Agenda packet — Economic Development Committee, May 5, 2025 (part 2 of 3)

commodity codes1. Prospective bidders were notified online and via email of the bid opportunity.

Eighteen companies chose to download the RFB document. The award of bid and agreement for the purchase and delivery of Sodium Hypochlorite – Liquid Chlorine for the Utilities Department, Water Division was issued to Univar Solution USA Inc., Kent, WA (Univar), as they were the lowest responsive and responsible bidder.

On June 28, 2022, by Resolution No. 2022-291, Council authorized the approval of the purchase of Sodium Hypochlorite – Liquid Chlorine to Univar Solution USA, Kent, WA for the Utilities Department, Water Division, for five years at a total cost of $661,010 over five years.

On June 29, 2023, Univar submitted a proposed 61% price increase for Contract Year 2, and through negotiations with the Purchasing Division, it was reduced to 50%, increasing the price per gallon from $1.35 to $2.02 per gallon. On September 18, 2023, the Purchasing Division authorized a First Amendment to the original agreement which included revised rates and executed Contract Year 2.

On May 28, 2024, the vendor submitted a proposed 58% price increase for Contract Year 3 and through negotiations with the Purchasing Division, it was reduced to a 10% increase to remain, increasing the price per gallon from $2.02 to $2.23 per gallon.

On July 19, 2024, the Purchasing Division authorized a Second Amendment to the original agreement was authorized which include revised rates through the end of Contract Year 3.

DISCUSSION:

On June 29, 2023, Univar submitted a 59% price increase for year 2 of the agreement. The increase was not solely based on the Producer Price Index (PPI) index and Energy Information Administration (EIA) index, but also on how volatile the chemical market was. Production of Sodium Hypochlorite was expected to increase with the seasonal shift for demand, keeping the market tight and causing potential supply chain constraints. Univar provided supporting documentation to substantiate the requested increase.

Initially, Univar submitted a price increase of $0.80/gallon, which was a total increase of 59% and financial impact of $48,000. Through negotiations with Purchasing, the vendor resubmitted a reduced price increase of $0.67/gallon to a new rate of $2.02/gallon, which was an increase of 50% and financial impact of $40,200. The financial impact was based on the RFB estimated quantities. Purchasing recommended the approval of this increase as being justified by market conditions and supporting documentation.

On May 28, 2024, Univar proposed a price increase of $1.17/gallon to a new rate of $3.19/gallon for year 3 of the agreement. The requested price represented a 58% increase to current pricing and financial impact of $69,960. Univar provided supporting documentation to substantiate an increase in supplier costs of 10% ($0.21). Through negotiations, the vendor resubmitted a price increase of $0.21/gallon for a rate of $2.23/gallon, an increase of 10% and financial impact of $12,600. Purchasing recommended the approval of this increase as being justified by market conditions and supporting documentation. 1 88500-Water and Wastewater Treating Chemicals, 19000-Chemicals and Solvents, Commercial (In Bulk)
#8..
- 181 -
Economic Development Committee, May 5, 2025
Third Amendment to Agreement for Purchase of Sodium Hypochlorite – Liquid Chlorine

Page 3 of 4 ends

A Third Amendment to this five-year agreement is necessary to increase funding by $330,594 due to a combined 60% vendor price increase in contract years two and three, and anticipated price increases in contract year five. Although, there was not a price increase in contract year four. The Water Division is currently converting existing well sites from calcium hypochlorite (tablet chlorine) to sodium hypochlorite (liquid chlorine). These conversions are expected to increase liquid chlorine demand up to 35% through the remaining term of the agreement.

Additionally, when reviewing the current market pricing for Sodium Hypochlorite, the Purchasing Division reviewed the current pricing in a similar agreement with the Wastewater Division and through the Bay Area Chemical Consortium. Pricing averaged above $3.00/gal vs the current agreement and pricing of $2.23, which is an increase of over 40%. As a result, going out to bid would potentially increase Department cost to the market price of over $3.00/gal.

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 (d), where the Purchasing Manager, in her discretion, determines that a process other than the formal bid procedure set forth in Section 8-3.203 will result in a procurement of the City at the lowest possible cost commensurate with the desired quality. Such alternatives may include, but are not limited to, a “two-step” procurement process or a procurement based solely on a technical evaluation. This Amendment qualifies for the exception for these reasons.

FISCAL IMPACT:

The anticipated cost of $330,594 will be absorbed with the current Utilities Department, Water Fund, 4100-45050 Fiscal Year 2024-25 current operating budget and Fiscal Year 2025-26 proposed operating budget.

Current Expenditures:

Contract Year Expenditures
CY1: 7/1/22-6/30/23 $47,088
CY2: 7/1/23-6/30/24 $132,387
CY3: 7/1/24-YTD $146,383
Total (year to date) $325,858
Anticipated Expenditures:

Contract Year Original
Agreement
Gallons
(Annually)
$ per
Gallon
Amendment
CY Totals
Net
Increase
CY1: 7/1/22-6/30/23 $100,000 60,000 $1.35 $100,000
CY2: 7/1/23-6/30/24 $114,000 60,000 $2.02 $114,000
CY3: 7/1/24-6/30/25 $129,960 85,000 $2.23 $189,550 $ 59,590 CY4: 7/1/25-6/30/26 $148,154 100,000 $2.23 $223,000 $ 74,846 CY5: 7/1/26-6/30/27 $168,896 100,000 $3.35 $335,000 $166,104 Orig. Agreement Total $661,010 Amendment Total $961,550 $300,540 10% Contingency $ 30,054
Amendment Total including Contingency $ 991,604
#8..
- 182 -
Economic Development Committee, May 5, 2025
Third Amendment to Agreement for Purchase of Sodium Hypochlorite – Liquid Chlorine

Page 4 of 4 ends

RECOMMENDED COMMITTEE ACTION:

Staff Recommendations:

Motion recommending a Third Amendment to the Agreement with Univar Solutions USA, LLC, Kent, WA for the purchase and delivery of Sodium Hypochlorite – Liquid Chlorine increasing the agreement amount by $330,594 to a new total amount not to exceed $991,604; and forwarding to Council for approval.

Approved by:

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

1. Third Amendment – Univar #220371 (Contract Years 4 and 5)

2. Original Agreement #220371

3. Executed First Amendment – Univar #220371 (Contract Year 2)

4. Executed Second Amendment – Univar #220371 (Contract Year 3)

5. Levine Act

#8..
- 183 -
THIRD AMENDMENT FOR THE PURCHASE AND DELIVERY OF SODIUM HYPOCHLORITE –

LIQUID CHLORINE
WITH UNIVAR SOLUTIONS USA LLC.

This Third Amendment to the purchase and delivery of Sodium Hypochlorite – Liquid Chlorine (the “Third Amendment”) is entered into between the CITY OF MODESTO, a municipal corporation of the State of California hereinafter referred to as “City” and Univar Solutions USA LLC., hereinafter referred to as “Contractor” entered into by the parties on the _________ day of _________________ , 2025.

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

WHEREAS, City and Contractor previously entered into an Agreement for the purchase and delivery of Sodium Hypochlorite – Liquid Chlorine dated June 28, 2022 (the “Original Agreement”), and WHEREAS, City and Contractor previously entered into a First Amendment to execute the Year 2 extension option through June 30, 2024 and to include revised rates dated September 18, 2023, and WHEREAS, City and Contractor previously entered into a Second Amendment to execute the Year 3 extension and to include revised rates dated July 19, 2024, and WHEREAS, City and Contractor desire to amend the provisions of the Original Agreement by increasing the previous approved estimated annual amount from $100,000 to a new estimated annual amount of $189,550 and a not to exceed (NTE) amount from $661,010 to a new NTE amount of $991,604. All other provisions of the Original Agreement shall remain in effect.

NOW, THEREFORE, in consideration of this Third Amendment, and the mutual promises, covenants, and stipulations contained in the Original Agreement and this Third Amendment, the parties agree as follows:

1. Section 1, e, “Scope of Work” of the Original Agreement is deleted and replaced in its entirety as follows:
“CONTRACTOR shall furnish the service defined at the following contracted rates, for an estimated annual amount of $189,550, and a total amount not to exceed $991,604 over five (5) years:
#8..
- 184 -

AGREEMENT PRICING
Item Description
Unit of
Measure Unit Pricing
Sodium Hypochlorite – Liquid Chlorine
Gallon $2.23
Annual Safety Training for each Chemical Each INCLUDED
Emergency Delivery (24) Hour Turnaround (additional cost) Each $300.00

2. Except as provided for in this Third Amendment, all other terms and conditions of the Original 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 Original Agreement for the purchase and delivery of Sodium Hypochlorite – Liquid Chlorine by its City Manager and attestation by its City Clerk under authority of Resolution No. ____________, adopted by the Council of the City of Modesto on the ________ day of _________________, 2025, and Univar Solutions USA LLC. has caused this Third Amendment to be duly executed as of the Effective Date.
#8..
- 185 -
#8..
- 186 -
#8..
- 187 -
#8..
- 188 -
#8..
- 189 -
#8..
- 190 -
#8..
- 191 -
#8..
- 192 -
#8..
- 193 -
#8..
- 194 -
#8..
- 195 -
#8..
- 196 -
#8..
- 197 -
#8..
- 198 -
FIRST AMENDMENT FOR THE PURCHASE AND DELIVERY OF SODIUM HYPOCHLORITE –

LIQUID CHLORINE
WITH UNIVAR SOLUTIONS USA, INC.

This First Amendment to the purchase and delivery of Sodium Hypochlorite – Liquid Chlorine (the “First Amendment”) is entered into between the CITY OF MODESTO, a municipal corporation of the State of California hereinafter referred to as “City” and Univar Solutions USA, Inc., hereinafter referred to as “Contractor” entered into by the parties on the _______ day of _________________ , 2023.

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

WHEREAS, City and Contractor previously entered into an Agreement for the purchase and delivery of Sodium Hypochlorite – Liquid Chlorine dated June 28, 2022 (the “Original Agreement”), and WHEREAS, City and Contractor desire to execute the Year 2 extension option and extending the Original Agreement through June 30, 2024, and
WHEREAS, City and Contractor desire to amend the provisions of the Original Agreement to include revised rates. All other provisions of the Original Agreement shall remain in effect.

NOW, THEREFORE, in consideration of this First Amendment, and the mutual promises, covenants, and stipulations contained in the Original Agreement for chemicals for wastewater treatment and this First Amendment to the Original Agreement, the parties agree as follows:

1. Section 1, e, “Scope of Work” of the Original Agreement is deleted and replaced in its entirety as follows:
“CONTRACTOR shall furnish the service defined at the following contracted rates, for an estimated annual amount of $100,000, and a total amount not to exceed $661,010 over (5) years:

AGREEMENT PRICING
Item Description
Unit of
Measure Unit Pricing
Sodium Hypochlorite – Liquid Chlorine
Gallon $2.02
Annual Safety Training for each Chemical Each INCLUDED
Emergency Delivery (24) Hour Turnaround (additional cost) Each $300.00 DocuSign Envelope ID: 0B391B32-C529-40B8-82B4-C62B5BB658D8 18th September
#8..
- 199 -

2. The Parties hereby mutually agree to extend the Term of the Agreement through Year 2, as specified in Section 4 of the Original Agreement.

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

IN WITNESS WHEREOF, the City of Modesto, a municipal corporation, has authorized the execution of this First Amendment to Original Agreement for the purchase and delivery of Sodium Hypochlorite – Liquid Chlorine by its City Manager and attestation by its City Clerk on the ______ day of _________________, 2023, and Univar Solutions USA, Inc. has caused this First Amendment to be duly executed as of the Effective Date.

DocuSign Envelope ID: 0B391B32-C529-40B8-82B4-C62B5BB658D8 19th September
#8..
- 200 -

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: ____________________________
CHRISTINA ALGER, Director of
Human Resources
Federal ID # ___________
DocuSign Envelope ID: 0B391B32-C529-40B8-82B4-C62B5BB658D8 UNIVAR SOLUTIONS USA, INC.

Joe Serna
91-1347935
Vice President, Bulk Che
9/19/2023
#8..
- 201 -
SECOND AMENDMENT FOR THE PURCHASE AND DELIVERY OF SODIUM HYPOCHLORITE – LIQUID CHLORINE WITH UNIVAR SOLUTIONS USA LLC.

This Second Amendment to the purchase and delivery of Sodium Hypochlorite – Liquid Chlorine (the “Second Amendment”) is entered into between the CITY OF MODESTO, a municipal corporation of the State of California hereinafter referred to as “City” and Univar Solutions USA LLC, hereinafter referred to as “Contractor” entered into by the parties on the _________ day of _________________ , 2024.

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

WHEREAS, City and Contractor previously entered into an Agreement for the purchase and delivery of Sodium Hypochlorite – Liquid Chlorine dated June 28, 2022 (the “Original Agreement”), and WHEREAS, City and Contractor previously entered into a First Amendment to execute the Year 2 extension option through June 30, 2024 and update agreement pricing dated September 18, 2023, and WHEREAS, City and Contractor desire to amend the provisions of the Original Agreement to include revised rates, and
WHEREAS, City and Contractor desire to execute the Year 3 extension option thereby extending the Original Agreement through June 30, 2025. All other provisions of the Original Agreement shall remain in effect.

NOW, THEREFORE, in consideration of this Second Amendment, and the mutual promises, covenants, and stipulations contained in the Original Agreement for the purchase and delivery of Sodium Hypochlorite – Liquid Chlorine and this Second Amendment to the Original Agreement, the parties agree as follows:

1. Section 1, e, “Scope of Work” of the Original Agreement is deleted and replaced in its entirety as follows:
“CONTRACTOR shall furnish the service defined at the following contracted rates, for an estimated annual amount of $100,000, and a total amount not to exceed $661,010 over five (5) years:

Docusign Envelope ID: 1C41E52C-AE09-4400-9B32-D89ACEC7D8C9 19th July
#8..
- 202 -

2. The Parties hereby mutually agree to extend the Term of the Agreement through Year 3, as specified in Section 4 of the Original Agreement.

3. Except as provided for in this Second Amendment, all other terms and conditions of the Original Agreement shall remain in full force and effect.

IN WITNESS WHEREOF, the City of Modesto, a municipal corporation, has authorized the execution of this Second Amendment to Original Agreement for the purchase and delivery of Sodium Hypochlorite – Liquid Chlorine by its City Manager and attestation by its City Clerk on the ________ day of _________________, 2024, and Univar Solutions USA LLC. has caused this Second Amendment to be duly executed as of the Effective Date.

Docusign Envelope ID: 1C41E52C-AE09-4400-9B32-D89ACEC7D8C9 22nd
July
#8..
- 203 -

CITY OF MODESTO,
a municipal corporation
BY: ____________________________
JOSEPH P. LOPEZ, City Manager
ATTEST:
(Seal)
BY: ____________________________

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

BY: ____________________________
MATTHEW BRALEY, ARM-PE, Risk Manager
Federal ID # ___________
Docusign Envelope ID: 1C41E52C-AE09-4400-9B32-D89ACEC7D8C9 Univar Solutions
Joe Serna
91-1347935
Vice President - BCD
7/22/2024
#8..
- 204 -
#8..
- 205 -
#8..
- 206 -

CITY OF MODESTO

COMMITTEE AGENDA REPORT
DATE OF MEETING:

May 5, 2025
Date: April 4, 2025
TO: Economic Development Committee
Eric Alvarez, Chair
Sue Zwahlen, Vice-Chair
Nick Bavaro, Member
THROUGH: Joseph P. Lopez, City Manager
FROM: William Wong, Director of Utilities
SUBJECT: Agreements for Spoils Screening and Rock Crushing Services CONTACT: Jeremy Parnell, Acting Water Division Manager, [email protected], 209-342-4599
DESCRIPTION:

Consider the Agreements for Spoils Screening and Rock Crushing Services to California Rock Crusher Corp., Ripon, CA and K & D Enterprises Inc., Ceres, CA, for a total amount not to exceed $1,608,495 over five years and forwarding to Council for approval. (Funding Source:

Water, Wastewater and Surface Transportation 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 Utilities Department Water and Wastewater Services Divisions, and Public Works Streets Division, require a Contractor to provide spoils screening and rock crushing services on an as needed basis throughout the year. Spoils refers to the asphalt, concrete, rock, dirt, sand, and miscellaneous debris accumulated from construction jobs. These materials must be separated and screened down to ¾ inch minus clean soil for disposal. The remaining larger material is crushed to create Cal Trans Aggregate base rock which is used for other City construction jobs.

Between the Utilities and Public Works departments, a significant amount of spoils is generated from their operations. The Water Services Division generates approximately 55,000 tons of spoils material each year, which is stockpiled at the Water Services Division Litt Road facility.

The Wastewater Services Division generates approximately 45,000 tons of spoils material each year which is stockpiled at the Sutter Wastewater Treatment Plant in Modesto. Additionally, the Streets Division generates a minimal amount of asphalt that requires grinding. #9..
- 207 -
Economic Development Committee Meeting, May 5, 2025
Agreements for Spoils Screening and Rock Crushing Services

Page 2 of 4 ends

On August 11, 2020, by Resolution 2020-333, Council approved an Agreement with Rock Crushing Solutions, Inc., Rohnert Park, CA, for an annual estimated amount of $1,259,000 for the first year and $754,500 annually for years two through five, and a total not to exceed $4,277,000 over five years.

On September 16, 2024, by City Manager authority, a First Amendment to the Agreement with Rock Crushing Solutions was approved which executed the Year 5 extension option and included revised rates with no increase in spending.

DISCUSSION:

On October 8, 2024, the City Manager authorized the Purchasing Division to solicit the procurement for Spoils Screening and Rock Crushing Services. On December 12, 2024, the Purchasing Division issued IFB No. 2425-23 for Spoils Screening and Rock Crushing Services under several category codes.1 Prospective bidders were notified online which included eighteen (18) local vendors and via email of the bid opportunity. Eighteen (18) companies chose to download the IFB document from PlanetBids.

On January 14, 2025, bids were formally opened in the City Clerk’s office and broadcast via Microsoft Teams Livestream. Three (3) chose to respond, none of which were local vendors.

Based on providing the lowest responsive and responsible bid, City staff recommended to award the Spoils Screening and Rock Crushing Services to California Rock Crusher Corp., Ripon, CA as Primary, and K & D Enterprises Inc., Ceres, CA as Secondary, for a two (2) year agreement with three (3) one-year extension options, for a total estimated annual amount of $300,000 for a total combined amount not to exceed $1,608,495 over five years. Staff is requesting to give the Director of Finance the approval to adjust agreement totals between vendors based on availability and department needs.

To ensure continued service to the City, contracts may be awarded to more than one contractor to provide backup if the primary contractor is unable to meet the City’s needs. A secondary contractor may be awarded a specific job if the primary contractor is unable to perform the service, unable to complete the specific job within the time frame required by the City, or unable to maintain acceptable quality standards required by the City.

Modesto Municipal Code Section 8-3.203 generally requires all purchases which meet or exceed $100,000 for material, equipment, or contractual services to follow formal bid procedures. An Award of Bid and Agreements for Spoils Screening and Rock Crushing Services to California Rock Crusher Corp., Ripon, CA and K & D Enterprises Inc., Ceres, CA conforms to the Modesto Municipal Code because the City complied with formal bid procedures, and California Rock Crusher Corp., Ripon, CA and K & D Enterprises Inc., Ceres, CA were the lowest responsive and responsible bidders.

FISCAL IMPACT:

Spending by Public Works (PW) and Utilities (UTL) for the past five years is summarized below:
1 91223 Construction, General (Backfill Services, Digging, Ditching, Road Grading, Rock Stabilization, Etc.) 91484 Trade Services, Construction (Not Otherwise Classified) 96826 Crushing, Screening, Etc. Of All Types of New Or New Recycled Aggregate, Brick Or Stone Products Incl.

Road Materials
#9..
- 208 -
Economic Development Committee Meeting, May 5, 2025
Agreements for Spoils Screening and Rock Crushing Services

Page 3 of 4 ends

Division 2020/21 2021/22 2022/23 2023/24 2024/25 Total
PW.Streets $44,217 $44,217
UTL.Wastewater $91,446 $71,414 $162,860
UTL.Water $380,470 $53,009 $94,035 $182,330 $110,022 $819,866 Grand Total $471,916 $53,009 $138,252 $253,744 $110,022 $1,026,943 Expenditures are budgeted in Streets (Surface Transportation Fund 1700), Wastewater (Sewer Operations Fund 4210), and Water Services (Water Fund 4100), as well as various Capital Improvement Projects (Fund 4180, Measure H Funds). Staff is requesting authorization for a combined annual estimated amount of $300,000, not to exceed $1,608,495 over five years, as shown in the table below. The Public Works Department (Streets Division) requested authority to spend up to $50,000 annually, with the remainder being allotted to the Utilities Department, Water and Wastewater Divisions.

Contract
Year
California Rock
Crushers
K&D
Enterprises
Total
Amount
Year 1 $240,000 $60,000 $300,000
Year 2 $240,000 $60,000 $300,000
Year 3 $253,920 $63,480 $317,400
Year 4 $268,647 $67,162 $335,809
Year 5 $284,229 $71,057 $355,286
NTE/5 yrs $1,286,796 $321,699 $1,608,495
*Year 3 through Year 5 includes an annual 5.8% Consumer Price Index increase.

