The Septic to Sewer Construction Project will install approximately 8,760 linear feet of sewer laterals and connect 64 parcels to City wastewater services for properties located along Maze Boulevard, Spencer Avenue, Marshall Avenue, and Truman Avenue.
On September 3, 2019, by Resolution No. 2019-398, Council approved an Agreement with Stanislaus County for Engineering Review and Construction Inspection Services Relating to the West Modesto Area 07 Sewer Infrastructure Project.
On January 28, 2025, by Resolution No. 2025-46, Council approved an Amended and Restated Memorandum of Agreement with Stanislaus County for the West Modesto Sewer Infrastructure Project: Spencer/Marshall Neighborhood – County Area 07.
Under the Amended and Restated Agreement, the County and City agreed to expand the County Project to include the City’s Septic to Sewer Program, contingent upon the County’s ability to secure appropriate funding for the Project and Program as follows:
Stanislaus County
Responsible for the design and construction of the improvements in the public right-ofway at no cost to the City and upon completion of the Project transferring ownership of the infrastructure to the City to maintain and operate.
City of Modesto
Responsible for the design and construction of the on-site (private property) improvements consisting of installing service laterals and the abandonment and/or removal of septic tanks.
Property owners were required to sign a Right of Entry Agreement acknowledging that their participation in the Program is voluntary and that they agree to hold harmless the State of California, Stanislas County, City, and other Authorized Parties against any and all claims, except claims that arise as a result of gross negligence or willful misconduct.
DISCUSSION:
The project was advertised for bids on October 15, 2025. Bids were publicly opened on December 9, 2025, pursuant to City Charter Section 1307 and Frontline General Engineering Construction, Inc., of Tracy, CA, was the responsible bidder with the lowest responsive bid.
Bid Analysis:
Number of Bids Received 6
Number of Bids within 10% of Engineer’s Estimate 3
Number of Bids above the Engineer’s Estimate 3
Number of Bids below the Engineer’s Estimate 3
Percent Low Bid is Below the Engineer’s Estimate 13.68% #14..
- 676 -
City Council, May 5, 2026
Award Septic to Sewer Construction Project:
County Area 07 – Spencer/Marshall Neighborhood
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 the formal bid procedures. The award of a Contract for the construction of the Septic to Sewer Construction Project: County Area 07 – Spencer/Marshal Neighborhood to Frontline General Engineering Construction, Inc. (Frontline), of Tracy, CA, conforms to the Modesto Municipal Code because the City complied with the formal bid procedures and Frontline, was the lowest responsible and responsive and bidder.
While the contingency policy is utilized for each Construction Contract awarded by the City, it is not included in each contract, nor is it a guaranteed amount included in the final compensation to the contractor.
The City’s “Change Order Approval Policy” enacted by Council Resolution No. 1994-443 on July 19, 1994, revised on July 9, 2019, by Council Resolution No. 2019-326, and revised a second time on September 12, 2023, by Council Resolution No. 2023-405, established a contract change order authority of 10% for Construction Contracts of this dollar value. However, after reviewing the plans and specifications, and given the nature of this project where unforeseen conditions may exist when dealing with existing construction, and other unaccounted for issues may arise, it is likely that this project could exceed the Director’s Authority of 10% ($173,977) of the Construction Contract amount of $1,739,773. Therefore, Staff is requesting that the Director’s authority to issue change orders be increased to 15% ($260,966) of the Construction Contract amount.
Considering the size and complexity of the project, staff recommends utilizing a consultant to provide Construction Management and Inspection Services.
In accordance with Administrative Directive 3.1, Selection Procedures for Professional Consultants who Provide Engineering Services for Capital Projects, a Request for Qualifications and Proposals (RFQ/P) was advertised on October 1, 2025, through OpenGov the City’s procurement platform.
In accordance with Modesto Municipal Code 8-3.204(a) “Exceptions to Formal Bidding Requirements”, Agreements for Profession Services are exempt from the bidding requirements of the Modesto Municipal Code 8-3.203 if competitive quotations or proposals have been sought informally from at least three (3) qualified entities. However, staff proceeded with the RFQ/P process pursuant to Administrative Directive 3.1 and two proposals were received as part of this solicitation.
Staff, therefore, recommends entering into a Consultant Agreement with TRC Engineers, Inc. for Construction Management and Inspection Services in the amount of $302,455, plus $30,245 in Additional Services (if needed), for a total payment amount not to exceed $332,700.
#14..
- 677 -
City Council, May 5, 2026
Award Septic to Sewer Construction Project:
County Area 07 – Spencer/Marshall Neighborhood
FISCAL IMPACT:
A budget adjustment in the amount of $375,000 will be necessary from Wastewater Reserves to fund the Construction Phase of the Septic to Sewer Program - County Area 07 Project.
Reimbursement for the County Project and City Program will be facilitated by Stanislaus County through the State Water Resources Control Board’s Clean Water State Revolving Fund Program.
#14..
- 678 -
City Council, May 5, 2026
Award Septic to Sewer Construction Project:
County Area 07 – Spencer/Marshall Neighborhood
COMMITTEE RECOMMENDATION
This item was considered by the Economic Development Committee at the meeting held on November 3, 2025, as part of a report on upcoming Utilities Department Capital Improvement Program Projects planned for bidding and construction.
CEQA/NEPA REQUIREMENTS:
Stanislaus County, as lead agency, completed a Draft Initial Study/Negative Declaration (IS/ND) for the West Modesto Sewer Infrastructure Project and circulated the document for public review for a period of 30 days, beginning May 4, 2018, and ending June 4, 2018. The Final IS/ND was approved by the County on July 17, 2018 (State Clearing House Number 2018052010). The IS/ND addressed potential environmental effects of the Project and found that all impacts to environmental resources as a result of the Project were less than significant.
The Final IS/ND included analysis of the proposed sewer main and laterals but did not assess potential effects of the connection from private properties into the sewer laterals as this was not a part of the original Project scope. Therefore, the Final IS/ND was amended in November of 2020 to include the Septic to Sewer Program in accordance with Section 15164(b) of the CEQA Guidelines, “An addendum to an adopted Negative Declaration may be prepared if only minor technical changes or additions are necessary or none of the conditions described in Section 15162 calling for preparation of a subsequent EIR or Negative Declaration have occurred.”
