover the eighteen (18) month extension; final return charges; any applicable fees and/or taxes; and a contingency of approximately $5,700 for moving the modular, if needed, during the construction process.

Modesto Municipal Code Section 8-3.203 generally requires all purchases which meet or exceed $100,000 for material, equipment, or contractual services to be formally bid. However, exceptions to the formal bidding process are granted in MMC 8-3.204(f) where the Purchasing Manager, in his or her discretion, determines that it is appropriate to amend the services or goods provided under an existing agreement to include additional similar goods or services, of limited quantity or scope to increase efficiency and avoid delays or disruptions to City projects or services. WillScot qualifies for exemption from the formal bidding procedure in accordance with MMC 8-3.204(f) because a change in vendor would incur removal and installation fees as well as a possible loss in green fee revenue while the building is being replaced.

FISCAL IMPACT:

The total amount expended to date is $77,402 for the modular building since the initial lease agreement began in March 2021. All expenses are fully funded in the multi-year project for the Dryden Golf Clubhouse Renovation (No. 101294) of $5.2 million. The funding source is the Golf Fund.

COMMITTEE RECOMMENDATION:

This item was approved by the Safety and Communities Committee on October 14, 2024, where it was recommended to forward to Council for approval.

RECOMMENDED COUNCIL ACTION:

Staff Recommendations:

Resolution approving the Second Amendment with Williams Scotsman, Inc., Fresno, California, for the Modular Building at Dryden Golf Course increasing the Agreement amount by $35,000 to a new total amount of $130,000 and extending the term of the Agreement from December 28, 2024, to June 14, 2026; and authorizing the City Manager or his designee to execute the Amendment.
#16..
- 473 -
City Council, November 12, 2024
Second Amendment to Lease Agreement with Williams Scotsman, Inc. for Modular Building at Dryden Golf Course

Page 3 of 3 ends

Approved by:

Jeremy Rogers, Director
Parks, Recreation & Neighborhoods Department
Joseph P. Lopez, City Manager
Attachments:

1. Resolution

2. WillScot Lease Agreement No. 1437388

3. WillScot First Amendment to Lease Agreement

4. WillScot Second Amendment to Lease Agreement

5. WillScot Bid Waiver
#16..
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11/12/2024/PRN/JFranco/Item X 1 2024-XX

MODESTO CITY COUNCIL
RESOLUTION NO. 2024-XX

RESOLUTION APPROVING THE SECOND AMENDMENT WITH WILLIAMS SCOTSMAN, INC., FRESNO, CALIFORNIA, FOR THE MODULAR BUILDING

AT DRYDEN GOLF COURSE INCREASING THE AGREEMENT AMOUNT BY $35,000 TO A NEW TOTAL AMOUNT OF $130,000 AND EXTENDING THE TERM OF THE AGREEMENT FROM DECEMBER 28, 2024 TO JUNE 14, 2026;

AND AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO

EXECUTE THE AMENDMENT
WHEREAS, the City owns real property located at 920 Sunset Avenue (APN 037-036-003), known as the Dryden Golf Course; and
WHEREAS, on August 4, 2020, the Dryden Golf Park Clubhouse was heavily damaged by a fire; and
WHEREAS, the City’s property insurance company, Alliant, engaged Contractor to lease a modular building to serve as the Golf Course’s temporary Clubhouse; and WHEREAS, the City’s property insurance company, Alliant, transferred ownership of the lease to the City because their insurance services were no longer needed but the modular building needed to remain until the Clubhouse was rebuilt; and WHEREAS, the City assumed ownership of the lease in March 2021 to prevent an interruption in golf services and a loss in golf green fee revenue; and WHEREAS, on December 6, 2022, the City amended the Lease Agreement to increase the total amount not to exceed $95,000 and extend it to December 28, 2024; and WHEREAS, the Clubhouse project remains in its design phase due to the expansion of the project from a rebuild to a complete renovation; and WHEREAS, staff anticipates the Clubhouse renovation to start construction in late 2024 or early 2025 and expects completion within an 8–10-month period; and #16..
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11/12/2024/PRN/JFranco/Item X 2 2024-XX
WHEREAS, the current agreement must be extended for an additional eighteen (18) months to cover this period; and
WHEREAS, the monthly cost is estimated at $1,947 per month and staff recommends the existing Lease Agreement to be increased by $35,000 to a revised total not to exceed $130,000; and
WHEREAS, Modesto Municipal Code Section 8-3.203 generally requires all purchases which meet or exceed $100,000 for material, equipment, or contractual services to be formally bid. However, exceptions to the formal bidding process are granted in MMC 8-3.204(f) where the Purchasing Manager, in his or her discretion, determines that it is appropriate to amend the services or goods provided under an existing agreement to include additional similar goods or services, of limited quantity or scope in order to increase efficiency and avoid delays or disruptions to City projects or services; and
WHEREAS, Contractor qualifies for exemption from the formal bidding procedure in accordance with MMC 8-3.204(f) because a change in vendor would incur removal and installation fees as well as a possible loss in green fee revenue while the building is being replaced.

NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Modesto that it hereby approves the Second Amendment with Williams Scotsman, Inc., Fresno, California, for the Modular Building at Dryden Golf Course increasing the Agreement amount by $35,000 to a new total amount of $130,000 and extending the term of the Agreement from December 28, 2024 to June 14, 2026.
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11/12/2024/PRN/JFranco/Item X 3 2024-XX
BE IT FURTHER RESOLVED that the City Manager, or his designee, is hereby authorized to execute the Amendment to Lease 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 12th day of November, 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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I I Williams Scotsman, Inc.

WI L LS COT 2829 S. Chestnut Avenue
• _ Fresno, CA 93725-2224
Lease Agreement
Lessee: 23645637
City of Modesto
123
Modesto, California, 95351
TM
Contact:

Bob Quintella
123
Modesto, CA, 95351
Phone: 209 324 8495
Your Williams Scotsman Representative
Cole Curtis
Phone: 559-498-5905
Ship To Address:

Contract Number:1437388
Revision: 1
Date: March 03, 2021
920 Sunset Ave, .

MODESTO, CA, 95351 .

E-mail: [email protected]
Delivery Date(on or about):
3/12/2021
Rental Pricing Per Month
64x12 Mobile Office (60x12 Box)
Bas. Entrance-Steps T2
General Liability - Allen Insurance
Property Damage Waiver (11 /12)
ADA/IBC Ramp -w/ switchback
Prof. 2-Office/Conf Package T2
Minimum Lease Term: 12 Months
Delivery & Installation
Final Return Charges*
Tiedown-Asphalt Removal
Skirting Removal - Wood LF
Ramp - Knockdown & Return
Teardown
Return Freight
Scope Of Work '
Unit Number:

Quantity Price
$799.00
$75.00
$22.00
$89.00
$325.00
$250.00
Total Monthly Building Charges:
• Subtotal of Other Monthly Charges:

Total Rental Charges Per Month:

Total Delivery & Installation Charges:
12 144
1 $47.92
$7.33
$1 ,452.00
$240.00
$1 ,410.34
Due On Final Invoice*:

Total Charges Including ( 12 ) Month Rental, Delivery, Installation & Return*•:

Extended
$799.00
$75.00
$22.00
$89.00
$325.00
$250.00
$799.00
$761.00
$1,560.00
$0.00
$575.04
$1 ,055.52
$1,452.00
$240.00
$1,410.34
$4,732.90
$23,452.90
*Please note this quote accounts for any Prevailing Wage Labor Rates. This does not account for Permits or Pilot Cars that may be required for delivery/ return. Any applicable taxes or fees will be listed on the initial invoice. Building comes with Pre-Wired CAT-6 Phone/Data Hub & Window/Door Security included. Rates will be itemized on the initial invoice.

Summary of Charges
Model: MO6412 QUANTITY: Total Charges for (1) Building(s): $23,452.90 #16..
- 478 -

I WILLSCOT
I Williams Scotsman, Inc.
2829 S. Chestnut Avenue
Fresno, CA 93725-2224
TM
Your Williams Scotsman Representative ·
Cole Curtis
Phone: 559-498-5905
Email: [email protected]
Toll Free: 800-782-1500

INSURANCE REQUIREMENTS AODENDUM

QTY PRODUCT
MO6412
Lessee:City of Modesto

EQUIPMENT VALUE/BUILDING
$31795.00

DEDUCTIBLE PER UNIT
$3000.00
Contract Number:1437388
Revision: 1
Date: March 03, 2021
Pursuant to the Williams Scotsman Lease Agreement and its Terms and Conditions ("Agreement"), a Lessee is obligated to provide insurance to Williams Scotsman, Inc. {"Lessor") with the following insurance coverage:

1. Commercial General Liability Insurance: policy of combined bodily injury and property damage insurance insuring Lessee and Lessor against any liability arising out of the use, maintenance, or possession of the Equipment. Such insurance shall be in an amount not less than $1 ,000,000 per occurrence, naming the Lessor as Additional Insured and Loss Payee.

2. Commercial Property Insurance: covering all losses or damage, in an amount equal to 100% of the Equipment Value set forth in the Lease providing protection against perils included within the classification and special extended perils (all "risk" insurance), naming the Lessor as Additional Insured and Loss Payee.

By signing below, the Lessee agrees to the terms and conditions stated herein. All other general Terms and Conditions of the Agreement shall remain the same and in full force and effect. Each party is hereby authorized to accept and rely upon a facsimile or electronic signature of the other party on this Addendum. Any such signature shall be treated as an original signature for all purposes.

Commercial General Liability Insurance
Lessee elects to participate in the Commercial General Liability Insurance Program, whereby Lessee will receive insurance coverage through American Southern Insurance Company ("Insurer") and administered by Allen Insurance Group ("Agent"). The Lessee acknowledges and agrees that the policy issued by the Insurer is a third party liability policy that covers those amounts that Lessee is legally obligated to pay due to bodily insurance and property damage arising from the proper use and occupancy of Equipment leased from Williams Scotsman up to the policy limits. Coverage is subject to underwriting and specific terms and conditions set forth in the policy. An outline of cover is available upon request. By signing below, Lessee understands and agrees that the Lessor is not providing the insurance coverage and serves only as a billing agent for the Insurer and its Agent; and, accordingly, it assumes no liability therefore.

Signature of Lessee: ~..,.,._...,_~~-- -----PrintName: ~o/~ Date:

Damage Waiver Program
Lessee elects to participate in the Lessor's Damage Waiver Program. Lessee understands and agrees that under this program, the Lessor waives, for a fee, Lessee's obligation to carry Commercial Property Insurance and Lessee's liability to Lessor for rep.,iir or_replacement of the modular units leased from Williams Scotsman resulting from loss or damage as specified in the Lease Agreement. Lessee remains liable to Williams Scotsman for the amount of the damage deductible per unit of equipment noted above. Please refer to the Agreement for specific details on coverage, exclusions and restrictions on coverage. The Property Damage Waiver is not and shall not constitute a contract for insurance. s;goat,reofles~ec ~ Pdo!Namec J"'¥/.7t.-wz_ Date _ q__, IZ.7( 1 Please return this signed document with the signed lease agreement ifitr
#16..
- 479 -
I I Williams Scotsman, Inc.

WI L LS COT 2829 S. Chestnut Avenue
• • Fresno, CA 93725-2224
T"
Clarifications
Your Williams Scotsman Representative
1Cole Curtis
Phone: 559-498-5905
Email: [email protected]
Toll Free: 800-782-1500
Contract Number:1437388
Revision: 1
Date: March 03, 2021
*Final Return Charges are estimated and will be charged at Lessor's market rate at time of return for any Lease Term greater than twelve (12) months. **All prices exclude applicable taxes. All Lessees and Leases are subject to credit review. In addition to the stated prices, customer shall pay any local, state or provincial, federal and/or personal property tax or fees related to the equipment identified above ("Equipment"), its value or its use. Lessee acknowledges that upon delivery of the Equipment, this Agreement may be updated with the actual serial number(s), delivery date(s), lock serial number(s), etc, if necessary and Lessee will be supplied a copy of the updated information. Prices exclude taxes, licenses, permit fees, utility connection charges, site preparation and permitting which is the sole responsibility of Lessee, unless otherwise expressly agreed by Lessor in writing.

Lessee is responsible for locating and marking underground utilities prior to delivery and compliance with all applicable code requirements unless otherwise expressly agreed by the Lessor in writing. Price assumes a level site with clear access. Lessee must notify Lessor prior to delivery or return of any potentially hazardous conditions or other site conditions that may otherwise affect delivery, installation, dismantling or return of any Equipment.

Failure to notify Lessor of such conditions will result in additional charges, as applicable. Physical Damage & Commercial Liability insurance coverage is required beginning on the date of delivery. Lessor is not responsible for changes required by code or building inspectors. Pricing is valid for thirty (30) days.

Please note the following important billing terms:

In addition to the first month rental and initial charges, last month rent for building, other monthly rentals/service (excluding last month for General Liability Insurance and Property Damage Waivers), will be billed on the initial invoice. Any amounts prepaid to Williams Scotsman will be credited on the final invoice.

Invoices are due on receipt, with a twenty (20) day grace period. Interest will be applied to all past due amounts.

Invoices are due on receipt, with a twenty (20) day grace period. Late fees will be applied to all past due amounts.

Williams Scotsman preferred method of payment is ACH . Payments made by check are subject to a Paper Check Fee, charged on the next invoice following payment by check.

Williams Scotsman preferred method of invoicing is via electronic transmission. Customers are encouraged to provide an email address or use BillTrust. Invoices sent standard mail are subject to a paper invoice fee, charged on the following invoice.

Lessor hereby agrees to lease to Lessee and Lessee hereby agrees to lease from Lessor Modular Equipment and Value Added Products (as such items are defined in Lessor's General Terms & Conditions) selected by Lessee as set forth in this Agreement. All such items leased by the Lessee for purposes of this Lease shall be referred to collectively as the "Equipment". By its signature below, Lessee hereby acknowledges that it has read and agrees to be bound by the Lessor's General Terms & Conditions (09-01-19) located on Lessor's internet site {https://www.willscot.com/About/terms-conditions) in their entirety, which are incorporated herein by reference and agrees to lease the Equipment from Lessor subject to the terms therein. Although Lessor will provide Lessee with a copy of the General Terms & Conditions upon written request, Lessee should print copies of this Agreement and General Terms & Conditions for record keeping purposes. Each party is authorized to accept and rely upon a facsimile signature, digital, or electronic signatures of the other party on this Agreement. Any such signature will be treated as an original signature for all purposes and shall be fully binding. The undersigned represent that they have the express authority of the respective party they represent to enter into and execute this Agreement and bind the respective party thereby.

Invoicing Options (select one)
[ ]Paperless Invoicing Option
Willia s cotsman prefers electronic invoicing, an efficient, convenient and environmentally friendly process. To avoid fees, provide us with the proper email address for your invoices.

A/P Email: APVuzdorS € moc/4.s+oqov. Com
A/P Email on File:

Signatures
Lessee:: City of Modesto
Signature:

Print Nam
Title:

Date:

PO#
PLEASE RETURN SIGNED AGREEMENT TO: [email protected] Lessor:
[ ]Standard Mail Option
Customer prefers to receive paper invoice via mail. Fees may apply.

Invoices will be mailed to:
123
Modesto California 95351
Enter a new billing address: _____ ______ __ _
Williams Scotsman, Inc.

Signature:

Print Name:

Title:

Date:
#16..
- 480 -
I I Williams Scotsman, Inc.

WI L LS COT 2829 S. Chestnut Avenue
• • Fresno, CA 93725-2224
Lease Agreement
Lessee:

City of Modesto
123
Modesto, California, 95351
TM
Contact:

Bob Quintella
123
Modesto, CA, 95351
Phone: (209) 577-6217
Your WIiiiams Scotsman Representative
Cole Curtis
Phone: 559-498-5905
Email: [email protected]
Toll Free: 800-782-1500
Ship To Address:

Contract Number:1437388
Revision: 1
Date: March 03, 2021
920 Sunset Ave,
MODESTO, CA, 95351
E-mail: [email protected]
Delivery Date(on or about):
3/12/2021
Rental Pricing Per Month
64x12 Mobile Office (60x12 Box) Unit Number:

Bas. Entrance-Steps T2
General Liability - Allen Insurance
Property Damage Waiver (11/12)
ADA/IBC Ramp -w/ switchback
Prof. 2-Office/Conf Package T2
Minimum Lease Term: 12 Months
Delivery & Installation
Final Return Charges•
Tiedown-Asphalt Removal
Skirting Removal - Wood LF
Ramp - Knockdown & Return
Teardown
Return Freight
Quantity Price
$799.00
$75.00
$22.00
$89.00
$325.00
$250.00
Total Monthly Building Charges:

Subtotal of Other Monthly Charges:

Total Rental Charges Per Month:

Total Delivery & Installation Charges:
12 144
$47.92
$7.33
$1,452.00
$240.00
$1,410.34
Due On Final Invoice•:

Total Charges Including ( 12) Month Rental, Delivery, Installation & Return":

Scope Of Work
Extended
$799.00
$75.00
$22.00
$89.00
$325.00
$250.00
$799.00
$761.00
$1,560.00
$0.00
$575.04
$1,055.52
$1,452.00
$240.00
$1,410.34
$4,732.90
$23,452.90
*Please note this quote accounts for any Prevailing Wage Labor Rates. This does not account for Permits or Pilot Cars that may be required for delivery/ return. Any applicable taxes or fees will be listed on the initial invoice. Building comes with Pre-Wired CAT-6 Phone/Data Hub & Window/Door Security included. Rates will be itemized on the initial invoice.

Summary of Charges
Model: MO6412 QUANTITY: Total Charges for (1) Building(s): $23,452.90 #16..
- 481 -
I I Williams Scotsman, Inc.

WI L LS COT 2829 S. Chestnut Avenue
• • Fresno, CA 93725-2224
TM

INSURANCE REQUIREMENTS ADDENDUM
Your Williams Scotsman Representative
Cole Curtis
Phone: 559-498-5905
Email: [email protected]
Toll Free: 800-782-1500

QTY PRODUCT
MO6412

EQUIPMENT VALUE/BUILDING
$31795.00

DEDUCTIBLE PER UNIT
$3000.00
Lessee:City of Modesto
Contract Number:1437388
Revision: 1
Date: March 03, 2021
Pursuant to the Williams Scotsman Lease Agreement and its Terms and Conditions ("Agreement"), a Lessee is obligated to provide insurance to Williams Scotsman, Inc. ("Lessor") with the following insurance coverage:

SignatureofLessee: ~ Print Name: , ~k Date: ~ .. ,._·I .. J._.•~------- Damage Waiver Program
Lessee elects to participate in the Lessor's Damage Waiver Program. Lessee understands and agrees that under this program, the Lessor waives, for a fee, Lessee's obligation to carry Commercial Property Insurance and Lessee's liability to Lessor for repair or replacement of the modular units leased from Williams Scotsman resulting from loss or damage as specified in the Lease Agreement. Lessee remains liable to Williams Scotsman for the amount of the damage deductible per unit of equipment noted above. Please refer to the Agreement for specific details on coverage, exclusions and restrictions on coverage. The Property Damage Waiver is not and shall not constitute a contract for insurance.

Signature of Lessee: Jfa ---~......_,__:....:;.., _ ____ Print Name: J~~e_ Date:

Please return this signed document with the signed lease agreement #16..
- 482 -
~---------~c,

W I LL I AMS
SCOTSMAN 800. 782.1500
AnALGECO SCOTSMAN Company w w w . w i I I s c o t .c o m ... -,
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IT) I IT) I
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Specifications
Size
64' Long (including hitch)
60' Box size
12' Wide nominal
8' Ceiling height nominal
0-~

T) I IMI
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,:__.:, ... -, I\ /I
IT) I
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Interior Finish
Paneled walls
Vinyl tile floors
Grid ceiling
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Electric
Fluorescent ceiling lights
120/240 volt single phase electric
100 AMP breaker panel
Windows/Doors
Horizontal slider windows
Std doors w/ vison panel, std lockset
M06412

MOBILE OFFICE

FLOOR PLAN
~-12] ... -, I\ /I I T) IT) I IM I IMI
I/ \I 111 ,:__.:, .-, I\ /I I\ /I
IT) I IT) I IM I ~Ml I/ \I
,:__.:, I-~
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Exterior Finish/Frame
-
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-
Wood siding & trim
I-Beam outrigger frame
Standard drip rail gutters
Heating & Cooling
Wall mount HVAC
Additional floor plans available. Floor plans and specifications may vary from those shown and are subject to in-stock availability.

CAD FILE: I OWG # f REV# I REP: I APPROVAL:

WS2013· IA-1 10 I . I ---------~---------+--------4--------~ SCALE: I SERIAL#: I DATE I OWN BY: I APVL DATE:
1/8"=1' I I I I

THE USE OF THIS DRAWING FDR ANY MEANS OTHER THAT

INTENDED IS STRICTLY PROHIBITED WITHOUT THE PRIOR

WRITTEN CONSENT OF AN AUTHORIZED WILLIAMS
SCOTSMAN REPRESENTATIVE.
{C) Wllllams Scotsman, Inc. All Rights Reserved.
. • ..
" ..
f
#16..
- 483 -
Amendment Lease Renewal 5-5-2021

AMENDMENT TO LEASE AGREEMENT
(LEASE TERM RENEWAL)
LESSEE:

CITY OF MODESTO
1010 10TH ST #5200
MODESTO, CA 95354
EQUIPMENT LOCATION:
920 SUNSET AVE
MODESTO, CA 95351
Contract Number: 1338487
Equipment Serial/Complex Number: UM2-51303
Insurance Replacement Value: $31,795.00
By this Amendment, Williams Scotsman, Inc. and the Lessee (listed above) agree to modify the original lease agreement, dated 03/29/2021 (“Lease Agreement”) as set forth below.

1. The rental term for the equipment identified above, shall be renewed from 012/29/2022 through 12/28/2024 (the “Lease Renewal Term”).

2. The rental rate during the Lease Renewal Term shall be $838.95 plus applicable taxes, which Lessee agrees to pay Lessor in advance as set forth in the Lease during the Lease Renewal Term.

3. Knockdown and return freight shall be at Lessor’s prevailing rate at the time the Equipment is returned.

4. BAS. ENTRANCE-STEPS (1) (Monthly) $78.75
ADA/IBC RAMP -W/ SWITCHBACK (1) (Monthly) $341.25
PROF. 2-OFFICE/CONF PACKAGE (1) (Monthly) $262.50
GENERAL LIABILITY - ALLEN INSU (1) (Monthly) $22.00
PROPERTY DAMAGE WAIVER (1) (Monthly) $89.00

5. All other Terms and Conditions of the original Lease Agreement shall remain the same and in full force and effect.

ACCEPTED:

LESSEE: CITY OF MODESTO LESSOR: WILLIAMS SCOTSMAN, INC.

Signature: Signature:

Print
Name:

Print Name:

Title: Title:

Date: Date:

Attest:

DocuSign Envelope ID: 957FA918-92F5-415A-AF34-7F38E66B3C5C 1/9/2023
Ana Smith
CSS
Joseph P. Lopez
12/14/2022
City Manager
Diane Nayares-Perez
#16..
- 484 -
Amendment Lease Renewal 5-5-2021

AMENDMENT TO LEASE AGREEMENT
(LEASE TERM RENEWAL)
LESSEE:

CITY OF MODESTO
1010 10TH ST #5200
MODESTO CA 95354
EQUIPMENT LOCATION:
920 SUNSET AVE
MODESTO CA 95351
Contract Number: W1338487
Equipment Serial/Complex Number: UM2-51303
Insurance Replacement Value: $31,795.00
By this Amendment, Williams Scotsman, Inc. and the Lessee (listed above) agree to modify the original lease agreement, dated 03/29/2021 (“Lease Agreement”) as set forth below.

1. The rental term for the equipment identified above, shall be renewed from 12/29/2024 through 06/14/2026 (the “Lease Renewal Term”).

2. The rental rate during the Lease Renewal Term shall be $1,788.53 plus applicable taxes, which Lessee agrees to pay Lessor in advance as set forth in the Lease during the Lease Renewal Term.

3. Knockdown and return freight shall be at Lessor’s prevailing rate at the time the Equipment is returned.

4. 64X12 MOBILE OFFICE…………………………………………………………………...$817.03 CA LICENSE FEE……………………………………………………………………………..$3.92
BAS. ENTRANCE-STEPS T2…………………………………….…………………………$86.63
GENERAL LIABILITY - ALLEN INSU…………………………………………………….$22.00 PROPERTY DAMAGE WAIVER (11/12)…………………………………………………..$89.00 ADA/IBC RAMP -W/ SWITCHBACK…………………………………………………….$375.38 PROF. 2-OFFICE/CONF PACKAGE T2…………………………………………………...$288.75 DATA HUB RENTAL T2 -…………………………………………………………………..$67.32
WINDOW/DOOR SECURITY BUNDLE…………………………………………………...$38.50

5. All other Terms and Conditions of the original Lease Agreement shall remain the same and in full force and effect.

ACCEPTED:

LESSEE: CITY OF MODESTO LESSOR: WILLIAMS SCOTSMAN, INC.

Signature: Signature:

Print
Name:

Print Name:

Title: Title:

Date: Date:
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- 494 -

CITY OF MODESTO

COUNCIL AGENDA REPORT
DATE OF MEETING:

November 12, 2024
Date: October 10, 2024
TO: Mayor & City Council
THROUGH: Joseph P. Lopez, City Manager
FROM: William Wong, Director of Utilities
SUBJECT: Engineering Services Agreement with Westwood Professional Services Sonoma Sewer Trunk Phase 4b Project
CONTACT: Cristian C. Ciotau, Engineering Division Manager [email protected], 209-571-5175
DESCRIPTION:

Consider approving an Engineering Services Agreement with Westwood Professional Services (formerly O’Dell Engineering), of Modesto, CA, for the Sonoma Sewer Trunk Phase 4b Project in an amount not to exceed $80,300. (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 Wastewater Collection System Master Plan identifies the Sonoma Trunk Extensions as a system that must be constructed to serve future development of the Roselle/Claribel Comprehensive Planning District located in the northeast area of the City. Within this area is the proposed Tivoli Development which will require the construction of the Sonoma Trunk Extensions.