RECOMMENDED COMMITTEE ACTION:

Staff Recommendations:

Motion recommending the Award of Bid and Agreements for Spoils Screening and Rock Crushing Services to California Rock Crusher Corp., Ripon, CA and K & D Enterprises Inc., Ceres, CA, for a two (2) year agreement with three (3) one-year extension options, for a combined estimated annual amount of $300,000, and a total amount not to exceed $1,608,495 over five years and forwarding to Council for approval.

Approved by:

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

1. Agreement – California Rock Crusher

2. Agreement – K & D Enterprises
#9..
- 209 -
Economic Development Committee Meeting, May 5, 2025
Agreements for Spoils Screening and Rock Crushing Services

Page 4 of 4 ends

3. Exhibit B, Bid Submittal – California Rock Crusher

4. Exhibit B, Bid Submittal – K & D Enterprises

5. Exhibit C, IFB No. 2425-23

6. Cost Abstract IFB No. 2425-23
#9..
- 210 -
1 ANNUAL AGREEMENT #296038
SPOILS SCREENING and ROCK CRUSHING SERVICES
This agreement, hereinafter called AGREEMENT, made and entered into in the City of Modesto, State of California, this _______ day of ________________, 2025, by and between the City of Modesto, a municipal corporation of the State of California, hereinafter called CITY, and California Rock Crushers, a California Corporation, hereinafter called CONTRACTOR.

W I T N E S E T H:

WHEREAS, the Modesto City Council adopted Resolution No. 2025-______ authorizing the Award of Bid and agreement for the Spoils Screening and Rock Crushing Services to CONTRACTOR, attached hereto as Exhibit “A” and made a part hereof, and
WHEREAS, the CONTRACTOR provided a responsive and responsible submittal that best meets the CITY needs, attached hereto as Exhibit “B” and made a part hereof, and WHEREAS, the CITY and CONTRACTOR shall enter into an agreement for the Spoils Screening and Rock Crushing Services as described in IFB 2425-23, attached hereto as Exhibit “C” and made a part hereof (hereinafter called IFB).

NOW, THEREFORE, the parties hereto mutually agree as follows:
#9..
- 211 -
2 1. THE WORK:
a. CONTRACTOR shall furnish all labor, materials, equipment, fuel, tools, licenses, and insurance necessary to perform and complete the required work as specified in Exhibit “B”, and in strict accordance with the conditions of the complete AGREEMENT. b. CONTRACTOR shall do and perform the work contemplated hereby in a good workmanlike manner under the direction of and to the satisfaction of the CITY Representative. c. CONTRACTOR shall maintain proper insurance with the CITY for the duration of the AGREEMENT.
d. CONTRACTOR shall maintain a CITY business license for the duration of the AGREEMENT.
e. CONTRACTOR shall furnish said services at the following AGREEMENT rates for an estimated annual amount $240,000. The total amount paid by CITY to CONTRACTOR over the full term of the AGREEMENT shall not exceed $1,286,796. Unless the services provided are for a lump sum or flat fee, fees for work performed by CONTRACTOR on an hourly basis shall not exceed the amounts shown in the Bid attached hereto as Exhibit B.

AGREEMENT PRICING
Description Unit of Measure Unit Price
Screening Mobilization Fee Each $3,500.00
Screening Process Ton $4.00
Crushing Mobilization Fee Each $5,500.00
Crushing Process (Caltrans Class II ABM) Ton $6.15
Hauling/Material Disposal (of excess material that
does not meet Class II ABM)
Ton $5.99
#9..
- 212 -
3 The payment of Prevailing Wages is required for this project.

Labor Craft
Direct Labor
Rate*
Fringe Benefit
Rate**
Labor
Markup
(percent)
Price Per
Service
Northern California Master $61.14/HR $33.50/HR $94.64/HR

2. PREVAILING WAGES:

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

3. CITY REPRESENTATIVE:

CITY Representative is:

Water Division:

Anthony Bean, 209-342-2208, [email protected]
Kenny Thornsberry, Jr., 209-342-4575, [email protected] Wastewater Division:
#9..
- 213 -
4 Bob Eusebio, 209-577-6239, [email protected]
Streets Division:

John Sphar, 209-342-2235, [email protected]
Jennifer Wesley, 209-342-2252, [email protected]
Purchasing Representative:

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

4. CONTRACTOR CONTACT:

Robert (Charlie) Evans, (209) 599-9941 (Office), (209) 606-8419 (Mobile), [email protected]

5. TERM OF AGREEMENT:

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

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

The index used to determine price adjustments on diesel fuel shall come from the Energy Information Administration Website: https://www.eia.gov/PETROLEUM/GASDIESEL/, California data.

6. LIABILITY INSURANCE:

The city utilizes a software program “PINS Advantage” where vendors are responsible for uploading and maintaining updated insurance.

7. PAYMENT:

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

Invoice to: City of Modesto
Attn: Accounts Payable
P.O. Box 642
Modesto, CA 95353
Email to: [email protected]
#9..
- 215 -
6 At a minimum, invoices shall state the following:
 This AGREEMENT number #296038
 CITY department/division name and address
 Billing period
 Service hours worked day and week
 Unit price, extended price, sales tax and total

8. INDEMNITY:

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

9. VENUE & GOVERNING LAW:

Venue for any dispute or claim arising or related to this AGREEMENT its performance, breach, or interpretation (including issues about its validity or enforceability), shall be exclusively in the Superior Court of Stanislaus County or the United States District Court for the Eastern District of California #9..
- 216 -
7 This AGREEMENT shall be deemed made in, governed by, performed in, and construed and enforced in accordance with the laws of the State of California, without giving effect to its conflicts of law’s provisions or principles.

10. ATTORNEYS’ FEES:

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

11. COMMENCEMENT AND COMPLETION OF THE WORK:

The work contemplated herein shall be commenced as immediately after the agreement administrator receives and has on file:
a. Proofs of insurance (approved by CITY Risk Manager); and b. Resolution No.2025-_______;
c. CONTRACTOR Bid submittal;
d. IFB No. 2425-23;
e. Contractor’s City of Modesto business license

12. TERMINATION OF SERVICES:

Termination for Default: In the event either party fails to perform under this AGREEMENT or breaches any condition contained herein, the other party shall notify in writing the breaching party of the non-performance. Within 10 days after receipt of notification, the breaching party shall correct any nonperformance to the reasonable satisfaction of the non-breaching party, or such other time as may be identified in the notice. Failure to correct any non-performance shall allow the non-breaching party to terminate this AGREEMENT for cause.
#9..
- 217 -
8 Termination by City for Convenience: The City may also terminate this AGREEMENT due to the Contractor's performance under the Agreement, either in whole or in part, at its own discretion and without cause.

Post-Termination Procedure
Upon receipt of a written notice of termination pursuant to either of the foregoing paragraphs, the CONTRACTOR shall:
a) Cease its work as directed in the notice of termination as of the termination date and see to it that its employees, subcontractors and agents are notified of such termination and act as specified in the notice of termination;
b) Terminate all orders and subcontracts except as necessary to complete any portion of the SERVICES that are not terminated;
c) If directed in writing by the CITY to do so, assign all right, title and interest in subcontracts and materials in progress to CITY, in which case the CITY will have the right at its discretion to settle, or pay any or all claims arising out of the termination of such, but in no event shall recovery by any CONTRACTOR or subcontractor include lost profits for portions of the SERVICES not completed or undertaken, including materials not delivered; d) Deliver or otherwise make available to the CITY all data, drawings, specifications, reports, estimates, summaries and such other information and material as may have been accumulated by the CONTRACTOR in performing the SERVICES whether completed or in process;
e) Settle outstanding liabilities and claims, subject to the approval of CITY; f) Complete performance of such part of the SERVICES as has not been terminated; g) Take such other actions as may be necessary, or as may be directed by the CITY for the protection and preservation of the SERVICES and/or property related to the SERVICES; #9..
- 218 -
9 h) If CITY so requests, and at CITY's cost, CONTRACTOR shall provide sufficient oral or written status reports to make CITY reasonably aware of the status of CONTRACTOR’s work on the SERVICES.
i) CONTRACTOR understands and agrees that CITY may, in CITY’s sole discretion, refuse to pay CONTRACTOR for that portion of CONTRACTOR's SERVICES which were performed by CONTRACTOR on the project prior to the termination date and which remain unacceptable and/or not useful to CONTRACTOR as of the termination date.

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

13. COMPLIANCE WITH ALL LAWS:

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

14. FAILURE TO PERFORM SATISFACTORY WORK:

It is agreed and understood that if the CONTRACTOR fails to perform the SERVICES as specified herein, CITY's representative may:
#9..
- 219 -
10 a. Consent to accept such unsatisfactory service with an appropriate adjustment in contract price, based on established cost factors,
b. Have such required work done by CITY forces or otherwise, and charge the cost thereof to the CONTRACTOR, or
c. Recommend termination of AGREEMENT between said the CONTRACTOR and the City of Modesto.

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

15. ASSIGNMENT OF RIGHTS:

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

16. CITY PROCESS/PROCEDURE APPROVALS:

CITY approval of any process or procedure shall not relieve CONTRACTOR of its responsibility to furnish the required SERVICES meeting all specifications contained herein. #9..
- 220 -
11 17. CONTRACTOR’S RESPONSIBILITY FOR DAMAGES:

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

18. NOTICES:

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

CONTRACTOR: California Rock Crushers
339 Doak Blvd
Ripon, CA 95366
CITY: City of Modesto
Purchasing Division
P.O. Box 642
Modesto, CA 95353
Each party may change its address for delivery of notice by delivering written notice of such change of address to the other party.

19. SIGNATORY(IES) FOR CONTRACTOR:

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

20. QUANTITIES:

No minimum or maximum is guaranteed or implied.
#9..
- 221 -
12 21. FUNDING:

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

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

22. OTHER GOVERNMENT/PUBLICLY FUNDED AGENCIES:

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

23. NON-DISCRIMINATION:

A. During the performance of this AGREEMENT, CONTRACTOR and any allowed subcontractors shall not unlawfully discriminate against any employee or applicant for employment because of race, color, ancestry, religion, sex, national origin, marital status, age, medical condition (cancer related), physical handicap (including AIDS), sexual orientation, or any other basis prohibited by Federal or California law. Equal employment opportunity extends, but is not limited to recruitment, compensation, benefits, layoff, termination, and all other conditions of employment. The CONTRACTOR and any allowed subcontractors shall ensure that the evaluation and treatment of their employees and applicants for employment are free of such discrimination. The CONTRACTOR and any allowed subcontractors shall comply with the provisions of the Fair Employment and Housing Act (Government Code, Section 12900 et seq.) and the applicable regulations promulgated thereunder (California Administrative Code, Title 2, and Section 7285.0 et seq.). The applicable regulations of the Fair Employment and Housing Commission implementing Government Code, Section 12900, set forth in Chapter 5 of Division 4 of Title 2 of the California Administrative Code are incorporated into this contract by reference and made a part hereof as if set forth in full. #9..
- 222 -
13 b. The CONTRACTOR and any allowed subcontractors shall give written notice of their obligations under this clause to labor organizations with which they have a collective bargaining or other agreement.
c. The CONTRACTOR shall include the nondiscrimination and compliance provisions of this clause in any allowed subcontracts to perform SERVICES. d. The CONTRACTOR shall permit access by representatives of the Department of Fair Employment and Housing and the CITY upon reasonable notice at any time during the normal business hours, but in no case less than 24 hours’ notice, to such of its books, records, accounts, other sources of information and its facilities as said Department or CITY shall require to ascertain compliance with this AGREEMENT.
e. By executing this AGREEMENT, CONTRACTOR certifies that it shall follow and be in compliance with the Americans with Disabilities Act of 1990, the applicable administrative requirements promulgated in response thereto, and any other applicable Federal laws and regulations relating to handicap discrimination and participation and will continue to do so for at least the duration of the AGREEMENT and any extensions thereof.

24. CONTRACTOR LICENSES & PERMITS:

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

25. RECORDS:

All final versions of reports, data, maps, models, charts, studies, surveys, photographs, memoranda, plans, studies, specifications, records, files, or any other documents or materials, in electronic or any other form, that CONTRACTOR prepares or obtains pursuant to this Agreement and that relate to the matters covered hereunder shall be the property of the CITY. CONTRACTOR hereby agrees to deliver those documents to the CITY upon termination of the AGREEMENT, and the CITY may use, reuse or otherwise dispose of the documents without CONTRACTOR’s permission. It is understood and #9..
- 223 -
14 agreed that the documents and other materials, including but not limited to those described above, prepared pursuant to this AGREEMENT are prepared specifically for the City and are not necessarily suitable for any future or other use.

26. FACILITIES AND EQUIPMENT:

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

27. INDEPENDENT CONTRACTOR; NOT AGENT:

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

28. DRUG FREE WORKPLACE:

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

29. ASSIGNMENT:

Neither this AGREEMENT nor any SERVICES hereunder shall be subcontracted or assigned by CONTRACTOR without the prior written consent of the CITY in each and every instance. #9..
- 224 -
15 30. WAIVER:

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

31. HEADINGS NOT CONTROLLING:

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

32. MISCELLANEOUS:

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

33. ENTIRE AGREEMENT:

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

34. PARTIAL INVALIDITY:

If any provision in this AGREEMENT is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions shall nevertheless continue in full force without being impaired or invalidated in any way.
#9..
- 225 -
16 IN WITNESS WHEREOF, the CITY OF MODESTO, a municipal corporation, has authorized the execution of this Agreement by its City Manager and attested by its City Clerk under authority of Resolution No. 2025-_______, adopted by the Council of the City of Modesto on the ________ day of __________________, 2025 and California Rock Crushers. has caused this Agreement to be duly executed. #9..
- 226 -
17 Exhibit D:

Environmental 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 $2,000,000 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.

6. Contractors’ Pollution Legal Liability and/or Asbestos Legal Liability with limits no less than $2,000,000 per occurrence or claim, and $2,000,000 policy 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 non-contributory, 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:

Additional Insured Status
#9..
- 227 -
18 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. For completed operations, a separate endorsement equal to ISO form CG 2037 is required.

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.

Claims Made Policies (applicable to Pollution 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.

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.

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.

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 #9..
- 228 -
19 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.

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
#9..
- 229 -
1 ANNUAL AGREEMENT #296039
SPOILS SCREENING and K&D ENTERPRISES INC
This agreement, hereinafter called AGREEMENT, made and entered into in the City of Modesto, State of California, this _______ day of ________________, 2025, by and between the City of Modesto, a municipal corporation of the State of California, hereinafter called CITY, and K&D Enterprises, Inc., a California Corporation, hereinafter called CONTRACTOR.

W I T N E S S E T H:

NOW, THEREFORE, the parties hereto mutually agree as follows:
#9..
- 230 -
2 1. THE WORK:
a. CONTRACTOR shall furnish all labor, materials, equipment, fuel, tools, licenses, and insurance necessary to perform and complete the required work as specified in Exhibit “B”, and in strict accordance with the conditions of the complete AGREEMENT. b. CONTRACTOR shall do and perform the work contemplated hereby in a good workmanlike manner under the direction of and to the satisfaction of the CITY Representative. c. CONTRACTOR shall maintain proper insurance with the CITY for the duration of the AGREEMENT.
d. CONTRACTOR shall maintain a CITY business license for the duration of the AGREEMENT.
e. CONTRACTOR shall furnish said services at the following AGREEMENT rates for an estimated annual amount $60,000. The total amount paid by CITY to CONTRACTOR over the full term of the AGREEMENT shall not exceed $321,699. Unless the services provided are for a lump sum or flat fee, fees for work performed by CONTRACTOR on an hourly basis shall not exceed the amounts shown in the Bid attached hereto as Exhibit B.

AGREEMENT PRICING
Description Unit of Measure Unit Price
Screening Mobilization Fee Each $3,800.00
Screening Process Ton $4.25
Crushing Mobilization Fee Each $5,900.00
Crushing Process (Caltrans Class II ABM) Ton $6.25
Hauling/Material Disposal (of excess material that
does not meet Class II ABM)
Ton $6.00
#9..
- 231 -
3 The payment of Prevailing Wages is required for this project.

Labor Craft
Direct Labor
Rate*
Fringe Benefit
Rate**
Labor
Markup
(percent)
Price Per
Service
Labor/Operator $61.14/HR $33.50/HR $94.64/HR
*Direct Labor Rate cannot be less than the minimum state prevailing wage. **Provide a copy of the current Fringe Benefit Statement. During the term of the agreement, ensure the City has a copy of the current, applicable statement on file.

2. PREVAILING WAGES:

3. CITY REPRESENTATIVE:

CITY Representative is:

Water Division:

Anthony Bean, 209-342-2208, [email protected]
Kenny Thornsberry, Jr., 209-342-4575, [email protected] #9..
- 232 -
4 Wastewater Division:

Bob Eusebio, 209-577-6239, [email protected]
Streets Division:

John Sphar, 209-342-2235, [email protected]
Jennifer Wesley, 209-342-2252, [email protected]
Purchasing Representative:

4. CONTRACTOR CONTACT:

Kenneth Thornberry, (209) 538-8492 (Office), (209) 495-9234 (Mobile), [email protected]

5. TERM OF AGREEMENT:

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

Year 1: AUGUST 11, 2025 through AUGUST 10, 2026
Year 2: AUGUST 11, 2026 through AUGUST 10, 2027
Year 3: AUGUST 11, 2027 through AUGUST 10, 2028
Year 4: AUGUST 11, 2028 through AUGUST 10, 2029
Year 5: AUGUST 11, 2029 through AUGUST 10, 2030
Pricing as set forth in Section 1.e. above shall remain firm for the first two (2) years of the AGREEMENT.
#9..
- 233 -
5 Price increases for any subsequent AGREEMENT years following the second year shall not exceed the percentage change in the Consumer Price Index (CPI) for West Urban Area in any one AGREEMENT year and shall be negotiated through the Purchasing Division. Requests for price increases shall be submitted by CONTRACTOR in writing, ninety (90) days prior to the annual anniversary date of the AGREEMENT to be effective for the subsequent year.

The index used to determine price adjustments on diesel fuel shall come from the Energy Information Administration Website: https://www.eia.gov/PETROLEUM/GASDIESEL/, California data.

6. LIABILITY INSURANCE:

The city utilizes a software program “PINS Advantage” where vendors are responsible for uploading and maintaining updated insurance.

7. PAYMENT:

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
#9..
- 234 -
6 Modesto, CA 95353
Email to: [email protected]
At a minimum, invoices shall state the following:
 This AGREEMENT number #296039
 CITY department/division name and address
 Billing period
 Service hours worked day and week
 Unit price, extended price, sales tax and total

8. INDEMNITY:

9. VENUE & GOVERNING LAW:

Venue for any dispute or claim arising or related to this AGREEMENT its performance, breach, or interpretation (including issues about its validity or enforceability), shall be exclusively in the Superior Court of Stanislaus County or the United States District Court for the Eastern District of California #9..
- 235 -
7 This AGREEMENT shall be deemed made in, governed by, performed in, and construed and enforced in accordance with the laws of the State of California, without giving effect to its conflicts of law’s provisions or principles.

10. ATTORNEYS’ FEES:

11. COMMENCEMENT AND COMPLETION OF THE WORK:

12. TERMINATION OF SERVICES:

Termination for Default: In the event either party fails to perform under this AGREEMENT or breaches any condition contained herein, the other party shall notify in writing the breaching party of the non-performance. Within 10 days after receipt of notification, the breaching party shall correct any nonperformance to the reasonable satisfaction of the non-breaching party, or such other time as may be identified in the notice. Failure to correct any non-performance shall allow the non-breaching party to terminate this AGREEMENT for cause.
#9..
- 236 -
8 Termination by City for Convenience: The City may also terminate this AGREEMENT due to the Contractor's performance under the Agreement, either in whole or in part, at its own discretion and without cause.

Post-Termination Procedure
Upon receipt of a written notice of termination pursuant to either of the foregoing paragraphs, the CONTRACTOR shall:
a) Cease its work as directed in the notice of termination as of the termination date and see to it that its employees, subcontractors and agents are notified of such termination and act as specified in the notice of termination;
b) Terminate all orders and subcontracts except as necessary to complete any portion of the SERVICES that are not terminated;
c) If directed in writing by the CITY to do so, assign all right, title and interest in subcontracts and materials in progress to CITY, in which case the CITY will have the right at its discretion to settle, or pay any or all claims arising out of the termination of such, but in no event shall recovery by any CONTRACTOR or subcontractor include lost profits for portions of the SERVICES not completed or undertaken, including materials not delivered; d) Deliver or otherwise make available to the CITY all data, drawings, specifications, reports, estimates, summaries and such other information and material as may have been accumulated by the CONTRACTOR in performing the SERVICES whether completed or in process;
e) Settle outstanding liabilities and claims, subject to the approval of CITY; f) Complete performance of such part of the SERVICES as has not been terminated; g) Take such other actions as may be necessary, or as may be directed by the CITY for the protection and preservation of the SERVICES and/or property related to the SERVICES; #9..
- 237 -
9 h) If CITY so requests, and at CITY's cost, CONTRACTOR shall provide sufficient oral or written status reports to make CITY reasonably aware of the status of CONTRACTOR’s work on the SERVICES.
i) CONTRACTOR understands and agrees that CITY may, in CITY’s sole discretion, refuse to pay CONTRACTOR for that portion of CONTRACTOR's SERVICES which were performed by CONTRACTOR on the project prior to the termination date and which remain unacceptable and/or not useful to CONTRACTOR as of the termination date.