The findings within the addendum confirm that the modification of connecting individual properties to the new public sewer laterals is minor and would not result in new or more severe significant environmental effects.
The County also fulfilled NEPA requirements through an Environmental Assessment prepared in conformance with 24 CFR Part 58.
RECOMMENDED COUNCIL ACTION:
Staff Recommendations:
Resolution approving the Plans and Specifications for the Septic to Sewer Construction Project: County Area 07 – Spencer /Marshall Neighborhood, accepting the Bid and Awarding a Construction Contract to Frontline General Engineering Construction, Inc., of Tracy, CA in the amount of $1,739,773, authorizing the Director of Engineering Services to approve Change Orders up to the cumulative amount of $260,966, 15% of the original Contract price, for a total payment amount not to exceed $2,000,739 and authorizing the City Manager, or his designee, to execute the Contract.
Resolution approving a Construction Management and Inspection Services Agreement with TRC Engineers, Inc., of Rancho Cordova, CA for the Septic to Sewer Construction Project: County Area 07 – Spencer /Marshall Neighborhood in the amount of $302,455, #14..
- 679 -
City Council, May 5, 2026
Award Septic to Sewer Construction Project:
County Area 07 – Spencer/Marshall Neighborhood
plus $30,245 in Additional Services, if needed, for an Agreement total amount not to exceed $332,700 and authorizing the City Manager, or his designee, to execute the Agreement.
Resolution amending the Fiscal Year 2025-26 Capital Improvement Program Budget in the amount of $375,000 to be transferred into the Project from Wastewater Fund Reserves to fund the Septic to Sewer Construction Project: County Area 07 – Spencer /Marshall Neighborhood and Authorizing the City Manager, or his designee, to implement the provision of the Resolution.
Approved by:
William Wong, Director of Utilities
Joseph P. Lopez, City Manager
Attachments:
1. Resolutions (3)
2. Construction Contract
3. Bid Results
4. Construction Management and Inspection Services Agreement and Exhibits A-C.
5. Amended and Restated Memorandum of Agreement with Stanislaus County West Modesto Infrastructure Project:
County Area 07 – Spencer/Marshall Neighborhood
#14..
- 680 -
5/5/2026/Utilities/MAlvarez/Item X 1 2026-XX
MODESTO CITY COUNCIL
RESOLUTION NO. 2026-XX
RESOLUTION APPROVING THE PLANS AND SPECIFICATIONS FOR THE SEPTIC TO SEWER CONSTRUCTION PROJECT: COUNTY AREA 07 –
SPENCER /MARSHALL NEIGHBORHOOD, ACCEPTING THE BID AND
AWARDING A CONSTRUCTION CONTRACT TO FRONTLINE GENERAL
ENGINEERING CONSTRUCTION, INC., OF TRACY, CA IN THE AMOUNT OF $1,739,773, AUTHORIZING THE DIRECTOR OF ENGINEERING SERVICES
TO APPROVE CHANGE ORDERS UP TO THE CUMULATIVE AMOUNT OF $260,966, 15% OF THE ORIGINAL CONTRACT PRICE, FOR A TOTAL PAYMENT AMOUNT NOT TO EXCEED $2,000,739 AND AUTHORIZING THE
CITY MANAGER, OR HIS DESIGNEE, TO EXECUTE THE CONTRACT
WHEREAS, County Area 07 – Spencer/Marshall Neighborhood is an unincorporated, disadvantaged community comprised of approximately 114 parcels that rely solely on septic systems for the treatment of domestic wastewater; and
WHEREAS, the City owns and operates a sanitary sewer system adjacent to this area and is prepared to provide wastewater service to the Spencer/Marshall Neighborhood in collaboration with Stanislaus County in an effort to lessen or eliminate the need for septic systems in the areas adjacent the City and to mitigate health and environmental hazards that can be caused by untreated wastewater; and
WHEREAS, the Septic to Sewer Construction Project will install approximately 8,760 linear feet of sewer laterals and connect 64 parcels to City wastewater services for properties located along Maze Boulevard, Spencer Avenue, Marshall Avenue, and Truman Avenue; and
WHEREAS, on September 3, 2019, by Resolution No. 2019-398, Council approved an Agreement with Stanislaus County for Engineering Review and #14..
- 681 -
5/5/2026/Utilities/MAlvarez/Item X 2 2026-XX
Construction Inspection Services Relating to the West Modesto Area 07 Sewer Infrastructure Project; and
WHEREAS, on January 28, 2025, by Resolution No. 2025-46, Council approved an Amended and Restated Memorandum of Agreement with Stanislaus County for the West Modesto Sewer Infrastructure Project:
Spencer/Marshall Neighborhood – County Area 07; and
WHEREAS, under the Amended and Restated Agreement, the County and City agreed to expand the County Project to include the City’s Septic to Sewer Program, contingent upon the County’s ability to secure appropriate funding for the Project and Program; and
WHEREAS, the project was advertised for bids on October 15, 2025; and WHEREAS, on December 9, 2025, bids were publicly opened, pursuant to City Charter Section 1307; and
WHEREAS, six bids were received; and
WHEREAS, Frontline General Engineering Construction, Inc., of Tracy, CA, was the responsible bidder with the lowest responsive bid; and WHEREAS Modesto Municipal Code Section 8-3.203 generally requires all purchases, which meet or exceed $100,000 for material, equipment or contractual services to follow the formal bid procedures; and WHEREAS the award of a Contract for the construction of the Septic to Sewer Construction Project: County Area 07 – Spencer/Marshall Neighborhood to Frontline General Engineering Construction, Inc., of Tracy, CA, conforms to the Modesto Municipal Code because the City complied with the formal bid #14..
- 682 -
5/5/2026/Utilities/MAlvarez/Item X 3 2026-XX
procedures and Frontline General Engineering Construction, Inc. was the lowest responsive and responsible bidder.
NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Modesto that it hereby approves the plans and specifications for the Septic to Sewer Construction Project: County Area 07 – Spencer/Marshall Neighborhood, accepts the bid of $1,739,773, authorizes the Director of Engineering Services to approve Change Orders up to the cumulative amount of $260,966, 15% of the original Contract price, for a total payment amount not to exceed $2,000,739, and awards a Construction Contract to Frontline General Engineering Construction, Inc., of Tracy, CA.
BE IT FURTHER RESOLVED that the City Manager, or his designee, is hereby authorized to execute the Contract, in a form approved by the City Attorney.
#14..
- 683 -
5/5/2026/Utilities/MAlvarez/Item X 4 2026-XX
The foregoing resolution was introduced at a regular meeting of the Council of the City of Modesto held on the 5th day of May 2026, by Councilmember _______________, who moved its adoption, which motion being duly seconded by Councilmember _______________, was upon roll call carried and the resolution adopted by the following vote:
AYES: Councilmembers:
NOES: Councilmembers:
ABSENT: Councilmembers:
ATTEST:
DIANE NAYARES-PEREZ, CMC
City Clerk
(SEAL)
APPROVED AS TO FORM:
BY: ____________________________________
JOSE M. SANCHEZ, City Attorney
#14..
- 684 -
5/5/2026/Utilities/MAlvarez/Item X 1 2026-XX
MODESTO CITY COUNCIL
RESOLUTION NO. 2026-XX
RESOLUTION APPROVING A CONSTRUCTION MANAGEMENT AND
INSPECTION SERVICES AGREEMENT WITH TRC ENGINEERS, INC., OF
RANCHO CORDOVA, CA FOR THE SEPTIC TO SEWER CONSTRUCTION PROJECT: COUNTY AREA 07 – SPENCER /MARSHALL NEIGHBORHOOD IN THE AMOUNT OF $302,455, PLUS $30,245 IN ADDITIONAL SERVICES, IF
NEEDED, FOR AN AGREEMENT TOTAL AMOUNT NOT TO EXCEED
$332,700 AND AUTHORIZING THE CITY MANAGER, OR HIS DESIGNEE, TO
EXECUTE THE AGREEMENT
WHEREAS, County Area 07 – Spencer/Marshall Neighborhood is an unincorporated, disadvantaged community comprised of approximately 114 parcels that rely solely on septic systems for the treatment of domestic wastewater; and
WHEREAS, the City owns and operates a sanitary sewer system adjacent to this area and is prepared to provide wastewater service to the Spencer/Marshall Neighborhood in collaboration with Stanislaus County in an effort to lessen or eliminate the need for septic systems in the areas adjacent the City and to mitigate health and environmental hazards that can be caused by untreated wastewater; and
WHEREAS, on September 3, 2019, by Resolution No. 2019-398, Council approved an Agreement with Stanislaus County for Engineering Review and Construction Inspection Services Relating to the West Modesto Area 07 Sewer Infrastructure Project; and
WHEREAS, on January 28, 2025, by Resolution No. 2025-46, Council approved an Amended and Restated Memorandum of Agreement with #14..
- 685 -
5/5/2026/Utilities/MAlvarez/Item X 2 2026-XX
Stanislaus County for the West Modesto Sewer Infrastructure Project:
Spencer/Marshall Neighborhood – County Area 07; and
WHEREAS, under the Amended and Restated Agreement, the County and City agreed to expand the County Project to include the City’s Septic to Sewer Program, contingent upon the County’s ability to secure appropriate funding for the Project and Program; and
WHEREAS, in accordance with Administrative Directive 3.1, Selection Procedures for Professional Consultants who Provide Engineering Services for Capital Projects, a Request for Qualifications and Proposals (RFQ/P) was advertised on October 1, 2025, through Opengov the City’s procurement platform; and
WHEREAS, in accordance with Modesto Municipal Code 8-3.204(a) “Exceptions to Formal Bidding Requirements”, Agreements for Professional Services are exempt from the bidding requirements of the Modesto Municipal Code 8-3.203 if competitive quotations or proposals have been sought informally from at least three (3) qualified entities; and
WHEREAS, staff proceeded with the RFQ/P process pursuant to Administrative Directive 3.1 and two proposals were received as part of this solicitation; and
WHEREAS, considering the size and complexity of the project, staff recommends utilizing a consultant to provide Construction Management and Inspection Services.
#14..
- 686 -
5/5/2026/Utilities/MAlvarez/Item X 3 2026-XX
NOW, THEREFORE BE IT RESOLVED, by the Council of the City of Modesto that it hereby approves a Construction Management and Inspection Services Agreement with TRC Engineers, Inc., of Rancho Cordova, CA in the amount of $302,455, plus $30,245 in Additional Services (if needed), for a total amount not to exceed $332,700 for the Septic to Sewer Construction Project:
County Area 07 – Spencer/Marshall Neighborhood.
BE IT FURTHER RESOLVED, that the City Manager, or his designee, is hereby authorized to execute the Agreement in a form approved by the City Attorney.
#14..
- 687 -
5/5/2026/Utilities/MAlvarez/Item X 4 2026-XX
The foregoing resolution was introduced at a regular meeting of the Council of the City of Modesto held on the 5th day of May 2026, by Councilmember _______________, who moved its adoption, which motion being duly seconded by Councilmember _______________, was upon roll call carried and the resolution adopted by the following vote:
AYES: Councilmembers:
NOES: Councilmembers:
ABSENT: Councilmembers:
ATTEST:
DIANE NAYARES-PEREZ, CMC,
City Clerk
(SEAL)
APPROVED AS TO FORM:
BY: ____________________________________
JOSE M. SANCHEZ, City Attorney
#14..