Westwood Professional Services (Westwood), has been involved with preliminary engineering studies for the Tivoli Development and has assisted the City, as well as the development groups. Westwood is the design engineer for the first phase of the Tivoli Development, located at Sylvan Avenue and Aria Way, and for the Sonoma Sewer Trunk Phases 3 and 4a.

The first phase of the Sonoma Trunk Extension has been constructed along Sylvan Avenue, from Wood Sorrel Drive to Aria Way. The second phase has also been constructed and includes the Tivoli Lift Station and sewer main improvements along Oakdale Road. Phases 3 and 4a are anticipated to begin construction in the winter of 2024. #17..
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City Council Meeting, November 12, 2024
Engineering Services Agreement with Westwood Professional Services Sonoma Sewer Trunk Phase 4b Project

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The last portion of the Sonoma Trunk extension is Phase 4b, which will consist of the installation of approximately 1,500 feet of 18-inch and 21-inch diameter sewer trunk beginning at the proposed alignment of Mable Avenue and continuing northerly to the proposed alignment of Claratina Ave.

DISCUSSION:

Modesto Municipal Code Section 8-3.203 generally requires all purchases, which meet or exceed $100,000 for material, equipment, or contractual services to follow formal bid procedures. However, exceptions to the formal bidding process are granted in Modesto Municipal Code Section 8-3.204(d) “Where the Purchasing Manager, in his or her discretion, determiners that a process other than the formal bid procedure set forth in Section 8-3.203 will result in procurement for the City at the lowest possible cost commensurate with the desired quality”.

Although this contract is for less than $100,000, selecting Westwood will still result in a procurement at the lowest possible cost commensurate with the desired quality. Here, considering that the Tivoli Development requires the sewer trunk extension to be installed prior to the development to transpire, staff coordinated with the Tivoli Development team on the partnering opportunity to utilize Westwood to design Phase 4b of the Sonoma Trunk Extensions.

Westwood’s involvement with the Tivoli Development, familiarity and knowledge of City Standards and being the engineer of record for the Sonoma Sewer Trunk Phases 3 and 4a, provides them with project understanding that will benefit the design of the proposed Sonoma Sewer Trunk Phase 4b Project. Westwood has rendered satisfactory services with the City on previous projects which includes the Sutter Trunk Rehabilitation and Highway Village Strengthen and Replace Water mains projects. Selecting a new engineering to provide these services will require the new firm to familiarize itself with the Tivoli Development and Sonoma Sewer Trunk Phases 3 and 4a, which will result in inefficiencies and increased costs.

The scope of services to be provided under this agreement includes:
 Topographic Survey
 Preliminary Design Report
 Construction Documents
 Site Specific Stormwater Pollution Prevention Plan
 Project Management and Meetings
 Bid Support Services
Although this contract is for less than $100,000, selecting Westwood will still result in a procurement at the lowest possible cost commensurate with the desired quality. Selecting a new engineering firm to provide these services will require the new firm to familiarize itself with the Tivoli Development and Sonoma Sewer Trunk Phases 3 and 4a, which will result in inefficiencies and increased costs.

Therefore, staff recommends that an Engineering Services Agreement with Westwood Professional Services for the Sonoma Sewer Trunk Phase 4b Project should be exempt from the formal bidding procedures in accordance with Modesto Municipal Code 8-3.204(d). #17..
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City Council Meeting, November 12, 2024
Engineering Services Agreement with Westwood Professional Services Sonoma Sewer Trunk Phase 4b Project

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FISCAL IMPACT:

Expenses associated with the Sonoma Trunk Sewer Phase 4b Project will be housed in the following Capital Improvement Program Project:
101620 – Sonoma Sewer Trunk Ph 4
ANTICIPATED ENGINEERING EXPENDITURES:

Construction $1,500,000
Construction Contingency $200,000
Construction Administration – City Staff $200,000
Engineering Services Agreement – Westwood $73,000
10% Additional Services, if needed $7,300
Engineering/Design/Administration – City Staff $50,000
TOTAL: $2,030,300

COMMITTEE RECOMMENDATION
This item was considered by the Economic Development Committee at the meeting held on October 7, 2024, where it was recommended that it be forwarded to Council for approval.

CEQA/NEPA REQUIREMENTS:

Environmental review has been provided through the 2017 Wastewater Master Plan Environmental Impact Report (EIR) (SCH # 2016062033) certified by Council on January 28, 2020.

RECOMMENDED COUNCIL ACTION:

Staff Recommendation:

Resolution approving an Engineering Services Agreement with Westwood Professional Services (formerly O’Dell Engineering), of Modesto, CA, for the Sonoma Sewer Trunk Phase 4b Project in the amount of $73,000, plus $7,300 in additional services, if needed, for a total amount not to exceed $80,300 and authorizing the City Manager, or his designee, to execute the Agreement.

Resolution approving an amendment to the Fiscal Year 2024-25 Capital Improvement Program Budget in the amount of $2,005,300 to be transferred into the Project from Wastewater Reserves to fund the Sonoma Sewer Trunk Phase 4b Project and authorizing the City Manager to take the necessary steps to implement the provisions of this Resolution.

Approved by:

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

1. Resolutions (2)

2. Westwood - Engineering Services Agreement & exhibits

3. Westwood - Bid Waiver Approval Form
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11/12/2024/Utilities/CCiotau/ItemX 1 2024-XX

MODESTO CITY COUNCIL
RESOLUTION NO. 2024-XX

RESOLUTION APPROVING AN ENGINEERING SERVICES AGREEMENT
WITH WESTWOOD PROFESSIONAL SERVICES (FORMERLY O’DELL

ENGINEERING), OF MODESTO, CA, FOR THE SONOMA SEWER TRUNK PHASE 4B PROJECT IN THE AMOUNT OF $73,000, PLUS $7,300 IN

ADDITIONAL SERVICES, IF NEEDED, FOR A TOTAL AMOUNT NOT TO EXCEED $80,300 AND AUTHORIZING THE CITY MANAGER, OR HIS

DESIGNEE, TO EXECUTE THE AGREEMENT
WHEREAS, the Wastewater Collection System Master Plan identifies the Sonoma Trunk Extensions as a system that must be constructed to serve future development of the Roselle/Claribel Comprehensive Planning District located in the northeast area of the City, and
WHEREAS, within this area is the proposed Tivoli Development which will require the construction of the Sonoma Trunk Extensions, and WHEREAS, Westwood Professional Services (Westwood), has been involved with preliminary engineering studies for the Tivoli Development, and WHEREAS, Westwood is the design engineer for the first phase of the Tivoli Development, located at Sylvan Avenue and Aria Way, and for the Sonoma Sewer Trunk Phases 3 and 4a, and
WHEREAS, the Sonoma Trunk extension Phase 4b will consist of the installation of approximately 1,500 feet of 18-inch and 21-inch diameter sewer trunk beginning at the proposed alignment of Mable Avenue and continuing northerly to the proposed alignment of Claratina Ave, and
WHEREAS, here, considering that the Tivoli Development requires the sewer trunk extension to be installed prior to the development to transpire, staff coordinated #17..
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11/12/2024/Utilities/CCiotau/ItemX 2 2024-XX
with the Tivoli Development team on the partnering opportunity to utilize Westwood to design Phase 4b of the Sonoma Trunk Extensions, and
WHEREAS, Westwood’s involvement with the Tivoli Development, familiarity and knowledge of City Standards and being the engineer of record for the Sonoma Sewer Trunk Phases 3 and 4a, provides them with project understanding that will benefit the design of the proposed Sonoma Sewer Trunk Phase 4b Project, and WHEREAS, staff recommends that an Engineering Services Agreement with Westwood Professional Services for the Sonoma Sewer Trunk Phase 4b Project should be exempt from the formal bidding procedures in accordance with Modesto Municipal Code 8-3.204(d).

NOW, THEREFORE BE IT RESOLVED by the Council of the City of Modesto that it hereby approves an Engineering Services Agreement with Westwood Professional Services (formerly O’Dell Engineering) of Modesto, CA, for the Sonoma Sewer Trunk Phase 4b Project in the amount of $73,000, plus $7,300 in additional services, if needed, for a total amount not to exceed $80,300.

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 12th day of November 2024, by _______________, who moved its adoption, which motion being duly seconded by _______________, was upon roll call carried and the resolution adopted by the following vote:

AYES: Councilmembers:

NOES: Councilmembers:
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11/12/2024/Utilities/CCiotau/ItemX 3 2024-XX
ABSENT: Councilmembers:

ATTEST:

DIANE NAYARES-PEREZ, CMC, City Clerk
(SEAL)
APPROVED AS TO FORM:

BY: ____________________________________
JOSE M. SANCHEZ, City Attorney
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11/12/2024/Utilities/CCiotau/ItemX 1 2024-XX

MODESTO CITY COUNCIL
RESOLUTION NO. 2024-XX
RESOLUTION APPROVING AN AMENDMENT TO THE FISCAL YEAR 2024- 25 CAPITAL IMPROVEMENT PROGRAM BUDGET IN THE AMOUNT OF
$2,005,300 TO BE TRANSFERRED INTO THE PROJECT FROM

WASTEWATER RESERVES TO FUND THE SONOMA SEWER TRUNK
PHASE 4B PROJECT AND AUTHORIZING THE CITY MANAGER TO TAKE

THE NECESSARY STEPS TO IMPLEMENT THE PROVISIONS OF THIS

RESOLUTION
WHEREAS, certain budgetary transactions are necessary in the amount of $2,005,300, in order to fund the Sonoma Sewer Trunk Phase 4B Project, and WHEREAS, the Fiscal Year 2024-25 Capital Improvement 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 Capital Improvement Program Budget in the amount of $2,005,300 to be transferred into the Project from Wastewater Reserves to fund the Sonoma Sewer Trunk Phase 4B Project.

BE IT FURTHER RESOLVED that the City Manager, or his designee, is hereby authorized to implement the provisions of this resolution. #17..
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11/12/2024/Utilities/CCiotau/ItemX 2 2024-XX
The foregoing resolution was introduced at a regular meeting of the Council of the City of Modesto held on the 12th day of November 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 DESIGN SERVICES AGREEMENT
SONOMA SEWER TRUNK PHASE 4b 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 Westwood Professional Services (formerly O’Dell Engineering), a Texas Corporation, hereinafter referred to as "Consultant".

This Agreement is made with regard to the following recitals:

A. The City has determined that Engineering Design Services are necessary for the Sonoma Sewer Trunk Phase 4b 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.

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 #17..
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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 SEVENTY-THREE THOUSAND AND 00/100 DOLLARS ($73,000.00) (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. #17..
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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 SEVEN THOUSAND, THREE HUNDRED AND 00/100 DOLLARS ($7,300.00). 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 EIGHTY THOUSAND, THREE HUNDRED AND 00/100 DOLLARS ($80,300.00). 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 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.
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5. PERFORMANCE BY KEY EMPLOYEE.

Consultant has represented to City that Mike Persak, PE, 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 fifteen percent (15%) 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
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.
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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.

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 #17..
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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 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.
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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 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 #17..
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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: Westwood Professional Services
(formerly O’Dell Engineering)
Address: 1165 Scenic Drive, Suite A
Modesto, CA 95350
Attention: Mike Persak
Phone: (209) 571-1765 Ext. 132
E-mail: [email protected]
FOR CITY: Name: City of Modesto
Address: 1010 10th Street, Suite 4600
Modesto, CA 95354
Attention: Cristian Ciotau
Phone: (209) 571-5175
E-mail: [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.

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 #17..
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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 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.

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, #17..
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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;
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 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. #17..
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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.

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 #17..
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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, 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.

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 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 #17..
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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 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 #17..
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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 article or other commencement of performance hereunder. All previous proposals, offers and communications relative to this Agreement, whether oral or written, are hereby superseded #17..
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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.

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.
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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 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.

26. CITY BUSINESS LICENSE.

Consultant will have a City of Modesto business license.

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 Westwood Professional Services (formerly O’Dell Engineering) has caused this agreement to be duly executed as of the Effective Date. #17..
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CIVIL ENGINEERING PROPOSAL
J:\Marketing\M Projects\0058084.00 Sonoma Sewer Trunk 4b\_Preliminary Proposals\PROPOSAL-2024-08-29-Sonoma Sewer Trunk Phase 4b.docx

PROPOSAL
O’Dell Engineering
p:209.571.1765 | 1165 Scenic Drive, Suite A, Modesto, CA 95350 www.westwoodps.com | www.odellengineering.com 1
Date: August 29, 2024
To: Chris Meneo
City of Modesto

From: Mike Persak, E: [email protected]
Re: Sonoma Sewer Trunk, Phase 4b / Project P0058084
Project Description
This project includes the civil engineering design of the Sonoma Sewer Trunk Phase 4b Project. This project will install approximately 1,500 feet of 18” & 21” new Sewer Trunk beginning at the proposed alignment of Mable Avenue and continuing northerly to the proposed alignment of Claratina Avenue. See attached exhibit. Our design will be based upon the Sonoma Sewer Trunk Preliminary Design Report prepared for the City of Modesto by HDR Engineering. The following outline includes the tasks that will be performed.

Scope of Work
Task 1: Topographic Survey
• Perform cross-section survey of pipe alignment at 100-foot intervals. • Perform topographic survey of all hardscape and softscape, including: grade breaks, high points, low points. In flat areas, measure spot elevations in a grid pattern at 100-foot intervals. • Locate surface-visible utility features and improvements, such as: signs, fences, walls, buildings, striping, driveways, walkways, drainages, structures, lights, poles, bollards, general limits of vegetated or landscaped areas, USA markings, vaults, valves, meters, boxes, pedestals, cleanouts, manholes, drain inlets, catch basins, culverts, outfalls, and standpipes. • Trees 6” in diameter or larger will be located.
• At manholes and accessible structures measure invert elevation of all gravity storm drains and sewer pipes. Annotate topographic survey drawing with invert elevation, approximate diameter, and orientation of each pipe visible at the time of the survey. Where access is not practical, O’Dell Engineering shall indicate by notation on the mapping deliverable. • Prepare topographic map at a 1” = 20’ scale.

DELIVERABLE:
 Digital copy of the topographic survey in AutoCAD Civil 3D 2022 format.  PDF copy of topographic survey on O’Dell titleblock.

Task 1 Cost: T&M Estimated Budget $ 18,000.00
Task 2: Preliminary Design Report
• Confirm the design criteria and existing project documents.

EXHIBIT A
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J:\Marketing\M Projects\0058084.00 Sonoma Sewer Trunk 4b\_Preliminary Proposals\PROPOSAL-2024-08-29-Sonoma Sewer Trunk Phase 4b.docx

PROPOSAL
O’Dell Engineering
p:209.571.1765 | f:209.571.2466
1165 Scenic Drive, Suite A, Modesto, CA 95350 | www.odellengineering.com 2 • Create a base drawing (CAD) using the topo drawing (CAD file), as well as the project layout drawings. This will be used as the base for the improvement plan drawings. • Prepare a preliminary layout of the new sewer mains and connections based on the location of the proposed streets and other utilities.
• Prepare a Preliminary Design Report (10% design). This report shall include:
o Existing conditions
o Verification of design criteria
o Design concepts and alternatives for pipeline alignment, potential utility conflicts, manhole locations, etc.
o Proposed horizontal and vertical design
• Prepare preliminary engineer’s opinion of probable cost with allowances for contingencies. • Submit Preliminary Design Report to City for review.
• Perform minor revisions to Preliminary Design Report based on City comments.

DELIVERABLES:
 10% Preliminary Design Report, Electronic copies in PDF  Preliminary Engineer’s Opinion of Probable Cost, Electronic copies in PDF Task 2 Cost: T&M Estimated Budget $ 9,000.00
Task 3 : Construction Documents (PS&E)
• Based on the preliminary design report and any comments received from the City, prepare the 35% improvement plans with AutoCAD Civil 3D 2022. Prepare technical specifications outline for the project. Prepare an engineer’s opinion of probable cost based on the 35% plans. • The improvement plans shall at a minimum include:
o Cover Sheet
o Notes Sheet
o Utility Plans
o Plan & Profile Sheets (estimated 5 plan & profile sheets). o Detail Sheets
• Submit the 35% plans, engineer’s opinion of probable cost, and outline specifications to the City for review.
• Based upon the City’s review comments from the 35% submittal and the meeting with City staff to discuss the comments, prepare the 90% PS&E, incorporating City comments and any other comments received by local utilities.
• Based upon the City’s review comments from the 90% submittal and the meeting with City staff to discuss the comments, prepare the Final PS&E, incorporating the City comments. • Perform quality control reviews prior to each submittal, to assure the quality of the deliverable and conformance to the City Standards.

DELIVERABLES:
 35% PS&E
 90% PS&E
 Final PS&E
 Electronic copies in PDF and ACAD format, if requested Task 3 Cost: T&M Estimated Budget $ 32,500.00

EXHIBIT A
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J:\Marketing\M Projects\0058084.00 Sonoma Sewer Trunk 4b\_Preliminary Proposals\PROPOSAL-2024-08-29-Sonoma Sewer Trunk Phase 4b.docx

PROPOSAL
O’Dell Engineering
p:209.571.1765 | f:209.571.2466
1165 Scenic Drive, Suite A, Modesto, CA 95350 | www.odellengineering.com 3 Task 4: SWPPP
• Permit Registration Documents including Risk Assessment, Site specific SWPPP approved by QSD, Site Maps, and NOI for LRP review (Fees provided by Client).

DELIVERABLES:
 SWPPP, Electronic copies in PDF
Task 4 Cost: T&M Estimated Budget $ 2,500.00
Task 5 : Project Management and Meetings
• Schedule a kick-off meeting with the City to clarify the exact Scope of Work and all expectations, identify key design issues, confirm the required design concepts, design criteria, and design standards which apply to this project, as well as discuss the project schedule. The meeting will also be a forum to establish consensus for the project goals and objectives that will be used as a basis for the PS&E and to define project milestones.
• Research and review all pertinent documents including GIS data, aerial photograph, geotechnical report, photos, right-of-way maps, as-built plans, and record maps. • Coordinate with the relevant utility companies and prepare utility letters to them notifying them of the project. Obtain information from each regarding the location of their existing facilities. • Perform site reconnaissance visits to evaluate site conditions and identify potential conflicts/design issues.
• Regularly communicate with City staff and MID to provide updates and obtain input on design issues.
• Attend design/coordination meetings with City staff and MID, if required. (Assumes 4 meetings at 1 hours each.)
DELIVERABLES:
 Meeting notes
 Utility letters
Task 5 Cost: T&M Estimated Budget $ 7,500.00
Task 6: Bid Support Services
• Provide Bid Support as needed, including responding to Requests for Information (RFIs) from bidder’s and/or City. Stamp & sign bid addendum as needed.

DELIVERABLES:
 Responses to RFIs
 Stamped & Signed Addendum
Task 6 Cost: T&M Estimated Budget $ 3,500.00
TOTAL ESTIMATED FEES: T&M Estimated Budget $ 73,000.00

EXHIBIT A
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J:\Marketing\M Projects\0058084.00 Sonoma Sewer Trunk 4b\_Preliminary Proposals\PROPOSAL-2024-08-29-Sonoma Sewer Trunk Phase 4b.docx

PROPOSAL
O’Dell Engineering
p:209.571.1765 | f:209.571.2466
1165 Scenic Drive, Suite A, Modesto, CA 95350 | www.odellengineering.com 4 Notes:

1. Additional services and/or meetings requested by the client may be performed on a time-and-materials basis in accordance with the attached rate table.

Client to Provide:
• Site access
• Existing utility records, including as-builts, record drawings, plans, or GIS information, knowingly possessed by or available to client
• Geotechnical report
• All agency fees
• Title reports, if needed
• Specification boilerplate
• USA requests, if appropriate
Assumptions:
• Plans will be based on City of Modesto Standard Specifications and Drawings and Caltrans Standard Plans and Specifications
Exclusions:
• No geotechnical work has been included
• No utility potholing, subsurface utility research or locating is included • No utility relocation work is included
• No mapping of small trees, shrubs, or other minor vegetation is included • No survey monument preservation as defined and required by Section 8771 of the Professional Land Surveyors’ Act is included
• No boundary surveying as defined in Section 8726(c) of the Professional Land Surveyors’ Act is included • No right-of-way or easement acquisition services are included • No construction staking is included, but can be added as the client’s request • No QSP services are included, but can be added at the client’s request • No engineering support during construction is included • No construction management or inspection services are included • No public outreach or correspondence with property owners is included • No traffic control plan is included

EXHIBIT A
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OAKDALE ROAD POST OFFICE DR

ELSAKR WAY SYLVAN AVE

WOOD SORREL DR

CARDINAL FLOWER AVE

ORCHESTRA PLACE

ARIA WAY IVES ST MEDINAH CT MAESTRO WAY VIENNA CT OAKDALE ROAD

LYDIA LN SYLVAN AVE
JEFFREY DR CARL WAY MABLE AVE LEGEND PHASE 1: SONOMA TRUNK (100% DESIGN) PHASE 2: SONOMA LIFT STATION AND OAKDALE SEWER MAIN (80% DESIGN) PHASE 3: SONOMA TRUNK (35%DESIGN)PHASE 4: SONOMA TRUNK (15%DESIGN) PHASE 4: SONOMA TRUNK (15% DESIGN) PHASE 3: SONOMA TRUNK (35% DESIGN) PHASE 2: SONOMA LIFT STATION AND OAKDALE SEWER MAIN (80% DESIGN) PHASE 1: SONOMA TRUNK (100% DESIGN) P:\12 Sanitary Sewers\Current CIPs\12D-00544 Sonoma Trunk (100533)\PLANS\DWG\0533_X-Phasing Exhibits.dwg pking 8/18/20 14:05 CITY OF MODESTO UTILITIES DEPARTMENT PO BOX 642 1010 10TH STREET MODESTO, CA 95353 PROJECT SITE ADDRESS: DRAWN BY: CHECKED BY: DATE: SCALE: EXHIBIT: PROJECT: MODESTO, CALIFORNIA SONOMA TRUNK EXTENSION PSKCCC 8/13/2020 1"=400' PH-1

OAKDALE ROAD CLARATINA AVE
ROSALINA DR ROSALINA CT STARLIGHT DR HISTORY WAY SPLENDOR WAY Phase 4b

EXHIBIT A
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TBPLS Firm No. 10074302

FEE SCHEDULE FOR SERVICES
2024 – California
The following is the fee schedule for all work performed under an hourly agreement.

Classification Hourly Rate
Survey Tech I – Survey Tech VI ...........................................................................$110.00 – $195.00 Survey Field I – Survey Field VII ........................................................................ $100.00 – $210.00 Graduate Surveyor I – Graduate Surveyor III.....................................................$145.00 – $165.00 Surveyor I – Surveyor VI.....................................................................................$160.00 – $255.00 Remote Sensing Field Tech I – Remote Sensing Field Tech VI.......................... $90.00 – $205.00 Remote Sensing Tech I – Remote Sensing Tech VIII.........................................$130.00 – $220.00 Engineering Technician I – Engineering Tech VII.............................................$105.00 – $200.00 Graduate Engineer I – Graduate Engineer IV....................................................$150.00 – $200.00 Engineer I – Engineer VII ...................................................................................$185.00 – $290.00 Environmental Scientist I – Environmental Scientist VIII................................$120.00 – $245.00 Environmental Field I – Environmental Field III............................................... $105.00 – $125.00 GIS I – GIS VIII ................................................................................................... $100.00 – $205.00 Graduate Landscape Designer I – Graduate Landscape Designer III................$145.00 – $165.00 Landscape Architect I – Landscape Architect VI ...............................................$160.00 – $240.00 Admin I – Admin V............................................................................................... $115.00 – $165.00 Intern I – Intern III ............................................................................................... $90.00 – $130.00 Assistant Project Manager I – Assistant Project Manager III............................ $190.00 – $215.00 Project Manager I – Project Manager VII..........................................................$ 200.00 – $315.00 1 Person Geospatial Crew (w/Truck) .................................................................................... $165.00 Expert Witness – Court Appearance/Deposition...................................................................2 x rate Westwood Current™ (Geospatial Project Management Tool) Setup and Licensing .......$600.00+ Specialized Geospatial Equipment – Per Day Use ........................................ $200.00 – $3,000.00 Charges for Other Direct Costs, Outside Services, and facilities furnished by Westwood are computed on the basis of actual cost plus 15 percent.

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:

November 12, 2024
Date: October 7, 2024
TO: City Council
THROUGH: Joseph P. Lopez, City Manager
FROM: William Wong, Director of Utilities
SUBJECT: First Amendment to the Removal and Recycling of Universal Waste Agreement CONTACT: Manuel Martinez, Acting Water Division Manager, [email protected] , 209-342-4592
DESCRIPTION:

Consider approving the First Amendment with AERC Acquisition Corporation, Hatboro, PA, for the Removal and Recycling of Universal Waste increasing the Agreement amount by $95,000 to a revised total amount of $135,000 over five years. (Funding Source: Various Funds) STRATEGIC PLAN ELEMENT:

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

BACKGROUND:

The Solid Waste Division coordinates universal waste disposal for all departments in the City of Modesto. Items are collected on site, transported to storage trailers at the Sutter Wastewater Treatment Plant, and stored until the trailers have reached capacity. The City’s universal waste includes lightbulbs, batteries, e-waste, rechargeable equipment, items containing certain metals (mercury, lithium, etc.), and various items that cannot be disposed of through other means or that require special disposal.