13. COMPLIANCE WITH ALL LAWS:

14. FAILURE TO PERFORM SATISFACTORY WORK:

It is agreed and understood that if the CONTRACTOR fails to perform the SERVICES as specified herein, CITY's representative may:
#9..
- 238 -
10 a. Consent to accept such unsatisfactory service with an appropriate adjustment in contract price, based on established cost factors,
b. Have such required work done by CITY forces or otherwise, and charge the cost thereof to the CONTRACTOR, or
c. Recommend termination of AGREEMENT between said the CONTRACTOR and the City of Modesto.

15. ASSIGNMENT OF RIGHTS:

16. CITY PROCESS/PROCEDURE APPROVALS:

CITY approval of any process or procedure shall not relieve CONTRACTOR of its responsibility to furnish the required SERVICES meeting all specifications contained herein. #9..
- 239 -
11 17. CONTRACTOR’S RESPONSIBILITY FOR DAMAGES:

18. NOTICES:

CONTRACTOR: K&D Enterprises, Inc.
4107 Morgan Rd
Ceres, CA 95307
CITY: City of Modesto
Purchasing Division
P.O. Box 642
Modesto, CA 95353
Each party may change its address for delivery of notice by delivering written notice of such change of address to the other party.

19. SIGNATORY(IES) FOR CONTRACTOR:

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

20. QUANTITIES:

No minimum or maximum is guaranteed or implied.
#9..
- 240 -
12 21. FUNDING:

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

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

22. OTHER GOVERNMENT/PUBLICLY FUNDED AGENCIES:

23. NON-DISCRIMINATION:

A. During the performance of this AGREEMENT, CONTRACTOR and any allowed subcontractors shall not unlawfully discriminate against any employee or applicant for employment because of race, color, ancestry, religion, sex, national origin, marital status, age, medical condition (cancer related), physical handicap (including AIDS), sexual orientation, or any other basis prohibited by Federal or California law. Equal employment opportunity extends, but is not limited to recruitment, compensation, benefits, layoff, termination, and all other conditions of employment. The CONTRACTOR and any allowed subcontractors shall ensure that the evaluation and treatment of their employees and applicants for employment are free of such discrimination. The CONTRACTOR and any allowed subcontractors shall comply with the provisions of the Fair Employment and Housing Act (Government Code, Section 12900 et seq.) and the applicable regulations promulgated thereunder (California Administrative Code, Title 2, and Section 7285.0 et seq.). The applicable regulations of the Fair Employment and Housing Commission implementing Government Code, Section 12900, set forth in Chapter 5 of Division 4 of Title 2 of the California Administrative Code are incorporated into this contract by reference and made a part hereof as if set forth in full. #9..
- 241 -
13 b. The CONTRACTOR and any allowed subcontractors shall give written notice of their obligations under this clause to labor organizations with which they have a collective bargaining or other agreement.
c. The CONTRACTOR shall include the nondiscrimination and compliance provisions of this clause in any allowed subcontracts to perform SERVICES. d. The CONTRACTOR shall permit access by representatives of the Department of Fair Employment and Housing and the CITY upon reasonable notice at any time during the normal business hours, but in no case less than 24 hours’ notice, to such of its books, records, accounts, other sources of information and its facilities as said Department or CITY shall require to ascertain compliance with this AGREEMENT.
e. By executing this AGREEMENT, CONTRACTOR certifies that it shall follow and be in compliance with the Americans with Disabilities Act of 1990, the applicable administrative requirements promulgated in response thereto, and any other applicable Federal laws and regulations relating to handicap discrimination and participation and will continue to do so for at least the duration of the AGREEMENT and any extensions thereof.

24. CONTRACTOR LICENSES & PERMITS:

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

25. RECORDS:

All final versions of reports, data, maps, models, charts, studies, surveys, photographs, memoranda, plans, studies, specifications, records, files, or any other documents or materials, in electronic or any other form, that CONTRACTOR prepares or obtains pursuant to this Agreement and that relate to the matters covered hereunder shall be the property of the CITY. CONTRACTOR hereby agrees to deliver those documents to the CITY upon termination of the AGREEMENT, and the CITY may use, reuse or otherwise dispose of the documents without CONTRACTOR’s permission. It is understood and #9..
- 242 -
14 agreed that the documents and other materials, including but not limited to those described above, prepared pursuant to this AGREEMENT are prepared specifically for the City and are not necessarily suitable for any future or other use.

26. FACILITIES AND EQUIPMENT:

Except as set forth herein, CONTRACTOR shall, at its sole cost and expense, provide all equipment that may be necessary to perform the services required by this AGREEMENT. CITY shall make available to CONTRACTOR only the facilities and equipment listed in EXHIBIT “A” and “B”, and only under the terms and conditions set forth herein. CONTRACTOR warrants that it needs no facilities to perform the services other than those listed in Exhibit “A” and “B”.

27. INDEPENDENT CONTRACTOR; NOT AGENT:

28. DRUG FREE WORKPLACE:

29. ASSIGNMENT:

31. HEADINGS NOT CONTROLLING:

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

32. MISCELLANEOUS:

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

33. ENTIRE AGREEMENT:

34. PARTIAL INVALIDITY:

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.
#9..
- 244 -
16 IN WITNESS WHEREOF, the CITY OF MODESTO, a municipal corporation, has authorized the execution of this Agreement by its City Manager and attested by its City Clerk under authority of Resolution No. 2025-_______, adopted by the Council of the City of Modesto on the ________ day of __________________, 2025 and K&D Enterprises, Inc. has caused this Agreement to be duly executed. #9..
- 245 -
17 Exhibit D:

MINIMUM SCOPE AND LIMIT OF INSURANCE
Coverage shall be at least as broad as:

6. Contractors’ Pollution Legal Liability and/or Asbestos Legal Liability with limits no less than $2,000,000 per occurrence or claim, and $2,000,000 policy aggregate.

Excludes material that are never handled by KD Enterprises INC.

Umbrella or Excess Coverage
The Contractor may use Umbrella or Excess Policies to provide the liability limits as required in this agreement.

The insurance policies are to contain, or be endorsed to contain, the following provisions:
#9..
- 246 -
18 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. For completed operations, a separate endorsement equal to ISO form CG 2037 is required.

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.

Claims Made Policies (applicable to Pollution 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.

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 #9..
- 247 -
19 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.

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
#9..
- 248 -
#9..
- 249 -
#9..
- 250 -
#9..
- 251 -
#9..
- 252 -
#9..
- 253 -
#9..
- 254 -
#9..
- 255 -
#9..
- 256 -
#9..
- 257 -
#9..
- 258 -
#9..
- 259 -
#9..
- 260 -
#9..
- 261 -
#9..
- 262 -
#9..
- 263 -
#9..
- 264 -
#9..
- 265 -
#9..
- 266 -
#9..
- 267 -
#9..
- 268 -
#9..
- 269 -
#9..
- 270 -
#9..
- 271 -
#9..
- 272 -
#9..
- 273 -
#9..
- 274 -
#9..
- 275 -
#9..
- 276 -
#9..
- 277 -
#9..
- 278 -
#9..
- 279 -
#9..
- 280 -
#9..
- 281 -
#9..
- 282 -
#9..
- 283 -
#9..
- 284 -
#9..
- 285 -
#9..
- 286 -
#9..
- 287 -
#9..
- 288 -
#9..
- 289 -
#9..
- 290 -
#9..
- 291 -
#9..
- 292 -
#9..
- 293 -
#9..
- 294 -
#9..
- 295 -
#9..
- 296 -
#9..
- 297 -
#9..
- 298 -
#9..
- 299 -
#9..
- 300 -
#9..
- 301 -
#9..
- 302 -
#9..
- 303 -
#9..
- 304 -
INVITATION FOR BIDS # 2425-23

SPOILS SCREENING AND ROCK

CRUSHING SERVICES
1 INVITATION FOR BIDS (“IFB”) NO. 2425-23
FOR

SPOILS SCREENING AND ROCK CRUSHING SERVICES

THE PAYMENT OF PREVAILING WAGES IS REQUIRED
BID OPENING: January 14, 2024 at 11:00 A.M.

Non – Mandatory Bid Walk: Thursday, December 19, 2024 at 8:30 A.M.

CITY OF MODESTO CONTACT: Kim Presson, Buyer
E-MAIL ADDRESS: [email protected]
#9..
- 305 -
INVITATION FOR BIDS # 2425-23

SPOILS SCREENING AND ROCK

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

1.0 SCOPE OF WORK:........................................................................................................................ 34

1.1 REQUIRED LICENSES:................................................................................................................ 36 SAMPLE ANNUAL AGREEMENT ....................................................................................................... 37 #9..
- 306 -
INVITATION FOR BIDS # 2425-23

SPOILS SCREENING AND ROCK

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

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

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

Each Bid shall be sealed and filed with the City Clerk’s office, 1010 Tenth Street, Suite 6600, Modesto, CA 95354 prior to Tuesday, January 14, 2024 at 11:00 A.M., at which time Bids will be opened, read and recorded. The opening of bids will not be physically open to the public but may be viewed simultaneously via video conferencing in the manner provided for herein. All Bids shall be available for review following City Council award approval at the Purchasing Division, 1010 Tenth Street, 5th Floor, Suite 5300, Modesto, CA 95354.

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

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

The City Clerk’s time stamp shall be considered the official timepiece for the purpose of establishing the actual receipt of Bids. Bids will not be accepted by email or facsimile. The City of Modesto assumes no responsibility for delay in the delivery of the Bid. #9..
- 307 -
INVITATION FOR BIDS # 2425-23

SPOILS SCREENING AND ROCK

CRUSHING SERVICES
4 On the outside of the Bid envelope and courier envelope, if any, the Bidder shall indicate the following:
“NAME AND ADDRESS OF BIDDER
BID IN RESPONSE TO INVITATION FOR BIDS # 2425-23

SPOILS SCREENING AND ROCK CRUSHING SERVICES
BID OPENING DATE: JANUARY 14, 2024 AT 11:00 A.M.”
Bidder must deliver your Bid by a preferred method to the appropriate location below:

MAIL TO: DELIVER/ COURIER TO:

CITY CLERK CITY CLERK

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

No Bidder may withdraw its Bid for a period of one hundred twenty (120) days after the date set for the opening thereof.
#9..
- 308 -
INVITATION FOR BIDS # 2425-23

SPOILS SCREENING AND ROCK

CRUSHING SERVICES
5 CALENDAR OF EVENTS
Event Date
IFB Issued December 04, 2024
Bid Walk December 19, 2024
Written Questions Due via Email December 27, 2024
Addendum Issued (if required) January 3, 2024 (approximate date) Bid Due Date & Time PRIOR 11:00 A.M. on Tuesday, January 14, 2024 Contract Award Approximately August, 2025
Bid Walk: A NON-MANDATORY bid walk is scheduled for December 19, 2024 at 8:30 A.M.

Bid Walk Location: 4240 Litt Rd, Modesto CA, 95357

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

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

PRECEDENCE
Bidder agrees that any agreement resulting from City’s acceptance of its Bid, together with the terms in any City purchase order and associated specifications provided by the City to Bidder therewith, shall comprise the entire agreement between City and Bidder. Moreover, Bidder agrees that any additional or contrary terms contained in Bidder’s acknowledgement of, shall be null and void. #9..
- 309 -
INVITATION FOR BIDS # 2425-23

SPOILS SCREENING AND ROCK

CRUSHING SERVICES
6 VIRTUAL BID OPENING
The City of Modesto will be broadcasting Bid openings live electronically via Microsoft Teams at 11:00 a.m. (Pacific Time) on Tuesday, January 14, 2024. The City Clerk Record of Bid document should be available on Planet Bids by the end of the same day.

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

URL: https://teams.microsoft.com/l/meetup
join/19%3ameeting_NTI0YzBiMDMtNDQ0Yi00YjNlLWIwZjYtYzg4ZDVjMDdkM2Mz%40thread.v2 /0?context=%7b%22Tid%22%3a%22125ccacf-fc61-463c-9976-
189f876ff90b%22%2c%22Oid%22%3a%229715c333-c997-4dd7-8984-12cd4deaa705%22%7d Join Microsoft Teams Meeting (Click here to join the meeting) • +1 (469)-998-7409
• Conference ID: 961 656 049#
Should you have any questions regarding this, please do not hesitate to contact the Purchasing Department Contact listed on the Cover Page.
#9..
- 310 -
INVITATION FOR BIDS # 2425-23

SPOILS SCREENING AND ROCK

CRUSHING SERVICES
7 GENERAL BID REQUIREMENTS
A. BID SUBMITTAL: Bidders should submit two “inked” (preferably blue ink) signed original Bid document, plus one copy of the signed original Bid document, and one electronic copy submitted via USB. The original Bid document shall be clearly marked. Photocopies do not constitute an original Bid. FAILURE TO FURNISH AT LEAST ONE “INKED” SIGNED ORIGINAL BID DOCUMENT MAY RESULT IN DISQUALIFICATION.

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

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

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

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

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

F. COMPLETE BID DOCUMENT: The following forms constitute the makeup of a complete Bid document and shall be signed wherever indicated and submitted to the City in the order listed):
• Bid Form A – IFB Acknowledgement
• Bid Form B – Bidder Company Information
• Bid Form C – Pricing Schedule
• Bid Form D – Bidder Exceptions, Clarifications, Amendments • Bid Form E – Bidder Customer References
• Bid Form F – Financial Interest Disclosure
• Bid Form G – Support of Local Vendors
• Bid Form H – Bidder Company History Statement
#9..
- 311 -
INVITATION FOR BIDS # 2425-23

SPOILS SCREENING AND ROCK

CRUSHING SERVICES
8 • Bid Form I – Addenda Acknowledgement Page (if applicable) • Bid Form J – Bidder Warranty Statements
• Bid Form K– Bidder Experience and Certifications
• Bid Form L – Subcontractor List
Failure to furnish any of these documents may result in disqualification.

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

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

I. AWARD OF BID:
• The City may award one or more agreements to one or more Bidder in order to provide for backup, or in case the “primary” contractor is unable to meet the City’s needs. • The City reserves the right to decline to award any agreement if it is determined that the proposed pricing is not competitively priced based on similar agreements with public agencies within the State of California or if the bids received fail to meet the City’s requirements.
#9..
- 312 -
INVITATION FOR BIDS # 2425-23

SPOILS SCREENING AND ROCK

CRUSHING SERVICES
9 • The City reserves the right to select that Bid, which best suits the City’s needs. In addition to price, consideration will be given to the quality and performance of the service to be purchased, and the criteria listed in Modesto Municipal Code Section 8-

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

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

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

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

L. PREVAILING WAGE: Bidder’s workers must be paid no less than the prevailing wage rate as published by the State of California Department of Industrial Relations (DIR), and the successful Bidder shall maintain certified payroll. For additional information regarding Prevailing Wages, please contact the DIR at www.DIR.CA.gov or call its Labor Research and Statistics Unit, Prevailing Wage Unit at 415/703-4774. The City standards available at the following web address shall also apply to the performance of the Bid: City Standards Website:
https://www.modestogov.com/ArchiveCenter/ViewFile/Item/1120 #9..
- 313 -
INVITATION FOR BIDS # 2425-23

SPOILS SCREENING AND ROCK

CRUSHING SERVICES
10 M. BIDDER REPRESENTATION: Bidder represents that:
• Bidder has had an opportunity to examine and has examined any and all of the documents, including specifications, any resultant contract and supporting data, and that it has, from the information contained in such documents, specifications, and data, fully acquainted itself with all conditions relevant to the work. • Bidder has made all reasonable investigations essential to a full understanding of the difficulties which may be encountered in performing the work. • Bidder will complete the proposed provision of Services for the compensation stated in any resultant agreement.
• Bidder assumes full and complete responsibility for all conditions relevant to the proposed provision of Services and all risks in connection therewith. • Bidder represents that it is fully qualified to perform the proposed provision of Services in accordance with the terms of any resultant agreement within the time specified therein.

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

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

Protest Procedures
• Only a Bidder who has actually submitted a Bid is eligible to submit a protest against the City’s Announced Decision.
• Subcontractors are not eligible to submit bid protests. #9..
- 314 -
INVITATION FOR BIDS # 2425-23

SPOILS SCREENING AND ROCK

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

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

City Clerk’s Office
Attn: Director of Finance
#9..
- 315 -
INVITATION FOR BIDS # 2425-23

SPOILS SCREENING AND ROCK

CRUSHING SERVICES
12 1010 Tenth St. Suite 6600
Modesto CA 95354
Or mailed to:

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

Further protest appeals shall either be delivered to:

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

City Clerk’s Office
Attn: Deputy City Manager
PO Box 642
Modesto CA 95353
d. Appeal to City Council: Any protestor seeking to appeal to the decision of the Deputy City Manager may appeal in writing to the City Council by filing with the City Clerk a written notice of such appeal not later than ten days after the date of the Deputy City Manager's decision. The City Clerk will calendar the protest for Council hearing and give notice of the time and place of the hearing as provided #9..
- 316 -
INVITATION FOR BIDS # 2425-23

SPOILS SCREENING AND ROCK

CRUSHING SERVICES
13 in Modesto Municipal Code Sections 1-4.01 through 1-4.05. The City Council’s decision on the appeal shall be final.

All protest appeals to the City Council shall either be delivered to:

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

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

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

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

The protest shall be heard not later than twenty days after receipt of protestor's request for hearing and the selection of a hearing officer. Protests not made in a timely manner shall be deemed withdrawn, unless the City and the protestor mutually agree otherwise in writing. The protestor’s failure to accept a hearing officer after the third attempt by City staff to identify an impartial hearing officer shall be deemed a withdrawal of the protest.
#9..
- 317 -
INVITATION FOR BIDS # 2425-23

SPOILS SCREENING AND ROCK

CRUSHING SERVICES
14 The costs of the hearing officer and expenses of the protest shall be borne by the protestor. The sums deposited with the request for hearing shall be credited to the costs of the hearing officer and other hearing expenses. f. Mandatory Alternative Process for Protests of Procurements Obtained with Federal Funds: If the protested procurement involves federal funds, the Deputy City Manager, City Council, or hearing officer shall give notice, accompanying their respective decisions, to the protestor that he or she has the right to appeal to the appropriate federal agency, for which an agency name, contact (where available) and address shall be provided by City staff. Such an appeal shall be filed with the appropriate agency within seven business days of the dispatch or rejection notices to the protestor. Federal agencies may entertain protests alleging that the City has failed to adopt written protest procedures or has failed to follow such procedures. The City Council is the highest authority of the City of Modesto, and its decisions are final. A disappointed Bidder for a contract involving expenditures of Federal funds shall have the right to appeal the City Council decision directly to the federal agency as described herein. #9..
- 318 -
INVITATION FOR BIDS # 2425-23

SPOILS SCREENING AND ROCK

CRUSHING SERVICES
15 BID SUBMITTAL CHECKLIST

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

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

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

Bidder’s submission should include all City of Modesto forms. If any form is not applicable, Bidder should write or type “Not Applicable” on it but still include the form in your submission. #9..
- 319 -
INVITATION FOR BIDS # 2425-23

SPOILS SCREENING AND ROCK

CRUSHING SERVICES
16 BID FORM A – IFB ACKNOWLEDGEMENT
The City is soliciting Bids from qualified firms (each a “Bidder” to fulfill the City’s requirements per the specifications, terms and conditions contained in this Invitation for Bids (“Invitation for Bids” or “IFB”).