- 688 -
5/5/2026/Utilities/MAlvarez/Item X 1 2026-XX
MODESTO CITY COUNCIL
RESOLUTION NO. 2026-XX
RESOLUTION AMENDING THE FISCAL YEAR 2025-26 CAPITAL
IMPROVEMENT PROGRAM BUDGET IN THE AMOUNT OF $375,000 TO BE
TRANSFERRED INTO THE PROJECT FROM WASTEWATER FUND
RESERVES TO FUND THE SEPTIC TO SEWER CONSTRUCTION PROJECT:
COUNTY AREA 07 – SPENCER /MARSHALL NEIGHBORHOOD AND
AUTHORIZING THE CITY MANAGER, OR HIS DESIGNEE, TO IMPLEMENT
THE PROVISION OF THE RESOLUTION
WHEREAS, certain budgetary transactions are necessary in the amount of $375,000, in order to fund the construction phase of the Septic to Sewer Construction Project: County Area 07 – Spencer/Marshall Neighborhood; and WHEREAS, the Fiscal Year 2025-26 Capital Improvement Program Budget must be amended.
NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Modesto that it hereby approves the amendment of the Fiscal Year 2025-26 Capital Improvement Program Budget in the amount of $375,000.
BE IT FURTHER RESOLVED that the City Manager, or his designee, is hereby authorized to implement the provisions of this resolution. #14..
- 689 -
5/5/2026/Utilities/MAlvarez/Item X 2 2026-XX
The foregoing resolution was introduced at a regular meeting of the Council of the City of Modesto held on the 5th day of May 2026, by Councilmember _______________, who moved its adoption, which motion being duly seconded by Councilmember _______________, was upon roll call carried and the resolution adopted by the following vote:
AYES: Councilmembers:
NOES: Councilmembers:
ABSENT: Councilmembers:
ATTEST:
DIANE NAYARES-PEREZ, CMC
City Clerk
(SEAL)
APPROVED AS TO FORM:
BY: ____________________________________
JOSE M. SANCHEZ, City Attorney
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- 710 -
-1-
CONSTRUCTION MANAGEMENT AND INSPECTION SERVICES AGREEMENT SEPTIC TO SEWER PROJECT: COUNTY AREA 07 – SPENCER/MARSHALL THIS AGREEMENT, made and entered into in the City of Modesto, State of California, this day of , 2026, (“Effective Date”) by and between the CITY OF MODESTO, a municipal corporation of the State of California, hereinafter referred to as "CITY", and TRC ENGINEERS, INC., a California corporation, hereinafter referred to as "CONSULTANT".
This Agreement is made with regard to the following recitals:
A. The CITY has determined that consultant services are necessary for the Septic to Sewer Project: County Area 07 – Spencer/Marshall.
B. CONSULTANT represents that it is qualified, willing and able to provide the aforementioned services.
NOW, THEREFORE, in consideration of this agreement, and the mutual promises, covenants, and stipulations hereinafter contained, the parties agree as follows:
1. SCOPE OF SERVICES.
CONSULTANT shall undertake and complete the preparation of the scope of work as set forth and described in the documents attached hereto and referred to as Exhibit "A" or "project". The CONSULTANT shall perform the services as described in Exhibit "A" in a manner compatible with the standards of its profession, and shall produce a fully complete project that is acceptable to CITY.
2. TERM OF AGREEMENT.
This Agreement is effective as of the date first written above and will continue in effect until CITY’s acceptance of and payment for all services authorized by CITY #14..
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and performed by CONSULTANT, unless terminated earlier in accordance with the provisions of the termination clause in this Agreement.
CONSULTANT shall undertake and complete the preparation of the scope of work as set forth and described in the documents commonly referred to as “project” attached hereto as Exhibit "A" and made a part hereof. CITY hereby gives CONSULTANT notice to proceed with the preparation of the project in the manner described in Exhibit "A", as of the Effective Date of this agreement. CONSULTANT shall diligently proceed with the preparation of the project and agrees to complete said preparation within the time period set forth in Exhibit "A".
3. COMPENSATION.
CONSULTANT agrees to accept a sum not to exceed THREE
HUNDRED TWO THOUSAND FOUR HUNDRED FIFTY-FIVE AND 00/100 DOLLARS ($302,455) (maximum compensation) as full remuneration for performing all services and furnishing all staffing and materials for CITY in accordance with Exhibit "A" attached hereto and for performance by CONSULTANT of all of its duties and obligations under this Agreement, except that additional services may be compensated as described below.
The Compensation shall be paid pursuant in the manner and at the times set forth below:
CITY shall pay CONSULTANT on a time and materials basis for CONSULTANT’s actual costs for all work called for in Exhibit “A” to this Agreement. All work to be performed under this Agreement shall be billed at the hourly rates set forth in Exhibit “B” attached hereto, CONSULTANT shall submit monthly invoices to City which include detailed tasks, hours worked, and billable rates for all work completed, and detailed receipts for #14..
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any out-of-pocket costs paid by CONSULTANT in connection with work performed on this project. Expenses for travel reimbursement shall comply with the City's Administrative Directive 1.2 (AD 1.2), as amended periodically. The City's AD 1.2 is available at the link below:
https://www.modestogov.com/DocumentCenter/View/24156/Citys-Administrative-Directive-12.
Additional services may be authorized by the City Manager in an amount up to, but not to exceed 10% of the agreed maximum compensation, or THIRTY THOUSAND TWO HUNDRED FORTY FIVE AND 00/100 DOLLARS ($30,245). In the event that additional services are deemed necessary, the CONSULTANT shall provide a written request to the City Manager indicating the reason for additional work, scope and cost of such work. The City Manager shall provide a written response to the request, either approving or denying the additional expenditure. If additional services are requested and approved, they will be billed at the hourly rates set forth in Exhibit “B” and may not exceed the amount requested and approved in writing by the City Manager. In that event, the new total compensation shall not exceed THREE HUNDRED THIRTY TWO THOUSAND SEVEN HUNDRED AND 00/100 DOLLARS ($332,700). If additional services in excess of this amount are deemed necessary by City Staff, an amendment to this Agreement will be required and must be approved by the City Council prior to commencing the work, as provided in Paragraph 9 of this agreement.
4. OBLIGATIONS OF CONSULTANT.
Throughout the term of this Agreement, CONSULTANT shall possess, or secure all licenses, permits, qualifications and approvals legally required to conduct business.
CONSULTANT represents that it has all of the necessary professional capabilities and experience, as well as all tools, instrumentalities, facilities and other resources necessary to provide the CITY with the services contemplated by this Agreement. CONSULTANT further #14..