On April 30, 2021, the Public Works Department, Solid Waste Division identified the need for the procurement of Removal and Recycling of Universal Waste. On September 8, 2021, the Purchasing Division issued Request for Quotation (RFQ) INF-22-03. Prospective bidders were notified via email of the RFQ. Four (4) companies were notified of the RFQ.

On September 22, 2021, bids were due. Two bidders (2) chose to respond. There were no local bids received. Based on providing the lowest responsive and responsible bid, City staff recommended to award the Removal and Recycling of Universal Waste Agreement to AERC Acquisition Corporation (“AERC”), of Hatboro, PA.

On August 10, 2022, the City Manager authorized an informal agreement for the removal and recycling of universal waste with AERC, for a term of two years with three one-year extension #18..
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City Council Meeting, November 12, 2024
First Amendment to the Removal and Recycling of Universal Waste Agreement

Page 2 of 3 ends

options, for an estimated annual amount of $8,000 and $40,000 over five years. Per the agreement, AERC removes and recycles or properly disposes of universal waste from the City’s trailer. The trailer requires service at least annually and may occur more frequently if needed. While the Solid Waste Division manages general disposal of universal waste Citywide, the Water Division requires additional services that are not listed in the current agreement. Over the course of the past year and a half, city staff have had an influx of failing registers relating to the City’s water meter read system.

The end of life for the registers was unknown at the time that the original informal bid was sent out to potential bidders, and therefore was not included in the scope of work. The batteries from these registers need to be removed and recycled properly.

DISCUSSION:

The City of Modesto Utilities Department operates and maintains a water distribution system that provides water to approximately 76,000 connections and serves over 280,000 customers. Water meter registers have been installed for every customer to provide water usage readings for customer billing. These registers contain lithium-ion batteries that must be replaced at the end of their useful life, which can vary depending on exposure and usage from seven to fifteen years.

The Water Division plans to dispose of approximately 7,000 lbs. of meter register batteries annually, although the first year of the contract will need to be approximately 14,000 lbs. to account for what is currently stockpiled. The current agreement will need to be modified to add pricing for lithium-ion meter register battery disposal and to increase the spending authority for Water Division disposal needs. Lithium-ion meter register batteries are a type of hazardous materials that must be disposed of in a specific manner and cannot be disposed of in the normal waste stream that is collected by the City’s franchise haulers.

Modesto Municipal Code Section 8-3.203 generally requires all purchases which meet or exceed $100,000 for material, equipment, or contractual services to be formally bid on. However, exceptions to the formal bidding process are granted in MMC 8-3.204 (f) where the Purchasing Manager, in her discretion, determines that it is appropriate to amend the services or goods provided under an existing agreement to include additional similar goods or services, of limited quantity or scope, to increase efficiency and avoid delays or disruptions to City projects or services.

This Amendment qualifies for the exception for these reasons.

FISCAL IMPACT:

Expenditures for removal and recycling of universal waste services under the current agreement were $10,765 over the first two years. The Water Division is requesting an increase in spending authority of $45,000 in Year 3 and $25,000 annually in Years 4 and 5, bringing the total to $135,000 over five years as shown in the table below. The expenses will be absorbed within the current Fiscal Year 2024-25 operating budgets for those funds utilizing the agreement. There is no additional budget being requested.
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City Council Meeting, November 12, 2024
First Amendment to the Removal and Recycling of Universal Waste Agreement

Page 3 of 3 ends

Contract
Year Term Dates
Current
Spending
Authority
Increase
Requested
New Spending
Authority
Year 1 02/10/22 – 02/09/23 $ 8,000 $0 $ 8,000
Year 2 02/10/23 – 02/09/24 $ 8,000 $0 $ 8,000
Year 3 02/10/24 – 02/09/25 $ 8,000 $ 45,000 $ 53,000
Year 4 02/10/25 – 02/09/26 $ 8,000 $ 25,000 $ 33,000
Year 5 02/10/26 – 02/09/27 $ 8,000 $ 25,000 $ 33,000
Total Over 5 Years $ 40,000 $ 95,000 $135,000
COMMITTEE RECOMMENDATION:

This item was considered by the Economic Development Committee at the October 7, 2024, meeting, where it was recommended that it be forwarded to Council.

RECOMMENDED COUNCIL ACTION:

Staff Recommendation:

Resolution approving the First Amendment to the Agreement with AERC Acquisition Corporation, Hatboro, PA, for the Removal and Recycling of Universal Waste, increasing the Agreement amount by $95,000 to a new total amount of $135,000 over five years and authorizing the City Manager, or his designee to execute the Amendment.

Approved by:

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

1. Resolution - AERC

2. First Amendment - AERC

3. Original Agreement - AERC
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11/12/2024/Utilities/MMartinez/Item X 1 2024-XX

MODESTO CITY COUNCIL
RESOLUTION NO. 2024-XX

RESOLUTION APPROVING THE FIRST AMENDMENT TO THE

AGREEMENT WITH AERC ACQUISITION CORPORATION, HATBORO, PA,

FOR THE REMOVAL AND RECYCLING OF UNIVERSAL WASTE,
INCREASING THE AGREEMENT AMOUNT BY $95,000 TO A NEW TOTAL AMOUNT OF $135,000 OVER FIVE YEARS AND AUTHORIZING THE CITY

MANAGER, OR HIS DESIGNEE TO EXECUTE THE AMENDMENT
WHEREAS, the City’s Solid Waste Division coordinates universal waste disposal for City of Modesto departments, including items such as lightbulbs, batteries, e-waste, rechargeable equipment, items containing certain metals, and various items that cannot be disposed of through other means or that require special disposal; and WHEREAS, on August 10, 2022, the City Manager authorized an informal agreement for the removal and recycling of universal waste with AERC Acquisition Corporation (“AERC”), for a term of two years with three one-year extension options, for an estimated annual amount of $8,000 and $40,000 over five years; and WHEREAS, although the Solid Waste Division manages general disposal of universal waste Citywide, the Water Division requires additional services that are not listed in the current agreement; and
WHEREAS, the Water Division operates and maintains a water distribution system that provides water to approximately 76,000 connections and serves over 280,000 customers. Water meter registers have been installed for every customer to provide water usage readings for customer billing. These registers contain lithium-ion batteries that must be replaced at the end of their useful life, which can vary depending on exposure and usage from seven to fifteen years; and
WHEREAS, over the course of the past year and a half, city staff have had an influx of failing registers relating to the City’s water meter read system, and the end of #18..
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11/12/2024/Utilities/MMartinez/Item X 2 2024-XX
life for the registers was unknown at the time that the original informal bid was sent out to potential bidders and therefore was not included in the scope of work; and WHEREAS, the Water Division plans to dispose of approximately 7,000 lbs. of meter register batteries annually, although the first year of the contract will need to be approximately 14,000 lbs. to account for what is currently stockpiled; and WHEREAS, Lithium-ion meter register batteries are a type of hazardous materials that must be disposed of in a specific manner, and cannot be disposed of in the normal waste stream that is collected by the City’s franchise haulers; and WHEREAS, the current agreement with AERC will need to be modified to add pricing for lithium-ion meter register battery disposal and to increase the spending authority for Water Division disposal needs; and
WHEREAS, Modesto Municipal Code Section 8-3.203 generally requires all purchases which meet or exceed $100,000 for material, equipment, or contractual services to be formally bid. However, exceptions to the formal bidding process are granted in MMC 8-3.204 (f) where the Purchasing Manager, in his or her discretion, determines that it is appropriate to amend the services or goods provided under an existing agreement to include additional or similar good or services, of limited quantity or scope, in order to increase efficiency and avoid delays or disruptions to City projects or services. This Amendment qualifies for the exception for these reasons.

NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Modesto that it hereby approves the First Amendment to the Agreement with AERC Acquisition Corporation, Hatboro, PA, for the Removal and Recycling of Universal Waste, increasing the Agreement amount by $95,000 to a new total amount of $135,000 over five years. #18..
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11/12/2024/Utilities/MMartinez/Item X 3 2024-XX
BE IT FURTHER RESOLVED that the City Manager, or his designee, is hereby authorized to execute the first amendment in a form approved by the City Attorney.

The foregoing resolution was introduced at a regular meeting of the Council of the City of Modesto held on the 12th day of November, 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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FIRST AMENDMENT TO AGREEMENT

WITH AERC ACQUISITION CORPORATION FOR REMOVAL AND RECYCLING

OF UNIVERSAL WASTE
This First Amendment to the Agreement for Removal and Recycling of Universal Waste (“First Amendment”) is entered into between the CITY OF MODESTO, a California municipal corporation (hereinafter the “CITY”) and AERC Acquisition Corporation (hereinafter “CONTRACTOR”) entered into by the parties on the ________ day of ____________, 2024.

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

WHEREAS, CITY and CONTRACTOR previously entered into an Agreement for Removal and Recycling of Universal Waste on the 10th day of August, 2022 (the “Original Agreement”), and
WHEREAS, CITY and CONTRACTOR desire to amend the provisions of the Original Agreement by increasing the previously approved estimated annual amount from $8,000 to an new estimated annual amount of $53,000 in Year 3 and $33,000 in Years 4 and 5, and WHEREAS, CITY and CONTRACTOR desire to amend the provisions of the Original Agreement by increasing the previously approved total amount not to exceed $40,000 over five (5) years to a new total amount not to exceed $135,000 over five (5) years, and WHEREAS, CITY and CONTRACTOR desire to amend the provisions of the Original Agreement to update contractual pricing.

NOW, THEREFORE, in consideration of this First Amendment, and the mutual promises, covenants, and stipulations contained in the Original Agreement and this First Amendment, the parties agree as follows:
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1. Section 1 “Scope of Work”, paragraph e, of the Original Agreement is deleted in its entirety and replaced as follows:
“CONTRACTOR shall furnish the Service defined for the following contracted rates, for an annual estimated amount of $53,000 in Year 3 and $33,000 in Years 4 and 5, and a total amount not to exceed $135,000 over five (5) years.” Item Description Unit of
Measure
Unit Price
Straight fluorescent bulbs LB $0.58
Incandescent bulbs LB $0.90
Compact fluorescent bulbs LB $1.95
Halogen/Quartz bulbs LB $0.95
Neon bulbs LB $4.95
Broken light bulbs (fluorescent, accidental breakage) LB $0.60 Batteries, wet cell LB $1.65
Batteries, dry cell LB $0.85
Scrap electronic waste LB $0.35
Devices containing mercury LB $30.00
Lithium-Ion batteries LB $3.25
Devices containing lithium (including batteries and rechargeable items) – devices or batteries that are lithium-ion only. Lithium Metal Primary batteries billed at $8.00/lb LB $0.90 Additional Item Unit Price Description
Pickup Fees $275.00 Per pick up. Covers box truck or full size, 53’ trailer.

Empty Container Delivery $275.00
Recovery Fees 13% EEI Environmental, Energy, and Insurance fee.

Labor $100.00 /HR For pick-ups requiring repacking, live load, or onsite services, and manpower fee of $100.00 per man per hour will be assessed. #18..
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Containers
Reconditioned Containers for Rent
Type Estimated Capacity Dimensions Unit of
Measure
Rental
Fee
4ft Fiber Drum* 85-T12 lamps, 170-T8 lamps,
24-Utubes, 60-HID lamps
17” x 49” Each $32.40
55 Gallon Drum 750 lbs. 23” x 33 ½” Each $97.20
New Containers for Purchase
4ft Lamp Box 69-T12 lamps, 138-T8 lamps,
20-Utubes, 40-HID lamps
12 ¼” x 12 ¼” x 48” Each $10.80
8ft Lamp Box 29-T12 lamps, 58-T8 lamps 9 ¼” x 9 ¼” x 96” Each $21.60 1 Gallon Pail 12 lbs. 8 ½” x 7 ½” Each $27.00
5 Gallon Pail 60 lbs. 11 ¼” x 16” Each $35.64
Non-Haz Cubic Yard Box –
Single Wall
1,500 lbs. 3’ x 3’ x 3’ Each $54.00
Haz Cubic Yard Box – Triple
Wall
2,500 lbs. 3’ x 3’ x 3’ Each $194.40
* Fiber Drum Policy: If containers come back in an unusable condition due to generator error, (i.e. leaving them in the rain, snow, bad weather, damaged in any way) a total charge of $20.00 per fiber drum will be assessed.

2. Except as modified and amended by this First Amendment, all other provisions of the Original Agreement shall remain unchanged and in full force and effect.

IN WITNESS WHEREOF, the City of Modesto, a municipal corporation, has authorized the execution of this First Amendment to Original Agreement for Removal and Recycling of Universal Waste 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 AERC Acquisition Corporation has caused this First Amendment to be duly executed as of the Effective Date. #18..
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1 AGREEMENT
THIS AGREEMENT , made and entered into in the City of Modesto, State of California, this day of, 2022, by and between the CITY OF MODESTO, a municipal corporation of the State of California, hereinafter called CITY, and AERC Acquisition Corporation, a Delaware Corporation, hereinafter called CONTRACTOR.

W I T N E S S E T H:

WHEREAS, the CONTRACTOR provided a responsive and responsible Quote for Removal and Recycling of Universal Waste that best meets CITY needs; and WHEREAS, CONTRACTOR shall provide services to CITY as defined in the -of-Work, ; and
WHEREAS, the CITY and CONTRACTOR shall enter into an agreement for the furnishing of Removal and Recycling of Universal Waste , as described in Scope of Work; and
NOW, THEREFORE, the parties hereto mutually agree as follows:

1. SCOPE OF WORK.
a. CONTRACTOR shall furnish Removal and Recycling of Universal Waste as needed, and maintain insurance necessary to furnish Service, in strict accordance with the conditions of this Agreement.
b. CONTRACTOR shall do and perform the Service in a professional and businesslike manner under the direction of and to the satisfaction of the CITY. c. CONTRACTOR shall maintain proper insurance with the CITY for the duration of this Agreement.
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2 d. CONTRACTOR shall maintain a CITY business license for the duration of this Agreement.
e. CONTRACTOR shall furnish the Service defined for the following contracted rates, for an annual estimated amount of $8,000, and total amount not to exceed $40,000.

2. CITY CONTACT:

City Representative for Service:

Michele Hunt, Solid Waste Enforcement Supervisor Phone: (209) 577-5493 #18..
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3 The City Representative is not authorized to commit the CITY to changes in specifications, requirements, or scope of work, changes in price(s), period of performance or delivery date(s), or method of shipment. Changes of a contractual or business nature shall be effected only by written change to this Agreement, issued by the City of Modesto, Purchasing Division.

3. TERM OF AGREEMENT:

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

Year 1: February 10, 2022 through February 9, 2023
Year 2: February 10, 2023 through February 9, 2024
Year 3: February 10, 2024 through February 9, 2025
Year 4: February 10, 2025 through February 9, 2026
Year 5: February 10, 2026 through February 9, 2027
Pricing as set forth in Section 1.e. above shall remain firm for the first two (2) years of this Agreement.

Price increases for subsequent agreement years three (3), four (4), and five (5) shall not exceed the Consumer Price Index (CPI) in any one agreement year and shall be negotiated through the Purchasing Division. Request for price increases shall be submitted by Contractor in writing, at least sixty (60) days prior to the annual anniversary date of this Agreement to be effective for the subsequent year.

4. LIABILITY INSURANCE:

CONTRACTOR shall provide at its own expense and maintain at all times the following insurance with insurance companies licensed in the State of California and shall provide evidence of such insurance to CITY as may be required by the Risk Manager. The #18..
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4 policies or certificates thereof shall provide that, at least thirty (30) days prior to cancellation or material change in the policy, notices of same shall be given to the Risk Manager of CITY by registered mail, return receipt requested, for all of the following stated insurance policies. (a) General Liability - insurance with a minimum limit of liability per occurrence of $1,000,000 and $2,000,000 for bodily injury and property damage. If Commercial General Liability Insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this project/location, or the general aggregate limit shall be twice the required occurrence limit. 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 Contractors and subcontractors; products and completed operations as applicable.
(b) Workers' Compensation - In compliance with the statutes of the State of California, plus employer's liability with a minimum limit of liability of $1,000,000.
(c) 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.

If at any time any of said policies shall be unsatisfactory to CITY, as to form or substance, or if a company issuing such policy shall be unsatisfactory to CITY, CONTRACTOR shall promptly obtain a new policy, submit the same to Risk Manager of CITY for approval and submit a certificate thereof as herein above provided. Upon failure of #18..
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5 CONTRACTOR to furnish, deliver or maintain such insurance and certificates as above provided, this Agreement, at the election of CITY, may be forthwith declared suspended, or terminated. Failure of CONTRACTOR to obtain and/or maintain any required insurance shall not relieve CONTRACTOR from any liability under this Agreement, nor shall the insurance requirements be construed to conflict with or otherwise limit the obligations of CONTRACTOR concerning indemnification. CITY, and its agents, officers, officials, employees, and volunteers shall be named as an additional insured on all insurance policies required herein, except Workers Compensation, Professional Liability, and Financial Compensation insurer shall agree to waive all rights of subrogation against CITY, its agents, officers, employees, and volunteers for losses arising from work performed by CONTRACTOR for CITY. CONTRACTOR S insurance policy(ies) shall include a provision that the coverage is primary as respects to CITY; shall include no special limitations to coverage provided to additional insured; and shall be placed with insurer(s) with acceptable Best s rating of A:VII or with approval of the Risk Manager of CITY. The CONTRACTOR must deliver certificates evidencing existence of the insurance to the City prior to the time this Agreement is signed.

CONTRACTOR agrees to provide CITY with a separate endorsement evidencing proof of City s additional insured status required herein (both general and automobile liabili
insurer s waiver of all subrogation rights as stated above. Every endorsement shall identify the policy number.

CONTRACTOR shall provide CITY with a separate endorsement evidencing proof CONTRACTOR shall provide CITY with a Workers Compensation subrogation waiver by way of #18..
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6 a separate endorsement. All endorsements referenced above must include the applicable policy number.
shall be primary insurance as respects the Entity, its agents, officers, officials, employees, and volunteers. Any insurance or self-insurance maintained by the Entity, its agents, officers, officials, contribute with it.

CONTRACTOR further agrees that the amount of insurance required may from time to time be adjusted by CITY s Risk Manager, and CONTRACTOR agrees to file a new insurance certificate with CITY s City Clerk evidencing the new amounts after a thirty (30) day written notice from CITY s Risk Manager.

5. PAYMENT:

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

Invoice to: City of Modesto
Attn: Accounts Payable
P.O. Box 642
Modesto, CA 95353
[email protected]
CONTRACTOR shall establish a separate billing account number for each CITY department and/or division. At a minimum invoice shall state the following:
#18..
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7 Reference Annual Agreement # 210762
City department/division name and address
Billing period
Service hours worked day and week
Unit price, extended price, sales tax, and total

6. INDEMNITY:

The CONTRACTOR 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, 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, , or its agents, officers, employees, or volunteers relating to or during the performance of its obligations under this Agreement.
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 CONTRACTOR to procure and maintain a policy of insurance.

In the indemnity clause contained herein CONTRACTOR agrees to defend, indemnify and hold CITY harmless from the negligence of its employees, among other risks. With reference to the foregoing, the parties agree that all risk of loss, including but not limited to damages, property losses, and defense of third-party suits, arising out of or relating to the operation accordance with the provisions contained in this section. #18..
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8 7. ARBITRATION:

Any dispute or claim arising or related to this Agreement, its performance, breach, or interpretation (including issues about its validity or enforceability), shall be exclusively, (except as approved below) resolved by final binding arbitration before the American Arbitration Association (AAA), utilizing its Commercial Arbitration Rules. One Arbitrator shall be selected using AAA procedures. The Arbitrator shall use all reasonable efforts to minimize discovery and to complete the arbitration proceedings as expeditiously as possible. The Arbitrator shall render a written decision within thirty (30) calendar days of the hearing. The Arbitrator will not award emplary
damages, and the parties hereby agree to waive and not seek such damages. Either party may seek judicial relief to compel the other party to comply with the provisions of this Section, or injunctive or other equitable relief to protect its intellectual property rights, provided (unless prohibited by applicable law) that the remainder of the dispute or claim is submitted to arbitration. The arbitration shall be held in Modesto California; both parties give their irrevocable consent to jurisdiction of courts of or in the State of California, as well as processes of the AAA in California.

Awards shall be final, binding and non-appealable (except on the minimal grounds required under the Federal Arbitration Act or other applicable law). All awards may be filed with one or more courts, state, federal, or foreign having jurisdiction over the party against whom such award is rendered or its property, as a basis of judgment and of the issuance of execution for its collection.

8. GOVERNING LAW:

This Agreement shall be deemed made in, governed by, performed in, and construed and enforced in accordance with the laws of the State of California, U.S.A., without giving effect #18..
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9 9. COMMENCEMENT AND COMPLETION OF THE WORK:

The work contemplated herein shall be commenced as soon as possible upon fully executed agreement and written notification from the City. The following documents must be on file before approval to commence work:

Proofs of insurance (approved by Risk Management); and
Executed Agreements and all exhibits thereto.

10. TERMINATION OF SERVICES:

Termination by City for Default of Contractor
Should Contractor default in the performance of this Agreement or materially breach any of its provisions, at its option, City may terminate this Agreement by giving thirty (30) days written notification for cure to Contractor. For the purposes of this section, material breach of this Agreement shall include, but not be limited to, any of the following: failure to perform required services or duties, willful destruction of City s property by Contractor, dishonesty, or theft.

Termination by City for Convenience
The City may also terminate the Contractor's performance under the Agreement, either in whole or in part, at its own discretion, or when conditions encountered during the Work make it impossible or impracticable to proceed, or when the City is prevented from proceeding with the Agreement by act of God, by law, or by official action of a public authority, or upon a determination by the City that such termination is in the best interest and convenience of the City, or whenever the City is prohibited from completing the Work for any reason. The City shall provide no less than thirty (30) calendar days written notice of its intent to terminate the Agreement for convenience, and shall endeavor to provide the Contractor with consultation with the City prior to termination. #18..
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10 The Contractor may terminate this Agreement with or without cause by providing thirty (30) Post-Termination Procedure
Upon receipt of a written notice of termination pursuant to either of the foregoing paragraphs, the Contractor shall:
a. Cease its Service as directed in the notice of termination as of the termination date and see to it that its employees, sub-contractors 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 Service that is not terminated; c. If directed in writing by the City to do so, assign all right, title, and interest in subcontracts and materials in progress to City, in which case the City will have the right at its discretion to settle, or pay any or all claims arising out of the termination of such subcontractors, but in no event shall recovery by any Contractor or subcontractor include lost profits for portions of the Service not completed or undertaken, including materials not delivered; d. Deliver or otherwise make available to the City all data, drawings, specifications, reports, estimates, summaries, and such other information and material as may have been accumulated by the Contractor in performing the Service whether completed or in process; e. Settle outstanding liabilities and claims, subject to the approval of City;
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11 f. Complete performance of such part of the Service 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 Service;
h. If City so requests, and at City's cost, Contractor shall provide sufficient oral or written status reports to make City reasonably aware of the status of Contractor's performance.
i. The Contractor understands and agrees that City may, in City's sole discretion, refuse to pay Contractor for that portion of Contractor's Services which were performed by Contractor prior to the termination date and which remain unacceptable and/or not useful to City as of the termination date.

City will pay Contractor an amount based on the percentage of satisfactory work completed in accordance with the notice of termination. The final payment to the Contractor after termination for convenience shall be limited to amounts due and owing under the Agreement at time of termination, including the following:
a. The cost of settling and paying valid claims arising out of the termination of this Agreement such as subcontractor agreements or contracts for materials;
b. The Agreement price allocable to the portion of the Service properly performed or goods supplied to the work site by the Contractor as of the date of termination, as determined in accordance with the notice of termination, reduced by any sums #18..
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12 previously paid to the Contractor.

Authorization to Terminate Agreement
Termination of the Agreement may be invoked by the City Manager, or his/her designee, subject to the right of the Contractor to appeal the City Manager, or his/her ontractor shall appeal by notifying the City Clerk in
writing within ten (10) calendar days of receipt of written notification from City of termination of this 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.

11. COMPLIANCE WITH ALL LAWS:

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

12. AGREEMENT DOCUMENTS:

The complete agreement between the parties hereto consists of this Agreement, all exhibits, and the following documents, which are incorporated herein by this reference:
a. INF 22-03 Removal and Recycling of Universal Waste;
b. City of Modesto Business/Delivery License;
c. Insurance Certificates.

These documents include important legal requirements, procedures, and restrictions and should be reviewed by CONTRACTOR. They are available for review during normal business #18..
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13 hours in the Department of Finance, Purchasing Division. All documents specified above are intended to operate so that any Services called for in any one and not mentioned in the other, or vice versa, is to be executed the same as if mentioned in all said documents.

13. NOTICES:

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

CONTRACTOR: Mark C. Kasper
AERC Acquisition Corporation
DBA AERC Recycling Solutions A Clean Earth
Company
334 S. Warminster Rd.

Hatboro, PA 19040
610-797-7608
[email protected]
CITY: City of Modesto
Purchasing Division
P.O. Box 642
Modesto, CA 95353
Each party may change its address for delivery of notice by delivering written notice of such change of address to the other party.
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14 14. SIGNATOR(IES) FOR CONTRACTOR:

The undersigned signator(ies) for CONTRACTOR warrant(s) and represent(s) that he/she/they is/are legally competent to execute the agreement and has/have full authority to execute this Agreement.

15. ASSIGNMENT:

Neither Party shall assign this Agreement nor any portion thereof without the written consent of the other Party in each and every instance.

16. WAIVER:

17. HEADINGS NOT CONTROLLING:

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

18. MISCELLANEOUS:

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

19. ENTIRE AGREEMENT:

This Agreement and its exhibits contain the entire understanding between Contractor and City. Additional or new terms contained in this Agreement which vary from Contractor's proposal are controlling and are deemed accepted by Contractor by the execution of this Agreement. 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, #18..
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15 and provisions of this Agreement shall be considered valid unless specifically agreed to in writing by all the parties.