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

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

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

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

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

5. Patent Indemnity: Bidders who do business with the City shall hold the City, its officers, agents and employees, harmless from liability of any nature or kind, including cost and expenses, for infringement or use of any patent, copyright or other proprietary right, secret process, patented or un- #9..
- 320 -
INVITATION FOR BIDS # 2425-23

SPOILS SCREENING AND ROCK

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

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

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

8. Payment Terms and Methods: Bidder will be able to choose from either of the following payment methods and associated timings:
(a) Option A (Preferred): City of Modesto ePay Payment: This secure payment methodology is preferred by an increasing number of the City’s suppliers. On Net 30-day timing, you will receive a single-use Master Card number with a detailed remittance for each payment. You will process the payment though your POS/Card terminal. The payment remittance will be sent from [email protected] via email and will contain the following information:
• 16-digit credit card number
• Expiration date
• Security code
• Total dollar amount of invoices to be paid
• Invoices reference numbers and corresponding amounts
ePay results in small percentage rebate of 1.0% to the City through the card issuer. That rebate amount will be considered by the City in its evaluation of Bidder’s pricing proposal hereunder. #9..
- 321 -
INVITATION FOR BIDS # 2425-23

SPOILS SCREENING AND ROCK

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

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

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

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

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

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

Bidder Company Name:

Bidder Headquarters Address:

City/State/Zip:

Signature/Title/Date:
#9..
- 322 -
INVITATION FOR BIDS # 2425-23

SPOILS SCREENING AND ROCK

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

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

Title:

Phone (Office):

Phone (Mobile):

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

Fax Number:

Email:

G. Federal Taxpayer
Identification Number
(TIN):

H. Dun & Bradstreet
(DUNS) Number:

I. Names and Titles of
Top Three Bidder
Officers:

J. Years in Business:

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

L. City of Modesto
Business License
Number (note –
#9..
- 323 -
INVITATION FOR BIDS # 2425-23

SPOILS SCREENING AND ROCK

CRUSHING SERVICES
20 provide only if
available now - - but
not required until any
contract begins):
#9..
- 324 -
INVITATION FOR BIDS # 2425-23

SPOILS SCREENING AND ROCK

CRUSHING SERVICES
21 BID FORM C – PRICING SCHEDULE
All labor, materials, equipment, tools, fuel, licenses, bonds, insurance and other expenses necessary for Bidder to perform the required services shall be included in Bid pricing. Bid must be submitted on the below Pricing Schedule provided. No alterations should be made to the pricing schedule. Any exceptions, amendments or adjustments should be noted on Bid Form D – Bidder Exceptions, Clarifications, Amendments.

ESTIMATED ANNUAL QTY x UNIT PRICE= EXTENDED PRICE
**In case of discrepancy between a unit price and an extended price, the unit price will be presumed to be correct, subject, however, to correction to the same extent and in the same manner.** The payment of Prevailing Wages is required for this project.

Description Unit of Measure Unit Price
Screening Mobilization Fee Each $ /EA
Screening Process Ton $ /Ton
Crushing Mobilization Fee Each $ /EA
Crushing Process (Caltrans Class II ABM) Ton $ /Ton
Hauling/Material Disposal (of excess material that does not meet Class II ABM)
Ton $ /Ton
SUBTOTAL $
1% ePay Discount if Option A is selected (see: Bid From C) $ Total $
The payment of Prevailing Wages is required for this project.

Labor Craft Direct Labor Rate*
Fringe Benefit
Rate**
Labor
Markup
(percent)
Price Per
Service
$ /HR $ /HR % $ /HR
$ /HR $ /HR % $ /HR
$ /HR $ /HR % $ /HR
$ /HR $ /HR % $ /HR
$ /HR $ /HR % $ /HR
*Direct Labor Rate cannot be less than the minimum state prevailing wage. **Provide a copy of the current Fringe Benefit Statement. During the term of the agreement, ensure the City has a copy of the current, applicable statement on file.
#9..
- 325 -
INVITATION FOR BIDS # 2425-23

SPOILS SCREENING AND ROCK

CRUSHING SERVICES
22 Payment Terms:

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

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

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

Bidder Company Name:

Name of Bidder Signatory:

Signature of Bidder Representative:
#9..
- 326 -
INVITATION FOR BIDS # 2425-23

SPOILS SCREENING AND ROCK

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

Nonetheless, Bidder may request Bid clarifications and exceptions below, if any, sign and submit with your Bid response. Any requested exception, clarification or amendment may not be accepted and may deem the Bidder as non-responsive.

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

Name of Bidder Signatory:

Signature of Bidder Representative:
#9..
- 327 -
INVITATION FOR BIDS # 2425-23

SPOILS SCREENING AND ROCK

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

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

Company Name:

Address:

City, State, Zip Code:

Contact Person:

Email Address:

Telephone Number:

Type of Business or
Governmental
Agency:

Date Range of
Service:

Annual Contract Value $
Company Name:

Address:

City, State, Zip Code:

Contact Person:

Email Address:

Telephone Number:

Type of Business or
Governmental
Agency:

Date Range of
Services:

Annual Contract Value $
Company Name:

Address:

City, State, Zip Code
Contact Person:
#9..
- 328 -
INVITATION FOR BIDS # 2425-23

SPOILS SCREENING AND ROCK

CRUSHING SERVICES
25 Email Address:

Telephone Number:

Type of Business or
Governmental
Agency:

Date Range of
Services:

Annual Contract Value $
Company Name:

Address:

City, State, Zip Code
Contact Person:

Email Address:

Telephone Number:

Type of Business or
Governmental
Agency:

Date Range of
Services:

Annual Contract Value $
Company Name:

Address:

City, State, Zip Code
Contact Person:

Email Address:

Telephone Number:

Type of Business or
Governmental
Agency:

Date Range of
Services:

Annual Contract Value $
#9..
- 329 -
INVITATION FOR BIDS # 2425-23

SPOILS SCREENING AND ROCK

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

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

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

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

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

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

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

10.03(h) are satisfied.

It is the legal obligation of all applicants for approval of an agreement or of an application for development rights to verify in writing, under penalty of perjury, that the identity of each person having a material financial interest in the Bidder is true, correct and complete. By signing below, the applicant understands that this information is provided under penalty of perjury, and that intentionally supplying misinformation or deception may result in either invalidation of the agreement or application, or criminal prosecution for misdemeanor violation of the Modesto Municipal Code, or both. Negligent provision of misinformation shall be grounds for invalidation. In accordance with the Modesto Municipal Code, each applicant has a continuing obligation to maintain the truth, accuracy and completeness of the financial interest disclosure information provided below until after final consideration by the City Council of any matter arising out of or relating to the agreement or application.
#9..
- 330 -
INVITATION FOR BIDS # 2425-23

SPOILS SCREENING AND ROCK

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

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

Bidder Company Name:

Name of Bidder Signatory:

Signature of Bidder Representative:
#9..
- 331 -
INVITATION FOR BIDS # 2425-23

SPOILS SCREENING AND ROCK

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

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

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

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

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

Check here:

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

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

City of Modesto Business License
Number:

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

Print/Type Name:

Title:

Signature:

Date:
#9..
- 332 -
INVITATION FOR BIDS # 2425-23

SPOILS SCREENING AND ROCK

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

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

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

Insert Bidder Company History Overview Statement Beginning Here:
#9..
- 333 -
INVITATION FOR BIDS # 2425-23

SPOILS SCREENING AND ROCK

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

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

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

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

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

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

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

Bidder Company Name:
#9..
- 334 -
INVITATION FOR BIDS # 2425-23

SPOILS SCREENING AND ROCK

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

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

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

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

Insert Bidder Warranty Statement Beginning Here:
#9..
- 335 -
INVITATION FOR BIDS # 2425-23

SPOILS SCREENING AND ROCK

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

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

B. Certifications: Bidder shall provide copies of all relevant certifications held for both company and any individuals required to perform the services requested herein. #9..
- 336 -
INVITATION FOR BIDS # 2425-23

SPOILS SCREENING AND ROCK

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

Name of
Subcontractor
Address Type of Work Contractor
License # (if any)
DIR
Registration #
(if any)
Bidder Company Name:
#9..
- 337 -
INVITATION FOR BIDS # 2425-23

SPOILS SCREENING AND ROCK

CRUSHING SERVICES
34 TECHNICAL SPECIFICATIONS AND REQUIREMENTS

1.0 SCOPE OF WORK:

The Utilities Department, Water Services and Wastewater Services Divisions, and Public Works, Streets Division, require a Contractor to provide spoils screening and rock crushing services on an as needed basis throughout the year.

The Water Division generates approximately 30,000 cubic yards of spoils material, weights will vary, which is stockpiled at the Water Services Division Litt Road facility, and the Wastewater Services generates approximately 30,000 cubic yards of spoils material, weights will vary, which is stockpiled at the Wastewater Division at the Sutter Wastewater Treatment Plant facility. Public Works, Street Division generates approximately 6,000 tons of spoils material each year which is stockpiled at the Brink Road site. Spoils consist of asphalt, concrete, rock, dirt, sand, and miscellaneous debris accumulated from construction jobs. These materials must be separated and screened down to 3/4 inch minus clean soil for disposal. The remaining larger material is crushed to create Caltrans Aggregate base rock which is used for other City construction jobs. It will be the responsibility of the vendor to haul all unsuitable material that does not meet Caltrans Class II ABM standards for disposal upon request.

Facility Addresses:

Water Location Wastewater Location Streets Location
Litt Road Facility Sutter Facility
4240 Litt Rd 1221 Sutter Ave Brink Road
Modesto, CA 95357 Modesto, CA 95351 Modesto, CA 95350
Contractor shall furnish all labor, equipment, tools, fuel and insurance necessary to perform the required services.

SERVICE SPECIFICATIONS:

A. Screening: Annually one (1) to six (6) screenings per year. Approximately 60,600 total cubic yards, weights will vary, of material shall be screened down to 3/4 inch minus clean material.

B. Crushing: Two (2) to seven (7) times per year performed after final screening is completed.

Approximately 34,000 total cubic yards, weights will vary, of asphalt/concrete left from the screening process shall be crushed into usable Caltrans Class II ABM. The California Department of Transportation (Caltrans) provides specifications for the use of recycled aggregate, sometimes referred to as crushed miscellaneous base (CMB), as base (section 26) or subbase (section 25) on road projects – reference Caltrans specifications. More information can be found on Caltrans website:
https://dot.ca.gov/programs/construction/construction-manual#Chapter3 #9..
- 338 -
INVITATION FOR BIDS # 2425-23

SPOILS SCREENING AND ROCK

CRUSHING SERVICES
35 C. During the crushing process Contractor shall test the material to ensure that the material meets Caltrans Class II ABM base rock specifications. Test samples must be approved by the City’s Representative before continuing with the crushing process.

D. Hauling/Material Disposal: Approximately 30,000 total cubic yards, weights will vary, of unsuitable material that does not meet Caltrans Class II ABM material will be hauled off for disposal upon request.

Unsuitable material (such as material containing organic material, litter, refuse and other deleterious substances) remaining from sifting, grinding and creating Class II Aggregate Base must be legally transported to and disposed of per federal and state laws and regulations, including city, county and municipal ordinances and regulations to a proper commercial disposal or recycling facility. The Contractor shall obtain a disposal site for all of the deleterious materials somewhere off the job site.

Contractor shall obtain and file with the City a letter showing permission and conditions for use of a private disposal site. The letter shall designate the City as hold harmless.

E. A Portable Equipment Registration Permit (PERP) issued by San Joaquin Valley Air Pollution Control District (SJVAPCD) or the state of California is required.

F. The Contractor shall comply with all Federal, State, and Local Air Pollution Control Laws and Regulations, and Section 2022.1(g) of the California Code of Regulations for this project. Diesel particulate matter for on-road heavy-duty diesel-fueled vehicles shall be kept at a minimum.

G. The Contractor shall comply with the San Joaquin Valley Air Pollution Control District (SJVAPCD) requirement for the submission and approval of a Dust Control Plan, and Authority to Construct/Permit to operate application for any emissions unit as required. The Contractor shall also complete, submit, and pay the appropriate filing and processing fees.

H. Weights will be determined by a belt scale, which will need to be provided by the vendor.

I. Temporary piping at the spoils site will not be allowed.

WORK SCHEDULE:

All work shall be performed Monday through Friday between the hours of 7:00 A.M. through 4:00 P.M., excluding all major holidays. Contractor will mobilize and start processing spoils within thirty (30) calendar days of request. Prior to the start of processing, a schedule and completion date will be established. Any deviation or extension of time must be approved (in writing) at least 5 (five) days prior to the request date change, by the City Representative.

STAGING OF EQUIPMENT:

Contractor can stage equipment on premise 30 days prior to service. The City Representative will direct the Contractor to where equipment will be staged. Equipment may not be staged at multiple locations at the same time. The Contractor shall coordinate with City Representatives to plan services. Once services have been completed, Contractor must remove equipment within 30 days after completion of services. #9..
- 339 -
INVITATION FOR BIDS # 2425-23

SPOILS SCREENING AND ROCK

CRUSHING SERVICES
36 1.1 REQUIRED LICENSES:

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

1.2 TERM OF AGREEMENT:

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

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

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

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

The index used to determine price adjustments on diesel fuel shall come from the Energy Information Administration Website: HTTPS://WWW.EIA.GOV/PETROLEUM/GASDIESEL/, California data. #9..
- 340 -
37 SAMPLE ANNUAL AGREEMENT
SPOILS SCREENING and ROCK CRUSHING SERVICES (ADD AGREEMENT #) This agreement, hereinafter called AGREEMENT, made and entered into in the City of Modesto, State of California, this _______ day of ________________, 2025, by and between the City of Modesto, a municipal corporation of the State of California, hereinafter called CITY, and , a , hereinafter called CONTRACTOR.

W I T N E S E T H:

WHEREAS, the Modesto City Council adopted Resolution No. 2025-______ authorizing the Award of Bid and agreement for the Spoils Screening and Rock Crushing Services to CONTRACTOR, attached hereto as Exhibit “A” and made a part hereof, and WHEREAS, the CONTRACTOR provided a responsive and responsible submittal that best meets the CITY needs, attached hereto as Exhibit “B” and made a part hereof, and WHEREAS, the CITY and CONTRACTOR shall enter into an agreement for the Spoils Screening and Rock Crushing Services as described in IFB 2425-23, attached hereto as Exhibit “C” and made a part hereof (hereinafter called IFB).

NOW, THEREFORE, the parties hereto mutually agree as follows:
#9..
- 341 -
38 1. THE WORK:
a. CONTRACTOR shall furnish all labor, materials, equipment, fuel, tools, licenses, and insurance necessary to perform and complete the required work as specified in Exhibit “B”, and in strict accordance with the conditions of the complete AGREEMENT. b. CONTRACTOR shall do and perform the work contemplated hereby in a good workmanlike manner under the direction of and to the satisfaction of the CITY Representative. c. CONTRACTOR shall maintain proper insurance with the CITY for the duration of the AGREEMENT.
d. CONTRACTOR shall maintain a CITY business license for the duration of the AGREEMENT.
e. CONTRACTOR shall furnish said services at the following AGREEMENT rates for an estimated annual amount $ . The total amount paid by CITY to CONTRACTOR over the full term of the AGREEMENT shall not exceed $ . Unless the services provided are for a lump sum or flat fee, fees for work performed by CONTRACTOR on an hourly basis shall not exceed the amounts shown in the Bid attached hereto as Exhibit B.

AGREEMENT PRICING
Description Unit of Measure Unit Price
Screening Mobilization Fee Each $ /EA
Screening Process Ton $ /Ton
Crushing Mobilization Fee Each $ /EA
Crushing Process (Caltrans Class II ABM) Ton $ /Ton
Hauling/Material Disposal (of excess material that does not meet Class II ABM)
Ton $ /Ton
#9..
- 342 -
39 2. PREVAILING WAGES:

DIR Project ID#: Click or tap here to enter text.

3. CITY REPRESENTATIVE:

CITY Representative is:

Water Division:

Anthony Bean, 209-342-2208, [email protected]
Kenny Thornsberry, Jr., 209-342-4575, [email protected] Wastewater Division:

Bob Eusebio, 209-577-6239, [email protected]
Streets Division:

John Sphar, 209-342-2235, [email protected]
Jennifer Wesley, 209-342-2252, [email protected]
#9..
- 343 -
40 Purchasing Representative:

4. CONTRACTOR CONTACT:

Click or tap here to enter text.

5. TERM OF AGREEMENT:

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

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

Price increases for any subsequent AGREEMENT years following the second year shall not exceed the percentage change in the Consumer Price Index (CPI) for West Urban Area in any one AGREEMENT year and shall be negotiated through the Purchasing Division. Requests for price increases shall be submitted by CONTRACTOR in writing, ninety (90) days prior to the annual anniversary date of the AGREEMENT to be effective for the subsequent year. #9..
- 344 -
41 Price adjustments for diesel fuel fluctuations may be considered. Thirty (30) day written notice is required for consideration. Any price adjustment shall be negotiated through the Purchasing Division and approved at the sole discretion of the CITY.

The index used to determine price adjustments on diesel fuel shall come from the Energy Information Administration Website: https://www.eia.gov/PETROLEUM/GASDIESEL/, California data.

6. LIABILITY INSURANCE:

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 D to this AGREEMENT and shall otherwise comply with the other provisions of Exhibit D to this AGREEMENT. The city utilizes a software program “PINS Advantage” where vendors are responsible for uploading and maintaining updated insurance.

7. PAYMENT:

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

Invoice to: City of Modesto
Attn: Accounts Payable
P.O. Box 642
Modesto, CA 95353
Email to: [email protected]
At a minimum, invoices shall state the following:
#9..
- 345 -
42 • This AGREEMENT number
• CITY department/division name and address
• Billing period
• Service hours worked day and week
• Unit price, extended price, sales tax and total

8. INDEMNITY:

9. VENUE & GOVERNING LAW:

Venue for any dispute or claim arising or related to this AGREEMENT its performance, breach, or interpretation (including issues about its validity or enforceability), shall be exclusively in the Superior Court of Stanislaus County or the United States District Court for the Eastern District of California
#9..
- 346 -
43 This AGREEMENT shall be deemed made in, governed by, performed in, and construed and enforced in accordance with the laws of the State of California, without giving effect to its conflicts of law’s provisions or principles.

10. ATTORNEYS’ FEES:

11. COMMENCEMENT AND COMPLETION OF THE WORK:

12. TERMINATION OF SERVICES:

Termination for Default: In the event either party fails to perform under this AGREEMENT or breaches any condition contained herein, the other party shall notify in writing the breaching party of the non-performance. Within 10 days after receipt of notification, the breaching party shall correct any nonperformance to the reasonable satisfaction of the non-breaching party, or such other time as may be identified in the notice. Failure to correct any non-performance shall allow the non-breaching party to terminate this AGREEMENT for cause.
#9..
- 347 -
44 Termination by City for Convenience: The City may also terminate this AGREEMENT the Contractor's performance under the Agreement, either in whole or in part, at its own discretion and without cause.

Post-Termination Procedure
Upon receipt of a written notice of termination pursuant to either of the foregoing paragraphs, the CONTRACTOR shall:
a) Cease its work as directed in the notice of termination as of the termination date and see to it that its employees, subcontractors and agents are notified of such termination and act as specified in the notice of termination;
b) Terminate all orders and subcontracts except as necessary to complete any portion of the SERVICES that are not terminated;
c) If directed in writing by the CITY to do so, assign all right, title and interest in subcontracts and materials in progress to CITY, in which case the CITY will have the right at its discretion to settle, or pay any or all claims arising out of the termination of such, but in no event shall recovery by any CONTRACTOR or subcontractor include lost profits for portions of the SERVICES not completed or undertaken, including materials not delivered;
d) Deliver or otherwise make available to the CITY all data, drawings, specifications, reports, estimates, summaries and such other information and material as may have been accumulated by the CONTRACTOR in performing the SERVICES whether completed or in process;
e) Settle outstanding liabilities and claims, subject to the approval of CITY; f) Complete performance of such part of the SERVICES as has not been terminated; g) Take such other actions as may be necessary, or as may be directed by the CITY for the protection and preservation of the SERVICES and/or property related to the SERVICES; #9..
- 348 -
45 h) If CITY so requests, and at CITY's cost, CONTRACTOR shall provide sufficient oral or written status reports to make CITY reasonably aware of the status of CONTRACTOR’s work on the SERVICES.
i) CONTRACTOR understands and agrees that CITY may, in CITY’s sole discretion, refuse to pay CONTRACTOR for that portion of CONTRACTOR's SERVICES which were performed by CONTRACTOR on the project prior to the termination date and which remain unacceptable and/or not useful to CONTRACTOR as of the termination date.

13. COMPLIANCE WITH ALL LAWS:

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

15. ASSIGNMENT OF RIGHTS:

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

17. DIR REGISTRATION:

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

18. CONTRACTOR’S RESPONSIBILITY FOR DAMAGES:

19. NOTICES:

CONTRACTOR: Click or tap here to enter text.

Click or tap here to enter text.

Click or tap here to enter text.
#9..
- 351 -
48 Click or tap here to enter text.

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.

20. SIGNATORY(IES) FOR CONTRACTOR:

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

21. QUANTITIES:

No minimum or maximum is guaranteed or implied.