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represents that it will follow the current, generally accepted and professional practices to make findings, render opinions, prepare factual presentations, and provide professional advice and recommendations regarding this project.
5. PERFORMANCE BY KEY EMPLOYEE.
CONSULTANT has represented to CITY that Justin Wehling, will be the person primarily responsible for the performance of the services referred to in this Agreement.
CITY has entered into this Agreement in reliance on that representation by CONSULTANT.
CONSULTANT therefore agrees that ten percent (10%) or more of the time to be devoted to the project that is the subject of this Agreement will be that of the above-named person.
6. OWNERSHIP OF DOCUMENTS/TITLE TO DATA.
Ownership of Documents
All reports, drawings, designs, graphics, working papers and other incidental work or materials furnished hereunder shall become and remain the property of the CITY, and may be used by CITY as it may require without any additional cost to CITY.
However, in the event City reuses or modifies any materials furnished to City by Consultant, without Contractor’s involvement or consent, then Consultant shall not be responsible for the materials. No reports shall be used by the CONSULTANT for purposes other than this contract without the express prior written consent of CITY. Notwithstanding anything to the contrary in this Agreement, data and materials are not intended nor shall they be construed to include Consultant’s pre-existing intellectual property secured, developed, written, or produced by Consultant prior to the execution of this Agreement or developed concurrently with this Agreement but not specifically for this Agreement; Consultant shall retain all right, title and interest in any such pre-existing intellectual property. #14..
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Title to Data
If, as a part of the agreement, CONSULTANT is required to produce data such as, but not limited to, drawings, plans, specifications, calculations, models, flow diagrams, visual aids and other related materials, the originals of all such data generated under this agreement will be delivered to CITY upon the completion or termination of services under the Agreement.
All materials, documents, data or information obtained from the CITY data files or any CITY medium furnished to CONSULTANT in the performance of this Agreement will at all times remain the property of the CITY. Such data or information may not be used or copied for direct or indirect use by CONSULTANT after termination of this Agreement without written consent of the CITY.
7. NEWS AND INFORMATION RELEASE.
CONSULTANT agrees that it will not issue any news releases in connection with either the award of this Agreement, or any subsequent amendment of or efforts under this Agreement, without first obtaining review and approval of said news releases from CITY through the City Manager.
8. CONFLICT OF INTEREST.
CONSULTANT warrants that it presently has no interest and shall not acquire any interest, direct or indirect, which would create a “conflict of interest”, as that term is defined in the Political Reform Act (Gov. Code § 81000 et seq), for the CONSULTANT in the performance of this AGREEMENT. CONSULTANT warrants that, in performance of this AGREEMENT, CONSULTANT shall not employ any person having any such interest.
CONSULTANT understands that, if this AGREEMENT is made in violation of Government Code § 1090 et seq., the entire AGREEMENT is void and CONSULTANT will not be entitled to #14..
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any compensation for services performed. CONSULTANT agrees to file a Statement of Economic Interests with the City Clerk at the start and end of this AGREEMENT if so, required at the option of CITY.
9. AMENDMENTS.
Both parties to this Agreement understand that it may become desirable or necessary during the execution of this Agreement, for CITY or CONSULTANT to modify the scope of services provided for under this Agreement. Any material extension or change in the scope of work shall be discussed with CITY and the change and cost shall be memorialized in a written amendment to the original contract prior to the performance of the additional work.
Until a change order is so executed, CITY will not be responsible to pay any charges CONSULTANT may incur in performing such additional services, and CONSULTANT shall not be required to perform any such additional services.
10. INDEPENDENT CONTRACTOR.
All acts of CONSULTANT, its agents, officers, and employees and all others acting on behalf of CONSULTANT relating to the performance of this Agreement, shall be performed as independent contractors and not as agents, officers, or employees of CITY.
CONSULTANT, by virtue of this Agreement, has no authority to bind or incur any obligation on behalf of City. CONSULTANT has no authority or responsibility to exercise any rights or power vested in the CITY. No agent, officer, or employee of the CITY is to be considered an employee of CONSULTANT. It is understood by both CONSULTANT and CITY that this Agreement shall not under any circumstances be construed or considered to create an employeremployee relationship or a joint venture. #14..
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CONSULTANT, its agents, officers and employees are and, at all times during the terms of this Agreement, shall represent and conduct themselves as independent contractors and not as employees of CITY.
CONSULTANT shall determine the method, details and means of performing the work and services to be provided by CONSULTANT under this Agreement.
CONSULTANT shall be responsible to CITY only for the requirements and results specified in this Agreement, and, except as expressly provided in this Agreement, shall not be subjected to CITY's control with respect to the physical action or activities of the CONSULTANT in fulfillment of this Agreement. CONSULTANT has control over the manner and means of performing the services under this Agreement. CONSULTANT is permitted to provide services to others during the same period service is provided to City under this Agreement. If necessary, CONSULTANT has the responsibility for employing other persons or firms to assist CONSULTANT in fulfilling the terms and obligations under this Agreement.
If in the performance of this Agreement any third persons are employed by CONSULTANT, such persons shall be entirely and exclusively under the direction, supervision, and control of Consultant. All terms of employment including hours, wages, working conditions, discipline, hiring, and discharging or any other term of employment or requirement of law shall be determined by the CONSULTANT.
It is understood and agreed that as an independent contractor and not an employee of CITY neither the CONSULTANT or CONSULTANT 's assigned personnel shall have any entitlement as a CITY employee, right to act on behalf of the CITY in any capacity whatsoever as an agent, or to bind the CITY to any obligation whatsoever. #14..
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It is further understood and agreed that CONSULTANT must issue W-2 forms or other forms as required by law for income and employment tax purposes for all of CONSULTANT's personnel.
As an independent contractor, CONSULTANT hereby indemnifies and holds CITY harmless from any and all claims that may be made against CITY based upon any contention by any third party that an employer-employee relationship exists by reason of this Agreement.
11. ASSIGNMENT.
Neither this Agreement nor any portion thereof shall be subcontracted or assigned without the express prior written consent of the CITY in each and every instance and such approval shall not be unreasonably withheld.