20. TRANSPORTATION AND DISPOSAL OF WASTE:

If the Service involves transportation and disposal of waste material, risk of loss and all incidence of ownership of such material shall pass to Contractor at the time it accepts delivery and takes possession and control of such material
Material. material that is consistent with the specifications set forth in this Agreement, the material profile sheet (if any), and supplemental documents, including, but not limited to analytical data, provided to Contractor by City. Contractor may, at its option (i) reject Non-Confirming Material and return it t
remove and dispose of the Non21. PARTIAL INVALIDITY.

IN WITNESS WHEREOF, the CITY OF MODESTO, a municipal corporation, has authorized the execution of this Agreement in duplicate by its City Manager and attested by its City Clerk on the _____________-day of _____________________, 2022 and CONTRACTOR has caused this Agreement to be duly executed.
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CITY OF MODESTO,
a municipal corporation
BY: ____________________________
JOSEPH P. LOPEZ, City Manager
ATTEST:
(Seal)
BY: ____________________________

DIANE NAYARES-PEREZ, CMC,
City Clerk
________________________________ BY: ____________________________ By _____________________________
Name Title
BY: ____________________________
By _____________________________
Name Title
APPROVED AS TO FORM:

BY: ____________________________
JOSE M. SANCHEZ, City Attorney
APPROVED AS TO FORM:

BY: ____________________________
JOE F. RODRIGUEZ, Risk Manager
Federal ID # ___________
#18..
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CITY OF MODESTO

COUNCIL AGENDA REPORT
DATE OF MEETING:

November 12, 2024
Date: November 4, 2024
TO: Mayor and City Council
THROUGH: Jose M. Sanchez, City Attorney
FROM: Christina Alger, Director of Human Resources
Jose M. Sanchez, City Attorney
SUBJECT: Third Amendment to Employment Agreement for City Clerk CONTACT: Christina Alger, Director of Human Resources
[email protected], 209-571-5126
DESCRIPTION:

Consider approving a Third Amendment to the City Clerk Employment Agreement with Diane Nayares-Perez adjusting terms of the contract regarding compensation as a result of the 2023 City-wide Labor Market Study. (Funding Source: General Fund) STRATEGIC PLAN ELEMENT:

This item supports the 2020-2025 Strategic Plan’s Service and Delivery Goals & Strategies - Building a High-Performing Organization by Attracting and Retaining High-Performance Employees.

BACKGROUND:

On April 5, 2022, by Resolution No. 2022-180, the City Council appointed Ms. Nayares-Perez as City Clerk effective April 26, 2022.

In 2023, the City engaged in labor negotiations with all represented and unrepresented employees, except for the Modesto City Firefighters Association. Through labor negotiations, the City Council agreed to implement the results of a City-wide labor market study (“2023 Markert Study”) that analyzed all City positions, cost of living increases for the term of the successor Memorandums of Understanding, and certain benefit changes.

On June 13, 2023, the City Council adopted Resolution 2023-287 and Resolution 2023-288, extending salary market adjustments resulting from the 2023 Market Study, cost of living increases, and benefits to the City’s unrepresented employees, including Charter Officers.

These were the same benefits offered to the Modesto Confidential and Management Association. Subsequently, Ms. Nayares-Perez’ Employment Agreement was amended to reflect these adjustments.
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City Council Agenda Report, November 12, 2024
Third Amendment to the City Clerk Employment Agreement

Page 2 of 2 ends

DISCUSSION:

Following the adoption of the Resolutions and approval of the First Amendment to Ms. NayaresPerez’ Employment Agreement implementing the 2023 Market Study and the Second Amendment to her Employment Agreement implementing a merit increase after a positive evaluation, it was determined that the 2023 Market Study did not reflect the appropriate market salary adjustment to Ms. Nayares-Perez’ position of City Clerk.

In reviewing the data, staff determined that the 2023 Market Study was missing a comparable agency, which would have increased Ms. Nayares-Perez’ salary by 2.5% effective July 1, 2023.

In recognition of this, the attached amendment to the Employment Agreement adjusts Ms.

Nayares-Perez’ compensation to reflect the adjusted 2023 Market Study and the increase to her salary considering the missing data. This increase will be effective June 20, 2023, in alignment with all other 2023 Market Study salary adjustments.

There are no other changes to the employment agreement.

FISCAL IMPACT:

The fiscal impact of the item is $5,930.68 in a single lump sum payment and $3,952.00 in an annual base salary increase within cost center 0100-05010 – General Fund City Clerk’s Office operating budget. Effective November 19, 2024, Ms. Nayares-Perez’ updated annual base salary will be $162,115.20.

COMMITTEE RECOMMENDATION:

This item did not go to committee.

RECOMMENDED COUNCIL ACTION:

Staff Recommendations:

Resolution approving a Third Amendment to the City Clerk Employment Agreement with Diane Nayares-Perez adjusting terms of the contract regarding compensation as a result of the 2023 City-wide Labor Market Study.

Christina Alger, Director of Human Resources
Jose M. Sanchez, City Attorney
Attachments:

1. Resolution

2. Third Amendment to the City Clerk Employment Agreement with Diane Nayares-Perez

3. Salary Schedule Unrepresented Executive Management 6-18-24 Revised. #19..
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11/12/2024/HR/CAlgers/Item X 1 2024-XX

MODESTO CITY COUNCIL
RESOLUTION NO. 2024-XX

RESOLUTION APPROVING A THIRD AMENDMENT TO THE CITY CLERK

EMPLOYMENT AGREEMENT WITH DIANE NAYARES-PEREZ ADJUSTING

TERMS OF THE CONTRACT REGARDING COMPENSATION AS A RESULT OF THE 2023 CITY-WIDE LABOR MARKET STUDY
WHEREAS, on April 5, 2022, by Resolution No. 2022-180, City Council appointed Nayares-Perez to the role of City Clerk and entered into an Employment Agreement; and
WHEREAS, in 2023, the City engaged in labor negotiations with all represented and unrepresented employees, except for the Modesto City Firefighters Association.

Through labor negotiations, the City Council agreed to implement the results of a Citywide labor market study (“2023 Markert Study”) that analyzed all City positions, cost of living increases for the term of the successor Memorandums of Understanding, and certain benefit changes; and
WHEREAS, on June 13, 2023, the City Council adopted Resolution No. 2023-287 and Resolution No. 2023-288, extending the salary market adjustments resulting from the 2023 Market Study, cost of living increases, and benefits to the City’s unrepresented employees, including Charter Officers. These were the same benefits offered to the Modesto Confidential and Management Association. Ms. Nayares-Perez’ Employment Agreement was amended to reflect these adjustments; and WHEREAS, after the adoption of the Resolution and approval of the First Amendment to Ms. Nayares-Perez’ Employment Agreement implementing the 2023 Market Study and the Second Amendment to her Employment Agreement implementing a merit increase after a positive evaluation, it was determined that the 2023 Market Study #19..
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11/12/2024/HR/CAlgers/Item X 2 2024-XX
did not reflect the appropriate market salary adjustment to the Ms. Nayares-Perez’ position of City Clerk; and
WHEREAS, City has determined that the Market Study was missing a comparable agency which would have increased Ms. Nayares-Perez’ salary by two and one-half percent (2.5%) effective July 1, 2023; and
WHEREAS, the City wishes to amend the Employment Agreement in order to adjust Ms. Nayares-Perez’ compensation to reflect the adjusted 2023 Market Study and the increase to her salary considering the missing data and effective June 20, 2023, similar to all other 2023 Market Study salary adjustments.

NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Modesto that it hereby approves a Third Amendment to the Employment Agreement with Diane Nayares-Perez adjusting terms of the contract regarding compensation as a result of the 2023 City-wide Labor Market Study as provided in Exhibit A attached hereto and incorporated herein, and further authorizes the City Attorney to execute such agreement in a form substantially similar to Exhibit A.

The foregoing resolution was introduced in a regular meeting of the Council of the City of Modesto held on the 12th day of November 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:
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11/12/2024/HR/CAlgers/Item X 3 2024-XX
ATTEST: _____________________________
DANA SANCHEZ, Assistant City Clerk
(SEAL)
APPROVED AS TO FORM:

BY: _________________________________
JOSE M. SANCHEZ, City Attorney
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-1-

THIRD AMENDMENT TO EMPLOYMENT AGREEMENT

WITH DIANE NAYARES-PEREZ
This Third Amendment to Employment Agreement (“Third Amendment”) is made and entered into this __ day of ________ 2024, by and between the CITY OF MODESTO (“CITY”) and Diane Nayares-Perez (“EMPLOYEE”).

RECITALS
WHEREAS, on April 5, 2022, by Resolution No. 2022-180, City Council appointed Nayares-Perez to the role of City Clerk and entered into an Employment Agreement with EMPLOYEE (“Employment Agreement”); and
WHEREAS, in 2023, the City engaged in labor negotiations with all represented and unrepresented employees, except for the Modesto City Firefighters Association. Through labor negotiations, the City Council agreed to implement the results of a City-wide labor market study (“2023 Markert Study”) that analyzed all City positions, cost of living increases for the term of the successor Memorandums of Understanding, and certain benefit changes; and WHEREAS, the City Council also adopted Resolution No. 2023-287 and Resolution No. 2023-288, extending the salary market adjustments resulting from the 2023 Market Study, cost of living increases, and benefits the City Council offered to the Modesto Confidential and Management Association to the City’s unrepresented employees, including Charter Officers.

EMPLOYEE serves as City Clerk, which is a Charter Officer position; and WHEREAS, after the adoption of the Resolution and approval of the First Amendment to EMPLOYEE’s Employment Agreement implementing the 2023 Market Study and the Second Amendment to EMPLOYEE’s Employment Agreement implement a merit increase after a positive evaluation, it was determined that the 2023 Market Study did not reflect the appropriate #19..
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-2-
market salary adjustment to the EMPLOYEE’s position of City Clerk. CITY has determined that the Market Study was missing a comparable agency which would have increased EMLOYEES’s salary by two and one-half percent (2.5%) effective July 1, 2023; and WHEREAS, the CITY wishes to amend the Employment Agreement in order to adjust EMPLOYEE’s compensation to reflect the adjusted 2023 Market Study and the increase to EMPLOYEE’s salary considering the missing data and effective June 20, 2023, similar to all other 2023 Market Study salary adjustments.

AGREEMENT

1. Section 4(a) of the Employment Agreement, “Salary,” first paragraph, is amended to add a four and one-tenth percent (4.1%) merit increase. No changes are being made to the second and third paragraphs, which reflect previously approved salary adjustments under adopted Resolution No. 2023-287 and Resolution No. 2023-288. Section 4(a) of the Employment Agreement is amended to read as follows:
“SECTION 3: Salary
a. Effective November 19, 2024, CITY agrees to pay EMPLOYEE an annual base salary of One Hundred sixty-two thousand one hundred fifteen Dollars and twenty Cents ($162,115.20), payable in installments at the same time that the other employees of CITY are paid.

CITY agrees to pay EMPLOYEE a lump sum payment in the amount of Five Thousand Nine Hundred Thirty Dollars and Sixty-Eight Cents ($5,930.68), compensating EMPLOYEE for an additional two and one-half percent (2.5%) adjustment that EMPLOYEE would have received effective June 20, 2023, if the 2023 Market Study conducted by CITY would have included all appliable #19..
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-3-
comparable jurisdictions for EMPLOYEE’s position as City Clerk. EMPLOYEE and CITY staff continued to work on the 2023 Market Study and desire to settle any all issues related to the 2023 Market Study with the payment under this Section. The lump sum payment will be made within thirty (30) days of this Third Amendment.

Effective July 1, 2025, CITY agrees to increase EMPLOYEE’s annual base salary as follows: an additional three percent (3%) cost of living increase and a Step increase in the amount of four percent (4%) payable in installments at the same time that the other employees of CITY are paid. The Step increase is subject to EMPLOYEE being at the top Step of her position’s range on June 30, 2024, and a positive evaluation by the City Council, pursuant to the Employment Agreement.

In addition, effective June 30, 2026, CITY agrees to increase EMPLOYEE’s annual base salary as follows: an additional three percent (3%) cost of living increase payable in installments at the same time that the other employees of CITY are paid.”

2. Except as amended by this Third Amendment, all terms and conditions of the Employment Agreement shall remain in full force and effect.

IN WITNESS WHEREOF, the City of Modesto, a municipal corporation, has authorized the execution of this Third Amendment to the Employment Agreement in duplicate by its Mayor and attestation by its Assistant City Clerk under the authority of Resolution No. 2024-____, adopted by the Council of the City of Modesto on the ___ of November 2024, and EMPLOYEE has caused this Third Amendment to the Employment Agreement to be duly executed.
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-4-

CITY OF MODESTO,
a municipal corporation

EMPLOYEE
By: Sue Zwahlen, Mayor By: Diane Nayares-Perez
ATTEST:

By: Dana Sanchez, Assistant City Clerk
(SEAL)
APPROVED AS TO FORM:

By: Jose M. Sanchez, City Attorney
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Step
Range Position Min Max
1405 47.52 59.40
1406 48.71 60.89
1407 49.93 62.41
1408 51.18 63.97
1409 52.46 65.57
1410 53.77 67.21
1411 55.11 68.89
1412 56.49 70.61
1413 57.90 72.38
1414 59.35 74.19
1415 60.83 76.04
1416 City Clerk 62.36 77.94
1417 63.91 79.89
1418 65.51 81.89
1419 67.15 83.94
1420 68.83 86.03
1421 City Auditor 70.55 88.18
1422 Director of Utility Planning and Projects 72.31 90.39 1423 74.12 92.65
1424 75.97 94.96
1425 Director of Administrative Services 77.87 97.34
1426 Chief Information Officer 79.82 99.77
Director of Finance 79.82 99.77
Director of Human Resources 79.82 99.77
Director of Parks, Recreation & Neighborhoods 79.82 99.77 1427 81.81 102.27
1428 83.86 104.82
1429 Director of Community and Economic Developmen 85.96 107.44 Director of Public Works 85.96 107.44
1430 88.10 110.13
1431 90.31 112.88
1432 Director of Engineering Services 92.56 115.70
Director of Utilities 92.56 115.70
1433 Deputy City Manager 94.88 118.60
1434 97.25 121.56
1435 City Attorney 99.68 124.60
1436 102.17 127.72
1437 104.73 130.91
1438 107.35 134.18
1439 110.03 137.54
1440 112.78 140.97
1441 City Manager 115.60 144.50
Step
Range Position Min Max
1405 3,801.60 4,752.00
1406 3,896.80 4,871.20
1407 3,994.40 4,992.80
1408 4,094.40 5,117.60
1409 4,196.80 5,245.60
1410 4,301.60 5,376.80
1411 4,408.80 5,511.20
1412 4,519.20 5,648.80
1413 4,632.00 5,790.40
1414 4,748.00 5,935.20
1415 City Clerk 4,866.40 6,083.20
1416 4,988.80 6,235.20
1417 5,112.80 6,391.20
1418 5,240.80 6,551.20
1419 5,372.00 6,715.20
1420 5,506.40 6,882.40
1421 City Auditor 5,644.00 7,054.40
1422 Director of Utility Planning and Projects 5,784.80 7,231.20 1423 5,929.60 7,412.00
1424 6,077.60 7,596.80
1425 Director of Administrative Services 6,229.60 7,787.20 1426 Chief Information Officer 6,385.60 7,981.60
Director of Finance 6,385.60 7,981.60
Director of Human Resources 6,385.60 7,981.60
Director of Parks, Recreation & Neighborhoods 6,385.60 7,981.60 1427 6,544.80 8,181.60
1428 6,708.80 8,385.60
1429 Director of Community and Economic Developmen 6,876.80 8,595.20 Director of Public Works 6,876.80 8,595.20
1430 7,048.00 8,810.40
1431 7,224.80 9,030.40
1432 Director of Engineering Services 7,404.80 9,256.00 Director of Utilities 7,404.80 9,256.00
1433 Deputy City Manager 7,590.40 9,488.00
1434 7,780.00 9,724.80
1435 City Attorney 7,974.40 9,968.00
1436 8,173.60 10,217.60
1437 8,378.40 10,472.80
1438 8,588.00 10,734.40
1439 8,802.40 11,003.20
1440 9,022.40 11,277.60
1441 City Manager 9,248.00 11,560.00
Step
Range Position Min Max
1405 8,236.80 10,296.00
1406 8,443.07 10,554.27
1407 8,654.54 10,817.74
1408 8,871.20 11,088.14
1409 9,093.07 11,365.47
1410 9,320.14 11,649.74
1411 9,552.40 11,940.94
1412 9,791.60 12,239.07
1413 10,036.00 12,545.87
1414 10,287.34 12,859.60
1415 City Clerk 10,543.87 13,180.27
1416 10,809.07 13,509.60
1417 11,077.74 13,847.60
1418 11,355.07 14,194.27
1419 11,639.34 14,549.60
1420 11,930.54 14,911.87
1421 City Auditor 12,228.67 15,284.54
1422 Director of Utility Planning and Projects 12,533.74 15,667.60 1423 12,847.47 16,059.34
1424 13,168.14 16,459.74
1425 Director of Administrative Services 13,497.47 16,872.27 1426 Chief Information Officer 13,835.47 17,293.47
Director of Finance 13,835.47 17,293.47
Director of Human Resources 13,835.47 17,293.47
Director of Parks, Recreation & Neighborhoods 13,835.47 17,293.47 1427 14,180.40 17,726.80
1428 14,535.74 18,168.80
1429 Director of Community and Economic Developmen 14,899.74 18,622.94 Director of Public Works 14,899.74 18,622.94
1430 15,270.67 19,089.20
1431 15,653.74 19,565.87
1432 Director of Engineering Services 16,043.74 20,054.67 Director of Utilities 16,043.74 20,054.67
1433 Deputy City Manager 16,445.87 20,557.34
1434 16,856.67 21,070.40
1435 City Attorney 17,277.87 21,597.34
1436 17,709.47 22,138.14
1437 18,153.20 22,691.07
1438 18,607.34 23,257.87
1439 19,071.87 23,840.27
1440 19,548.54 24,434.80
1441 City Manager 20,037.34 25,046.67
City of Modesto City of Modesto City of Modesto
Schedule of Salary Ranges in City Service for FY 24/25 Schedule of Salary Ranges in City Service for FY 24/25 Schedule of Salary Ranges in City Service for FY 24/25 Effective: June 18, 2024 Effective: June 18, 2024 Effective: June 18, 2024 Unrepresented Executive Management Unrepresented Executive Management Unrepresented Executive Management Hourly Biweekly Monthly
#19..
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CITY OF MODESTO

COUNCIL AGENDA REPORT
DATE OF MEETING:

November 12, 2024
Date: November 4, 2024
TO: Mayor and City Council
THROUGH: Jose M. Sanchez, City Attorney
FROM: Christina Alger, Director of Human Resources
Jose M. Sanchez, City Attorney
SUBJECT: Third Amendment to Employment Agreement for City Manager CONTACT: Christina Alger, Director of Human Resources
[email protected], 209-571-5126
DESCRIPTION:

Consider approving a Third Amendment to the City Manager Employment Agreement with Joseph P. (“Joe”) Lopez adjusting terms of the contract regarding Management Leave and Severance as a result of the delivery of a positive performance evaluation. (Funding Source: General Fund) STRATEGIC PLAN ELEMENT:

This item supports the 2020-2025 Strategic Plan’s Service and Delivery Goals & Strategies - Building a High-Performing Organization by Attracting and Retaining High Performance Employees.

BACKGROUND:

On April 1, 2017, Council appointed Mr. Lopez in an acting role as City Manager. On July 5, 2017, by Resolution No. 2017-265, Council appointed Mr. Lopez as Interim City Manager following the departure of the former City Manager on March 31, 2017. On July 10, 2018, by Resolution No. 2018-297, Council appointed Mr. Lopez to the role of City Manager.

On March 1, 2022, by Resolution No. 2022-110, Council approved a First Amendment to the Employment Agreement with Joe Lopez, City Manager, dated July 10, 2018, to increase base salary to $256,221, based on a positive performance evaluation.

On June 13, 2023, the City Council adopted Resolution 2023-287 and Resolution 2023-288 extending salary market adjustments resulting from the 2023 Market Study, cost of living #20..
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City Council Agenda Report, November 12, 2024
Third Amendment to Employment Agreement for City Manager

Page 2 of 3 ends

increases and benefits to the City’s unrepresented employees, including Charter Officers. These were the same benefits offered to the Modesto Confidential and Management Association. Mr.

Lopez serves as City Manager, which is a Charter Officer position, and his Employment Agreement was amended to reflect these adjustments.

DISCUSSION:

Mr. Lopez has been serving as the permanent City Manager for approximately seven years.

During his tenure, he has received three performance reviews, with his most recent evaluation delivered on August 13, 2024.

Annual performance evaluations are an important way for the City Council and the City Manager to ensure effective communications regarding expectations and performance. Pursuant to the City Manager’s agreement, consideration shall be given on an annual basis to increase compensation following an annual performance evaluation. On March 27, 2024, the Human Resources Department under the authorization of the City Council, initiated a Request for Proposals on PlanetBids, the public website for the bidding process. Five responsive proposals were received and Municipal Resource Group, LLC (MRG) was chosen to enter into an agreement with the City to facilitate the evaluation process for Charter Officers, in an amount not to exceed $99,200 over five years.

The evaluation process for the City Manager began on June 25, 2024. Council met in Closed Session on August 13, 2024, to finalize the evaluation and deliver the results to the City Manager.

It was a positive evaluation where the Council unanimously rated the City Manager as “highly competent.”
Given the positive evaluation, Council directed MRG to gather and compare City Manager Employment Agreements from the City’s nine comparable agencies. As a result, it was determined that City Manager’s with similar tenures had more generous severance packages and more paid leave time.

The attached Amendment will increase the City Manager’s Management Leave benefit from 10 days (80 hours) to 20 days (160 hours) per calendar year. He will be credited an additional 40 hours of Management Leave effective July 1, 2024 and commencing on January 1, 2025, and every January 1st of each calendar year thereafter, he will be credited with 160 hours. Mr. Lopez may cash out up to 160 hours of unused leave in accordance with City Policy. The Amendment will also increase the severance benefit from 6 months to 12 months of base pay and shall include health coverage effective upon contract execution. Per the City Manager’s Employment Agreement, severance benefits are only triggered if he is terminated without cause.

There are no other changes to the employment agreement.

FISCAL IMPACT:

The fiscal impact of this item is $11,580 additional cost in Management Leave annually within cost center 0100-02010 – General Fund City Manager’s operating budget. The additional Management Leave costs for FY 2024-25 will be absorbed within the existing budget.

COMMITTEE RECOMMENDATION:

This item did not go to committee.

RECOMMENDED COUNCIL ACTION:
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City Council Agenda Report, November 12, 2024
Third Amendment to Employment Agreement for City Manager

Page 3 of 3 ends

Staff Recommendations:

Resolution approving a Third Amendment to the City Manager Employment Agreement with Joseph P. (“Joe”) Lopez adjusting terms of the contract regarding Management Leave and Severance.

Christina Alger, Director of Human Resources
Jose M. Sanchez, City Attorney
Attachments:

1. Resolution

2. Third Amendment to the City Manager Employment Agreement with Joseph P. (“Joe”) Lopez
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11/12/2024/HR/CAlgers/Item X 1 2024-XX

MODESTO CITY COUNCIL
RESOLUTION NO. 2024-XX

RESOLUTION APPROVING A THIRD AMENDMENT TO THE CITY
MANAGER EMPLOYMENT AGREEMENT WITH JOSEPH P. (“JOE”) LOPEZ

ADJUSTING TERMS OF THE CONTRACT REGARDING MANAGEMENT

LEAVE AND SEVERANCE
WHEREAS, on April 1, 2017, City Council appointed Lopez in an acting role as City Manager. On July 5, 2017, by Resolution No. 2017-265, City Council appointed Lopez as Interim City Manager following the departure of the former City Manager on March 31, 2017; and
WHEREAS, on July 10, 2018, by Resolution No. 2018-297, Council appointed Lopez to the role of City Manager and entered into an Employment Agreement with Lopez; and
WHEREAS, on March 1, 2022, by Resolution No. 2022-110, Council approved a First Amendment to the Employment Agreement with Joe Lopez, City Manager, dated July 10, 2018, to increase base salary to $256,221, based on a positive performance evaluation; and
WHEREAS, in 2023, the City engaged in labor negotiations with all represented and unrepresented employees, except for the Modesto City Firefighters Association.

Through labor negotiations, the City Council agreed to implement the results of a Citywide labor market study (“2023 Markert Study”) that analyzed all City positions, cost of living increases for the term of the successor Memorandums of Understanding, and certain benefit changes; and
WHEREAS, on June 13, 2023, the City Council adopted Resolution 2023-287 and Resolution 2023-288 extending salary market adjustments resulting from the City #20..
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11/12/2024/HR/CAlgers/Item X 2 2024-XX
staff market study, cost of living increases and benefits to the City’s unrepresented employees, including Charter Officers. These were the same benefits offered to the Modesto Confidential and Management Association. Mr. Lopez serves as City Manager, which is a Charter Officer position, and his Employment Agreement was amended to reflect these adjustments; and
WHEREAS, during Mr. Lopez’ tenure, he has only received positive performance evaluations; the most recent being delivered on August 13, 2024; and WHEREAS, given the positive evaluation, Council directed MRG to gather and compare City Manager Employment Agreements from the City’s nine comparable agencies. As a result, it was determined that City Manager’s with similar tenures had more generous severance packages and more paid leave time; and WHEREAS, the attached Amendment will increase the City Manager’s Management Leave benefit from 10 days (80 hours) to 20 days (160 hours) per calendar year. He will be credited an additional 40 hours of Management Leave effective July 1, 2024 and commencing on January 1, 2025, and every January 1st of each calendar year thereafter, he will be credited with 160 hours. Mr. Lopez may cash out up to 160 hours of unused leave in accordance with City Policy; and
WHEREAS, the Amendment will also increase the severance benefit from 6 months to 12 months of base pay and shall include health coverage effective upon contract execution. Per the City Manager’s Employment Agreement, severance benefits are only triggered if he is terminated without cause.

NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Modesto that it hereby approves a Third Amendment to the City Manager Employment Agreement #20..
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11/12/2024/HR/CAlgers/Item X 3 2024-XX
with Joseph P. (Joe) Lopez, adjusting terms of the contract regarding Management Leave and Severance as provided in Exhibit A attached hereto and incorporated herein, and further authorizes the City Attorney to execute such agreement in a form substantially similar to Exhibit A.
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11/12/2024/HR/CAlgers/Item X 3 2024-XX
The foregoing resolution was introduced in a regular meeting of the Council of the City of Modesto held on the 12th day of November 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
#20..
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-1-

THIRD AMENDMENT TO EMPLOYMENT AGREEMENT
WITH JOSEPH P. LOPEZ
This Third Amendment to Employment Agreement (“Third Amendment”) is made and entered into this ____ day of ___________, 2024, by and between the CITY OF MODESTO (“Employer”) and JOSEPH P. LOPEZ (“Employee” or “Lopez”).

RECITALS
WHEREAS, on April 1, 2017, City Council appointed Lopez in an acting role as City Manager. On July 5, 2017, by Resolution No. 2017-265, City Council appointed Lopez as Interim City Manager following the departure of the former City Manager on March 31, 2017; and
WHEREAS, on July 10, 2018, by Resolution No. 2018-297, Council appointed Lopez to the role of City Manager and entered into an Employment Agreement with Lopez (“Employment Agreement”); and
WHEREAS, on June 13, 2023, the City Council adopted Resolution 2023-287 and Resolution 2023-288 extending salary market adjustments resulting from the City staff market study, cost of living increases and benefits the Council offered to the Modesto Confidential and Management Association to the City’s unrepresented employees, including Charter Officers.

Employee serves as City Manager, which is a Charter Officer position. The Council provided authority to prepare and enter into the Second Amendment to Employee’s Employment Agreement; and
WHEREAS, during Mr. Lopez’ tenure, he has only received positive performance evaluations; the most recent being delivered on August 13, 2024; and #20..
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WHEREAS, as a result of the positive evaluation dated August 13, 2024, and pursuant to Section 3(B) of the Employment Agreement, the City Council wishes to amend the Employment Agreement in order to adjust Lopez’s management/executive leave from eighty (80) hours to one hundred and sixty (160) hours and his severance from six (6) months to twelve (12) months, including twelve (12) months medical coverage.

AGREEMENT

1. Section 5(E) of the Employment Agreement, “Vacation, Sick, and Management/Executive Leave,” is amended to read as follows to adjust Employee’s executive/management leave from eighty (80) hours to one hundred and sixty (160) hours:
“E. Employee was credited with eighty (80) hours of management/executive leave on January 1, 2024. Employee will be credited an additional forty (40) hours of management/executive leave effective on July 1, 2024. Commencing on January 1, 2025, and every January 1st of each calendar year thereafter, Employee shall be credited with one hundred and sixty (160) hours of management/executive leave. Employee may cash out up to one hundred and sixty (160) hours of unused leave in accordance with City Policy.”

2. Section 10(A) of the Employment Agreement, “Severance,” is amended to read as follows to adjust Employee’s severance from six (6) months to twelve (12) months including medical coverage for that time:
“A. In the event, City terminates Employee’s employment without cause, and without Notice of Termination consistent with the provisions of Section 10, Employee shall be entitled to severance pay of a lump sum payment equal to Twelve (12) months base salary during this Agreement. Severance shall also include medical coverage for Twelve (12) months at the same level of coverage and cost as Employee received as of the date of termination. The severance #20..
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-3-
under this Agreement shall be subject to the restrictions set forth in Government Code section 53260. Said payment of severance pay and medical coverage shall be conditioned upon Employee signing a waiver and release agreement forever releasing and waiving any and all claims against the City in a form acceptable to the City. Employee shall receive the severance payment in a lump sum payment minus all applicable deductions fifteen (15) business days after execution of the waiver and release agreement. Employee shall not receive any severance payments or medical coverage under this Section if he resigns, is terminated for cause, or if a waiver and release agreement is not executed by the Parties.”

3. Except as amended by this Third Amendment, all terms and conditions of the Employment Agreement shall remain in full force and effect.

IN WITNESS WHEREOF, the City of Modesto, a municipal corporation, has authorized the execution of this Third Amendment to the Employment Agreement in duplicate by its Mayor 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 Employee has caused this Third Amendment to the Employment Agreement to be duly executed.

CITY OF MODESTO,
a municipal corporation

EMPLOYEE
By: Sue Zwahlen, Mayor By: Joseph P. Lopez
ATTEST:

By: DIANE NAYARES-PEREZ, City Clerk
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(SEAL)
APPROVED AS TO FORM:

By: Jose M. Sanchez, City Attorney
#20..
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CITY OF MODESTO

COUNCIL AGENDA REPORT
DATE OF MEETING:

November 12, 2024
Date: August 19, 2024
TO: Mayor and City Council
THROUGH: Joseph P. Lopez, City Manager

FROM: Jessica Hill, Director of Community and Economic Development Department SUBJECT: Amendment to Title 10 regarding Accessory Dwelling Units and Accessory Dwelling Unit Revolving Loan Fund
CONTACT: Jessica Hill, Director of Community and Economic Development, [email protected], 209-577-5211
DESCRIPTION:

Hearing to consider adopting an Ordinance amending various Sections and Tables within Title 10 of the Modesto Municipal Code relating to Accessory Dwelling Units and approving an Agreement with Valley First Credit Union Modesto, California for Accessory Dwelling Units (ADU) Revolving Loan Fund to increase the development of ADUs in the community for a total amount not to exceed $450,000. (Funding Source: Measure H Fund) STRATEGIC PLAN ELEMENT:

This item supports the City’s (2020-2025) Strategic Plan, Goal C: Develop a Homeless and Housing Plan.

BACKGROUND:

Accessory Dwelling Units (ADUs) are additional, residential units constructed on properties; they are also known as granny flats, in-law units, and other similar terms. ADUs have become an increasingly valuable form of housing in California and in the city of Modesto. Created on existing parcels zoned and developed with single family and/or multifamily structures, ADUs utilize the existing infrastructure and provide relatively affordable housing for individuals and families within the community.

Like many cities across the State, Modesto has a limited affordable housing inventory. In recent years, ADUs have become a critical part of the housing stock of a community. In 2023, Modesto issued 93 building permits for ADUs and finalized 68 permits, approving them for occupancy.

ADUs can be detached, such as a small cottage or guest house on the same parcel as a singlefamily home. They can also be attached, such as an addition on a primary structure. They can be created from the conversion of existing space, such as a garage. Or they can be what California #21..
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City Council, November 12, 2024
Amendment to Title 10 regarding Accessory Dwelling Units and Accessory Dwelling Unit Revolving Loan Fund

Page 2 of 6 ends

terms a “Junior Accessory Dwelling Unit,” which results from the conversion of space contained entirely within an existing single-family residence. In addition to bolstering the housing supply of a community, ADU’s also have a critical role in building the financial security of a homeowner via the equity of the home due to the improvements and the potential for rental income for the homeowner.

The City of Modesto completed updates to Title 10 (Zoning Regulations) regarding accessory dwelling unit (ADU) regulations in early 2023. However, since that time, State laws governing ADUs have been amended by the Legislature. The most recent amendments to ADU laws were enacted by Assembly Bill No. 976 (Chapter 751, Statues of 2023), Assembly Bill No. 1033 (Chapter 752, Statues of 2023) which became effective on January 1, 2024, Senate Bill No. 477 (Chapter 7, Statues of 2024) which became effective on March 25, 2024, and Senate Bill No. 1211 (Chapter 296, Statutes of 2024), which takes effect on January 1, 2025.1 Further, as part of the review of the City of Modesto’s 6th Cycle Housing Element, the City received comments from the California Department of Housing and Community Development (HCD) regarding necessary corrections and clarifications needed in the City’s ADU regulations to align with State law.

At the regularly scheduled meeting of the Planning Commission on July 15, 2024, staff was asked to make the following changes to the proposed ordinance and directed staff to bring the item back to the Planning Commission’s next regularly scheduled meeting on August 5, 2024. o Reduce the maximum height of ADUs on lots developed with an existing or proposed Place of Worship to sixteen (16) feet; and,
o Clarified the maximum size of an attached ADU.

However, the August 5, 2024, Planning Commission meeting was cancelled due to lack of a quorum. Therefore, the Planning Commission considered the proposed ordinance at their next regularly scheduled meeting on August 19, 2024 and adopted a resolution recommending the City Council adopt the ordinance.

Additionally, to carry out a program that can achieve the benefits that ADU’s may provide for the community the City approved $450,000 for an ADU Revolving Loan Fund as part of the Fiscal Year 2024-2025 budget. The City approached Valley First Credit Union (VFCU) to develop a program because of their extensive experience in preparing loan programs for Modesto residents.

Headquartered in Modesto, Valley First Credit Union has been serving the community since 1949.

Valley First’s primary mission is to create access to financial products and services to individuals of low- and moderate-income and other disadvantaged communities.

DISCUSSION:

Zoning Code Amendment
The purpose of the amendment is to bring Modesto’s Municipal Code in line with recent changes to State law governing Accessory Dwelling Units (ADUs); address comments received from the California Department of Housing and Community Development (HCD); and to provide additional 1 Minor changes were made to the Ordinance to comply with SB 1211 after consideration by the Planning Commission, which occurred prior to adoption of SB 1211. #21..
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ADU development opportunities on properties owned by Places of Worship. Additionally, internal references were corrected and remnants from earlier versions of the Code were removed.

Moreover, the following Sections and Tables of the Modesto Municipal Code are to be revised by this action:
 Table 4.1-1 (Residential Development Standards), Section 10-4.102 of title 10, chapter 4 (Development Standards), article 1 (Residential Zones);  Sections 10-4.107 and 10-4.108 of Title 10, Chapter 4 (Development Standards), Article 1 (Residential Zones);
 Section 10-4.114 of title 10, Chapter 4 (Development Standards), Article 1 (Residential Zones);
 Sections 10-4.501, 10-4.502, 10-4.503, 10-4.504, 10-4.505, 10-4.506, 10-4.507, 10-

4.508, 10-4.509, and 10-4.510, Article 5 (Accessory Dwelling Units) of title 10, Chapter 4 (Development Standards);
 Addition of Section 10-4.511, Article 5 (Accessory Dwelling Units) of title 10, Chapter 4 (Development Standards)
Modesto’s 6th Cycle Housing Element 2023-2031 was found to be in substantial compliance with State housing law by the California Department of Housing and Community Development on April 10, 2024. The Housing Element includes goals, policies, programs and quantified objectives designed to help ensure housing opportunities for existing and future residents of the community.

Additionally, the Housing Element provides a plan to accommodate the Regional Housing Needs Allocation (RHNA).

One of the Housing Programs specified in the Housing Element, Program Number A-18, Housing Opportunity on Religious-Owned Property is being implemented as part of this code amendment.

Allowing ADUs on Religious-Owned Property is not a requirement of State law but is rather something the City is proposing in order to further increase the supply of affordable housing units.

The following is proposed to create additional ADU opportunities on a lot with an existing or proposed church or place of worship.
o Church is on a lot zoned Residential or Commercial
o Excludes churches on lots in the Industrial zones (C-M, M-1, and M-2) o Allows the development of up to two (2) detached ADUs o Each ADU may not exceed 1,200 square feet in floor area; o Min. four (4) foot side and rear setbacks;2
o Max. height of sixteen (16) feet; and
o ADUs may use existing church parking, if one (1) space is reserved for each ADU.

Agreement with Valley First Credit Union
The City, through its partnership with VFCU aims to address critical needs particularly for the access to capital for homeowners who desire to build an attached or detached ADU on their 2 The Ordinance presented to the Planning Commission stated that the side and rear setbacks would be five (5) feet.

This was a typographical error, as a maximum of four-foot setbacks are permitted by Gov. Code 66314(d)(7). https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=66314.&nodeTreePath=11.1.30.2& lawCode=GOV
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property. By partnering with VFCU, the City can leverage the local unique capabilities and relationships of a local credit union to establish an efficient and streamlined loan program that supports the production of ADUs and helps build financial security for homeowners. A partnership with VFCU serves as a step to help address financial barriers to individuals who traditionally would not have access to the capital required to build an ADU.

City staff is proposing an ADU loan program in the amount of $450,000 that would function as follows:

Loan Terms:
 $50,000 from the City of Modesto or higher based on demonstrated need and demonstrated ability to adhere to all requirements of the program.  Fixed Rate – 5 points below Wall Street Prime Rate
 Fixed Term – Up to 120 months
o Those interested in a loan may opt for an extended term but the extension will require a half-point increase in interest. For example, if the Wall Street Prime Rate is 8.5%, the loan term category add-on is calculated in the following manner:

Term
(in months)
Base
Rate Add-on Final Rate
60 3.50% 0.00% 3.50%
84 3.50% 0.50% 4.00%
120 3.50% 1.00% 4.50%
 The loan is secured by real estate where the ADU will be built.  The borrower shall make monthly payments.
 Will be in the last lien position after any existing liens (i.e. Home Equity loans, solar loans).  Will be in the last lien position after any new liens (i.e. Home Equity loans, solar loans) if such new loan is needed to complete the project.

Applicant Requirements:
 Must be a member of Valley First Credit Union
 Subject property must be under 10 acres and non-income producing  The applicant must have owned the home for at least six (6) months.  Any owner listed on the deed must be on the loan.
 We will only allow a maximum of one (1) properties financed by Valley First per borrower maximum.
 All property taxes and supplemental taxes must be current  Valid form of identification for notary signing
 Property Ownership: Must own the property within the City of Modesto, where the ADU will be built.
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 Building Code Compliance: All ADUs must comply with local building codes and zoning regulations. Applicant must provide approved plans.
 Construction Contractor: Only licensed contractors registered with the state are used for any construction work related to the ADU.
 Title Insurance: Obtain title insurance coverage naming the lender as loss payee. ADU must be completed within one (1) year of building permit issuance.

By partnering with VFCU, the City can leverage the local unique capabilities and relationships of a local credit union to establish an efficient and streamlined loan program that supports the production of ADUs and helps build financial security for homeowners allowing the City to build financial security for local homeowners, increase the local housing stock, and help meet the goals outlined in the City’s Housing Element.

FISCAL IMPACT:

The code amendment was initiated by the City to bring the municipal code in alignment with State regulations. The cost in staff time to prepare these amendments was paid from the current Planning Division budget. Additionally, the City’s Fiscal 2024-2025 budget includes an allocation of $450,000 from the approved Measure H Spending Plan, for the establishment of an ADU Revolving Loan Program. All funds dedicated to the program will be exclusively for the program and there are no additional costs associated with the program in partnership with VFCU.

COMMITTEE RECOMMENDATION:

The code amendment was heard by the Planning Commission on July 15 and August 19, 2024.

On August 19, 2024, the Planning Commission made a motion directing staff to Amend Chapter 4 (Development Standards) of Title 10 of the City of Modesto Municipal Code, Article 1 by amending Section 10-4.507 (b) (4), to read: A height of eighteen (18) feet on a lot with an existing or proposed multifamily, multistory dwelling. Following that motion, the Planning Commission recommended the amendments be forwarded to Council for approval.

The ADU Revolving Loan Fund agreement was presented to the Citizens’ Housing and Community Development Committee on October 10, 2024 and was recommended to forward to Council for approval.

CEQA/NEPA REQUIREMENTS:

The proposed amendments are Statutorily Exempt from CEQA pursuant to Section 15282 (h) of the State CEQA Guidelines that exempt the adoption of an ordinance regarding second units in a single-family or multi-family residential zone by a city or county to implement the provisions of Government Code Section 66310 et. seq.

RECOMMENDED COUNCIL ACTION:

Staff Recommendations:

Motion introducing and waiving the first reading of the Ordinance amending various Sections and Tables within Title 10 of the Modesto Municipal Code relating to Accessory Dwelling Units.

Resolution approving an Agreement with Valley First Credit Union Modesto, California for Accessory Dwelling Unit (ADU) Revolving Loan Fund to increase the development of ADUs in the community for a total amount not to exceed $450,000 and authorizing the City Manager, or his designee, to negotiate and execute the Agreement.
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Approved by: ______
Jessica Hill, Director
Community and Economic Development
Department
Joseph P. Lopez, City Manager
Attachments:

1. Ordinance Amending Title 10 of the Modesto Municipal Code

2. Resolution – ADU Revolving Loan Fund

3. Planning Commission Minutes

4. Notice of Exemption

5. Draft Agreement with Valley First Credit Union
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ORDINANCE NO. -C.S.

AN ORDINANCE AMENDING VARIOUS SECTIONS AND TABLES WITHIN TITLE 10 OF THE MODESTO MUNICIPAL CODE RELATING TO

ACCESSORY DWELLING UNITS
WHEREAS, housing production in the State of California has not kept pace with demand, resulting in the lack of housing and in particular lack of affordable housing; and WHEREAS, changes to state laws that became effective on January 1, 2024 and March 25, 2024 are intended to encourage the development of accessory dwelling units in areas zoned for single-family and multi-family uses to contribute to the affordable housing supply in the city; and
WHEREAS, this code amendment will update the City of Modesto’s Zoning Regulations consistent with state law regarding accessory dwelling units and make other minor miscellaneous changes; and
WHEREAS, this code amendment is necessary at this time as the city undertakes an update of both the General Plan and the Housing Element; and WHEREAS, a public hearing was held by the Planning Commission on August 19, 2024, in the Chambers, 1010 Tenth Street, Modesto, California at which hearing evidence both oral and documentary was received and considered; and
WHEREAS, the proposed code amendment which makes corrections and clarifications to the regulations related to accessory dwelling units and junior accessory dwelling units is Statutorily Exempt from CEQA pursuant to Section 15282 (h) of the State CEQA Guidelines that exempts the adoption of an ordinance regarding second units in a single-family or multi-family residential zone by a city or county to implement the provisions of Government Code Section 66310 et. seq.; and
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WHEREAS, after a public hearing held on August 19, 2024, it was found and determined by the Planning Commission that the requested code amendment will not be detrimental to the public health, safety or welfare because providing more housing and especially affordable housing, will benefit the community; and
WHEREAS, the proposed code amendment will result in an orderly planned use of land because the amended regulations for accessory dwelling units, including junior accessory dwelling, units will clarify where and how they may be built; and WHEREAS it is in accordance with the community’s objectives as set forth in the General Plan and any applicable specific plan(s) because the proposed code amendment allows for the development of more accessory dwelling units consistent with the goals of the Housing Element, a portion of the General Plan; and
WHEREAS, by Resolution No. 2024-xx adopted on August 19, 2024, the Planning Commission recommended to the City Council that the proposed amendments to Title 10 of the Modesto Municipal code, be approved, and
WHEREAS, this proposed code amendment was set for a public hearing on November 12, 2024, before the City Council, at which date and time said duly noticed public hearing of the Council was held for the purpose of receiving public comment on the proposed amendments to Title 10 of the Modesto Municipal Code, and
WHEREAS, evidence, both written and oral, was duly presented and considered by the City Council at the aforesaid public hearing; and
WHEREAS, all legal prerequisites to the adoption of this Ordinance have occurred. #21..
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WHEREAS, after a public hearing held on November 12, 2024, in the Tenth Street Place Chambers located at 1010 10th Street, Modesto, California, this City Council finds and determines as follows:

1. The requested change will not be detrimental to the public health, safety, or welfare because providing more housing in compliance with building standards, especially affordable housing, will benefit the community.

2. The requested change will result in an orderly planned use of land because the amended regulations for accessory dwelling units, including junior accessory dwelling units, will clarify where and how they may be built.

3. The requested change is in accordance with the community’s objectives as set forth in the General Plan and any applicable specific plans because the proposed code amendment allows for the development of more accessory dwelling units consistent with the goals of the Housing Element, a portion of the General Plan.

NOW, THEREFORE, the Council of the City of Modesto does ordain as follows:

SECTION 1. AMENDMENT OF CODE. Title 10 of the Modesto Municipal Code, Chapter 4, “Development Standards,” Article 1, “Residential Zones,” Section 10-4.102, “Development Standards,” Table 4.1-1, “Residential Development Standards,” is hereby amended to read as follows (with deletions in strikethrough and additions in underlined):
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Section 10-4.102 – Development Standards
Table 4.1-1 Residential Development Standards
Development Standards Zoning Districts
R-1 R-2 R-3
Notes

LOT REQUIREMENTS
Area (minimum in Sq Ft)(1)
Interior Lot 5,000 6,000 6,000
Corner Lot 5,500 6,500 6,500
See Section 10-4.103
Density
Minimum - - -
Maximum - - -
See Section 10-4.104
Width (minimum in feet)
Interior Lot 50 60 60 See Section 10-4.105 a
Corner Lot 60 60 60 See Section 10-4.105 b
Flag Lot 20 20 20 See Section 10-4.105 c
Coverage (maximum in %)
Interior Lot 50 55 60
Corner Lot 55 60 65
See Section 10-2.141.

For accessory dwelling
units, see Section 10-

4.115 Article 5.

SETBACK REQUIREMENTS
Front and Street-Side (corner lot) (minimum in feet) See Section 10-4.106 Buildings (except garage, carport, parking space) 15 15 15 Garage, Carport, Parking Space (Side facing/front
facing)
15/20 15/20 15/20
Side, (interior) (minimum in feet) See Section 10-4.107 Buildings, Main - One Story Portion 5 5 5
- Two Story Portion Adjacent to R1
(12)
10 15 15
Not Adjacent to
R-1(12)
10 10 10
See Sections 10-4.107 a
and 10-4.110 for 2nd
story dwellings
- Three Story Portion Adjacent to R1
(12)
- - 20
Not Adjacent to
R-1(12)
- - 10
Accessory Building, Garage, Carport, Parking
Space - One Story
5 5 5 See Section 10-4.108 b,
See Section 10-4.114
- Two Stories 5 5 5
Accessory Building (other) - - - See Section 10-4.114
Accessory Dwelling Unit See Article 5
Rear (minimum in feet)
Buildings, Main - One Story Portion 10 10 10 See Section 10-4.108 a, and Section 10-4.108 c
for Patio Covers
- Two Story Portion 15 15 15
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- Three Story Portion Adjacent to R1
(12)
- - 20
Not Adjacent to
R-1
- - 15
Accessory Building, Garage, Carport, Parking
Space - One Story
5 5 5 See Section 10-4.108 b,
and 10-4.114
- Two Stories 5 5 5
Accessory Building (other) - - - See Section 10-4.114
Accessory Dwelling Unit See Article 5

HEIGHT REQUIREMENTS
Structure (maximum height in stories/feet,
whichever is less)
2/30 2/30 3/42 See Sections 10-4.109
and 10-4.110

OTHER REQUIREMENTS
Parking See Chapter 5
Signs See Chapter 6
Fencing See Section 10-4.406
Street Frontage See Section 10-4.111
Lots with Existing Units See Section 10-4.112
Design See Section 10-4.113
(1) Minimum lot size requirements do not apply to the construction of ADUs. (2) Adjacent to R-1 zone includes property zoned R-1 in the City including P-D zones (with R-1 density) and property zoned A-2, R-A, and R-1 in the County.

SECTION 2. AMENDMENT OF CODE. Title 10 of the Modesto Municipal Code, Chapter 4, “Development Standards,” Article 1, “Residential Zones,” Section 10-4.107, “Side Setback,” and Section 10-4.108, “Rear Setback” are hereby amended to read as follows (with deletions in strikethrough and additions underlined):

Section 10-4.107 Side Setback.
(a) In the R-1 zone, a minimum ten (10) foot setback shall be required for two-story portions of a new dwelling or second-story additions to an existing dwelling where located adjacent to an existing single-story dwelling, and subject to development plan review pursuant to Section 10- 4.110. The ten (10) foot setback does not apply where the subject lot and adjacent lot were created by a final map within the past ten years. The required ten (10) foot setback may be reduced to a minimum of five (5) feet if it can be demonstrated that the additional setback is infeasible due to physical constraints and that the reduced setback is consistent with the Neighborhood Compatibility Guidelines as determined by the Director.
(b) Use of a side yard by an adjacent property owner is permitted only in subdivisions where #21..
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a permanent side yard use easement is granted from one (1) parcel to the adjacent parcel creating a de facto zero lot line subdivision. An example of a de facto zero lot line subdivision is Walnut Tree Estates, located at Walnut Tree Drive and Merle Avenue, the final map for which was filed on May 20, 1981, in Volume 29 of Maps, Page 90, Stanislaus County Records, the special provisions for permanent use of the side yard which were specified in Ordinance No.2286-C.S. approved on September 4, 1984. (c) For accessory dwelling units, see Section 10-4.115.

Section 10-4.108 Rear Setback.
(a) The minimum rear setback shall be fifteen (15) foot for any building that backs up to a Major Collector, Arterial Street or Expressway.
(b) The minimum rear setback shall be five (5) feet for any garage, carport, or parking space with access off an alley. The garage or carport may be detached or attached. (c) The minimum rear setback for patio covers opened on three sides shall be five (5) feet, except where the lot backs up to a Major Collector, Arterial Street or Expressway, where the setback shall be ten (10) feet.
(c) For accessory dwelling unit, see Section 10-4.115.