22. FUNDING:

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

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

23. OTHER GOVERNMENT/PUBLICLY FUNDED AGENCIES:

24. NON-DISCRIMINATION:

A. During the performance of this AGREEMENT, CONTRACTOR and any allowed subcontractors shall not unlawfully discriminate against any employee or applicant for employment because of race, color, ancestry, religion, sex, national origin, marital status, age, medical condition (cancer related), physical handicap (including AIDS), sexual #9..
- 352 -
49 orientation, or any other basis prohibited by Federal or California law. Equal employment opportunity extends, but is not limited to recruitment, compensation, benefits, layoff, termination, and all other conditions of employment. The CONTRACTOR and any allowed subcontractors shall ensure that the evaluation and treatment of their employees and applicants for employment are free of such discrimination. The CONTRACTOR and any allowed subcontractors shall comply with the provisions of the Fair Employment and Housing Act (Government Code, Section 12900 et seq.) and the applicable regulations promulgated thereunder (California Administrative Code, Title 2, and Section 7285.0 et seq.). The applicable regulations of the Fair Employment and Housing Commission implementing Government Code, Section 12900, set forth in Chapter 5 of Division 4 of Title 2 of the California Administrative Code are incorporated into this contract by reference and made a part hereof as if set forth in full.
b. The CONTRACTOR and any allowed subcontractors shall give written notice of their obligations under this clause to labor organizations with which they have a collective bargaining or other agreement.
c. The CONTRACTOR shall include the nondiscrimination and compliance provisions of this clause in any allowed subcontracts to perform SERVICES. d. The CONTRACTOR shall permit access by representatives of the Department of Fair Employment and Housing and the CITY upon reasonable notice at any time during the normal business hours, but in no case less than 24 hours’ notice, to such of its books, records, accounts, other sources of information and its facilities as said Department or CITY shall require to ascertain compliance with this AGREEMENT.
e. By executing this AGREEMENT, CONTRACTOR certifies that it shall follow and be in compliance with the Americans with Disabilities Act of 1990, the applicable administrative requirements promulgated in response thereto, and any other applicable Federal laws and #9..
- 353 -
50 regulations relating to handicap discrimination and participation and will continue to do so for at least the duration of the AGREEMENT and any extensions thereof.

25. CONTRACTOR LICENSES & PERMITS:

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

26. RECORDS:

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

27. FACILITIES AND EQUIPMENT:

Except as set forth herein, CONTRACTOR shall, at its sole cost and expense, provide all facilities and equipment that may be necessary to perform the services required by this AGREEMENT.

CITY shall make available to CONTRACTOR only the facilities and equipment listed in EXHIBIT “A” and “B”, and only under the terms and conditions set forth herein.

28. INDEPENDENT CONTRACTOR; NOT AGENT:

Except as City may specify in writing, CONTRACTOR shall have no authority, express or implied, to #9..
- 354 -
51 act on behalf of CITY in any capacity whatsoever as an agent. CONTRACTOR shall have no authority, express or implied, pursuant to this AGREEMENT to bind City to any obligation whatsoever.

29. DRUG FREE WORKPLACE:

30. ASSIGNMENT:

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

31. WAIVER:

32. HEADINGS NOT CONTROLLING:

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

33. MISCELLANEOUS:

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

34. ENTIRE AGREEMENT:

This Agreement and its exhibits contain the entire understanding between CONTRACTOR and CITY. Additional or new terms contained in this AGREEMENT which vary from CONTRACTOR’S bid are controlling and are deemed accepted by CONTRACTOR by performance of any SERVICES or #9..
- 355 -
52 other commencement of performance hereunder. The terms and conditions of the IFB, attached hereto as Exhibit B, are incorporated herein. In the event of a conflict between the IFB and this AGREEMENT, this AGREEMENT shall control. All previous bids, offers and communications related to this Agreement, whether oral or written, are hereby superseded except to the extent that they have been incorporated into this Agreement. No future waiver or exception to any of the terms, conditions, and provisions of this AGREEMENT shall be considered valid unless specifically agreed to in writing by the parties.

35. 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.
#9..
- 356 -
53 IN WITNESS WHEREOF, the CITY OF MODESTO, a municipal corporation, has authorized the execution of this Agreement by its City Manager and attested by its City Clerk under authority of Resolution No. 2025-_______, adopted by the Council of the City of Modesto on the ________ day of __________________, 2025 and Click or tap here to enter text. has caused this Agreement to be duly executed.

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

DIANE NAYARES-PEREZ, CMC,
City Clerk

(SEAL)

APPROVED AS TO FORM:

By: ____________________________
JOSE M. SANCHEZ,
City Attorney
By: ____________________________

MATHEW BRALEY, ARM-PE,
Risk Manager
#9..
- 357 -
54 Exhibit D:

MINIMUM SCOPE AND LIMIT OF INSURANCE
Coverage shall be at least as broad as:

6. Contractors’ Pollution Legal Liability and/or Asbestos Legal Liability with limits no less than $2,000,000 per occurrence or claim, and $2,000,000 policy aggregate.

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:
#9..
- 358 -
55 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. For completed operations, 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.

Claims Made Policies (applicable to Pollution 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.

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.
#9..
- 359 -
56 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.

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
#9..
- 360 -
January 8, 2025
ADDENDUM NO 1
INVITATION FOR BID NO. IFB 2425-23
FOR

SPOILS SCREENING AND ROCK CRUSHING SERVICES
The following web site contains the complete bid package: http://www.modestogov.com/257/Contracting-BidOpportunities Bidders who do not have the complete bid package are encouraged to download the package from the City’s web site.

This Addendum addresses questions during the Bid Walk on December 19, 2024.

Question 1: What is the volume of processed at Litt Rd? Answer 1: Approximately 30,000 cubic yards annually.

Question 2: Do you want the dirt removed?
Answer 2: Please refer to the Scope of Work, Service Specifications, Paragraph D.

Question 3: Who does the testing of material?
Answer 3: The Contractor will be responsible for getting the material tested and supplying the City with Test results.

Question 4: How often are services performed?
Answer 4: Generally, services are performed twice a year or based on accumulation.

Question 5: Who will dispose of the debris?
Answer 5: Please refer to the Scope of Work, Service Specifications, Paragraph D. #9..
- 361 -
Postscript
Each proposal shall be sealed and delivered to the City Clerk’s Office, 1010 Tenth Street, Suite 6600, Modesto, CA 95354 no later than Tuesday, January 14, 2025 at 11:00 A.M., at which time proposals will be opened.

On the outside of both the bid envelope and courier envelope, the bidder shall indicate the following:

NAME AND ADDRESS OF BIDDER
SPECIFICATION NUMBER IFB 2425-23

SPOILS SCREENING AND ROCK CRUSHING SERVICES
BID OPENING DATE: JANUARY 14, 2025 AT 11:00 A.M.

MAIL TO: CITY CLERK COURIER TO: CITY CLERK

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

No proposer may withdraw his/her bid for a period of one hundred twenty (120) days after the date set for the opening thereof.
#9..
- 362 -
Description
Qty Unit Price Sample Job Price Sample Job Price Sample Job Screening Mobilization Fee 1 Each $ 3,500.00 $ 3,500.00 $ 2,500.00 $ 2,500.00 $ 3,800.00 $ 3,800.00 Screening Process 12,000 Ton $ 4.00 $ 48,000.00 $ 8.00 $ 96,000.00 $ 4.25 $ 51,000.00 Crushing Mobilization Fee 1 Each $ 5,500.00 $ 5,500.00 $ 3,500.00 $ 3,500.00 $ 5,900.00 $ 5,900.00 Crushing Process (Caltrans Class II ABM) 5,000 Ton $ 6.15 $ 30,750.00 $ 10.50 $ 52,500.00 $ 6.25 $ 31,250.00 Hauling/Material Disposal (of excess material that
does not meet Class II ABM) 4,000 Ton $ 23,960.00 5.99 $ $ 32,000.00 8.00 $ $ 24,000.00 6.00 $ $ 111,710.00 $ 186,500.00 $ 115,950.00
$ - $ - $ -
$ 111,710.00 $ 186,500.00 $ 115,950.00
Ripon, CA Hilmar, CA Ceres, CA Suisun City, CA
California
Rock
Crushers DJ Rocha Inc.

K&D
Enterprises
Inc.

Rock Crushing
Solutions Inc.
$61.14/HR
Fringe Benefit Rate $33.50/HR
Labor Markup (Percent) -
Price Per Service $94.64/HR
$59.88/HR
$33.50/HR
0%
$93.38/HR
$38.45/HR $61.14/HR
$29.91/HR $33.50/HR
0% -
$68.36/HR $94.64/HR
Suisun City, CA
California Rock Crushers
Subtotal
Lowest Bidder
Non Responsive
Spoils Screening and Rock Crushing Services
DJ Rocha Inc. K&D Enterprises Inc. Rock Crushing Solutions Inc.

X
Direct Labor Rate
Total
Ripon, CA Hilmar, CA Ceres, CA
Payment of Prevailing Wages
X
Fringe Benefit Rate
Lowest Responsive and Responsible Bidder: Primary - California Rock Crushers and Secondary - K&D Enterprises Inc.

Direct Labor Rate
Labor
1% ePay Discount of Option A is selected
Labor Markup (Percent)
Fringe Benefit Rate
Direct Labor Rate
Skid Steer
Excavator
Non Responsive
IFB 2425-23
Norther California - Master
Price Per Service
Price Per Service
Price Per Service
Labor Markup (Percent)
Fringe Benefit Rate
Direct Labor Rate
Labor Markup (Percent)
#9..
- 363 -

CITY OF MODESTO

COMMITTEE AGENDA REPORT
DATE OF MEETING:

May 5, 2025
Date: April 14, 2025
TO: Economic Development Committee
Eric Alvarez, Chair
Sue Zwahlen, Vice Chair
Nick Bavaro, Member
THROUGH: Joseph P. Lopez, City Manager
FROM: Jessica Hill, Director of Community and Economic Development SUBJECT: Modesto Tourism Marketing District Assessment Rate Change CONTACT: Trevin W. Barber, Economic Development Manager [email protected], 209-577-5244
DESCRIPTION:

Consider the Modesto Tourism Marketing District Assessment Rate Change by 0.5% to 1.5% effective July 1, 2025, and by 0.5% to 2.0% effective July 1, 2026, and forwarding to Council for approval. (Funding Source: Modesto Tourism Marketing District) STRATEGIC PLAN ELEMENT:

This action supports the City’s 2020-2025 Strategic Plan’s Area of Focus to promote its economic vitality goals to drive the success of a vibrant and economically sustainable business climate, build and promote a recognizable and desirable identity of the City of Modesto, and to make Downtown Modesto a regional destination.
 Goal E: Drive the success of a vibrant and economically sustainable business climate.  Goal F: Build and promote a recognizable and desirable identify for the City of Modesto BACKGROUND:

The Modesto Tourism Marketing District (District or MTMD) is a benefit assessment district to provide a continuous revenue source to help fund marketing and sales promotion efforts for certain Modesto lodging businesses. This approach has been used successfully in other destination areas throughout the state to improve tourism and drive additional room nights to assessed lodging businesses. The District includes all lodging businesses with twenty (20) rooms or more, existing and in the future, available for public occupancy located within the boundaries of the City of Modesto.

Lodging business owners decided to pursue renewal of the District in order to continue a revenue source devoted to marketing Modesto as a tourist, meeting, and event destination. The District #10..
- 364 -
Economic Development Committee, May 5, 2025
Modesto Tourism Marketing District Assessment Rate Change

Page 2 of 4 ends

generates approximately $430,540 on an annual basis for promotion of travel and tourism specific to Modesto.

Tourism Marketing Districts (TMDs or districts) utilize the efficiencies of private sector operation in the market-based promotion of tourism. These special assessment districts allow lodging business owners to organize their efforts to increase tourism. Lodging business owners within a district fund the district, and those funds are used to provide services that are desired by and benefit the lodging businesses within the district.

Tourism Marketing Districts benefits:
 Funds cannot be diverted for other government programs.  They are customized to fit the needs of each destination.  They allow for a wide range of services; including destination marketing, tourism promotion, and sales lead generation;
 They are designed, created and governed by those who will pay the assessment; and  They provide a stable funding source for tourism promotion.

In California, Tourism Marketing Districts are primarily formed pursuant to the Property and Business Improvement District Law of 1994 (‘94 Law). This law allows for the creation of special benefit assessment districts to raise funds within a specific geographic area. The key difference between Tourism Marketing Districts and other special benefit assessment districts is that funds raised are returned to the private non-profit corporation governing the Tourism Marketing Districts.

The current annual assessment rate is one percent (1%) of gross short-term sleeping room rental revenue, and is currently approved through July 1, 2034.

During the District’s ten (10) year term, upon the recommendation of the District Committee and approval by the Modesto City Council, the assessment rate may be increased by the Owners’ Association to a maximum rate of three percent (3%) of gross short-term sleeping room rental revenue for assessed businesses as described in the Management District Plan. The increase in any year shall not exceed one-half of one percent (0.50%) of gross short-term sleeping room rental revenue as detailed in the Management District Plan.

DISCUSSION:

On December 10, 2024, the Board of the Modesto Tourism Marketing District unanimously approved increasing the Tourism Fee by 0.5%—from 1% to 1.5% effective July 1, 2025, and by another 0.5%—from 1.5% to 2.0% effective July 1, 2026.

Figure 1: Chart of Current MTMD Rates Compared to Proposed by Fiscal Year Year Current MTMD Rate Proposed MTMD Rate
FY 25 1.0% 1.0%
FY 26 1.0% 1.5%
FY 27 1.0% 2.0%
#10..
- 365 -
Economic Development Committee, May 5, 2025
Modesto Tourism Marketing District Assessment Rate Change

Page 3 of 4 ends

Tourism Fee funds must be spent on specific benefit to the district members which, in this case, are guest room sales and occupancy related programs. The plans specifically include, but are not limited to marketing to, or for:
 Domestic Tour Operators
 International Tour Operators
 Global OTA’s (online travel agent programs)
 Global Tourism Partners (i.e.; trip advisor)
 Youth Sports
 Creative and Marketing to support all of the above
 Staff to focus on all of the above
Per the MTMD Management District Plan, the initial annual assessment rate for gross short-term sleeping room rental revenue is set at one percent (1%). The TMD Committee may recommend adjustments to the assessment rate, which, if approved by Visit Modesto’s (VM) Board, will then require Council approval.

Any adjustments to the rate may increase by up to one-half of one percent (0.50%) annually, with the total assessment rate not exceeding three percent (3%). It is important to note that any increase each year may be less than the maximum 0.50% and will be subject to review and approval by both the TMD committee and Council.

FISCAL IMPACT:

If approved by City Council, the MTMD rate will increase along with MTMD Revenues. Though the City passes through the MTMD revenues to VM, the City retains a small administration fee.

The City of Modesto shall be paid based upon the actual costs it incurs in administering the assessment, subject to audit, but such amount shall not exceed three percent (3%) of the amount collected to cover the costs of collecting the assessment. The administrative fee will increase proportionally as MTMD revenues increase. The chart below depicts the relevant figures. The forecasted figures are calculated from the average of the past, full three years of FY 22, FY 23, and FY 24 for an average of $386,329.95, plus proposed percentage increase.

Figure 2: Chart of Past MTMD Revenues and City of Modesto Administration Fees by Fiscal Year
Year MTMD Revenues Amount to VM Admin Fee to COM
FY 20 $265,490.99 $ 263,499.81 $1,991.18
FY 21 $314,299.84 $ 311,942.59 $3,143.00
FY 22 $396,583.24 $ 393,608.87 $4,957.29
FY 23 $384,353.47 $ 381,470.82 $5,765.30
FY 24 $378,053.14 $ 375,217.74 $6,615.93
FY 251 $177,092.94 $ 175,764.74 $3,541.86
Figure 2: Chart of Forecasted MTMD Revenues and City of Modesto Administration Fees by Fiscal Year
1 Partial year
#10..
- 366 -
Economic Development Committee, May 5, 2025
Modesto Tourism Marketing District Assessment Rate Change

Page 4 of 4 ends

Year MTMD
Rate
MTMD
Revenues
Admin
Rate
Rate Admin Fee
to COM
Amount to VM
FY 26 1.5% $579,494.93 0.75% $4,346.21 $575,148.71
FY 27 2.0% $772,659.90 0.75% $5,794.95 $766,864.95
COMMITTEE RECOMMENDATION:

Staff Recommendations:

Motion recommending the Modesto Tourism Marketing District Assessment Rate Change by

0.5% to 1.5% effective July 1, 2025, and by 0.5% to 2.0% effective July 1, 2026, and forwarding to Council for approval.

Approved by:

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

1. MTMD Management District Plan: 2025-2034

2. MTMD Board of Directors Special Resolution Approving Rate Increase #10..
- 367 -
April 11, 2019
R

MODESTO TOURISM MARKETING DISTRICT

MANAGEMENT DISTRICT PLAN
Prepared pursuant to the Property and Business Improvement District Law of 1994, Streets and Highways Code section 36600 et seq.
2024-2034
January 10, 2024
#10..
- 368 -

CONTENTS
I. OVERVIEW.......................................................................................................................................... 3 II. BACKGROUND................................................................................................................................. 5 III. ACCOMPLISHMENTS ..................................................................................................................... 6 IV. BOUNDARY........................................................................................................................................ 8 V. ASSESSMENT BUDGET AND SERVICES..............................................................................10 A. Annual Service Plan.......................................................................................................... 10 B. Annual Budget .................................................................................................................. 11 C. California Constitutional Compliance .............................................................................. 13 D. Assessment........................................................................................................................ 15 E. Interest and Penalties ........................................................................................................ 16 F. Time and Manner for Collecting Assessments................................................................. 16 VI. GOVERNANCE ...............................................................................................................................17 A. Owners’ Association......................................................................................................... 17 B. Brown Act and California Public Records Act Compliance ............................................ 17 C. Annual Report................................................................................................................... 17 APPENDIX 1 – LAW ....................................................................................................................................18 APPENDIX 2 – ASSESSED BUSINESSES..............................................................................................31 Prepared by
Civitas
(800)999-7781
www.civitasadvisors.com
#10..
- 369 -
MTMD Management District Plan 3
January 10, 2024
I. OVERVIEW
Developed by Visit Modesto, Inc. (VM) and Modesto lodging businesses, the Modesto Tourism Marketing District (MTMD) is an assessment district proposed to continue to provide specific benefits to payors, by funding marketing and sales promotion efforts for assessed businesses. This approach has been used successfully in other destination areas throughout the country to provide the benefit of additional room night sales directly to payors. The MTMD was created in 2019 for a four (4) year and eleven (11) month term. VM, Modesto lodging businesses, now wish to renew the MTMD for an additional ten (10) year term.

Location: The renewed MTMD includes all lodging businesses with twenty (20) rooms or more, existing and in the future, available for public occupancy located within the boundaries of the City of Modesto (referred to herein as “assessed businesses”), as shown on the map in Section IV.

Services: The MTMD is designed to provide specific benefits directly to payors by increasing awareness and demand for room night sales. Marketing and sales promotions will increase demand for overnight tourism and market payors as tourist, meeting, and event destinations, thereby increasing demand for room night sales.

Budget: The total MTMD annual assessment budget for the initial year of its ten (10) year operation is anticipated to be approximately $430,540. A similar budget is expected to apply to subsequent years, but this budget is expected to fluctuate as room sales do, as businesses open and close, and if assessment rates are increased as detailed in Section V.

Cost: The annual assessment rate is one percent (1%) of gross short-term sleeping room rental revenue. Based on the benefit received, assessments will not be collected on:
stays of more than twenty-seven (27) consecutive days; stays by any officer or employee of a foreign government who is exempt by reason of express provision of federal law or international treaty; stays by any officer or employee of the United States Government, or of a federal credit union, or of a state, county, city or other domestic public entity who pays rent in the discharge of official government business; and stays by any officer or employee of a bank or insurance company who pays rent in the discharge of official bank or insurance company business.

During the MTMD’s ten (10) year term, upon the recommendation of the TMD Committee and approval by the Modesto City Council, the assessment rate may be increased by the Owners’ Association to a maximum rate of three percent (3%) of gross short-term sleeping room rental revenue for assessed businesses as described in Section V. The increase in any year shall not exceed one-half of one percent (0.50%) of gross short-term sleeping room rental revenue as detailed in Section V. #10..
- 370 -
MTMD Management District Plan 4
January 10, 2024
……………………………………………………..

Collection: The City of Modesto (City) will be responsible for collecting the assessment (including any delinquencies, interest, and penalties) from each assessed business located in the boundaries of the MTMD. As the tax administrator, the City shall have the flexibility to determine and set the assessment collection schedule (monthly/quarterly). The City shall take all reasonable efforts to collect the assessments from each assessed business.

Duration: The renewed MTMD will have a ten (10) year life, beginning July 1, 2024, or as soon as possible thereafter, and ending ten (10) years from its start date. After ten (10) years, the MTMD may be renewed pursuant to the Property and Business Improvement District Law of 1994, Streets and Highways Code section 36600 et seq. (94 Law) if business owners support continuing the MTMD programs. Once per year, beginning on the anniversary of MTMD formation, there is a thirty (30) day period in which owners paying fifty percent (50%) or more of the assessment may protest and initiate a City Council hearing on MTMD termination.

Management: With the approval of the Modesto City Council, Visit Modesto, Inc. (VM) shall continue to serve as the MTMD’s Owners’ Association. The Owners’ Association is charged with managing funds and implementing programs in accordance with this Plan and must provide annual reports to the City Council. VM shall create a TMD Management Committee comprised of lodging business owners paying the assessment. The TMD Management Committee shall be tasked with determining how MTMD funds are spent within the designated programs in this Plan, subject to final approval by VM’s Board.
#10..
- 371 -
MTMD Management District Plan 5
January 10, 2024
II. BACKGROUND
TMDs are an evolution of the traditional Business Improvement District. The first TMD was formed in West Hollywood, California in 1989. Since then, over 100 California destinations have followed suit. In recent years, other states have begun adopting the California model –Illinois, Minnesota, Massachusetts, Montana, South Dakota, Washington, Colorado, Texas, and Louisiana have adopted TMD laws. Several other states are in the process of adopting their own legislation. The cities of Wichita, Kansas and Newark, New Jersey used an existing business improvement district law to form a TMD. Additionally, some cities, like Portland, Oregon and Memphis, Tennessee have utilized their home rule powers to create TMDs without a state law.