12. PATENT/COPYRIGHT MATERIALS.
Unless otherwise expressly provided in the Agreement, CONSULTANT shall be solely responsible for obtaining the right to use any patented or copyrighted materials in the performance of this Agreement. CONSULTANT shall furnish a warranty of such right to use to CITY at the request of CITY.
13. NOTICES.
Notice required by this Agreement shall be given in writing and shall be deemed given and effective upon receipt provided that such are delivered in accordance with the provisions of this Section. Notices shall be delivered either by: (a) personal delivery (including delivery by an overnight courier service which obtains confirmation of receipt); or (b) by facsimile, provided that such transmission is followed by delivery by an overnight courier service which obtains confirmation of receipt; or (c) postage prepaid, return receipt requested, certified mail; or (d) by electronic transmission subject to reasonable proof that the notice was #14..
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both transmitted and received. Each such notice shall be sent to the parties at the address respectively set forth below or to such other address as a party may designate by written notice given in accordance with the provisions of this Section:
FOR CONSULTANT: Name: TRC Engineers, Inc.
Address: 10680 White Rock Road
Suite 100
Rancho Cordova, CA 95670
Attention: Dustin Rath
Phone: (707) 291-2681
E-mail: [email protected]
FOR CITY: Name: City of Modesto
Address: 1010 10th Street
Suite 4600
Modesto, CA 95354
Attention: Jim Alves
Phone: (209) 571-5557
E-mail: [email protected]
14. INSURANCE REQUIREMENTS.
During the term of this Agreement, CONSULTANT shall maintain in full force and effect at its own cost and expense the insurance coverage as set forth in Exhibit C, attached hereto and incorporated herein, and shall otherwise comply with the other provisions of Exhibit C. CONSULTANT is responsible for uploading updated insurance documentation to the City’s “PINS Advantage” program.
15. TERMINATION OF AGREEMENT.
Termination by CITY for Default of CONSULTANT
Should CONSULTANT default in the performance of this Agreement or materially breach any of its provisions, at its option, CITY may terminate this Agreement by giving written notification to CONSULTANT provided that Consultant has not commenced to cure the breach or non-conforming Services within a reasonable amount of time, not to exceed seven (7) business days, of Consultant’s notice of such breach or non-conformance. The #14..
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termination date shall be the effective date of the notice. For the purposes of this section, material breach of this Agreement shall include, but not be limited to, any of the following:
failure to perform required services or duties, willful destruction of CITY's property by CONSULTANT, dishonesty or theft.
Termination by City for Convenience
The CITY may also terminate the CONSULTANT 's performance under the Agreement, either in whole or in part, at its own discretion, or when conditions encountered during the Work make it impossible or impracticable to proceed, or when the CITY is prevented from proceeding with the Agreement by act of God, by law, or by official action of a public authority, or upon a determination by the CITY that such termination is in the best interest and convenience of the CITY, or whenever the CITY is prohibited from completing the Work for any reason. The CITY shall provide no less than ten (10) calendar days written notice of its intent to terminate the Agreement for convenience, and shall endeavor to provide the CONSULTANT with consultation with the CITY prior to termination.
Post-Termination Procedure
Upon receipt of a written notice of termination pursuant to either of the foregoing paragraphs, the CONSULTANT shall:
a. Cease its work as directed in the notice of termination as of the termination date and see to it that its employees, subconsultants and agents are notified of such termination and act as specified in the notice of termination;
b. Terminate all orders and Subconsultants except as necessary to complete any portion of the Work that is not terminated; c. If directed in writing by the CITY to do so, assign all right, #14..
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title and interest in subcontracts and materials in progress to CITY and upon full compensation therefor, in which case the CITY will have the right at its discretion to settle, or pay any or all claims arising out of the termination of such subconsultants, but in no event shall recovery by any CONSULTANT or
subconsultant include lost profits for portions of the Work not completed or undertaken, including materials not delivered; d. Deliver or otherwise make available to the CITY all data, drawings, specifications, reports, estimates, summaries and such other information and material as may have been accumulated by the CONSULTANT in performing the Work whether completed or in process and that Consultant has been fully compensated for; e. Settle outstanding liabilities and claims, subject to the approval of CITY;
f. Complete performance of such part of the Work as has not been terminated;
g. Take such other actions as may be necessary, or as may be directed by the CITY for the protection and preservation of the Work and/or property related to the Work;
h. If CITY so requests, and at CITY's cost, CONSULTANT shall provide sufficient oral or written status reports to make CITY reasonably aware of the status of CONSULTANT 's work on the project.
i. The CONSULTANT understands and agrees that CITY may, in #14..
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CITY's sole discretion, refuse to pay CONSULTANT for that portion of CONSULTANT's services which were performed by CONSULTANT on the project prior to the termination date and which remain unacceptable and/or not useful to CITY as of the termination date.
CITY will pay CONSULTANT an amount based on the percentage of satisfactory work completed in accordance with the notice of termination. The final payment to the CONSULTANT after termination for convenience shall be limited to amounts due and owing under the Agreement at time of termination, including the following:
a. The cost of settling and paying valid claims arising out of the termination of the Work such as subconsultant agreements or contracts for materials;
b. The Agreement price allocable to the portion of the Work properly performed or goods supplied to the work site by the CONSULTANT as of the date of termination, as determined in accordance with the notice of termination, reduced by any sums previously paid to the CONSULTANT.
Authorization to Terminate Agreement
Termination of the Agreement may be invoked by the City Manager, or his/her designee, subject to the right of the CONSULTANT to appeal the City Manager, or his/her designee’s, decision to the City Council. The CONSULTANT shall appeal by notifying the City Clerk in writing within ten (10) calendar days of receipt of written notification from City of termination of the Agreement. In the event that termination of this Agreement is upheld by the City Council, any cessation of payment of delay claims, extended claims, Eichleay claims, or #14..
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any other claims for delay shall be retroactive to the date of termination selected by the City Manager, or his/her designee.