SECTION 3. AMENDMENT OF CODE. Title 10 of the Modesto Municipal Code, Chapter 4, “Development Standards,” Article 1, “Residential Zones,” Section 10-4.114, “Accessory Buildings” is hereby amended to read as follows (with deletions in strikethrough and additions underlined):

Section 10-4.114 - Accessory Buildings.

The following regulations provided in Table 4.1-2 apply to accessory buildings in the R-1 Zone or any residential zone where the lot contains only an existing single family dwelling (SFD).

These regulations do not apply to ADUs:

SECTION 4. AMENDMENT OF CODE. Title 10 of the Modesto Municipal Code, Chapter 4, “Development Standards,” Article 5, “Accessory Dwelling Units,” is hereby amended to read as follows (with deletions in strikethrough and additions underlined):
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Section 10-4.501 Purpose and intent.

This Article implements the requirements of Government Code Sections 65852.2 and 65852.22. 66310 et. seq.

Section 10-4.502 Accessory Dwelling Units - General.
(a) The following regulations provided below and in apply to accessory dwelling units and junior accessory dwelling units in any zone that allows single family or multi-family, or mixed use. Accessory Dwelling Units (ADUs) may be created in any zone that allows singlefamily residential, multi-family residential, or mixed-use, or as expressly permitted in this Article.
(b) Accessory dwelling units and junior accessory dwelling units may only be rented in increments of thirty (30) days or more. Junior Accessory Dwelling Units (JADUs) may be created only in zones that allow single-family residential on a lot with an existing or proposed single-family dwelling.
(c) An accessory dwelling unit includes an efficiency unit as defined in Section 17958.1 of the Health and Safety Code. accessory dwelling units ADUs and junior accessory dwelling units JADUs may only be rented in increments of thirty (30) days or more. (d) An accessory dwelling unit includes a manufactured home, as defined in Section 18007 of the Health and Safety Code. An ADU includes an efficiency unit as defined in section 17958.1 of the health and safety code.
(e) These regulations may be applicable to lots zoned for single-family residential uses and built with units in compliance with Senate Bill No. 9 (Chapter 162, Statues of 2021). An ADU includes a manufactured home, as defined in section 18007 of the health and safety code. (f) These regulations may be applicable to lots zoned for single-family residential uses and built with units in compliance with Senate Bill No. 9 (Chapter 162, Statues of 2021). An Accessory Dwelling Unit (ADU) or Junior Accessory Dwelling Unit (JADU) conforming to the standards of this Article shall:
(1) Be deemed to be an accessory use or accessory building. (2) Be deemed a residential use that is consistent with the existing General Plan or zoning designation for the lot.
(3) Not be considered in the application of any local ordinance, policy, or program to limit residential growth.
(4) Not be considered to exceed the allowable density for the lot upon which the ADU or JADU is located.
(5) Not be considered to be a new residential use for calculating connection fees or capacity charges for utilities, including water and sewer services, unless the ADU or JADU was constructed with a new single-family dwelling.
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conveyed separate from the primary residence.
(7) A JADU shall not be sold separate from the single-family residence. (g) An Accessory Dwelling Unit (ADU) or Junior Accessory Dwelling Unit (JADU) conforming to the standards of this Article shall:
(1) Be deemed to be an accessory use or accessory building. (2) Be deemed a residential use that is consistent with the existing General Plan and or zoning designation for the lot.
(3) Not be considered in the application of any local ordinance, policy, or program to limit residential growth.
(4) Not be considered to exceed the allowable density for the lot upon which the ADU or JADU is located.
(5) Except as provided in Government Code Section 65852.26 66310 et. seq., an accessory dwelling unit may be rented separate from the primary residence but may not be sold or otherwise conveyed separate from the primary residence.

Section 10-4.503 Application Filing, Processing, and Review. (a) Ministerial Approval Only. A local agency shall ministerially approve an application for a building permit for an ADU or JADU.
(1) Timeframe for Review. If there is an existing single-family or multi-family dwelling on the lot, the permitting agency shall either approve or deny the application within sixty (60) days from the date the permitting agency receives the completed application. (i.) If the applicant requests a delay, the sixty (60) day, time period shall be tolled for the period of the delay.
(2) If the local agency has not approved or denied the completed application within sixty (60) days, the application shall be deemed approved.
(3) If a building permit for an ADU or JADU is submitted with a permit application for a new single-family or multi-family dwelling on the lot, the permitting agency may delay approval or denial of the ADU or JADU application until the permitting agency either approves or denies the application to create the new single-family or multi-family dwelling.
(4) A demolition permit for a detached garage that will be replaced with an ADU shall be reviewed with the application for the ADU and issued at the same time. (i.) Written notice or the posting of a placard for the demolition of a detached garage, per subparagraph (4), above, shall not be required, unless the subject property is located within an architecturally and historically significant historic district. (5) If the permitting agency denies an application for an ADU or JADU, the permitting agency shall, within the sixty (60) day time-period, return in writing a full set of comments to the applicant with a list of items that are defective or deficient and a description of how the application can be remedied by the applicant. (b) Fire Sprinklers. An ADU shall not be required to provide fire sprinklers if they are not required for the primary residence; and the construction of an ADU shall not trigger a requirement for fire sprinklers to be installed in the existing primary dwelling. #21..
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(c) Passageways. The construction of an ADU shall not trigger a requirement for construction of a passageway, as defined in Government Code Section 65852.2. An ADU shall not be required to provide a passageway in conjunction with the construction of an ADU. (d) Nonconforming Zoning Conditions. The construction of an ADU shall not trigger requirements to correct nonconforming zoning conditions. No increase in of nonconforming zoning conditions shall be allowed. An ADU shall not be required, as a condition for ministerial approval, to correct nonconforming zoning conditions. (e) Building Code Requirements. Local building code requirements that apply to detached dwellings shall apply to ADUs, except that the construction of an ADU shall not constitute a Group R occupancy change under the local building code, as described in Section 310 of the California Building Code (Title 24 of the California Code of Regulations), unless the building official or enforcement agency of the local agency make a written finding based on substantial evidence in the record that the construction of the ADU could have a specific, adverse impact on public health and safety.
(1) Nothing in this clause shall be interpreted to prevent a local agency from changing the occupancy code of a space that was unhabitable space or was only permitted for nonresidential use and was subsequently converted for residential use pursuant to this section.
(f) Other Regulations. No other local ordinance, policy, or regulation shall be the basis for the delay or denial of a building permit or use permit under this subdivision. (g) Construction Fees. Fees charged for the construction of accessory dwelling units shall be determined in accordance with Chapter 5 (commencing with Section 66000) and Chapter 7 (commencing with Section 66012) of the Modesto Municipal Code. Government Code section 66324, as amended and renumbered from time to time Chapter 5 (commencing with Section 66000) and Chapter 7 (commencing with Section 66012). (h) Utilities. An ADU shall not be considered by a local agency, special district, or water corporation to be a new residential use for the purposes of calculating on connection fees or capacity changes for utilities, including water and sewer service, unless the ADU was constructed along in conjunction with a new single-family dwelling. The City may require a new or separate utility connection, as well as a corresponding connection fee or capacity charge, in accordance with Government Code section 66324. (i) Impact Fees, under 750 square feet. A local agency, special district, or water corporation The City shall not impose any impact fee upon the development of an ADU less than seven hundred fifty (750) square feet in floor area.
(j) Impact Fees, 750 or more square feet. An impact fee charged for an ADU of seven hundred fifty (750) square feet or more in floor area shall be charged proportionately in relation to the square footage of the primary dwelling unit. #21..
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(k) Lot Coverage. For an ADU of eight hundred (800) square feet or less, lot coverage as shown on Table 4.1-1 (Residential Development Standards) shall not apply.

Section 10-4.504 Types and Locations of Accessory Dwelling Units (ADUs). (a) Attached. An ADU may be attached to a proposed or existing primary single-family dwelling or multi-family dwelling.
(b) Detached. An ADU may be detached (free-standing) from the a proposed or existing primary single-family or multi-family dwelling on the same a lot. (e.g., a new-construction, detached ADU).
(c) Converted. An ADU may be located within the a proposed or existing primary single-family or multi-family dwelling, in areas currently not used for living spaces (e.g., an existing attached garage or laundry room), or in an existing (free-standing) accessory building on the lot. other living space to be converted to an ADU (e.g., master bedroom suite); or an existing detached accessory structure to be converted to an ADU. (1) For multi-family dwellings, an ADU may be located in areas currently not used for living spaces (e.g., garage storage room, laundry room), or in an existing (free-standing) accessory building on the lot.
(d) Junior ADU (JADU). A JADU is a special type of ADU that is not more than five hundred (500) square feet in size and is contained entirely within the walls of an existing or proposed single-family residence. JADUs may only be created in single-family zones.

Section 10-4.505 Number and type of Accessory Dwelling Units Permitted (a) Lots with a Single-family Dwelling. On a lot developed with an existing or proposed single family dwelling, an applicant may choose from any of the following ADU types (i.e., attached, detached, converted) or a JADU, or a combination thereof not to exceed two (2) additional units beyond the primary single-family residence. (1) One (1) Junior Accessory Dwelling unit (JADU) is allowed per lot in a residential or mixed-use zone, where there is only one (1) existing or one (1) proposed single family dwelling.
(i) Junior Accessory Dwelling Units shall conform to the requirements in Section 10-

4.508, below.
(2) One (1) Detached (new construction) ADU is allowed per lot in a residential or mixeduse zone, where there is only one (1) existing or one (1) proposed single family dwelling:
(i) Not exceeding eight hundred fifty (850) square feet in floor area (one (1) bedroom); This does not preclude the creation of an efficiency unit. (ii) Not exceeding one thousand two hundred (1,200) square feet in floor area (more than one (1) bedroom).
(iii)Four (4) foot side and four (4) foot rear yard setbacks are allowed. (1) An Attached (new construction) ADU meeting the requirements of this chapter. (2) A Detached (new construction) ADU: is allowed per lot in a residential or mixed- use zone, where there is only one (1) existing or one (1) proposed single family dwelling:. #21..
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(i) Not exceeding 850 square feet in floor area (one bedroom); This does not preclude the creation of an efficiency unit. Minimum Ffour (4) foot side and four (4) foot rear yard setbacks are allowed required.
(ii) Not exceeding 1,200 square feet in floor area (more than one bedroom). (iii) Four (4) foot side and four (4) foot rear yard setbacks are allowed. (3) A Converted ADU may be located within an existing single-family dwelling (i.e., in living space to be converted to an ADU, e.g., a master bedroom suite), or within an existing detached accessory structure (e.g., a detached garage). (i) The ADU located within an existing or proposed single-family dwelling must have exterior access.
(ii) The side and rear setbacks of the existing accessory structure to be converted must be sufficient for fire and safety.
(4) One (1) Junior Accessory Dwelling Uunit (JADU) is allowed per lot zoned for singlefamily in a residential or mixed-use zone, where there is only one (1) existing or one (1) proposed single family dwelling.
(i) Junior Accessory Dwelling Units shall conform to the requirements in Section 10-

4.509, below.
(b) Lots with Multi-family Residential Dwellings.
(1) Within an existing multifamily dwelling, a maximum of twenty-five (25) percent of the existing multifamily dwelling units, minimum one (1), is allowed. Multiple accessory dwelling units are allowed within the portions of existing multifamily dwelling structures that are not used as livable space, including but not limited to, storage rooms, boiler rooms, passageway, attics, basements, or garages, if each unit complies with state building standards for dwellings.
(i) These ADUs may be built in the portions of existing multifamily structures not currently used as living space (e.g., storage rooms, boiler rooms, passageways, attics, and garages).
(2) The number of ADUs shall not exceed Not more than two (2) detached ADUs may be added to a lot that has an existing or proposed multifamily dwelling twenty-five (25) percent of the existing multifamily units, except that at least one (1) ADU is allowed. (3) Not more than two (2) detached ADUs may be added to a lot that has a proposed multifamily dwelling, and not more than eight (8) detached ADUs may be added to a lot that has an existing multifamily dwelling.
(c) ADUs developed on a lot with an existing or proposed Place of Worship. (1) An ADU may be developed on a lot, meeting the following requirements:
(i) Zoned Residential or Commercial, and excluding the Industrial Zones (C-M, M-1, and M-2);
(ii) Developed with an existing or proposed place of worship; and (iii) Where the church or place of worship meets the Internal Revenue Service (IRS) requirements for tax exempt status under Internal Revenue Code (IRC) Section 501 (c)(3).
(2) Not more than two (2) detached ADUs may be built.
(3) Each ADU may not exceed 1,200 square feet in floor area. #21..
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(4) Each ADU shall meet the required front setbacks of the respective zoning district. (5) Each ADU shall meet the required street-side setbacks of the respective zoning district. (6) Each ADU shall have a minimum four (4) foot interior side and rear yard setbacks. (7) No additional off-street parking is required for the ADUs, if at least one (1) existing offstreet parking space is reserved for tenants in each proposed ADU. (8) The ADUs shall have a maximum height of sixteen (16) feet.

Section 10-4.506 Accessory Dwelling Units (ADUs): Maximum Sizes (a) Attached ADUs. If there is an existing primary dwelling on the lot, then the total floor area of an attached accessary dwelling unit shall not exceed fifty (50) percent of the existing or proposed primary dwelling. This limitation shall not preclude development of an attached ADU of up to 800 square feet.
(b) Detached ADUs. The total floor area for a detached accessory dwelling unit shall not exceed twelve hundred (1,200) square feet or the square footage of the primary structure, whichever is less.
(1) The total floor area for a detached ADU shall not exceed twelve hundred (1,200) square feet.
(2) A detached ADU shall not exceed the square footage (in floor area) of the existing or proposed single family dwelling.
(c) A JADU shall not exceed five hundred (500) square feet in area. (c) Converted ADUs.
(1) When an existing detached accessory structure is converted to an ADU, a maximum onehundred-fifty (150) square-foot expansion beyond the dimensions of the existing accessory structure is allowed, provided the expansion is used solely for accommodating ingress and egress.
(2) Any expansion to an existing structure that is nonconforming as to its setbacks, shall provide a minimum four (4) foot interior side yard and four (4) foot rear yard setbacks.

Section 10-4.507 Accessory Dwelling Unit: Height Limits (a) Lots with a Single-family Dwelling.
(1) A height limit of sixteen (16) feet for a detached accessory dwelling unit on a lot with an existing or proposed single-family; or,
(2) A height limit of eighteen (18) feet, if the lot is within one-half mile (walking distance) of a major stop or high-quality transit corridor, as those terms are defined in Section 21155 of the Public Resources Code. for a detached accessory dwelling unit on a lot with an existing or proposed single-family dwelling that is within one-half of one mile walking distance of a major transit stop or a high-quality transit corridor, as those terms are defined in Section 2115 of the Public Resources Code. (3) An additional two (2) feet in of height is allowed to accommodate a roof pitch on an accessory dwelling unit that is aligned with the roof pitch of the primary dwelling. (4) For an ADU that is attached to a primary dwelling, a maximum height of twenty-five (25) feet or the height limitation in the zone that applies to the single-family dwelling, whichever is lower. This does not require the City to allow an accessory dwelling unit to #21..
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exceed two stories. Notwithstanding the foregoing, an ADU shall not exceed two stories. (b) Lots with Multifamily Dwellings.
(1) A height limit of sixteen (16) feet for a detached accessory dwelling unit on a lot with an existing or proposed multifamily dwelling; or,
(2) A height of eighteen (18) feet for a detached accessory dwelling unit on a lot with an existing or proposed multistory, multifamily dwelling; or unit, that is within one-half of one mile walking distance of a major transit stop or high quality transit corridor, as those terms are defined in Section 2115 of the Public Resources Code. (3) A height limit of eighteen (18) feet, if the lot is within one-half mile (walking distance) of a major transit stop or a high-quality transit corridor, as those terms are defined in Section 21155 of the Public Resources Code. An additional two (2) feet of height is allowed to accommodate a roof pitch on the accessory dwelling unit that is aligned with the roof pitch of the primary multifamily dwelling unit.
(4) A height of eighteen (18) feet on a lot with an existing or proposed multifamily, multistory, dwelling.

Section 10-4.508 Junior Accessory Dwelling Units (JADU) (a) A junior accessory dwelling unit (JADU) shall be contained within the walls of the existing or proposed single-family residence.
(1) For the purposes of this section, contained within, a single-family residence includes the conversion of an attached garage.
(b) A JADU shall not exceed five-hundred (500) square feet in area. (c) The JADU shall include a separate entrance from the main entrance to the existing or proposed single-family dwelling.
(d) A Junior Accessory Dwelling Unit (JADU) may include separate sanitation facilities or may share sanitation facilities with the existing single-family residence. If the a JADU does not include a separate bathroom, the JADU shall include a separate entrance from the main entrance to the structure, with and an interior entry to the main living area. (e) A junior accessory dwelling unit shall have an efficiency kitchen which includes all of the following:
(1) A cooking facility with appliances;
(2) A food preparation counter; and
(3) Storage cabinets of a reasonable size in relation to the size of the JADU. (f) Prior to final inspection of a JADU, the property owner shall record a notice of conditions (deed restriction), which shall run with the land, specifying that owner shall occupy either the JADU or the remaining portion of the single-family residence at all times, unless the owner is a governmental agency, land trust, or housing organization. (g) Prior to final inspection of a JADU, the property owner shall record with the City a deed #21..
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restriction, which shall run with the land, that shall include both of the following:
(1) A prohibition on the sale of the junior accessory dwelling unit separate from the sale of the single-family residence, including a statement that the deed restriction may be enforced against future purchasers.
(2) A restriction on the size and attributes of the junior accessory dwelling unit that conforms with Government Code Section 65852.22.
(h) A JADU shall not be sold separately from the single-family residence.

Section 10-4.508 Parking, Accessory Dwelling Units.
(a) No more than one (1) off-street parking space shall be required for an accessory dwelling unit.
(1) Parking may be tandem in an existing driveway.
(2) An uncovered off-street parking space, for an accessory dwelling unit, may be located, on a paved surface, in either a required front setback (existing driveway) or (if a lot has alley access) in a required rear setback.
(b) When a garage, carport, or other covered parking structure is demolished in conjunction with the construction of an accessory dwelling unit or is converted to an accessory dwelling unit, the lost off-street parking is not required to be replaced. (c) No parking is required for an ADU or a JADU unit if:
(1) The unit is within one-half (0.5) mile walking distance of either a high-quality transit corridor, as defined in subdivision (b) of Section 21155 of the Public Resources Code, or a major transit stop, as defined in Section 21064.3 of the Public Resources Code public. transit stop.
(2) The accessory dwelling unit is within an architecturally and historically significant district.
(3) The accessory dwelling unit is part of the proposed or existing primary residence or an accessory structure.
(4) When on-street parking permits are required but not offered to the occupant of the accessory dwelling unit.
(5) When there is a car share vehicle located within one (1) block of the accessory dwelling unit.
(6) When a permit application for an ADU (in compliance with these requirements) is submitted as part of a permit application to create a new single-family, or new multifamily dwelling on the same lot.

Section 10-4.509 Junior Accessory Dwelling Units (JADU) (a) A junior accessory dwelling unit (JADU) shall be contained within the walls of the existing or proposed single-family residence.
(1) For the purposes of this section, contained within, a single-family residence includes the conversion of an attached garage.
(b) A JADU shall not exceed five-hundred (500) square feet in area. #21..
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(c) The JADU shall include a separate entrance from the main entrance to the existing or proposed single-family dwelling.
(d) A (JADU) may include separate sanitation facilities or may share sanitation facilities with the existing single-family residence. If the a JADU does not include a separate bathroom, the JADU shall include a separate entrance from the main entrance to the structure, with and an interior entry to the main living area.
(e) A JADU unit shall have an efficiency kitchen which includes all of the following:
(4) A cooking facility with appliances;
(5) A food preparation counter; and
(6) Storage cabinets of a reasonable size in relation to the size of the JADU. (f) Prior to final inspection of a JADU, the property owner shall record a notice of condition (deed restriction), which shall run with the land, specifying that owner shall occupy either the JADU or the remaining portion of the single-family residence at all times, unless the owner is a governmental agency, land trust, or housing organization. (g) Prior to final inspection of a JADU, the property owner shall record with the City a deed restriction, which shall run with the land, that shall include both of the following:
(1) A prohibition on the sale of the JADU unit separate from the sale of the single-family residence, including a statement that the deed restriction may be enforced against future purchasers.
(2) A restriction on the size and attributes of the JADU unit that conforms with Government Code Section 66310 et seq..
(h) A JADU shall not be sold separately from the single-family residence.

Section 10-4.510 General Development Standards
(a) The maintenance of a single-family dwelling appearance is encouraged through means such as:
(1) For an attached ADU or JADU, locating the second unit entrance to the side or rear of the main building so it is not readily visible from the street. (2) Employing construction materials and architectural styles which blend the units so they appear as a single residence (if attached) or as single residence and accessory building, if detached.
(b) Where a second story accessory dwelling unit (ADU) is built adjacent a rear or side yard of a lot developed with a one (1) story, single-family residential dwelling, any walls of the accessory dwelling unit that could provide unobstructed views of a neighboring rear yard or actively used side yard shall have either no windows or windows shall a bottom sill located at least five (5) feet eight (8) inches from the finished floor of the second story. This does not apply to a window required by the Building Code to be usable for accessible emergency access. This limitation shall not preclude the development of an ADU. (c) The City Council may designate, from time to time, by resolution, areas within which #21..
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accessory dwelling units will not be permitted due to infrastructure constraints relating to water and sanitary sewer.

Section 10-4.511 By-right ADUs. Notwithstanding anything in this Article to the contrary, the City shall ministerially approve the types of ADUs specified in Government Code section 66323.

Section 10-4.512 Compliance with State Law. In the event of a conflict between this Code and the requirements of Government Code section 66310 et seq., as amended and renumbered from time to time, the requirements of State law shall apply.

SECTION 5. CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA). This ordinance is Statutorily Exempt from CEQA pursuant to Section 21080.17 of the Public Resources Code, which states: This division does not apply to the adoption of an ordinance by a city or county to implement the provisions of Section 65852.1 or Article 2 (commencing with Section 66314) of Chapter 13 of Division 1 of Title 7 of the Government Code.

SECTION 6. EFFECTIVE DATE. This ordinance shall go into effect and be in full force and operation from and after thirty (30) days after its final passage and adoption.

SECTION 7. PUBLICATION. 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.

The foregoing ordinance was introduced at a regular meeting of the Council of the City of Modesto held on the 12th day of November, 2024, by Councilmember , who moved its introduction and passage to print, which motion being duly seconded by Councilmember , was upon roll call carried and ordered printed and published by the following vote:
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AYES: Councilmembers:

NOES: Councilmembers:

ABSENT: Councilmembers:

APPROVED:

Sue Zwahlen, Mayor
ATTEST:

By:

Diane Nayares-Perez, City Clerk
(SEAL)
APPROVED AS TO FORM:

By:

JOSE M. SANCHEZ, City Attorney
APPROVED AS TO DESCRIPTION:

By:

Community & Economic Development
Department, Planning Division
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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 ____________, 2024, Councilmember ______________moved its final adoption, which motion being duly seconded by Councilmember ________________, was upon roll call carried and the ordinance adopted by the following vote:

AYES: Councilmembers:

NOES: Councilmembers:

ABSENT: Councilmembers:

APPROVED:

MAYOR, SUE ZWAHLEN
ATTEST: ____________________________
DIANE NAYARES-PEREZ, City Clerk
Effective Date: _________________, 2024
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11/12/2024/CED/EGarcia/Item X 1 2024-XX

MODESTO CITY COUNCIL
RESOLUTION NO. 2024-

RESOLUTION APPROVING AN AGREEMENT WITH VALLEY FIRST CREDIT

UNION MODESTO, CALIFORNIA FOR ACCESSORY DWELLING UNIT (ADU)

REVOLVING LOAN FUND TO INCREASE THE DEVELOPMENT OF ADUS IN THE COMMUNITY FOR A TOTAL AMOUNT NOT TO EXCEED $450,000 AND

AUTHORIZING THE CITY MANAGER, OR HIS DESIGNEE, TO NEGOTIATE

AND EXECUTE THE AGREEMENT
WHEREAS, like many cities across the State, Modesto has a limited affordable housing inventory. In recent years, accessory dwelling units have become a critical part of the housing stock of a community; and
WHEREAS, ADUs can be detached, such as a small cottage or guest house on the same parcel as a single-family home, and they can also be attached, such as an addition on a primary structure and be created from the conversion of existing space, such as a garage; and
WHEREAS, in addition to bolstering the housing supply of a community, ADU’s also have a critical role in building the financial security of a homeowner via the equity of the home due to the improvements and the potential for rental income for the homeowner; and
WHEREAS, to carry out a program that can achieve these benefits for the community, the City approved $450,000 for an ADU Revolving Loan Fund that was approved as part of the Fiscal Year 2024-2025 Measure H Spending Plan budget; and WHEREAS, the City approached Valley First Credit Union (VFCU) because of their extensive experience in preparing loan programs for Modesto residents to develop a program. Headquartered in Modesto, Valley First Credit Union has been serving the community since 1949; and
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11/12/2024/CED/EGarcia/Item X 2 2024-XX
WHEREAS, Valley First’s primary mission is to create access to financial products and services to individuals of low- and moderate-income and other disadvantaged communities; and
WHEREAS, the City, through its partnership with VFCU aims to address critical needs particularly the access to capital for homeowners who desire to build an attached or detached ADU on their property and by partnering with VFCU, the City can leverage the local unique capabilities and relationships of a local credit union to establish an efficient and streamlined loan program that supports the production of ADUs and helps build financial security for homeowners; and
WHEREAS, a partnership with VFCU serves as a critical step to help address financial barriers to individuals who traditionally would not have access to the capital required to build an ADU and City staff is proposing an ADU loan program in the amount of $450,000; and
WHEREAS, further, by partnering with VFCU, the City can leverage the local unique capabilities and relationships of a local credit union to establish an efficient and streamlined loan program that supports the production of ADUs and helps build financial security for homeowners and help build the local housing stock in the community, and WHEREAS, City’s Fiscal Year 2024-2025 Measure H Spending Plan budget approved an allocation of $450,000, specifically for the establishment of an ADU Revolving Loan Program and all funds dedicated to the program will be exclusively for the program; there are no additional costs associated with the establishment of the program from VFCU; and
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11/12/2024/CED/EGarcia/Item X 3 2024-XX
WHEREAS, this project was presented to the Citizens’ Housing and Community Development Committee on October 10, 2024, and was recommended to forward to Council for approval.

NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Modesto that it hereby approves the Agreement with Valley First Credit Union Modesto, California for Accessory Dwelling Unit (ADU) Revolving Loan Fund to increase the development of ADU’s in the community for a total amount not to exceed $450,000.

BE IT FURTHER RESOLVED, that the City Manager, or his designee, is authorized to negotiate and execute the Agreement, in a form approved by the City Attonrey.
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11/12/2024/CED/EGarcia/Item X 4 2024-XX
The foregoing resolution was introduced at a regular meeting of the Council of the City of Modesto held on the 12th day of November, 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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City of Modesto Planning Commission
Minutes
August 19, 2024
1 Being the hour of 6:00 pm, the meeting was called to order by Chairperson Shanks.

I. ROLL CALL
Commissioners Birring, Black, Grewal, Russell, and Shanks, present Commissioners Silva and Vazquez absent
MOTION
It was moved by Commissioner Russell, seconded by Commissioner Birring and carried by unanimously that Commissioner Silva be excused from this meeting.

II. APPROVAL OF MINUTES
It was moved by Commissioner Grewal, seconded by Commissioner Russell, and carried by majority that the minutes of the regular meeting of July 15, 2024, be approved.

Commissioner Black abstained due to being absent from the meeting.

III. CONFLICT OF INTEREST DECLARATION
None.

IV. CONSENT
None.

V. PUBLIC HEARINGS
Item A Amendment to Title 10 (Zoning Regulations) related to accessory dwelling units (ADUs) and junior accessory dwelling units (City of Modesto) Contact Info: Diana Lowrance, 577-5267, [email protected] Motion/Action (Approved)
• It was moved by Commissioner Birring, seconded by Commissioner Russell, and carried unanimously (Birring, Black, Grewal, Russell, Shanks, ayes; None, noes; Silva, Vazquez absent; None, recused) that the Planning Commission approve a motion amending the draft ordinance Amending Chapter 4 (Development Standards) of Title 10 of the City of Modesto Municipal Code, Article 1 by amending Section 10-4.507 (b) (4), to read:

1. (4) A height of eighteen (18) feet on a lot with an existing or proposed multifamily, multistory, dwelling.
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Planning Commission Minutes 2 August 19, 2024
Motion/Action (Approved)
It was moved by Commissioner Russell, seconded by Commissioner Black, and carried unanimously (Birring, Black, Grewal, Russell, Shanks, ayes; None, noes; Silva, Vazquez absent; None, recused) that the Planning Commission adopt Resolution No. 2024-11 A RESOLUTION RECOMMENDING TO THE CITY COUNCIL AN AMENDMENT TO TITLE 10 (ZONING REGULATIONS) OF THE MODESTO MUNICIPAL CODE TO AMEND CHAPTER 4 (DEVELOPMENT
STANDARDS), ARTICLE 1 (RESIDENTIAL ZONES) AND CHAPTER 4 (DEVELOPMENT STANDARDS), ARTICLE 5 (ACCESSORY DWELLING UNITS) (CITY INITIATED)
VI. OTHER BUSINESS
None.

VII. ORAL COMMUNICATIONS
None.

VIII. MATTERS TOO LATE FOR THE AGENDA
None.

XI. ADJOURNMENT
The meeting was adjourned at 6:35 pm.

Original, signed copy on file in CEDD
Tristan Osborn, AICP, Secretary
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Funding Contribution Agreement – Valley First Credit Union

GRANT AGREEMENT

ACCESSORY DWELLING UNIT LOAN FUND AGREEMENT
This Agreement (“Agreement”) is entered into in the City of Modesto, State of California, this ____ day of ____________ 20__ (“Effective Date”) by and between the City of Modesto, a California municipal corporation (“City”), and Valley First Credit Union, a California corporation (“Recipient”). The City and Valley First Credit Union shall be collectively referred to hereinafter as the “Parties”.

This Agreement is made with regard to the following recitals:

WHEREAS, on November 8, 2022, the Modesto voters approved Measure H, a one-cent tax for general City services; and
WHEREAS, On November 29, 2022, the City Council adopted Resolution No. 2022-453, certified the election results; and
WHEREAS, through the passage of Measure H, the community identified a desire for an increased level of service addressing quality of life issues that allowed the City to proactively develop a plan to improve City services and the quality of life for the citizens of Modesto including; and
WHEREAS, the City desires to provide a grant to Recipient in order to provide an initial investment for an ADU loan program; and
WHEREAS, providing accessible financing to property owners for the creation of new ADUs will increase the housing stock in Modesto, in particular naturally affordable units; and WHEREAS, the City desires to engage the Recipient to render certain services, programs, or assistance in connection with such undertaking of the Grant as described in Exhibit A, and B.

NOW THEREFORE, the City and Recipient agree as follows:

1. Term
A. The term of this Agreement (the “Term”) shall commence on the Effective Date and shall continue until the full expenditure of funds.

2. Grant Award
A. The City shall provide the Recipient with a grant of Four Hundred Fifty Thousand Dollars ($450,000) (the “Grant”) for the purposes and activities further specified in Exhibit A, attached here to and incorporated by reference (the “Activities”). #21..
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Funding Contribution Agreement – Valley First Credit Union B. Recipient shall expend the Grant solely on the Activities, as specified in Exhibit A, and within the approved budget. The Recipient shall not use the Grant for any other purpose or activity without the prior written consent of the City.

C. The Recipient shall operate within the territorial limits of the City of Modesto and the beneficiaries, if any, of the Activities shall be the residents of the City of Modesto.

3. Recipient’s Obligations
A. Throughout the Term of this Agreement, the Recipient shall obtain and maintain all licenses, permits, qualifications and approvals legally required to conduct business, and the specific Activities required by this Agreement. The Recipient warrants that it has all of the necessary professional capabilities and experience, as well as all tools, instrumentalities, facilities and other resources necessary to perform the Activities specified by this Agreement. Recipient shall perform the Activities required pursuant to this Agreement according to the standards observed by a competent practitioner of the profession in which Recipient is engaged.

B. The Recipient shall provide appropriate acknowledgement of the Grant by using the City’s logo or making a written acknowledgement in its publicity, promotional materials, information materials, press materials, at public occasions relating to the Activities, and on any website maintained by the Recipient.

4. Reporting Requirements
The Recipient shall submit monthly reporting, in accordance with the requirements set forth in Exhibit A, attached hereto and incorporated herein, to the City within thirty (30) days of the end of each invoice period. The annual report shall be in addition to the reporting required by Section 4, and shall include:

A. Summary of activities and accomplishments, mandate and/or mission of the organization;
B. List of Board Directors with title, contact information and mandate term of each Director;
C. Organizational Chart;
D. Project/Program Expenditures-to-date (including receipts); E. Any other information reasonably requested by the City.

5. Audit Requirements
A. In addition to all other reports and records required by this Agreement, the Recipient shall keep and make available proper books of account and records of the financial management of the Grant provided under this agreement, in accordance with generally accepted business and accounting practices. Such records shall include, but not be limited to, records providing a full description and accounting of each activity undertaken.
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Funding Contribution Agreement – Valley First Credit Union B. Recipient agrees to keep all necessary books and records required by this Agreement for five (5) years following the end of this Agreement and shall document all transactions so that all expenditures may be properly audited.

C. The Recipient agrees that City or any authorized representative has access to and the right to examine all records, books, papers, or documents related to the project. The Recipient shall allow the City or any authorized representative access to all records, books, papers, or documents related to the project within forty-eight (48) hours of a request to examine.

6. Preservation of Assets
Any assets purchased with the Grant, the cost of which exceed $5,000, shall be preserved by the Recipient, and shall not be sold, leased, given away or otherwise disposed of prior to the end of the useful life of the asset without prior written consent of the City.

7. Termination, Suspension and/or Repayment of Grant
The City may terminate, suspend and/or require repayment of the Grant in the event of any of the following circumstances, after notice from the City and a reasonable opportunity to cure:

A. The Recipient fails to provide the Activities, or any portion of the Activities, described in Exhibit A of this Agreement or substandard performance of the Activities;
B. The Recipient suspends or fails to carry on and continuously conduct its operations, or there is a disruption on the performance of the Activities; C. The Recipient has a partisan political affiliation and/or participates in partisan political activities.

D. The Recipient uses the Grant for a purpose or activity other than those specified in Exhibit A.

E. The Recipient becomes bankrupt or insolvent, goes into receivership or becomes subject to the provisions of any bankruptcy, insolvency, or any other Act for the benefit of creditors, or makes a general assignment for the benefit of its creditors or otherwise acknowledges its insolvency;
F. The Recipient fails to provide to the City with any report, record, or documentation required by this Agreement, or fails to provide any documentation requested by the City in accordance with the terms of this agreement;
G. The Recipient has made any material misrepresentation to the City or its representatives with respect to any of the matters contained herein and/or in the Recipient’s funding submission/proposal/application for the Grant, or which have been made or may be made in the future surrounding these matters; H. The Recipient breaches any term of this Agreement, after notice from the City and a reasonable opportunity to cure the breach;

8. Compliance with Applicable Laws
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Funding Contribution Agreement – Valley First Credit Union Recipient shall carry out, and cause its contractors, consultants, employees and agents to carry out, the Activities, in compliance all applicable federal, state and local laws, rules, ordinances, orders, and regulations, including without limitation and to the extent applicable, the prevailing wage provisions of the federal Davis-Bacon Act and implementing rules and regulations and state prevailing wages pursuant to Labor Code Section 1770 et seq.

9. Non-Assignment
The Recipient shall not assign this Agreement, the Grant, or any part thereof, without the Prior written consent of the City. Any assignment in violation of this section shall require an immediate repayment of the Grant to City by the Recipient.

10. Indemnity and Liability
A. The Recipient shall indemnify , defend with counsel acceptable to City, and hold harmless the City, its officials, officers, employees, and agents (“Indemnitees”) from and against all liability, loss, cost, expense (including without limitation attorneys’ fees and costs of litigation), claim, demand, action, suit, judicial or administrative proceeding, penalty, deficiency, fine, order, and damage (all of the foregoing collectively “Claims”) which, directly or indirectly, arises out of or relates to this Agreement or the performance of the Activities, except to the extent the Claims arise from the sole negligence or willful misconduct of City.

B. The City shall not be liable to the Recipient or any other party in relation to the Grant and/or the services provided by the Recipient pursuant to the terms of this agreement. The Recipient shall be solely responsible for the payment of any individuals employed, engaged or retained by the Recipient for the purpose of assisting it in the fulfilment of its obligations under this agreement.

11. Insurance
The Recipient shall provide at its own expense and maintain at all times the following insurance with insurance companies licensed in the State of California and shall provide evidence of such insurance to the City as may be required by the Risk Manager of the City. The policies or certificates thereof shall provide that, thirty (30) days prior to cancellation or material change in the policy, notices of same shall be given to the Risk Manager of the City by certified mail, return receipt requested, for all of the following stated insurance policies.

In the event the certificates of insurance required hereunder do not provide for notice of cancellation to the certificate holder and/or additional insureds, the Recipient shall provide, and shall require its subcontractors to provide, as an express condition precedent to payment hereunder, an endorsement from their insurers providing that the additional insureds identified herein shall be provided 30 days’ notice of the cancellation on the policies of insurance required hereunder (10 days’ notice if the policies are cancelled for non-payment of premium). In addition, the named insured on #21..
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Funding Contribution Agreement – Valley First Credit Union all such policies shall provide to the additional insureds identified herein any notices of cancellation of said insurance policies within 5 business days of receipt of such notice.

The Recipient shall, as a further express condition precedent to payment for work performed, affirm under penalty of perjury that the required insurance on the project remains in place and said insurance has not been cancelled. (a) 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.
(b) General Liability insurance with a minimum limit of liability per occurrence of $1,000,000 for bodily injury and property damage. If Commercial General Liability Insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit. 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 The Recipients and subcontractors; products and completed operations as applicable.
(c) 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.
(d) Professional Liability insurance with a minimum limit of $1,000,000 per claim and policy aggregate. If coverage is on a claims made basis it shall be maintained for at least three (3) years following completion of the work.

If at any time any of said policies shall be unsatisfactory to the City, as to form or substance, or if a company issuing such policy shall be unsatisfactory to the City, the Recipient shall promptly obtain a new policy, submit the same to the Risk Manager for approval and submit a certificate thereof as hereinabove provided. Upon failure of the Recipient to furnish, deliver or maintain such insurance and certificates as above provided, this Agreement, at the election of the City, may be forthwith declared suspended or terminated. Failure of the Recipient to obtain and/or maintain any required insurance shall not relieve the Recipient from any liability under this Agreement, nor shall the insurance requirements be construed to conflict with or otherwise limit the obligations of the Recipient concerning indemnification. The City, its agents, officers, employees, and volunteers shall be named as an additional insured on all insurance policies required herein, except Workers' Compensation and Professional Liability. The Workers' Compensation insurer shall agree to waive all rights of subrogation against the City, its agents, officers, employees, and volunteers for losses arising from work performed by The Recipient for the City. The Recipient's insurance policy(ies) shall include a provision that the coverage is primary as respects the City; shall include no special limitations to coverage provided to additional insured; and, shall #21..
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Funding Contribution Agreement – Valley First Credit Union be placed with insurer(s) with acceptable Best's rating of A:VII or with approval of the Risk Manager. The Recipient must deliver certificates evidencing existence of the insurance listed above to the City prior to the time the contract is signed.

The Recipient shall provide City with separate endorsements evidencing proof of the CITY’s additional insured status as to both the general liability and automobile liability insurance policies. In addition, the Recipient shall provide City with a Workers Compensation subrogation waiver by way of a separate endorsement. All endorsements referenced above must include the applicable policy number.

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

12. Non-Discrimination
Recipient shall not discriminate, on the basis of a person’s race, religion, color, national origin, age, physical or mental handicap or disability, medical condition, marital status, sex, or sexual orientation, against any employee, applicant for employment, subcontractor, bidder for a subcontract, or participant in, Recipient of, or applicant for any services or programs provided by Recipient under this Agreement. Recipient shall comply with all applicable federal, state, and local laws, policies, rules, and requirements related to equal opportunity and nondiscrimination in employment, contracting, and the provision of any services that are the subject of this Recipient, including but not limited to the satisfaction of any positive obligations required of Recipient thereby.

13. NOTIFICATION
Any notice, communication, amendment, addition or deletion to this Agreement, including change of address of either Party during the term of this Agreement, which Recipient or City shall be required or may desire to make shall be in writing and may be personally served or, alternately, sent by prepaid first-class mail to the respective Parties as follows:

To City:

City of Modesto
Attn: Edgar R. Garcia, Community Development Manger
1010 10th Street
Modesto, CA 95353
To Recipient:

Valley First Credit Union
Need to enter address.
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Funding Contribution Agreement – Valley First Credit Union

14. SEVERABILITY
If any portion of this Agreement or application thereof to any person or circumstance shall be declared invalid by a court of competent jurisdiction or if it is found in contravention of any federal, state or City statute, ordinance or regulation; the remaining provisions of this Agreement or the application thereof shall not be invalidated thereby and shall remain in full force and effect to the extent that the provisions of this Agreement are severable.

15. DISPUTE RESOLUTION
All venue for any 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 in the Stanislaus County Superior Court.

16. INDEPENDENT PARTIES
Nothing in this Agreement is intended to or shall establish the Parties as partners, coventurers, or principal and agent with one another. At all times during the term of this Agreement, Recipient and City shall be independent parties, and Recipient shall not be an employee of the City. Except as the Recipient may specify in writing, Recipient shall have no authority, express or implied, to act on behalf of City in any capacity whatsoever as an agent. Recipient shall have no authority, express or implied, pursuant to this Agreement to bind City to any obligation whatsoever. At all times during the term of this Agreement, Recipient and

17. ENTIRE AGREEMENT
This Agreement, including the exhibits attached hereto, represents the entire and integrated agreement between City and Recipient ant and supersedes all prior negotiations, representations, or agreements, either written or oral. No amendment of any of the terms or provisions of the Agreement shall be deemed valid unless it is in writing and signed by both Parties.

18. GENERAL PROVISIONS
A. Binding Agreement. This agreement shall be binding on and inure to the benefit of the City, the Recipient and their respective successors and assigns. Nothing contained in this Agreement is intended to or shall be deemed to confer upon any person, other than the Parties and their respective successors and assigns, any rights or remedies hereunder.

B. Severability. Any provision of this agreement, which is or becomes prohibited or unenforceable in any jurisdiction, shall not invalidate or impair the remaining provisions of this agreement which shall be deemed severable from the prohibited or unenforceable provision and any prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable that provision in any other jurisdiction.
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Funding Contribution Agreement – Valley First Credit Union C. Waiver. The fact that the City refrains from exercising a remedy it is entitled to exercise under this agreement shall not be considered to be a waiver of such right and, furthermore, partial or limited exercise of a right conferred upon the City shall not prevent the City in any way from later exercising any other right or remedy under this agreement or other applicable law. No waiver of any breach of any covenant or provision of this Agreement shall be deemed a waiver of any other covenant or provision hereof, and no waiver shall be valid unless in writing and executed by the waiving Party
D. Business License. The Recipient will have a valid City of Modesto Business License. in
E. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California, excluding chose of law rules.

F. Construction of Agreement. The section headings and captions used herein are solely for convenience and shall not be used to interpret this Agreement. The Parties acknowledge that this Agreement is the product of negotiation and compromise on the part of both Parties, and the Parties agree, that since all of the Parties have participated in the negotiation and drafting of this Agreement, this Agreement shall not be construed as if prepared by one of the Parties, but rather according to its fair meaning as a whole, as if all Parties had prepared it.

G. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be an original and all of which taken together shall constitute one instrument. The persons executing this Agreement on behalf of Parties have been duly authorized to do so.

IN WITNESS WHEREOF, the Parties have executed this Agreement as of the effective date set forth above.
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Funding Contribution Agreement – Valley First Credit Union

EXHIBIT A

SCOPE OF WORK
Affordable housing for residents of our community is one of the main goals of creating Accessory Dwelling Unit (ADU) housing. An ADU is a secondary dwelling unit with complete independent living facilities for one or more persons. A Junior ADU (JADU) is a special type of ADU that is not more than five hundred (500) square feet in size and is contained entirely within the walls of an existing or proposed single-family residence.

JADUs may only be created in single-family zones. The requirements for developing an ADU and JADU, including development standards, are established by Government Code Sections 66310 et seq., and Modesto Municipal Code Sections 10-4.501 et seq.

Loan Features

1. Loan will be higher based on demonstrated need and demonstrated ability to adhere to all requirements of the program. The average loan is anticipated to be $50,000.

2. Fixed Rate.
a. Rate addon for each loan term category, namely 60-, 84- or 120-month term. b. Rate Methodology:
i. Rate is calculated based on Wall Street Journal (WSJ) Prime Rate at the time of application minus 5.00%
ii. Example:

1. Application Date: 7/15/2024

2. Wall Street Journal (WSJ) Prime Rate on 7/15/2024 = 8.50%

3. Rate will be 8.50% (WSJ) – 5.00% = 3.50%
iii. Rate will never be less than 3.00%.

3. Fixed Term up to one hundred twenty (120) months.

4. Minimal closing cost ranging from Five Hundred Dollars to Seven Hundred Dollars ($500 - $750).
a. Example of costs such as recording fee, title insurance policy, notary are deducted from the loan proceeds.

5. No annual/servicing fee

6. No prepayment penalty

7. The loan is one hundred percent (100%) secured by the City of Modesto through a loan loss reserve fund at a 1:1 ratio.

8. The loan is secured by real estate where the ADU will be built.

9. The borrower must make monthly payments.

10.Will be in the last lien position after any existing liens (i.e. Home Equity loans, solar loans).

11.Will be in the last lien position after any new liens (i.e. Home Equity loans, solar loans) if such new loan is needed to complete the project.

Payment Types

1. Fully amortized payment each month.

2. Non-sufficient Funds (NSF) Fee
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Funding Contribution Agreement – Valley First Credit Union

3. Late charges
a. If payment is made > 15 calendar days from the due date, 5% of the overdue monthly payment is due.

4. Payments are applied in the following order:
a. Interest
b. Outstanding Principal Balance.
c. Fees and late charges, if any, are added to the subsequent statement as Total Amount Due.

Loan Requirements

1. Must be a member of Valley First Credit Union

2. Subject property must be under ten (10) acres and non-income producing.

3. The applicant must have owned the home for at least six (6) months.

4. Any owner listed on the deed must be on the loan.

5. We cannot fund the loan on a trust account with the Credit Union. a. If the property is in a trust, we can lend against the property, but the loan must close on a “regular member” account.

6. We will only allow a maximum of one (1) properties financed by Valley First per borrower maximum.

7. All property taxes and supplemental taxes must be current.

8. Valid form of identification for notary signing.

9. Must own the property within the City of Modesto, where the ADU will be built.

10.All ADUs must comply with local building codes and zoning regulations.

11.Only licensed contractors registered with the state are used for any construction work related to the ADU.

12.Obtain title insurance coverage naming the lender as loss payee. a. Short Form – Loan Amount ≤ $500,000
b. Existing Solar Loan – Title endorsement is acceptable.

13.ADU must be completed within one (1) year of building permit issuance.

Combined Loan to Value (CLTV)

1. Owner-occupied/primary residence only.

2. Maximum of 80% CLTV minus first mortgage, existing/new home equity, and solar loan.

Valuation

1. A valuation is required on all applications.

2. An automated valuation model (AVM) or Brokers Price Opinion (BPO) is acceptable on loan amounts less than or equal to Two Hundred Fifty Thousand Dollars ($250,000).

3. A full appraisal may be needed if the AVM confidence score is less than ninety percent (90%) or BPO cannot successfully generate a value.

Property Type

1. Single-family residence only.
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Funding Contribution Agreement – Valley First Credit Union Application Process

1. Be or become a Valley First Credit Union member.
a. All City of Modesto residents are eligible for membership at Valley First Credit Union
b. ($5 membership fee & $25 share account to be opened

2. Member submits a pre-qualification application (online, in-branch, or over the phone). Information to be completed includes:
a. Name
b. Address
c. Income
d. Credit History
e. Additional information as required by Valley First Credit Union

3. Submittal of approved plans for an ADU by the City of Modesto a. Provide copies of City of Modesto’s permit approval and contractor’s quote. b. If Valley First Credit Union staff has questions about approval status or validity of documents, they may contact the City of Modesto Community and Economic Development Department.
c. A Valley First Credit Union representative will complete a site inspection.

4. Agree to lien on the property.

5. Agree to release demographic information to the City of Modesto upon approval from applicant via a signed Consumer Privacy Consent Form. a. Name
b. Address
c. Race/ Ethnicity
d. Income
e. Reason for pursuing an ADU.

6. Lending and Sales Advisor (LSA) completes the application process by uncovering the next best steps, collecting required supporting documents, and ensuring members’ understanding of the product.
a. LSA works with the member and underwriting to clear title position. b. LSA helps schedule final document signing and completes funding.

Program Marketing and Services Expectations

1. Loan funds will be on deposit at Valley First in an “Impact” account. a. One hundred percent (100%) of funds to be insured.

2. Valley First Credit Union will handle all outreach and promotion of program via its own marketing/social media and collaborating with City of Modesto and local community partners.

3. Valley First Credit Union will offer coaching and financial education services to explain the ADU process.

4. Promotion and service of program will be offered in English and Spanish

5. Loan underwriting, servicing, and collections will be handled by Valley First Credit Union.
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Funding Contribution Agreement – Valley First Credit Union

6. After sixty (60) days of collections attempts, loan will be “written off” and funds removed from loan fund.

7. Interest paid from loans would be used to absorb some of Valley First Credit Union’s costs.

Data and Outcomes Reported
Reports to be submitted to the City of Modesto on a quarterly basis, or as requested by the City of Modesto. Reports to include the following data and outcomes:

1. Number and amount of loans provided to eligible applicants.

2. Name and address where applicable loan was provided.

3. Race/ Ethnicity of approved/ denied applicants.

4. Income of approved/ denied applicants.

5. Number and Reasons why applicants are denied.

6. Amortization schedules for issued loans.

Proposed Timeline

1. Set up structure for Loan Fund – Q3 2024

2. Funds Deposited at Valley First from City of Modesto – Q4 2024

3. Begin community outreach/marketing/PR – January 2025 #21..
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CITY OF MODESTO

COUNCIL AGENDA REPORT
DATE OF MEETING:

November 12, 2024
Date: November 6, 2024
TO: Mayor and City Council
THROUGH: Joseph P. Lopez, City Manager
FROM: Brandon Gillespie, Chief of Police
Jose M. Sanchez, City Attorney
SUBJECT: Extension of Temporary Moratorium on all New Tobacco Retailer Businesses/Smoke Shops Within the City of Modesto
CONTACT: Brandon Gillespie, Chief of Police, 209-572-9500, [email protected] DESCRIPTION:

Hearing to consider the adoption of an Urgency Ordinance, extending the temporary moratorium on the establishment of new and relocation or physical expansion of existing tobacco retailer businesses, also known as smoke shops, within the City of Modesto, for a period of ten (10) months and fifteen (15) days, to become effective immediately. (Funding Source: General Fund) STRATEGIC PLAN ELEMENT:

This item supports the City’s 2020-2025 Strategic Plan Goal of improving community safety and quality of life through a combination of prevention and intervention efforts that address safety and its underlying issues.