California’s TMDs collectively
raise over $500 million
annually for local destination
marketing. With competitors
raising their budgets, and
increasing rivalry for visitor
dollars, it is important
that Modesto lodging
businesses continue to invest
in stable, commerce-specific
marketing programs.

TMDs utilize the efficiencies
of private sector operation in the market-based promotion of tourism districts. TMDs allow lodging business owners to organize their efforts to increase commerce. Lodging business owners within the TMD pay an assessment and those funds are used to provide services that increase commerce.

In California, most TMDs are formed pursuant to the Property and Business Improvement District Law of 1994. This law allows for the creation of a benefit assessment district to raise funds within a specific geographic area. The key difference between TMDs and other benefit assessment districts is that funds raised are returned to the private non-profit corporation governing the district.

There are many benefits to TMDs:
• Funds must be spent on services and improvements that provide a specific benefit only to those who pay;
• Funds cannot be diverted to general government programs; • They are customized to fit the needs of payors in each destination; • They allow for a wide range of services;
• They are designed, created, and governed by those who will pay the assessment; and • They provide a stable, long-term funding source for tourism promotion. #10..
- 372 -
MTMD Management District Plan 6
January 10, 2024
III. ACCOMPLISHMENTS

1. TOT Revenue
• Since the 2018/19 Fiscal Year, total TOT (Transient Occupancy Tax) revenue has increased by over 21%
• In marketing spending on tour and travel related business has increased by over 24% (DRA reports)

2. Pandemic Revenue
Throughout the pandemic, the Modesto Hospitality market achieved the best results in the Central Valley. In the fiscal year 2021-22, the market performance for Modesto far exceeded all cities of the Central Valley in Occupancy and RevPAR resulting in a record year for TOT at $3.6M. More importantly, in the fiscal year ending June 30, 2020, after 90 days of a global standstill, the TOT performance in Modesto exceeded the best year in collection history (2018-19). All these achievements occurred while the global travel industry was in constant flux.

More importantly, compared to the Central Valley’s largest cities while experiencing the reduced room count, Modesto outperformed every city in pre-pandemic v post-pandemic performance for 2022-23 in both Occupancy and RevPAR. Note that while all cities experienced a loss in occupancy, Modesto had the lowest variance and was the only city to GROW in RevPAR.

3. February/March Growth
Upon inception, the Visit Modesto team committed to the MTMD that ‘shoulder periods’ would be the primary focus of efforts to grow occupancy & RevPAR. The first initiative was launched in February 2020, the Almond Blossom Cruise, for the February/March season with a unique Agricultural Tourism and a long-drive market-stay-overnight angle. The results have been incredible, though a global pandemic almost brought tourism to a grinding halt starting in February of 2020.

The results for RevPAR performance are below compared to pre-pandemic levels; REVPAR 2019 2020 2021. 2022. 2023.

February $64.27 $66.44 $66.80 $77.53 $83.17
March $71.28 $49.91* $77.84 $82.80 $79.60
*Global quarantines began in March 2020
The end result is incredible with a 29.5% increase for February and a 11.7% increase for March.

These types of results exemplify the reason the MTMD was formed and the potential that the team at Visit Modesto has to impact tourism when the market conditions and travel trends are aligned for new initiatives.

4. Destination Programs
During the pandemic, Visit Modesto had several successful initiatives that brought significant visitor impact during traditionally low occupancy, low visitation periods; • Almond Blossom Cruise; increased occupancy and revenues for February/March. In 2022, in the heart of the Pandemic when the weather was good (2023 had 40 out of 45 days with rain) the Almond Blossom Cruise generated over 100K Visitor Trips alone! • MoCheer impacts December visitor traffic.
• MoFresh is creating more opportunities for visitors to stay for more than gas fill-ups May through August
#10..
- 373 -
MTMD Management District Plan 7
January 10, 2024
• MoPink has created both local and regional reasons to spend more in Modesto and have an impact on charities that keep money local in support of local programs

5. Global Perception of Modesto
With a change in focus from a one-dimensional value proposition of Modesto, Graffiti Summer, there has been an incredible public relations impact for the community. Modesto’s restaurants, agricultural attractions and murals have all received national press attention.

Awards & Accolades – Modesto is no longer on all the ‘naughty’ lists! - 2021; ESTO Award Finalist (1 of 3 in the US) US Travel Excellence Award - 2021; Poppy Award Finalist (1 of 3 in California) Visit CA Excellence Award - 2022; Top Cities for Cyclists
- 2022; Best Places to Live US News & World Report
- 2023; #8 Best Places to Live in CA Forbes2023
- 2023; #87 Best Cities in America (made the top 100 list!!!) - 2023; #1 Hidden Gem Live Music City in the US
Public Relations/Influencers & Major Media
- Key Highlights
o 2021; Good Day Sacramento (7 times), ABC 10 & Fox 40 Sacramento o 2022; HiTravel Tales, Forbes, Travel Pulse, SF Gate September o 2023; NBC Los Angeles, Thrillist, Secret San Francisco, Washington Post, Tasting Table, KNBC Los Angeles, KSND San Diego, KOVR Sacramento, SF Gate, HelloRubyDoodle, Momtastic, Travel Tweeks, Tennessee Tribune, Yahoo Canada #10..
- 374 -
MTMD Management District Plan 8
January 10, 2024
IV. BOUNDARY
The MTMD will include all lodging businesses with twenty (20) rooms or more, existing and in the future, available for public occupancy within the boundaries of the City of Modesto (referred to herein as “assessed businesses”), as shown in the map on the following page.

Lodging business means: any structure, or any portion of any structure within the City, which is intended or designed for lodging or sleeping purposes wherein the owner or operator thereof offers occupancy, defined as the use or possession, or the right to use or possession granted by the owner or operator thereof for compensation of any room or rooms or portion thereof for lodging or sleeping purposes. Lodging business does not include any vacational rental, vacation rental unit, short-term vacation rental, nor any hospital, medical clinic, convalescent home or other temporary or permanent domicile equipped primarily for the care of aged or infirm people.

A complete listing of assessed businesses within the renewed MTMD, can be found in Appendix 2. #10..
- 375 -
MTMD Management District Plan 9
January 10, 2024
#10..
- 376 -
MTMD Management District Plan 10
January 10, 2024
V. ASSESSMENT BUDGET AND SERVICES
A. Annual Service Plan
Assessment funds will be spent to provide specific benefits conferred or privileges granted directly to the payors that are not provided to those not charged, and which do not exceed the reasonable cost to the City of conferring the benefits or granting the privileges. The privileges and services provided with the MTMD funds are sales and marketing programs available only to assessed businesses.

A service plan assessment budget has been developed to deliver services that benefit the assessed businesses. A detailed annual assessment budget will be developed and approved by VM. The chart below illustrates the initial annual assessment budget allocations. These activities and allocations will also apply in subsequent years. The total initial assessment budget is estimated to be $430,540.

Although actual revenues will fluctuate due to market conditions, the proportional allocations of the budget shall remain the same. However, the City and VM’s Board shall have the authority to adjust budget allocations between the categories by no more than fifteen percent (15%) of the total budget per year. A description of the proposed improvements and activities for the initial year of operation is below. The same activities are proposed for subsequent years. In the event of a legal challenge against the MTMD, any and all assessment funds may be used for the costs of defending the MTMD.

Each budget category includes all costs related to providing that service in accordance with Generally Accepted Accounting Procedures (GAAP). For example, the sales and marketing budget includes the cost of staff time dedicated to overseeing and implementing the sales and marketing program. Staff time dedicated purely to administrative tasks is allocated to the administrative portion of the budget.

The costs of an individual staff member may be allocated to multiple budget categories, as appropriate Administration &
Collection, $64,581
, 15%
Contingency /
Reserve / Renewal,
$21,527 , 5%
Sales &
Marketing,
$344,432 , 80%
Initial Annual Assessment Budget - $430,540
#10..
- 377 -
MTMD Management District Plan 11
January 10, 2024
in accordance with GAAP. The staffing levels necessary to provide the services below will be determined by VM on an as- needed basis.

Sales and Marketing
A sales and marketing program promotes assessed businesses as tourist, meeting, and event destinations. The sales and marketing program will have a central theme of promoting Modesto as a desirable place to visit. The program has the goal of increasing overnight visitation and room night sales at assessed businesses, and may include, but not limited to, the following activities:
• Multi-media marketing efforts including digital, print, and other diversified media strategies curated to target prospective visitors and maximize online presence and visibility; • Television ads targeted at potential visitors;
• Radio ads targeted at potential visitors;
• Attendance of trade shows;
• Special events highlighting unique aspects of Modesto; • Preparation and production of collateral promotional materials such as brochures, flyers, and maps;
• Data and industry analytics used for marketing;
• Participation fees and attendance of professional industry conferences and affiliation events; • Lead generation activities designed to attract tourists and group events to Modesto; and • Any agency fees and commissions related to the execution of programs and activities authorized by this Plan.

Administration and Collection
The administration portion of the budget shall be utilized for administrative staffing costs, office costs, and other general administrative costs such as insurance, legal, and accounting fees. The collection portion of the budget shall be utilized for paying the City of Modesto for the costs of collecting the assessment. The City of Modesto shall be paid based upon the actual costs it incurs in administering the assessment, subject to audit, but such amount shall not exceed three percent (3%) of the amount collected to cover the costs of collecting the assessment.

Contingency/Reserve/Renewal
A portion of the budget will be allocated to a contingency fund to account for lower than anticipated collections. If collected contingency funds remain in the budget near the expiration of the MTMD’s term, and business owners wish to renew the District, the contingency funds may be used for renewal costs.

B. Annual Budget
The total ten (10) year assessment budget is projected at approximately $430,540 annually, or $4,305,400 through FY 2033 – 34 if assessment rates are not increased. If the maximum assessment rate increases are adopted, the estimated total assessment budget through FY 2033 – 34 is $10,736,500 This amount may fluctuate as sales and revenue increase at assessed businesses, and as businesses open and close, but is not expected to change significantly over the term. #10..
- 378 -
MTMD Management District Plan 12
January 10, 2024
The initial annual assessment rate is one percent (1%) of gross short-term sleeping room rental revenue. Upon the recommendation of the TMD Committee, the assessment rate may be increased by VM’s Board and subject to Modesto City Council approval, up to a maximum of one-half of one percent (0.50%) per year to a maximum rate of three percent (3%). However, the assessment rate increase in any given year may be an amount less than one-half of one percent (0.50%). For example, the assessment rate in FY 2025-26 could be increased by one-quarter of one percent (0.25%) and in FY 2026-27 the assessment rate could be increased by another one-quarter of one percent (0.25%), etc. up to a maximum assessment rate of three percent (3%).

The table below demonstrates the estimated maximum budget with the assumption that the assessment rate will be increased at the earliest opportunity as it is a required disclosure, it is not the anticipated course of action. Alternate courses of action may be taken in regard to implementing the assessment rate increase other than what is demonstrated in the chart below, within the parameters of this Management District Plan.

Estimated Annual Budget If Maximum Assessment Rates Are Adopted Fiscal
Year Sales & Marketing Administration & Collection
Contingency /
Reserve / Renewal Total
2024-25 $344,432 $64,581 $21,527 $430,540
2025-26 $516,648 $96,872 $32,291 $645,810
2026-27 $688,864 $129,162 $43,054 $861,080
2027-28 $861,080 $161,453 $53,818 $1,076,350
2028-29 $1,033,296 $193,743 $64,581 $1,291,620
2029-30 $1,033,296 $193,743 $64,581 $1,291,620
2030-31 $1,033,296 $193,743 $64,581 $1,291,620
2031-32 $1,033,296 $193,743 $64,581 $1,291,620
2032-33 $1,033,296 $193,743 $64,581 $1,291,620
2033-34 $1,033,296 $193,743 $64,581 $1,291,620
Total $8,610,800 $1,614,525 $538,175 $10,763,500
The table below demonstrates the annual improvement and service plan budget with the assumption that the rates will not be increased during the MTMD’s term. #10..
- 379 -
MTMD Management District Plan 13
January 10, 2024
Estimated Annual Budget if Assessment Rates Are Not Increased Fiscal
Year Sales & Marketing Administration & Collection
Contingency /
Reserve / Renewal Total
2024-25 $322,905 $64,581 $21,527 $430,540
2025-26 $344,432 $64,581 $21,527 $430,540
2026-27 $344,432 $64,581 $21,527 $430,540
2027-28 $344,432 $64,581 $21,527 $430,540
2028-29 $344,432 $64,581 $21,527 $430,540
2029-30 $344,432 $64,581 $21,527 $430,540
2030-31 $344,432 $64,581 $21,527 $430,540
2031-32 $344,432 $64,581 $21,527 $430,540
2032-33 $344,432 $64,581 $21,527 $430,540
2033-34 $344,432 $64,581 $21,527 $430,540
Total $3,422,793 $645,810 $215,270 $4,305,400
C. California Constitutional Compliance
The MTMD assessment is not a property-based assessment subject to the requirements of Proposition 218. Courts have found Proposition 218 limited the term ‘assessments’ to levies on real property.1 Rather, the MTMD assessment is a business-based assessment, and is subject to Proposition 26.

Pursuant to Proposition 26 all levies are a tax unless they fit one of seven exceptions. Two of these exceptions apply to the MTMD, a “specific benefit” and a “specific government service.” Both require that the costs of benefits or services do not exceed the reasonable costs to the City of conferring the benefits or providing the services.

1. Specific Benefit
Proposition 26 requires that assessment funds be expended on, “a specific benefit conferred or privilege granted directly to the payor that is not provided to those not charged, and which does not exceed the reasonable costs to the local government of conferring the benefit or granting the privilege.”2 The services in this Plan are designed to provide targeted benefits directly to assessed businesses, and are intended only to provide benefits and services directly to those businesses paying the assessment. These services are tailored not to serve the general public, businesses in general, or parcels of land, but rather to serve the specific businesses within the MTMD. The activities described in this Plan are specifically targeted to increase demand for room night sales for assessed businesses within the boundaries of the MTMD, and are narrowly tailored. MTMD funds will be used exclusively to provide the specific benefit of increased demand for room night sales directly to the assessees.

Assessment funds shall not be used to feature non-assessed businesses in MTMD programs, or to directly generate sales for non-assessed businesses. The activities paid for from assessment revenues 1 Jarvis v. the City of San Diego 72 Cal App. 4th 230 2 Cal. Const. art XIII C § 1(e)(1) #10..
- 380 -
MTMD Management District Plan 14
January 10, 2024
are business services constituting and providing specific benefits to the assessed businesses. Nothing in this Plan limits the ability of the Owners’ Association to enter into private contracts with nonassessed businesses for the provision of services to those businesses.

The assessment imposed by this MTMD is for a specific benefit conferred directly to the payors that is not provided to those not charged. The specific benefit conferred directly to the payors is an increase in demand for room night sales. The specific benefit of an increase in demand for room night sales for assessed businesses will be provided only to businesses paying the district assessment, with marketing and sales programs promoting businesses paying the MTMD assessment. The marketing and sales programs will be designed to increase demand for room night sales at each assessed business. Because they are necessary to provide the marketing and sales programs that specifically benefit the assessed businesses, the administration and contingency services also provide the specific benefit of increased demand for room night sales to the assessed businesses.

Although the MTMD, in providing specific benefits to payors, may produce incidental benefits to non-paying businesses, the incidental benefit does not preclude the services from being considered a specific benefit. The legislature has found that, “A specific benefit is not excluded from classification as a ‘specific benefit’ merely because an indirect benefit to a nonpayer occurs incidentally and without cost to the payor as a consequence of providing the specific benefit to the payor.”3

2. Specific Government Service
The assessment may also be utilized to provide, “a specific government service or product provided directly to the payor that is not provided to those not charged, and which does not exceed the reasonable costs to the local government of providing the service or product.”4 The legislature has recognized that marketing and promotions services like those to be provided by the MTMD are government services within the meaning of Proposition 265 . Further, the legislature has determined
that “a specific government service is not excluded from classification as a ‘specific government service’ merely because an indirect benefit to a nonpayer occurs incidentally and without cost to the payor as a consequence of providing the specific government service to the payor.”6

3. Reasonable Cost
MTMD services will be implemented carefully to ensure they do not exceed the reasonable cost of such services. The full amount assessed will be used to provide the services described herein. Funds will be managed by VM, and reports submitted on an annual basis to the City. Only assessed businesses will be featured in marketing materials, receive sales leads generated from MTMD-funded activities, be featured in advertising campaigns, and benefit from other MTMD-funded services. Nonassessed businesses will not receive these, nor any other, MTMD-funded services and benefits. 3 Government Code § 53758(a)
4 Cal. Const. art XIII C § 1(e)(2)
5 Government Code § 53758(b)
6 Government Code § 53758(b)
#10..
- 381 -
MTMD Management District Plan 15
January 10, 2024
The MTMD-funded programs are all targeted directly at and feature only assessed businesses. It is, however, possible that there will be a spill over benefit to non-assessed businesses. If non-assessed businesses receive incremental room nights, that portion of the promotion or program generating those room nights shall be paid with non-MTMD funds. MTMD funds shall only be spent to benefit the assessed businesses, and shall not be spent on that portion of any program which directly generates incidental room nights for non-assessed businesses.

D. Assessment
The annual assessment rate is one percent (1%) of gross short-term sleeping room rental revenue on all lodging businesses with twenty (20) rooms or more, existing and in future, available for public occupancy, located within the boundaries of the City of Modesto. Based on the benefit received, assessments will not be collected on: stays of more than twenty-seven (27) consecutive days; stays by any officer or employee of a foreign government who is exempt by reason of express provision of federal law or international treaty; stays by any officer or employee of the United States Government, or of a federal credit union, or of a state, county, city or other domestic public entity who pays rent in the discharge of official government business; and stays by any officer or employee of a bank or insurance company who pays rent in the discharge of official bank or insurance company business.

During the ten (10) year term, the assessment rate may be increased by VM’s Board and Modesto City Council approval up to a total of three percent (3%) of gross short-term sleeping room rental revenue.

The initial annual assessment rate is one percent (1%) of gross short-term sleeping room rental revenue. The maximum increase in any year shall not exceed one-half of one percent (0.50%). Any assessment rate increase approved by VM’s Board shall be included in the annual report.

The assessment was calculated based on the total cost of the activities to be provided for the benefit of the assessed businesses within the MTMD, with costs allocated based on the proportional benefit conferred to each assessed business. Activities funded by the MTMD, are specifically targeted to increase demand for room nights at assessed businesses. All room night sales do not represent the same benefit to the payors. For example, a higher priced room night is of greater benefit than a lower priced room night because the assessee derives greater revenue. To account for this benefit differential and to make sure the benefits are proportional, an assessment formula based on a percentage of revenue has been selected. The proposed formula accurately reflects greater benefit to assessed businesses with higher priced room nights.

The term “gross short-term sleeping room rental revenue” as used herein means the consideration charged, whether or not received, for the occupancy of space in an assessed business valued in money, whether to be received in money, goods, labor or otherwise, including all receipts, cash, credits and property and services of any kind or nature, without any deduction therefrom whatsoever. Gross short-term sleeping room rental revenue does not include compensation for services or products.

Gross short-term sleeping room rental revenue shall not include, and therefore the assessment shall not be charged upon, any federal, state, or local taxes collected, including but not limited to transient occupancy taxes.
#10..
- 382 -
MTMD Management District Plan 16
January 10, 2024
The assessment is levied upon and a direct obligation of the assessed business. However, the assessed business may, at its discretion, pass the assessment on to transients. The amount of assessment, if passed on to each transient, shall be disclosed in advance and separately stated from the amount of rent charged and any other applicable taxes, and each transient shall receive a receipt for payment from the business. If the MTMD assessment is identified separately it shall be disclosed as the “MTMD Assessment.” As an alternative, the disclosure may include the amount of the MTMD assessment and the amount of the assessment imposed pursuant to the California Tourism Marketing Act, Government Code §13995 et seq. and shall be disclosed as the “Tourism Assessment.” The assessment is imposed solely upon and is the sole obligation of the assessed business even if it is passed on to transients. The assessment shall not be considered revenue for calculation of transient occupancy taxes.

Bonds shall not be issued.

E. Interest and Penalty Charges
The MTMD shall reimburse the City of Modesto for any costs associated with collecting unpaid assessments. If sums in excess of the delinquent MTMD assessment are sought to be recovered in the same collection action by the City, the MTMD shall bear its pro rata share of such collection costs.

Assessed businesses which are delinquent in paying the assessment shall be responsible for paying:

1. Delinquency
Any assessed business that fails to remit any assessment imposed by this Plan within the time required shall, in addition to the amount of the assessment, pay a penalty of five percent (5%) of the amount of the assessment per month or fraction thereof until paid; the maximum penalty imposed on any one delinquency shall not exceed twenty-five percent (25%) of the amount of the assessment.