16. CERTIFIED PAYROLL REQUIREMENT.
If CONSULTANT is performing “public works” as defined in Labor Code section 1720(a), CONSULTANT shall pay all workers, and shall ensure its subcontractors pay all of their workers, engaged in performing the services described in Exhibit “A” 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 “A” are to be performed, and not less than the general prevailing rate of per diem wages for holiday and overtime work as provided in the California Labor Code.
In accordance with California Labor Code Section 1773.2, the City has obtained the general prevailing wages in the locality in which the services described in Exhibit A are to be performed for each craft or type of work needed to be as published by the State of California Department of Industrial Relations, Division of Labor Statistics and Research, a copy of which is on file in the CITY’s Purchasing Department and shall be made available on request. CONSULTANT must comply with all applicable laws and regulations that apply to wages earned in performance of the services described in Exhibit “A”, including those set forth in Labor Code section 1770 et. seq.
17. INDEMNITY.
If CONSULTANT is Design Professional performing design professional services, as defined in California Civil Code section2782.8, CONSULTANT agrees to indemnify, defend, and hold harmless the CITY, its officers, officials, and employees from and against any and all claims, demands, costs, or liability to the extent caused by the negligence, recklessness, or willful misconduct of CONSULTANT and its employees, officials, officers, agents or agents in the performance of services under this Agreement, but this indemnity does not apply to liability for damages arising from the sole negligence, or willful misconduct of the #14..
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CITY. The CITY agrees that in no event shall the cost to defend charged to the CONSULTANT exceed that CONSULTANT’s proportionate percentage of fault. However, notwithstanding the previous sentence, in the event one or more defendants is unable to pay its share of defense costs due to bankruptcy or dissolution of the business, the CONSULTANT shall meet and confer with other parties regarding unpaid defense costs. This duty to indemnify shall not be waived or modified by contractual Agreement or acts of the parties.
If CONSULTANT is not a Design Professional performing Design Professional Services, the CONSULTANT shall hold the CITY, its officers and employees harmless from and save, defend and indemnify them against any and all claims, losses, liabilities, judgments or damages from every cause, including but not limited to injury to person or property or wrongful death, including reasonable costs and expenses of defense of any judicial or administrative action, to the extent caused by any negligent or intentional act or omission of CONSULTANT, or its agents, officers, officials, employees, or volunteers relating to or during the performance of its obligations under this Agreement, except for claims arising from the negligence of the CITY.
To the fullest extent permitted under applicable law, Neither Party shall be liable to the Other Party for special, indirect, consequential, punitive, or exemplary damages.
CONSULTANT's obligation to defend, indemnify, and hold the CITY, its agents, officers, and employees harmless under the provisions of this paragraph is not limited to or restricted by any requirement in this Agreement for CONSULTANT to procure and maintain a policy of insurance.
In the event that CONSULTANT or any employee, agent, or subcontractor of CONSULTANT providing services under this Agreement is determined by a court of competent jurisdiction or the California Public Employees Retirement System (PERS) to be eligible for enrollment in PERS as an employee of CITY, CONSULTANT shall indemnify, defend, and hold #14..
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harmless CITY for the payment of any employee and/or employer contributions for PERS benefits on behalf of CONSULTANT or its employees, agents, or subcontractors, as well as for the payment of any penalties and interest on such contributions, which would otherwise be the responsibility of CITY.
18. DISPUTE RESOLUTION.
Venue for all claims, controversies, or disputes arising out of, or relating to the formation of this Agreement, or the breach, termination execution, enforcement, interpretation, or validity of this Agreement, including the determination of the scope or applicability of this contract provision shall be in the Superior Court of Stanislaus County or the United States District Court for the Eastern District of California.
19. ATTORNEY’S 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.
20. ENTIRE AGREEMENT.
This Agreement and its exhibits contain the entire understanding between CONSULTANT and CITY. Additional or new terms contained in this Agreement which vary from CONSULTANT's proposal are controlling and are deemed accepted by CONSULTANT by shipment of any article or other commencement of performance hereunder. All previous proposals, offers and communications relative to this Agreement, whether oral or written, are hereby superseded except to the extent that they have been incorporated into this Agreement. No #14..
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future waiver of or exception to any of the terms, conditions, and provisions of this Agreement shall be considered valid unless specifically agreed to in writing by all the parties.
21. PARTIAL INVALIDITY.
If any provision in this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions shall nevertheless continue in full force without being impaired or invalidated in any way.
22. WAIVER.
The waiver by any party to this Agreement of a breach of any provision hereof shall be in writing and shall not operate or be construed as a waiver of any other or subsequent breach hereof unless specifically stated in writing.
23. AUDIT.
The CITY's duly authorized representative shall have access at all reasonable times to all reports, contract records, contract documents, contract files, and personnel necessary to audit and verify CONSULTANT's charges to City under this Agreement.
Notwithstanding the foregoing, City’s right to audit shall not extend to Consultant’s overhead, markups, profit/loss information, fixed rates, unit prices, prices expressed as percentages or any trade secrets.
CONSULTANT agrees to retain reports, records, documents, and files related to charges under this Agreement for a period of four (4) years following the date of final payment for CONSULTANT services. CITY's representative shall have the right to reproduce any of the aforesaid documents.
24. GOVERNING LAW.
This Agreement shall be governed according to the laws of the State of California.
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25. HEADINGS NOT CONTROLLING.
Headings used in the Agreement are for reference purposes only and shall not be considered in construing this Agreement.
26. COMPLIANCE WITH LAWS.
CONSULTANT shall insure compliance with all safety and hourly requirements for employees, in accordance with federal, state, and county safety and health regulations and laws. CONSULTANT shall fully comply with all applicable federal, state, and local laws, ordinances, regulations and permits.
27. CITY BUSINESS LICENSE.
Consultant will have a City of Modesto business license.