BACKGROUND:

On October 8, 2024, the City Council adopted Ordinance 3785-C.S., establishing a 45-day moratorium on the establishment of new, and the relocation or physical expansion of existing tobacco retailer businesses within the City. The temporary moratorium became effective immediately and will expire on November 22, 2024, unless extended.

Pursuant to Government Code section 65858, after notice and a public hearing, the City Council may extend a temporary moratorium prohibiting any uses that may be in conflict with a contemplated zoning proposal that the legislative body or the planning department is considering, studying, or intends to study within a reasonable time. The extension, like the original adoption of a temporary moratorium, requires at least a four-fifths vote of the City Council. Government Code section 65858 allows for the moratorium to be extended twice; once for 10 months and 15 days and a second time for an additional year, for a maximum of two years, so long as a current and immediate threat to the public safety, health, and welfare exists.

Staff continues the process of addressing community concerns over the establishment of new and relocation or physical expansion of existing tobacco retailer businesses within the City. Staff #22..
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City Council, November 12, 2024
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is studying the potential impacts on the community and what regulations and/or Municipal Code changes may be needed in order to ensure the protection of public health, safety, and welfare.

As noted in the October 8, 2024, Agenda Report on the adoption of the original moratorium, a number of tobacco retailer businesses, as presently regulated, pose a risk to public health, safety, and welfare. The City has repeatedly received complaints from concerned residents regarding such businesses. These businesses could result in harmful effects on the community, minors in particular.

Under the City of Modesto Charter sections 200 and 201, the California Constitution Article XI, Section 5, and pursuant to its police powers, the City of Modesto is authorized to implement regulations for a public purpose and for the general welfare. The City aims to protect the public health, safety, and welfare of its residents through zoning, licensing, and safety regulations of specific commercial activities.

In recent years, the City has experienced a proliferation of tobacco retailer businesses, also known as smoke shops, in the City of Modesto. There are currently 41 tobacco retailer businesses/smoke shops who have an active business license in the City of Modesto. Staff and the Police Department are currently assessing whether there are additional establishments operating without a business license in the City.

These businesses have continued to be a source of unlawful activity. Over the past 12 months, the Modesto Police Department has conducted inspections at various tobacco retailers throughout the City, resulting in the seizure of cannabis-infused items, illicit drugs, flavored tobacco products, and illegal gambling machines. The inspections also resulted in the arrest of several individuals involved in these illegal activities. The Police Department conducted inspections after the adoption of the October 8, 2024 moratorium and continued to find illegal activities and items for sale. Articles regarding the inspections are attached to this Agenda Report.

Amidst continued public health and safety concerns, particularly regarding crime, the sale of tobacco to minors, and adverse impacts on public health, there is a pressing need for the City to enact regulations. Several key actions in California highlight the ongoing challenges posed by tobacco retailing.

On September 23, 2024, the California Department of Public Health (“CDPH”) promulgated emergency regulations related to industrial hemp and the threat to public health, safety, and welfare, particularly to minors. These regulations were published at the direction of California Governor Gavin Newsom, citing the increasing amounts of safety concern for the adverse health effects of intoxicating hemp food and beverage products. These emergency regulations aim to combat hemp products containing tetrahydrocannabinol (“THC”) that skirt the age and sale restrictions that have been placed on recreational marijuana sold through licensed and regulated dispensaries.

Industrial hemp, as defined under state law, is permitted to contain a delta-9 THC concentration of no more than 0.3 percent on a dry weight basis; however, the emergency regulations prohibit industrial hemp final form food and beverage products, specifically, from containing any detectable level of THC. Hemp food and beverage products have been found to be sold in #22..
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City Council, November 12, 2024
Extension of Temporary Moratorium on all New Tobacco Retailer Businesses/Smoke Shops Within the City of Modesto

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tobacco retailer businesses with marketing aimed toward children featuring cartoon characters, colorful packaging, and sweet candy flavors.

The emergency regulations published by CDPH expand on the number of psychoactive cannabinoids that will need to be undetectable in industrial hemp final food form products, including edibles such as gummies, other candies, and drinks, as well as restricting the serving sizes such products contain to five servings or less and limiting sales of the products to consumers who are at least 21 years of age.

Aside from these emergency regulations, many state laws have been adopted, which acknowledge the public health impacts of tobacco, especially flavored tobacco products, and specifically its effect on minors. For example, state law prohibits public school students from smoking or using tobacco products, while on campus, while attending school-sponsored activities, or while under the supervision or control of school district employees. State law also prohibits smoking in playgrounds. State law also prohibits smoking within 20 feet of the main entrances and exits of public buildings.

On November 8, 2022, California voters upheld the state law (“SB 793”) prohibiting a tobacco retailer, or any of the tobacco retailer’s agents or employees, from selling, offering for sale, or possessing with the intent to sell or offer for sale, most flavored tobacco products including flavored e-cigarettes and menthol cigarettes, as well as tobacco product flavor enhancers in retail locations.

Given these circumstances, the City Council recognizes the urgent need to address this public health and safety issue. An extension of the moratorium on tobacco retailer businesses aims to tackle the immediate concerns of increased accessibility and the attractiveness of tobacco and hemp products to the City’s youth and increasing amounts of crime and safety issues presented by such businesses. This extension will further provide the City with the necessary time to assess the current situation, consider possible regulations and measures to protect the community and bring forward a proposed path forward to the Council.

DISCUSSION:

California Government Code section 36937 authorizes the City Council to adopt an urgency ordinance for “the immediate preservation of the public peace, health, or safety.” Government Code section 65858 authorizes the City Council to adopt an interim ordinance “to protect the public safety, health, and welfare… to prohibit any uses that may be in conflict with a contemplated general plan, specific plan, or zoning proposal that the legislative body, planning commission, or planning department is considering or studying or intends to study within a reasonable time.”
As noted above, there is an immediate need to preserve and protect the public peace, health, safety, and welfare from the effects of tobacco use, tobacco retailing, hemp retailing, and other criminal activities that have been associated with these establishments. City staff has continued work to analyze potential options available to the City in terms of regulation, and how other jurisdictions approach such problem businesses. These efforts are expected to result in a proposed ordinance or update to the City’s laws. Thus, an urgency ordinance meets the requirements of Government Code sections 36937 and 65858, and is needed, immediately. #22..
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Extension of Temporary Moratorium on all New Tobacco Retailer Businesses/Smoke Shops Within the City of Modesto

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This moratorium will apply exclusively to retailers within the City that meet the criteria of a “tobacco retailer business” which means a retailer or wholesale business or any person that: (1) sells, offers for sale, or offers to exchange for any form of consideration, tobacco, hemp products, tobacco products, or tobacco and cannabis paraphernalia; and (2) has 15% or more of the square feet in the establishment used for the sale or display of tobacco, tobacco products, or tobacco and cannabis paraphernalia, as defined in the Ordinance.

During the moratorium, no new license, permit, or other land use approval may be approved or issued by the City. This includes the issuance of a business license, building permit, conditional use permit, or other land use approval for the establishment, relocation, or physical expansion of a tobacco retailer business.

The attached Urgency Ordinance includes the requisite Government Code findings and, if adopted, would provide an extension to the moratorium for a period of 10 months and 15 days to provide staff with further time to research, study, and prepare recommendations for the Council’s consideration. If adopted, no new tobacco retailing business, use, or operation may be established in the City during the moratorium. Such an ordinance must be approved by a fourfifths vote of the Council. Thereafter, the Ordinance would remain in effect for 10 months and 15 days unless repealed, terminated, or extended by the Council pursuant to Government Code section 65858.

Pursuant to Council direction, staff continues to review the current zoning and regulatory provisions of the Municipal Code to determine what amendments are necessary to ensure sufficient protection for the community against the negative impacts identified in Urgency Ordinance 3785-C.S. and the proposed extension. The Police Department also continues to conduct inspections of current smoke shops in an effort to continue assessing such impacts.

This Agenda Report complies with Government Code section 65858(d) requirement that the City’s legislative body issue a written report describing the measures taken to alleviate the conditions which led to the adoption of the moratorium 10 days prior to the expiration of the interim ordinance.

FISCAL IMPACT:

There is no fiscal impact associated with this item.

COMMITTEE RECOMMENDATION:

Because of the urgent nature of this item and the ability of the Council to act without prior committee approval, this Ordinance was not presented to a Council Committee.

RECOMMENDED COUNCIL ACTION:

Staff Recommendations:

Motion adopting an Urgency Ordinance of the City of Modesto making findings and extending the temporary moratorium on the establishment of new and relocation or physical expansion of existing tobacco retailer businesses, also known as smoke shops, within the City of Modesto for a period of ten (10) months and fifteen (15) days, to become effective immediately. #22..
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City Council, November 12, 2024
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Approved by:
__________________________________
Brandon Gillespie, Police Chief
_____
Jose M. Sanchez, City Attorney
__________
Joseph P. Lopez, City Manager
Attachments:

1. Proposed Ordinance

2. Modesto Bee Article “Several smoke shops in Modesto are fronts for the underbelly of vice in the City, Police say”

3. KCRA3 Article “Modesto police cracking down on smoke shops for illegal activity”

4. ABC10 Article “Modesto police crack down on smoke shop compliance”

5. Hoodline Article “Modesto Police crack down on smoke shops violating state law, 22 arrested in operation to protect youth”
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1 ORDINANCE NO. XX

AN URGENCY ORDINANCE OF THE CITY COUNCIL OF THE CITY OF MODESTO

MAKING FINDINGS AND EXTENDING THE TEMPORARY MORATORIUM ON

THE ESTABLISHMENT OF NEW AND RELOCATION OR PHYSICAL EXPANSION

OF EXISTING TOBACCO RETAILER BUSINESSES, ALSO KNOWN AS SMOKE SHOPS, WITHIN THE CITY OF MODESTO FOR A PERIOD OF TEN (10) MONTHS AND FIFTEEN (15) DAYS, TO BECOME EFFECTIVE IMMEDIATELY
WHEREAS, the City of Modesto (the “City”) is a municipal corporation duly organized as a Charter City under the constitution and laws of the State of California; and WHEREAS, the City Council has broad discretion pursuant to Article II, Sections 200 and 201 of the City Charter; California Constitution Article XI, Section 5; and the general law of the state, including, but not limited to, the California Planning and Zoning Law (Gov. Code section 65000 et seq.), to legislate for public purposes and for the general welfare, including, but not limited to, matters of public health and safety; and WHEREAS, the City protects the public health, safety, and welfare of the community through numerous avenues, including by establishing and enforcing zoning, licensing, and health and safety regulations on specified commercial activities; and WHEREAS, Government Code section 65858, subdivision (a) provides that the legislative body of a city may, to protect the public safety, health, and welfare, adopt as an urgency measure an interim ordinance prohibiting any uses that may be in conflict with a contemplated general plan, specific plan, or zoning proposal the City Council is considering or studying or intends to study; and
WHEREAS, on October 8, 2024, the City Council of the City of Modesto adopted Urgency Ordinance No.3785-C.S., imposing a forty-five (45) day moratorium on the establishment of new and the relocation or physical expansion of existing massage establishments; and
WHEREAS, Urgency Ordinance No. 3785-C.S. will, unless extended, expire by its own terms on November 22, 2024; and
WHEREAS, Government Code section 65858, subdivision (a) authorizes the extension of an urgency ordinance, for ten (10) months and fifteen (15) days after a noticed public hearing, to prohibit uses of land which may conflict with a contemplated general plan, specific plan, or zoning proposal which the legislative body, planning commission or the planning department is considering, studying, or intends to study within a reasonable period of time; and WHEREAS, the City has seen a proliferation of tobacco retailer businesses, also known as smoke shops, within the City; and
WHEREAS, there are currently 41 tobacco retailer businesses/smoke shops who have an active business license in the City of Modesto. Staff and the Police Department are currently #22..
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2 assessing whether there are additional establishments operating without a business license in the City; and
WHEREAS, the City is concerned about this recent proliferation of tobacco retailer businesses, locations of tobacco retailer businesses, the harmful effects of tobacco and other products sold at these establishments containing industrial hemp on the health, safety, and welfare of City residents and especially youth; and
WHEREAS, tobacco retailer businesses continue to be a source of unlawful activities in the City, which, if not curtailed, present an immediate threat to the public health, safety, and welfare; and
WHEREAS, tobacco retailer businesses can be a target for theft and vandalism, as well as may be affiliated with the sale of illegal cannabis products and drug paraphernalia that encourage illegal activity; and
WHEREAS, within the last year, the Modesto Police Department conducted inspections at various tobacco retailers throughout the City, resulting in the seizure of marijuana/cannabisinfused items, illicit drugs, flavored tobacco products, and illegal gambling machines. These inspections also resulted in the arrest of several individuals involved in these illegal activities; and
WHEREAS, following the City Council’s adoption of the forty-five (45) day moratorium, the Modesto Police Department conducted further inspections of City tobacco retailers. These inspections resulted in seizures of marijuana/cannabis-infused items, illicit drugs, and flavored tobacco products, including multiple tobacco retailers who had previously had items seized by the Police Department; and
WHEREAS, during these inspections, Modesto Police Department visited 43 tobacco retailers, and all 43 retailers were found to have illegal flavored tobacco products for sale; and WHEREAS, on September 23, 2024, the California Department of Public Health (“CDPH”) promulgated emergency regulations related to industrial hemp and the threat to public health, safety, and welfare, particularly to minors; and WHEREAS, the CDPH regulations come after California Governor Gavin Newsom directed the CDPH to draft emergency regulations, citing the increasing amounts of safety concerns from the adverse health effects of intoxicating hemp food and beverage products; and WHEREAS, the emergency regulations aim to combat hemp products containing tetrahydrocannabinol (“THC”) that skirt the age and sale restrictions that have been placed on recreational marijuana sold through licensed and regulated dispensaries; and WHEREAS, hemp products have been found to be sold in tobacco retailer businesses, or smoke shops, with marketing aimed toward children featuring colorful packaging designs and sweet candy flavors; and
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3 WHEREAS, as currently defined under state law, “industrial hemp” is permitted to contain a delta-9 THC concentration of no more than 0.3 percent on a dry weight basis; however, the emergency regulations prohibit industrial hemp final form food and beverage products, specifically, from containing any detectable level of THC; and WHEREAS, the emergency regulations expand on the number of psychoactive cannabinoids that will need to be undetectable in industrial hemp final food form products, including edibles such as gummies, other candies and drinks as well as restricting the serving sizes such products contain to five servings or less and limiting sales of the products to consumers who are at least 21 years of age; and
WHEREAS, aside from new regulations related to hemp, many state laws have been adopted, which acknowledge the public health impacts of tobacco, especially flavored tobacco products, and specifically its effect on minors. For example, state law prohibits public school students from smoking or using tobacco products while on campus, while attending schoolsponsored activities, or while under the supervision or control of school district employees. State law also prohibits smoking in playgrounds. State law also prohibits smoking within twenty (20) feet of the main entrances and exits of public buildings; and WHEREAS, on November 8, 2022, California voters upheld the state law (“SB 793”) prohibiting a tobacco retailer, or any of the tobacco retailer’s agents or employees, from selling, offering for sale, or possessing with the intent to sell or offer for sale, most flavored tobacco products including flavored e-cigarettes and menthol cigarettes, as well as tobacco product flavor enhancers in retail locations; and
WHEREAS, on October 7, 2023, Governor Newsom signed into law AB 935, strengthening the enforcement of the flavored tobacco retail law and broadening the definition of retail location; and
WHEREAS, cities still retain the authority to draft and enforce local flavored tobacco bans for products; and
WHEREAS, Government Code section 36937 authorizes the City Council to adopt an urgency ordinance for the immediate preservation of the public peace, health, or safety; and WHEREAS, Government Code section 65858 provides that to protect against any current and immediate threats to public health, safety, or welfare, the City Council may adopt, as an urgency measure, an interim ordinance prohibiting any uses that may be in conflict with a contemplated general plan, specific plan, or zoning proposal that the City plans to study; and WHEREAS, the initial forty-five (45) day moratorium period established by Ordinance 3785-C.S. was insufficient to complete a study and adoption of new or amended regulations.

City staff continues to develop updated regulations impacting tobacco retailers; and WHEREAS, for all the reasons set forth above, the City has determined that a ten (10) month and fifteen (15) day extension of the moratorium on the establishment of new and the relocation or physical expansion of existing tobacco retailer businesses within the City is #22..
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4 necessary. This moratorium shall continue in effect pending completion of the City’s study of the potential impacts of tobacco retailer businesses, also known as smoke shops, and its potential adoption of amendments to the Modesto Municipal Code and other appropriate regulations for the protection of the public health, safety, and welfare; and WHEREAS, the City has complied with Government Code section 65858(d), which requires the City’s legislative body to issue a written report describing the measures taken to alleviate the conditions which led to the adoption of Ordinance 3785-C.S. ten (10) days prior to the expiration of the interim ordinance.

NOW, THEREFORE, the City Council of the City of Modesto hereby ordains as follows:

SECTION 1. Recitals.

The above recitals are true and correct and are hereby adopted as the City Council’s findings.

SECTION 2. Purpose and Authority.

In the interest of protecting the health, safety, and welfare of the residents in the City of Modesto, it is the purpose and intent of this Ordinance to place a temporary moratorium on the issuance of any new permit, license, or other entitlement for any tobacco retailer business, also known as smoke shop, in the City of Modesto. This includes any new permit, license, or other entitlement for the relocation or physical expansion of existing business falling under the definition of a tobacco retailer as defined under this Ordinance. The City Council has the authority to adopt this Ordinance pursuant to California Government Code section 65858 as an urgency measure prohibiting any use that may be in conflict with a contemplated general plan, specific plan, or zoning proposal that the City is considering or studying.

SECTION 3. Findings.

The City Council hereby finds and determines that Tobacco Retailer Businesses and Smoke Shops constitute an immediate threat to the public health, safety, and welfare. The approval of additional entitlements for Tobacco Retailer Businesses and approval of the relocation or physical expansion of existing Tobacco Retailer Businesses under the City’s current regulations will further threaten the public health, safety, and welfare. The adoption of this Urgency Ordinance is therefore necessary for the immediate protection of public health, safety, and welfare. The above recitals are incorporated herein by reference as true and correct and as the Council’s findings.

SECTION 4. Definitions.

A. “Person” shall mean any individual natural person, firm, partnership, joint venture, limited liability company, association, social club, fraternal organization, corporation, estate, trust, business trust, receiver, trustee, syndicate, or any other group or combination acting as a unit.
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5 B. “Tobacco Paraphernalia” means any device, product, equipment, or material of any kind that is intended or designed for use for smoking, inhaling, or ingesting tobacco or cannabis, notwithstanding that the device, product, equipment, or material may also be used for smoking, inhaling, or ingesting any controlled substance. Tobacco paraphernalia includes, but is not limited to, all of the following: (i) metal, ivory, wooden, acrylic, glass, stone, plastic, or ceramic pipes with or without screens, permanent screens, hashish heads, or punctured bowls; (ii) water pipes; (iii) bongs; (iv) chillums; (v) ice pipes or chillers; (vi) cigarette papers or wrappers; (vii) cigarette rolling machines; (viii) blunt wraps, as defined in Section 308 of the Penal Code; (ix) hookahs and similar devices constructed with a receptacle or container in which water or some other liquid may be placed into which smoke passes and is cooled in the process of being inhaled or ingested; and (x) any electronic device that delivers nicotine or other vaporized liquids to the person inhaling from the device, including, but not limited to, an electronic cigarette, cigar, pipe, or hookah. Tobacco Paraphernalia shall include any component, part, or accessory of the foregoing, whether or not sold separately.

C. “Tobacco Product” means any product containing, made, or derived from tobacco or nicotine that is intended for human consumption, whether smoked, heated, chewed, absorbed, dissolved, inhaled, snorted, sniffed, or ingested by any other means, including, but not limited to, cigarettes, e-cigarettes (with or without flavoring), cigars, little cigars, chewing tobacco, pipe tobacco, or snuff, or vaping accessories. Tobacco Product shall include any component, part, or accessory of the foregoing, whether or not sold separately. Tobacco Product does not include a product that has been approved by the United States Food and Drug Administration for sale as a tobacco cessation product or for other therapeutic purposes where the product is marketing and solely for such an approved purpose.

D. “Tobacco Retailer Business” or “Smoke Shop” shall mean a retailer or wholesale business or any person that: (1) sells, offers for sale, or offers to exchange for any form of consideration, tobacco, hemp products, Tobacco Products, or Tobacco Paraphernalia; and (2) has fifteen percent (15%) or more of the square feet in the establishment used for the sale or display of tobacco, hemp products, Tobacco Products, or Tobacco Paraphernalia.

SECTION 5. Moratorium Imposed.

A. Scope. In accordance with the authority granted the City of Modesto under Article XI, Section 7 of the California Constitution and California Government Code section 65858, from and after the effective date of this Ordinance, no license, permit, or other entitlement for use, including, but not limited to, the issuance of a business license, building permit, conditional use permit, or other land use approval, shall be approved or issued by the City for the establishment, relocation or physical expansion of a Tobacco Retailer Business. Additionally, the establishment, relocation, or physical expansion of the Tobacco Retailer Business is hereby expressly prohibited in all areas and zoning districts of the City.
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6 B. Exceptions. This Ordinance shall not prohibit the renewal of a business license for an existing Tobacco Retailer Business, provided that the renewal seeks to maintain the business without physical expansion and in its current location, and the Tobacco Retailer Business is operating in a manner, and housed within a building, which complies with all City, State, Federal, or otherwise applicable, codes, rules, regulations, or laws.

SECTION 6. Violation.

Except as otherwise permitted under this Ordinance, the establishment, relocation, or physical expansion of a Tobacco Retailer Business within the limits of the City is declared to be a public nuisance. Violations of this Ordinance may be enforced by any applicable laws or ordinances, including, but not limited to, injunctions or administrative or criminal penalties under the Modesto Municipal Code.

SECTION 7. Term of Ordinance.

This Ordinance is an extension of the moratorium established by Ordinance 3785-C.S. pursuant to Government Code section 65858. It shall be in effect from the date of adoption of this Urgency Ordinance for a period of ten (10) months and fifteen (15) days unless it is extended pursuant to California Government Code section 65858 or other applicable law, as approved by the City Council.

SECTION 8. Environmental Review / California Environmental Quality Act (CEQA).

This Ordinance is intended to preserve the status quo, and it will not cause a direct physical change in the environment, nor a reasonably foreseeable indirect physical change in the environment. The enactment of this Ordinance, therefore, does not constitute the approval of a project under the California Environmental Quality Act (“CEQA”), and it is exempt from CEQA.

SECTION 9. Severability.

If any provision of this Ordinance or the application thereof to any person or circumstance is held to be invalid, such invalidity shall not affect other provisions or applications of the Ordinance which can be given effect without the invalid provision or application, and to this end the provisions of this Ordinance are severable. This City Council hereby declares that it would have adopted this Ordinance irrespective of the invalidity of any particular portion thereof and intends that the invalid portions be severed, and the balance of the Ordinance be enforced.

SECTION 10. Effective Date and Publication.

This Ordinance, passed by at least a four-fifths vote of the City Council, is declared to be an interim Urgency Ordinance for preserving the public health, safety, and welfare and shall take effect and be enforced immediately upon adoption pursuant to Government Code section 36937. #22..
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7 PASSED and ADOPTED this 12th day of November, 2024 by the following vote:

AYES:

NOES:

ABSENT:

APPROVED: ___________________________
SUE ZWAHLEN, Mayor
ATTEST: _____________________________
DIANE NAYARES-PEREZ, City Clerk
(SEAL)
APPROVED AS TO FORM:

BY: ________________________________
JOSE M. SANCHEZ, City Attorney
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8 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, _____________ moved its final adoption, which motion being duly seconded by Councilmember ____________, was upon roll call carried and the ordinance adopted by the following vote:

AYES: Councilmembers: Name, Name, Name, Name, Name, Name, Mayor Name
NOES: Councilmembers: None
ABSENT: Councilmembers: None
APPROVED:_________________________
SUE ZWAHLEN, Mayor
ATTEST: _____________________________
DIANE NAYARES-PEREZ, City Clerk
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OFFICE OF THE CITY CLERK

NOTICE OF SPECIAL MEETING
Please take notice that a special Closed Session meeting of the Council of the City of Modesto has been called pursuant to Section 2-1.02 of the Modesto Municipal Code to be convened on
TUESDAY, NOVEMBER 12, 2024 AT 4:45 PM
and after the regularly scheduled meeting in the Tenth Street Place, Chambers Conference Room, Basement Level, 1010 Tenth Street, Modesto, California.

Any and all of the following agenda items are subject to action being taken by the Modesto City Council.

The business to be considered at said City Council meeting shall consist of a Closed Session concerning the following:

CLOSED SESSION
CONFERENCE WITH LEGAL COUNSEL – EXISTING LITIGATION
One Case (Pursuant to Section 54956.9(d)(1) of the Government Code) Name of Case: Bay Cities Paving & Grading v. City of Modesto Arbitration Case No.: A-0012-2024, BCP Job 4030
CONFERENCE WITH REAL PROPERTY NEGOTIATORS:
(Pursuant to Section 54956.8 of the Government Code)
Property: 601 Neece Dr., Modesto, CA 95351; APN: 102-012-001 and 102-012-004 Property Owners: City of Modesto
Negotiating Parties:

For City: Joseph P. Lopez, City Manager
For Lessee: The Baseball Club of Modesto, LLC
Under Negotiation: Price and Terms of Lease

BY ORDER OF THE CHAIR
/S
Diane Nayares-Perez, City Clerk
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Posted pursuant to Government Code Section 54956 on the bulletin board at Tenth Street Place on at by
date time signature
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Modesto City CouncilNovember 12, 2024

Modesto City Council
November 12, 2024