2. Fraud
If the City determines that the non-payment of any assessment due from any transient or assessed business under this Plan is due to intentional non-payment or fraud, a penalty of twenty-five percent (25%) of the amount of the assessment shall be added thereto in addition to the penalties stated above.

3. Penalties
Every penalty imposed and collected under the provisions of this section by the City, shall be required to be paid and shall be retained by the City to cover the cost of collection of the delinquency.

F. Time and Manner for Collecting Assessments
The MTMD assessment will be implemented beginning July 1, 2024, or as soon as possible thereafter, and ending ten (10) years from its start date. The City will be responsible for collecting the assessment on a quarterly basis and is subject to change as determined by the City (including any delinquencies, interest and penalties) from each assessed business located in the City of Modesto. The City shall take all reasonable efforts to collect the assessments from each assessed business. The City shall forward the assessments collected to the Owners’ Association.
#10..
- 383 -
MTMD Management District Plan 17
January 10, 2024
VI. GOVERNANCE
A. Owners’ Association
The City Council, through adoption of this Management District Plan, has the right, pursuant to Streets and Highways Code §36651, to identify the body that shall implement the proposed program, which shall be the Owners’ Association of the MTMD as defined in Streets and Highways Code §36612. The City Council has determined that Visit Modesto, Inc. (VM) will continue to serve as the Owners’ Association for the MTMD.

TMD Management Committee
VM will create a TMD Management Committee charged with managing funds and implementing programs in accordance with this Plan. The TMD Management Committee will be required to provide an annual report on activities and expenditures to the City of Modesto, which will also be available to assessed business owners. The TMD Management Committee must also hold open meetings and make records available pursuant to the Brown Act and Public Records Act.

B. Brown Act and California Public Records Act Compliance An Owners’ Association is a private entity and may not be considered a public entity for any purpose, nor may its board members or staff be considered to be public officials for any purpose. The Owners’ Association is, however, subject to government regulations relating to transparency, namely the Ralph M. Brown Act and the California Public Records Act. These regulations are designed to promote public accountability. The Owners’ Association acts as a legislative body under the Ralph M. Brown Act (Government Code §54950 et seq.). Thus, meetings of VM board and certain committees must be held in compliance with the public notice and other requirements of the Brown Act. Accordingly, the Owners’ Association shall publicly report any action taken and the vote or abstention on that action of each member present for the action. The Owners’ Association is also subject to the record keeping and disclosure requirements of the California Public Records Act.

C. Annual Report
VM shall present an annual report at the end of each year of operation to the City Council pursuant to Streets and Highways Code §36650 (see Appendix 1). The annual report shall include:
• Any proposed changes in the boundaries of the improvement district or in any benefit zones or classification of businesses within the district.
• The improvements and activities to be provided for that fiscal year. • An estimate of the cost of providing the improvements and the activities for that fiscal year. • The method and basis of levying the assessment in sufficient detail to allow each business owner to estimate the amount of the assessment to be levied against his or her business for that fiscal year.
• The estimated amount of any surplus or deficit revenues to be carried over from a previous fiscal year.
• The estimated amount of any contributions to be made from sources other than assessments levied pursuant to this part.
#10..
- 384 -
MTMD Management District Plan 18
January 10, 2024
APPENDIX 1 – LAW
*** THIS DOCUMENT IS CURRENT THROUGH THE 2023 SUPPLEMENT *** (ALL 2022 LEGISLATION)

STREETS AND HIGHWAYS CODE
DIVISION 18. PARKING
PART 7. PROPERTY AND BUSINESS IMPROVEMENT DISTRICT LAW OF 1994 CHAPTER 1. General Provisions
ARTICLE 1. Declarations
36600. Citation of part
This part shall be known and may be cited as the “Property and Business Improvement District Law of 1994.” 36601. Legislative findings and declarations; Legislative guidance The Legislature finds and declares all of the following:
(a) Businesses located and operating within business districts in some of this state’s communities are economically disadvantaged, are underutilized, and are unable to attract customers due to inadequate facilities, services, and activities in the business districts. (b) It is in the public interest to promote the economic revitalization and physical maintenance of business districts in order to create jobs, attract new businesses, and prevent the erosion of the business districts. (c) It is of particular local benefit to allow business districts to fund business related improvements, maintenance, and activities through the levy of assessments upon the businesses or real property that receive benefits from those improvements.
(d) Assessments levied for the purpose of conferring special benefit upon the real property or a specific benefit upon the businessesin a business district are not taxesfor the general benefit of a city, even if property, businesses, or persons not assessed receive incidental or collateral effects that benefit them. (e) Property and business improvement districts formed throughout this state have conferred special benefits upon properties and businesses within their districts and have made those properties and businesses more useful by providing the following benefits:
(1) Crime reduction. A study by the Rand Corporation has confirmed a 12-percent reduction in the incidence of robbery and an 8-percent reduction in the total incidence of violent crimes within the 30 districts studied.
(2) Job creation.
(3) Business attraction.
(4) Business retention.
(5) Economic growth.
(6) New investments.
(f) With the dissolution of redevelopment agencies throughout the state, property and business improvement districts have become even more important tools with which communities can combat blight, promote economic opportunities, and create a clean and safe environment. (g) Since the enactment of this act, the people of California have adopted Proposition 218, which added Article XIII D to the Constitution in order to place certain requirements and restrictions on the formation of, #10..
- 385 -
MTMD Management District Plan 19
January 10, 2024
and activities, expenditures, and assessments by property-based districts. Article XIII D of the Constitution provides that property-based districts may only levy assessments for special benefits. (h) The act amending this section is intended to provide the Legislature’s guidance with regard to this act, its interaction with the provisions of Article XIII D of the Constitution, and the determination of special benefits in property-based districts.
(1) The lack of legislative guidance has resulted in uncertainty and inconsistent application of this act, which discourages the use of assessments to fund needed improvements, maintenance, and activities in property-based districts, contributing to blight and other underutilization of property. (2) Activities undertaken for the purpose of conferring special benefits upon property to be assessed inherently produce incidental or collateral effects that benefit property or persons not assessed.

Therefore, for special benefits to exist as a separate and distinct category from general benefits, the incidental or collateral effects of those special benefits are inherently part of those special benefits.

The mere fact that special benefits produce incidental or collateral effects that benefit property or persons not assessed does not convert any portion of those special benefits or their incidental or collateral effects into general benefits.
(3) It is of the utmost importance that property-based districts created under this act have clarity regarding restrictions on assessmentsthey may levy and the proper determination ofspecial benefits.

Legislative clarity with regard to this act will provide districts with clear instructions and courts with legislative intent regarding restrictions on property-based assessments, and the manner in which special benefits should be determined.
36602. Purpose of part
The purpose of this part is to supplement previously enacted provisions of law that authorize cities to levy assessments within property and business improvement districts, to ensure that those assessments conform to all constitutional requirements and are determined and assessed in accordance with the guidance set forth in this act. This part does not affect or limit any other provisions of law authorizing or providing for the furnishing of improvements or activities or the raising of revenue for these purposes.
36603. Preemption of authority or charter city to adopt ordinances levying assessments Nothing in this part is intended to preempt the authority of a charter city to adopt ordinances providing for a different method of levying assessments for similar or additional purposes from those set forth in this part. A property and business improvement district created pursuant to this part is expressly exempt from the provisions of the Special Assessment Investigation, Limitation and Majority Protest Act of 1931 (Division 4 (commencing with Section 2800)). 36603.5. Part prevails over conflicting provisions
Any provision of this part that conflicts with any other provision of law shall prevail over the other provision of law, as to districts created under this part.
36604. Severability
This part is intended to be construed liberally and, if any provision is held invalid, the remaining provisions shall remain in full force and effect. Assessments levied under this part are not special taxes.

ARTICLE 2. Definitions
36606. “Activities”
“Activities” means, but is not limited to, all of the following that benefit businesses or real property in the district:
#10..
- 386 -
MTMD Management District Plan 20
January 10, 2024
(a) Promotion of public events.
(b) Furnishing of music in any public place.
(c) Promotion of tourism within the district.
(d) Marketing and economic development, including retail retention and recruitment. (e) Providing security, sanitation, graffiti removal, street and sidewalk cleaning, and other municipal services supplemental to those normally provided by the municipality. (f) Other services provided for the purpose of conferring special benefit upon assessed real property or specific benefits upon assessed businesses located in the district. 36606.5. “Assessment”
“Assessment” means a levy for the purpose of acquiring, constructing, installing, or maintaining improvements and providing activities that will provide certain benefits to properties or businesses located within a property and business improvement district.
36607. “Business”
“Business” means all types of businesses and includes financial institutions and professions. 36608. “City”
“City” means a city, county, city and county, or an agency or entity created pursuant to Article 1 (commencing with Section 6500) of Chapter 5 of Division 7 of Title 1 of the Government Code, the public member agencies of which includes only cities, counties, or a city and county, or the State of California. 36609. “City council”
“City council” means the city council of a city or the board of supervisors of a county, or the agency, commission, or board created pursuant to a joint powers agreement and which is a city within the meaning of this part. 36609.4. “Clerk”
“Clerk” means the clerk of the legislative body.
36609.5. “General benefit”
“General benefit” means, for purposes of a property-based district, any benefit that is not a “special benefit” as defined in Section 36615.5.
36610. “Improvement”
“Improvement” means the acquisition, construction, installation, or maintenance of any tangible property with an estimated useful life of five years or more including, but not limited to, the following:
(a) Parking facilities.
(b) Benches, booths, kiosks, display cases, pedestrian shelters, and signs. (c) Trash receptacles and public restrooms.
(d) Lighting and heating facilities.
(e) Decorations.
(f) Parks.
(g) Fountains.
(h) Planting areas.
#10..
- 387 -
MTMD Management District Plan 21
January 10, 2024
(i) Closing, opening, widening, or narrowing of existing streets. (j) Facilities or equipment, or both, to enhance security of persons and property within the district. (k) Ramps, sidewalks, plazas, and pedestrian malls.
(l) Rehabilitation or removal of existing structures.
36611. “Management district plan”; “Plan”
“Management district plan” or “plan” means a proposal as defined in Section 36622. 36612. “Owners’ association”
“Owners’ association” means a private nonprofit entity that is under contract with a city to administer or implement improvements, maintenance, and activities specified in the management district plan. An owners’ association may be an existing nonprofit entity or a newly formed nonprofit entity. An owners’ association is a private entity and may not be considered a public entity for any purpose, nor may its board members or staff be considered to be public officials for any purpose. Notwithstanding this section, an owners’ association shall comply with the Ralph M. Brown Act (Chapter 9 (commencing with Section 54950) of Part 1 of Division 2 of Title 5 of the Government Code), at all times when matters within the subject matter of the district are heard, discussed, or deliberated, and with the California Public Records Act (Division 10 (commencing with Section 7920.000) of Title 1 of the Government Code), for all records relating to activities of the district.
36614. “Property”
“Property” means real property situated within a district. 36614.5. “Property and business improvement district”; “District” “Property and business improvement district,” or “district,” means a property and business improvement district established pursuant to this part.
36614.6. “Property-based assessment”
“Property-based assessment” means any assessment made pursuant to this part upon real property. 36614.7. “Property-based district”
“Property-based district” means any district in which a city levies a property-based assessment. 36615. “Property owner”; “Business owner”; “Owner”
“Property owner” means any person shown as the owner of land on the last equalized assessment roll or otherwise known to be the owner of land by the city council. “Business owner” means any person recognized by the city as the owner of the business. “Owner” means either a business owner or a property owner. The city council has no obligation to obtain other information as to the ownership of land or businesses, and its determination of ownership shall be final and conclusive for the purposes of this part. Wherever this part requires the signature of the property owner, the signature of the authorized agent of the property owner shall be sufficient. Wherever this part requires the signature of the business owner, the signature of the authorized agent of the business owner shall be sufficient. 36615.5. “Special benefit”
#10..
- 388 -
MTMD Management District Plan 22
January 10, 2024
(a) “Special benefit” means, for purposes of a property-based district, a particular and distinct benefit over and above general benefits conferred on real property located in a district or to the public at large. Special benefit includes incidental or collateral effects that arise from the improvements, maintenance, or activities of property-based districts even if those incidental or collateral effects benefit property or persons not assessed. Special benefit excludes general enhancement of property value.
(b) “Special benefit” also includes, for purposes of a property-based district, a particular and distinct benefit provided directly to each assessed parcel within the district. Merely because parcels throughout an assessment district share the same special benefits does not make the benefits general. 36616. “Tenant”
“Tenant” means an occupant pursuant to a lease of commercial space or a dwelling unit, other than an owner.

ARTICLE 3. Prior Law
36617. Alternate method of financing certain improvements and activities; Effect on other provisions This part provides an alternative method of financing certain improvements and activities. The provisions of this part shall not affect or limit any other provisions of law authorizing or providing for the furnishing of improvements or activities or the raising of revenue for these purposes. Every improvement area established pursuant to the Parking and Business Improvement Area Law of 1989 (Part 6 (commencing with Section 36500) of this division) is valid and effective and is unaffected by this part.

CHAPTER 2. Establishment
36620. Establishment of property and business improvement district A property and business improvement district may be established as provided in this chapter. 36620.5. Requirement of consent of city council
A county may not form a district within the territorial jurisdiction of a city without the consent of the city council of that city. A city may not form a district within the unincorporated territory of a county without the consent of the board of supervisors of that county. A city may not form a district within the territorial jurisdiction of another city without the consent of the city council of the other city.
36621. Initiation of proceedings; Petition of property or business owners in proposed district (a) Upon the submission of a written petition, signed by the property or business owners in the proposed district who will pay more than 50 percent of the assessments proposed to be levied, the city council may initiate proceedings to form a district by the adoption of a resolution expressing its intention to form a district.

The amount of assessment attributable to property or a business owned by the same property or business owner that is in excess of 40 percent of the amount of all assessments proposed to be levied, shall not be included in determining whether the petition is signed by property or business owners who will pay more than 50 percent of the total amount of assessments proposed to be levied. (b) The petition of property or business owners required under subdivision (a) shall include a summary of the management district plan. That summary shall include all of the following:
(1) A map showing the boundaries of the district.
(2) Information specifying where the complete management district plan can be obtained. #10..
- 389 -
MTMD Management District Plan 23
January 10, 2024
(3) Information specifying that the complete management district plan shall be furnished upon request.
(c) The resolution of intention described in subdivision (a) shall contain all of the following:
(1) A brief description of the proposed improvements, maintenance, and activities, the amount of the proposed assessment, a statement as to whether the assessment will be levied on property or businesses within the district, a statement as to whether bonds will be issued, and a description of the exterior boundaries of the proposed district, which may be made by reference to any plan or map that is on file with the clerk. The descriptions and statements do not need to be detailed and shall be sufficient if they enable an owner to generally identify the nature and extent of the improvements, maintenance, and activities, and the location and extent of the proposed district. (2) A time and place for a public hearing on the establishment of the property and business improvement district and the levy of assessments, which shall be consistent with the requirements of Section 36623.
36622. Contents of management district plan
The management district plan shall include, but is not limited to, all of the following:
(a) If the assessment will be levied on property, a map of the district in sufficient detail to locate each parcel of property and, if businesses are to be assessed, each business within the district. If the assessment will be levied on businesses, a map that identifies the district boundaries in sufficient detail to allow a business owner to reasonably determine whether a business is located within the district boundaries. If the assessment will be levied on property and businesses, a map of the district in sufficient detail to locate each parcel of property and to allow a business owner to reasonably determine whether a business is located within the district boundaries.
(b) The name of the proposed district.
(c) A description of the boundaries of the district, including the boundaries of benefit zones, proposed for establishment or extension in a manner sufficient to identify the affected property and businesses included, which may be made by reference to any plan or map that is on file with the clerk. The boundaries of a proposed property assessment district shall not overlap with the boundaries of another existing property assessment district created pursuant to this part. This part does not prohibit the boundaries of a district created pursuant to this part to overlap with other assessment districts established pursuant to other provisions of law, including, but not limited to, the Parking and Business Improvement Area Law of 1989 (Part 6 (commencing with Section 36500)). This part does not prohibit the boundaries of a business assessment district created pursuant to this part to overlap with another business assessment district created pursuant to this part. This part does not prohibit the boundaries of a business assessment district created pursuant to this part to overlap with a property assessment district created pursuant to this part. (d) The improvements, maintenance, and activities proposed for each year of operation of the district and the estimated cost thereof. If the improvements, maintenance, and activities proposed for each year of operation are the same, a description of the first year’s proposed improvements, maintenance, and activities and a statement that the same improvements, maintenance, and activities are proposed for subsequent years shall satisfy the requirements of this subdivision.
(e) The total annual amount proposed to be expended for improvements, maintenance, or activities, and debt service in each year of operation of the district. If the assessment is levied on businesses, this amount may be estimated based upon the assessment rate. If the total annual amount proposed to be expended in each year of operation of the district is not significantly different, the amount proposed to be expended in the initial year and a statement that a similar amount applies to subsequent years shall satisfy the requirements of this subdivision.
(f) The proposed source or sources of financing, including the proposed method and basis of levying the assessment in sufficient detail to allow each property or business owner to calculate the amount of the assessment to be levied against their property or business. The plan also shall state whether bonds will be issued to finance improvements.
#10..
- 390 -
MTMD Management District Plan 24
January 10, 2024
(g) The time and manner of collecting the assessments.
(h) The specific number of years in which assessments will be levied. In a new district, the maximum number of years shall be five. Upon renewal, a district shall have a term not to exceed 10 years. Notwithstanding these limitations, a district created pursuant to this part to finance capital improvements with bonds may levy assessments until the maximum maturity of the bonds. The management district plan may set forth specific increases in assessments for each year of operation of the district. (i) The proposed time for implementation and completion of the management district plan. (j) Any proposed rules and regulations to be applicable to the district. (k)
(1) A list of the properties or businesses to be assessed, including the assessor’s parcel numbers for properties to be assessed, and a statement of the method or methods by which the expenses of a district will be imposed upon benefited real property or businesses, in proportion to the benefit received by the property or business, to defray the cost thereof. (2) In a property-based district, the proportionate special benefit derived by each identified parcel shall be determined exclusively in relationship to the entirety of the capital cost of a public improvement, the maintenance and operation expenses of a public improvement, or the cost of the activities. An assessment shall not be imposed on any parcel that exceeds the reasonable cost of the proportional special benefit conferred on that parcel. Only special benefits are assessable, and a property-based district shall separate the general benefits, if any, from the special benefits conferred on a parcel. Parcels within a property-based district that are owned or used by any city, public agency, the State of California, or the United States shall not be exempt from assessment unless the governmental entity can demonstrate by clear and convincing evidence that those publicly owned parcels in fact receive no special benefit. The value of any incidental, secondary, or collateral effects that arise from the improvements, maintenance, or activities of a property-based district and that benefit property or persons not assessed shall not be deducted from the entirety of the cost of any special benefit or affect the proportionate special benefit derived by each identified parcel. (3) In a property-based district, properties throughout the district may share the same special benefits. In a district with boundaries that define which parcels are to receive improvements, maintenance, or activities over and above those services provided by the city, the improvements, maintenance, or activities themselves may constitute a special benefit. The city may impose assessments that are less than the proportional special benefit conferred, but shall not impose assessments that exceed the reasonable costs of the proportional special benefit conferred. Because one or more parcels pay less than the special benefit conferred does not necessarily mean that other parcels are assessed more than the reasonable cost of their special benefit. (l) In a property-based district, a detailed engineer’s report prepared by a registered professional engineer certified by the State of California supporting all assessments contemplated by the management district plan. (m) Any other item or matter required to be incorporated therein by the city council. 36623. Procedure to levy assessment
(a) If a city council proposes to levy a new or increased property assessment, the notice and protest and hearing procedure shall comply with Section 53753 of the Government Code. (b) If a city council proposes to levy a new or increased business assessment, the notice and protest and hearing procedure shall comply with Section 54954.6 of the Government Code, except that notice shall be mailed to the owners of the businesses proposed to be assessed. A protest may be made orally or in writing by any interested person. Every written protest shall be filed with the clerk at or before the time fixed for the public hearing. The city council may waive any irregularity in the form or content of any written protest. A written protest may be withdrawn in writing at any time before the conclusion of the public hearing. Each written protest shall contain a description of the business in which the person subscribing the protest is interested sufficient to identify the business and, if a person subscribing is not shown on the official records of the city as the owner of the business, the protest shall contain or be accompanied by written evidence that #10..
- 391 -
MTMD Management District Plan 25
January 10, 2024
the person subscribing is the owner of the business or the authorized representative. A written protest that does not comply with this section shall not be counted in determining a majority protest. If written protests are received from the owners or authorized representatives of businesses in the proposed district that will pay 50 percent or more of the assessments proposed to be levied and protests are not withdrawn so as to reduce the protests to less than 50 percent, no further proceedings to levy the proposed assessment against such businesses, as contained in the resolution of intention, shall be taken for a period of one year from the date of the finding of a majority protest by the city council. (c) If a city council proposes to conduct a single proceeding to levy both a new or increased property assessment and a new or increased business assessment, the notice and protest and hearing procedure for the property assessment shall comply with subdivision (a), and the notice and protest and hearing procedure for the business assessment shall comply with subdivision (b). If a majority protest is received from either the property or business owners, that respective portion of the assessment shall not be levied. The remaining portion of the assessment may be levied unless the improvement or other special benefit was proposed to be funded by assessing both property and business owners.
36624. Changes to proposed assessments
At the conclusion of the public hearing to establish the district, the city council may adopt, revise, change, reduce, or modify the proposed assessment or the type or types of improvements, maintenance, and activities to be funded with the revenues from the assessments. Proposed assessments may only be revised by reducing any or all of them. At the public hearing, the city council may only make changes in, to, or from the boundaries of the proposed property and business improvement district that will exclude territory that will not benefit from the proposed improvements, maintenance, and activities. Any modifications, revisions, reductions, or changes to the proposed assessment district shall be reflected in the notice and map recorded pursuant to Section 36627. 36625. Resolution of formation
(a) If the city council, following the public hearing, decides to establish a proposed property and business improvement district, the city council shall adopt a resolution of formation that shall include, but is not limited to, all of the following:
(1) A brief description of the proposed improvements, maintenance, and activities, the amount of the proposed assessment, a statement as to whether the assessment will be levied on property, businesses, or both within the district, a statement on whether bonds will be issued, and a description of the exterior boundaries of the proposed district, which may be made by reference to any plan or map that is on file with the clerk. The descriptions and statements need not be detailed and shall be sufficient if they enable an owner to generally identify the nature and extent of the improvements, maintenance, and activities and the location and extent of the proposed district. (2) The number, date of adoption, and title of the resolution of intention. (3) The time and place where the public hearing was held concerning the establishment of the district.
(4) A determination regarding any protests received. The city shall not establish the district or levy assessments if a majority protest was received.
(5) A statement that the properties, businesses, or properties and businesses in the district established by the resolution shall be subject to any amendments to this part. (6) A statement that the improvements, maintenance, and activities to be conferred on businesses and properties in the district will be funded by the levy of the assessments. The revenue from the levy of assessments within a district shall not be used to provide improvements, maintenance, or activities outside the district or for any purpose other than the purposes specified in the resolution of intention, as modified by the city council at the hearing concerning establishment of the district.

Notwithstanding the foregoing, improvements and activities that must be provided outside the #10..
- 392 -
MTMD Management District Plan 26
January 10, 2024
district boundaries to create a special or specific benefit to the assessed parcels or businesses may be provided, but shall be limited to marketing or signage pointing to the district. (7) A finding that the property or businesses within the area of the property and business improvement district will be benefited by the improvements, maintenance, and activities funded by the proposed assessments, and, for a property-based district, that property within the district will receive a special benefit.
(8) In a property-based district, the total amount of all special benefits to be conferred on the properties within the property-based district.
(b) The adoption of the resolution of formation and, if required, recordation of the notice and map pursuant to Section 36627 shall constitute the levy of an assessment in each of the fiscal years referred to in the management district plan.
36627. Notice and assessment diagram
Following adoption of the resolution establishing district assessments on properties pursuant to Section 36625, the clerk shall record a notice and an assessment diagram pursuant to Section 3114. No other provision of Division 4.5 (commencing with Section 3100) applies to an assessment district created pursuant to this part. 36628. Establishment of separate benefit zones within district; Categories of businesses The city council may establish one or more separate benefit zones within the district based upon the degree of benefit derived from the improvements or activities to be provided within the benefit zone and may impose a different assessment within each benefit zone. If the assessment is to be levied on businesses, the city council may also define categories of businesses based upon the degree of benefit that each will derive from the improvements or activities to be provided within the district and may impose a different assessment or rate of assessment on each category of business, or on each category of business within each zone. 36628.5. Assessments on businesses or property owners
The city council may levy assessments on businesses or on property owners, or a combination of the two, pursuant to this part. The city council shall structure the assessments in whatever manner it determines corresponds with the distribution of benefits from the proposed improvements, maintenance, and activities, provided that any propertybased assessment conforms with the requirements set forth in paragraph (2) of subdivision (k) of Section 36622. 36629. Provisions and procedures applicable to benefit zones and business categories All provisions of this part applicable to the establishment, modification, or disestablishment of a property and business improvement district apply to the establishment, modification, or disestablishment of benefit zones or categories of business. The city council shall, to establish, modify, or disestablish a benefit zone or category of business, follow the procedure to establish, modify, or disestablish a property and business improvement district. 36630. Expiration of district; Creation of new district If a property and business improvement district expires due to the time limit set pursuant to subdivision (h) of Section 36622, a new management district plan may be created and the district may be renewed pursuant to this part.

CHAPTER 3. Assessments
36631. Time and manner of collection of assessments; Delinquent payments #10..
- 393 -
MTMD Management District Plan 27
January 10, 2024
The collection of the assessments levied pursuant to this part shall be made at the time and in the manner set forth by the city council in the resolution levying the assessment. Assessments levied on real property may be collected at the same time and in the same manner as for the ad valorem property tax, and may provide for the same lien priority and penalties for delinquent payment. All delinquent payments for assessments levied pursuant to this part may be charged interest and penalties.
36632. Assessments to be based on estimated benefit; Classification of real property and businesses; Exclusion of residential and agricultural property
(a) The assessments levied on real property pursuant to this part shall be levied on the basis of the estimated benefit to the real property within the property and business improvement district. The city council may classify properties for purposes of determining the benefit to property of the improvements and activities provided pursuant to this part.
(b) Assessments levied on businesses pursuant to this part shall be levied on the basis of the estimated benefit to the businesses within the property and business improvement district. The city council may classify businesses for purposes of determining the benefit to the businesses of the improvements and activities provided pursuant to this part.
(c) Properties zoned solely for residential use, or that are zoned for agricultural use, are conclusively presumed not to benefit from the improvements and service funded through these assessments, and shall not be subject to any assessment pursuant to this part.
36633. Time for contesting validity of assessment
The validity of an assessment levied under this part shall not be contested in an action or proceeding unless the action or proceeding is commenced within 30 days after the resolution levying the assessment is adopted pursuant to Section 36625. An appeal from a final judgment in an action or proceeding shall be perfected within 30 days after the entry of judgment.
36634. Service contracts authorized to establish levels of city services The city council may execute baseline service contracts that would establish levels of city services that would continue after a property and business improvement district has been formed. 36635. Request to modify management district plan
The owners’ association may, at any time, request that the city council modify the management district plan. Any modification of the management district plan shall be made pursuant to this chapter. 36636. Modification of plan by resolution after public hearing; Adoption of resolution of intention (a) Upon the written request of the owners’ association, the city council may modify the management district plan after conducting one public hearing on the proposed modifications. The city council may modify the improvements and activities to be funded with the revenue derived from the levy of the assessments by adopting a resolution determining to make the modifications after holding a public hearing on the proposed modifications. If the modification includes the levy of a new or increased assessment, the city council shall comply with Section 36623. Notice of all other public hearings pursuant to this section shall comply with both of the following:
(1) The resolution of intention shall be published in a newspaper of general circulation in the city once at least seven days before the public hearing.
#10..
- 394 -
MTMD Management District Plan 28
January 10, 2024
(2) A complete copy of the resolution of intention shall be mailed by first class mail, at least 10 days before the public hearing, to each business owner or property owner affected by the proposed modification.
(b) The city council shall adopt a resolution of intention which states the proposed modification prior to the public hearing required by this section. The public hearing shall be held not more than 90 days after the adoption of the resolution of intention.
36637. Reflection of modification in notices recorded and maps Any subsequent modification of the resolution shall be reflected in subsequent notices and maps recorded pursuant to Division 4.5 (commencing with Section 3100), in a manner consistent with the provisions of Section 36627.

CHAPTER 3.5. Financing
36640. Bonds authorized; Procedure; Restriction on reduction or termination of assessments (a)The city council may, by resolution, determine and declare that bonds shall be issued to finance the estimated cost of some or all of the proposed improvements described in the resolution of formation adopted pursuant to Section 36625, if the resolution of formation adopted pursuant to that section provides for the issuance of bonds, under the Improvement Bond Act of 1915 (Division 10 (commencing with Section 8500)) or in conjunction with Marks-Roos Local Bond Pooling Act of 1985 (Article 4 (commencing with Section 6584) of Chapter 5 of Division 7 of Title 1 of the Government Code). Either act, as the case may be, shall govern the proceedings relating to the issuance of bonds, although proceedings under the Bond Act of 1915 may be modified by the city council as necessary to accommodate assessments levied upon business pursuant to this part.
(b) The resolution adopted pursuant to subdivision (a) shall generally describe the proposed improvements specified in the resolution of formation adopted pursuant to Section 36625, set forth the estimated cost of those improvements, specify the number of annual installments and the fiscal years during which they are to be collected. The amount of debt service to retire the bonds shall not exceed the amount of revenue estimated to be raised from assessments over 30 years.
(c) Notwithstanding any other provision of this part, assessments levied to pay the principal and interest on any bond issued pursuant to this section shall not be reduced or terminated if doing so would interfere with the timely retirement of the debt.

CHAPTER 4. Governance
36650. Report by owners’ association; Approval or modification by city council (a) The owners’ association shall cause to be prepared a report for each fiscal year, except the first year, for which assessments are to be levied and collected to pay the costs of the improvements, maintenance, and activities described in the report. The owners’ association’s first report shall be due after the first year of operation of the district. The report may propose changes, including, but not limited to, the boundaries of the property and business improvement district or any benefit zones within the district, the basis and method of levying the assessments, and any changes in the classification of property, including any categories of business, if a classification is used.
(b) The report shall be filed with the clerk and shall refer to the property and business improvement district by name, specify the fiscal year to which the report applies, and, with respect to that fiscal year, shall contain all of the following information:
(1) Any proposed changes in the boundaries of the property and business improvement district or in any benefit zones or classification of property or businesses within the district. #10..
- 395 -
MTMD Management District Plan 29
January 10, 2024
(2) The improvements, maintenance, and activities to be provided for that fiscal year. (3) An estimate of the cost of providing the improvements, maintenance, and activities for that fiscal year.
(4) The method and basis of levying the assessment in sufficient detail to allow each real property or business owner, as appropriate, to estimate the amount of the assessment to be levied against his or her property or business for that fiscal year.
(5) The estimated amount of any surplus or deficit revenues to be carried over from a previous fiscal year.
(6) The estimated amount of any contributions to be made from sources other than assessments levied pursuant to this part.
(c) The city council may approve the report as filed by the owners’ association or may modify any particular contained in the report and approve it as modified. Any modification shall be made pursuant to Sections 36635 and 36636.

The city council shall not approve a change in the basis and method of levying assessments that would impair an authorized or executed contract to be paid from the revenues derived from the levy of assessments, including any commitment to pay principal and interest on any bonds issued on behalf of the district. 36651. Designation of owners’ association to provide improvements, maintenance, and activities The management district plan may, but is not required to, state that an owners’ association will provide the improvements, maintenance, and activities described in the management district plan. If the management district plan designates an owners’ association, the city shall contract with the designated nonprofit corporation to provide services.

CHAPTER 5. Renewal
36660. Renewal of district; Transfer or refund of remaining revenues; District term limit (a) Any district previously established whose term has expired, or will expire, may be renewed by following the procedures for establishment as provided in this chapter. (b) Upon renewal, any remaining revenues derived from the levy of assessments, or any revenues derived from the sale of assets acquired with the revenues, shall be transferred to the renewed district. If the renewed district includes additional parcels or businesses not included in the prior district, the remaining revenues shall be spent to benefit only the parcels or businesses in the prior district. If the renewed district does not include parcels or businesses included in the prior district, the remaining revenues attributable to these parcels shall be refunded to the owners of these parcels or businesses. (c) Upon renewal, a district shall have a term not to exceed 10 years, or, if the district is authorized to issue bonds, until the maximum maturity of those bonds. There is no requirement that the boundaries, assessments, improvements, or activities of a renewed district be the same as the original or prior district.

CHAPTER 6. Disestablishment
36670. Circumstances permitting disestablishment of district; Procedure (a) Any district established or extended pursuant to the provisions of this part, where there is no indebtedness, outstanding and unpaid, incurred to accomplish any of the purposes of the district, may be disestablished by resolution by the city council in either of the following circumstances:
(1) If the city council finds there has been misappropriation of funds, malfeasance, or a violation of law in connection with the management of the district, it shall notice a hearing on disestablishment. (2) During the operation of the district, there shall be a 30-day period each year in which assessees may request disestablishment of the district. The first such period shall begin one year after the date of establishment of the district and shall continue for 30 days. The next such 30-day period shall #10..
- 396 -
MTMD Management District Plan 30
January 10, 2024
begin two years after the date of the establishment of the district. Each successive year of operation of the district shall have such a 30-day period. Upon the written petition of the owners or authorized representatives of real property or the owners or authorized representatives of businesses in the district who pay 50 percent or more of the assessments levied, the city council shall pass a resolution of intention to disestablish the district. The city council shall notice a hearing on disestablishment. (b) The city council shall adopt a resolution of intention to disestablish the district prior to the public hearing required by this section. The resolution shall state the reason for the disestablishment, shall state the time and place of the public hearing, and shall contain a proposal to dispose of any assets acquired with the revenues of the assessments levied within the property and business improvement district. The notice of the hearing on disestablishment required by this section shall be given by mail to the property owner of each parcel or to the owner of each business subject to assessment in the district, as appropriate. The city shall conduct the public hearing not less than 30 days after mailing the notice to the property or business owners. The public hearing shall be held not more than 60 days after the adoption of the resolution of intention. 36671. Refund of remaining revenues upon disestablishment or expiration without renewal of district; Calculation of refund; Use of outstanding revenue collected after disestablishment of district (a) Upon the disestablishment or expiration without renewal of a district, any remaining revenues, after all outstanding debts are paid, derived from the levy of assessments, or derived from the sale of assets acquired with the revenues, or from bond reserve or construction funds, shall be refunded to the owners of the property or businesses then located and operating within the district in which assessments were levied by applying the same method and basis that was used to calculate the assessments levied in the fiscal year in which the district is disestablished or expires. All outstanding assessment revenue collected after disestablishment shall be spent on improvements and activities specified in the management district plan. (b) If the disestablishment occurs before an assessment is levied for the fiscal year, the method and basis that was used to calculate the assessments levied in the immediate prior fiscal year shall be used to calculate the amount of any refund.
#10..
- 397 -
MTMD Management District Plan 31
January 10, 2024
APPENDIX 2 – ASSESSED BUSINESSES
Hotel Address City, State, Zip
Apex Inn 2225 Yosemite Blvd Modesto, CA 95354-3003
Baymont Inn & Suites 4100 Salida Blvd Modesto, CA 95358-8840 Best Western Palm Court Inn 2001 W Orangeburg Ave Modesto, CA 95350-3741 Comfort Inn Modesto 2025 W Orangeburg Ave Modesto, CA 95350-3741 Discovery Inn 115 Downey Ave Modesto, CA 95354-1201
Doubletree Hotel Modesto 1150 9th St Modesto, CA 95354-0823 Economy Inn 602 Mchenry Ave Modesto, CA 95350-5412
El Capitan Motel 1121 Needham St Modesto, CA 95354-0731 Modesto Days Inn 1312 Mchenry Ave Modesto, CA 95350-5377 Modesto Hotel 1720 Sisk Rd Modesto, CA 95350-2500
Modesto Marriott Residence Inn 2901 HealthCare Way Modesto, CA 95356 Motel 6 807 Needham St Modesto, CA 95354-0736
Motel 6 Modesto 1920 W Orangeburg Ave Modesto, CA 95350-3740 Quality Inn 500 Kansas Ave Modesto, CA 95351-1605
Ramada By Wyndham 1525 Mchenry Ave Modesto, CA 95350-4576 Rodeway Inn 912 Mchenry Ave Modesto, CA 95350-5417
Springhill Suites Modesto 1901 W Orangeburg Ave Modesto, CA 95350-3838 Tiki Lodge 936 Mchenry Ave Modesto, CA 95350-5417
Townhouse Lodge 909 16th St Modesto, CA 95354-1117
Travelers Motel 710 N 9th St Modesto, CA 95350-5795
Yosemite Inn 500 Kansas Ave Modesto, CA 95351-1605
#10..
- 398 -
#10..
- 399 -
#10..
- 400 -

CITY OF MODESTO

COMMITTEE AGENDA REPORT
DATE OF MEETING:

May 5, 2025
Date: February 13, 2025
TO: Economic Development Committee
Eric Alvarez, Chair
Sue Zwahlen, Vice-Chair
Nick Bavaro, Member
THROUGH: Joseph P. Lopez, City Manager
FROM: Jessica Hill, Director of Community and Economic Development SUBJECT: Agreement with Visit Modesto for Transient Occupancy Tax Funding and Tourism Marketing Owner's Association Agreement
CONTACT: Trevin W. Barber, Economic Development Manager, [email protected], 209-860-1251
DESCRIPTION:

Consider a Transient Occupancy Tax Funding Agreement and a Modesto Tourism Marketing District Owners’ Association Agreement with Visit Modesto, Inc. for continued Tourism Marketing Services, through June 30, 2030, and forwarding to Council for approval. (Funding Source:

General Fund; Modesto Tourism Marketing District)
STRATEGIC PLAN ELEMENT:

The recommended action supports the City’s Strategic Plan Area of Focus for Economic Vitality:
 Goal E: Drive the success of a vibrant and economically sustainable business climate.  Goal F: Build and promote a recognizable and desirable identify for the City of Modesto BACKGROUND:

Visit Modesto, Inc., a local community benefit corporation and aligned non-profit, has been the City's designated Destination Marketing Organization for several years, promoting Modesto as a destination for tourism, arts, entertainment, shopping, and local businesses. Visit Modesto has four key purposes:

1. To attract visitors by promoting and marketing Modesto as an attractive destination.

2. To provide coordination and leadership for the community, residents, and visitors on matters relating to visitor activity and tourism.

3. To gather community information designed to convey to Union leaders and the public at large the status and value of the visitor industry; and

4. To work with local governmental agencies, private enterprises, and other interested parties in developing suitable financing plans for the Corporation, and to implement those plans.
#11..
- 401 -
Economic Development Committee, May 5, 2025
Agreement with Visit Modesto for Transient Occupancy Tax Funding and Tourism Marketing Owner's Association Agreement

Page 2 of 5 ends

Through its efforts, the City has experienced increased visibility and economic benefits tied to tourism. Their market and support programs include the Almond Blossom Cruise, MoFresh, Garage Fest, Graffiti Summer, MoPink, and MoCheer. Since 2019, Visit Modesto’s economic impact includes $16.6 million in hotel tax and $19.5 million in retail tax growth. 1 In partnership with Madden Media in 2023, Visit Modesto launched a comprehensive tourism marketing campaign that generated 848.3 million impressions through articles and media features, significantly elevating Modesto's profile. Between February and March 2024 alone, tourism activities brought over 100,000 visitors to the city2, underscoring its success in attracting travelers.

The existing Transient Occupancy Tax (TOT) Funding Agreement and Modesto Tourism Marketing District (MTMD) Owners’ Association Agreement are set to expire on June 30, 2025.

Both agreements outline Visit Modesto's continued responsibilities in driving tourism, enhancing the local economy, and aligning with City priorities.

The Modesto Tourism Marketing District
The Modesto Tourism Marketing District (MTMD) is a specialized benefit assessment district established to provide funding for marketing and promotional efforts targeted at lodging businesses in Modesto. The district includes all lodging businesses with 20 or more rooms within city boundaries. Funds generated by the MTMD are used exclusively for tourism promotion and marketing efforts and cannot be diverted for other purposes.

The MTMD is governed by lodging business owners, ensuring that the programs align directly with the needs of those funding the assessment. Visit Modesto also serves as the Owners’ Association, managing the district funds under the Modesto Tourism Marketing District Owner’s Association Agreement, which is set to expire on June 30, 2025. The renewed district is expected to generate approximately $448,984 annually, providing a stable funding source for initiatives that position Modesto as a premier destination for visitors, events, and conferences.

Tourism Marketing District benefits:
 Funds cannot be diverted for other government programs.  They are customized to fit the needs of each destination.  They allow for a wide range of services; including destination marketing, tourism promotion, and sales lead generation.
 They are designed, created and governed by those who will pay the assessment; and  They provide a stable funding source for tourism promotion.

DISCUSSION:

The proposed Transient Occupancy Tax (TOT) Funding Agreement (Agreement) establishes a robust framework for the allocation and management of TOT revenues between the City of 1 Source: Visit Modesto; Dean Runyan Associates
2 Source: Visit Modesto; Dean Runyan Associates
#11..
- 402 -
Economic Development Committee, May 5, 2025
Agreement with Visit Modesto for Transient Occupancy Tax Funding and Tourism Marketing Owner's Association Agreement

Page 3 of 5 ends

Economic Development CommitteeMay 5, 2025

Economic Development Committee
May 5, 2025