IN WITNESS WHEREOF, the City of Modesto, a municipal corporation, has authorized the execution of this Agreement in duplicate by its City Manager and attestation by its City Clerk under authority of Resolution No. 2026- , adopted by the Council of the City of Modesto on the day of , 2026, and TRC Engineers, Inc. has caused this agreement to be duly executed in duplicate as of the Effective Date. (Signatures on next page)
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PROPOSAL
Construction
Management
and Inspection
Services
RFP/RFQ No. 2025-10
October 28, 2025
Area 7
Septic-to-Sewer
Conversion
Project
REVISED 2/24/2026
EXHIBIT A
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PART 2
Proposal for
Construction
Management &
Inspection
Services
Area 7
Septic-to-Sewer
Conversion
Project
EXHIBIT A
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PART 2 - PROPOSAL FOR
CONSTRUCTION MANAGEMENT &
INSPECTION SERVICES
Contents
A. Introduction Page 1
B. Project Staffing & Availability Page 2
C. Detailed Approach & Construction Management Plan Page 4 D. Estimate of Total Hours Page 11
E. Proposed Innovations Page 12
APPENDIX
Sample Documents
Comments to City of Modesto Standard Agreement
EXHIBIT A
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Response to RFP/RFQ No. 2025-10 | PART 2 (PROPOSAL)
Construction Management and Inspection Services – Area 7 Septic to Sewer Conversion Project A. INTRODUCTION
The TRC Team is qualified and available to provide Construction Management and Quantity Tracking Services for the Area 7 Septic to Sewer Conversion project. With a portfolio of work for the City of Modesto that spans 15 infrastructure improvement projects during the last eight (8) years, a solid understanding of construction inspection methods including detailed quantity tracking for pay estimates, and a proven approach to construction management that delivers work on time and within budget, TRC will demonstrate to the City through this proposal how the team is the best choice for this contract.
The terms of this SOQ/Proposal will remain effective for 150 calendar days following the submission due date of October 28, 2025. Our submission in its entirety has been submitted via the OpenGov Procurement portal.
EXPERIENCE WITH THE CITY OF MODESTO
Having worked with the City on 15 projects over the last 8 years, we have established relationships with key City staff and are well-versed in your processes and preferred project delivery methods. We understand how to communicate with your people and will continue to work seamlessly as an extension of your staff. We are currently providing construction management services on the following three projects: Cesar E. Chavez Park Renovation, Dr. Martin Luther King Park Renovation and the Scenic Drive, Dry Creek Trail, Kansas Avenue, & Neighborhood Traffic Calming Program Cycle I Project. Our proposed key staff will provide the City with a consistent, experienced team that will easily transition into this project. We will continue to deliver the highquality work the City has come to expect.
A PROVEN PROJECT MANAGER
Justin Wehling will serve as Construction Manager directly responsible for and engaged in leading the project. He has worked in this capacity for the City for seven years, delivering the successful construction of important capital improvements, including water main replacements, park renovations, neighborhood street improvements with ADA-compliant design elements, and pavement rehabilitation. He has expert knowledge in virtually everything you do — sewer, lift stations, structures, parks, water, roadways and has managed infrastructure improvements for master planned communities. Detailed and pragmatic in his decision making, Justin has proven that, under his leadership, the TRC team will represent the City in precisely the way needed, keeping an eye out for high quality construction and thorough tracking of quantities for detailed pay estimates and a high-quality finished product.
FLEXIBILITY AND INNOVATION
TRC has proven to be flexible and innovative in meeting the City’s needs. For example, we worked with the City to find the best option for time-lapse photos and are currently providing that service at both Cesar E. Chavez Park and Dr. Martin Luther King Park. This tool aligns with the City’s commitment to transparency with the public and the new initiative to post project progress photos on the City website.
HIGH QUALITY WORK
For more than 7 years TRC has provided quality construction projects for the City of Modesto. We understand your wants, needs, and expectations, and how to effectively communicate with the various City departments and community stakeholders.
TRC WILL POSITION THE CITY FOR SUCCESS
EXHIBIT A
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Response to RFP/RFQ No. 2025-10 | PART 2 (PROPOSAL)
Construction Management and Inspection Services – Area 7 Septic to Sewer Conversion Project B. PROJECT STAFFING & AVAILABILITY
Our reputation for superior responsiveness is built on a legacy of excellence, quality, and client satisfaction. Our management processes allow us to plan and project personnel commitments to appropriately staff each assignment.
We communicate with our clients and make adjustments regarding staff when and where necessary. Each week, our management team discusses staffing and project start/end dates and updates our staffing availability report. This process is supplemented by regular communication via timely updates.
Over the past eight (8) years, TRC has managed the construction of more than 15 projects with the City of Modesto and has successfully delivered these projects on time and within budget. We are currently working with the City on three projects. As is standard on our performance on City construction management contracts, we integrate our staff with the City’s staff and stakeholders to work as a cohesive team from the onset and bring the project from design through completion, delivering a quality project for both the City and the community it serves. This includes the Utilities Engineering department.
To staff this project, we have identified key personnel with the required quantity tracking/payment and project experience to lead this contract. More importantly, this proposed team is currently supporting the City of Modesto on both the Dr. Martin Luther King Jr. (MLK) Park Renovation and the Cesar E. Chavez Park Renovation projects, physically placing us within one mile of the Area 7 septic-to-sewer project.
The Area 7 project will be inspected by two entities: City of Modesto for tie-in work performed on City sewer main; and the County of Stanislaus for construction inspection on work within private residences. TRC’s scope of services will include meeting with the project foreman daily to thoroughly cover work planned for the day followed by review of the work performed to confirm its compliance with project documents. We will perform the measuring and tracking of quantities broken down for each bid item at each home. TRC will have a fulltime presence on-site to conduct project oversight and documentation of work, including daily field reports on e-Builder. The key individuals that make up the CM team will be assigned for the entire duration of the Area 7 septic-to-sewer project. TRC will not substitute team members without the City’s approval and is performing the required work in-house with no subconsultants.
Key Area 7 TRC Team Members
Name Specific Roles and Responsibilities Availability Level of Effort Throughout
Project
Justin Wehling Construction Manager responsible for overall delivery of this project including resource and quality management for services provided
15% 25%
Ben Orejel, PE Office Engineer responsible for tracking Daily Quantities provided by the field inspector, and preparing monthly
pay estimates including detailed breakdown of each
quantity
25% 25%
Francisco Torres Construction Inspector responsible forthe daily field quantity measurements for each lot 100% 100%
EXHIBIT A
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Response to RFP/RFQ No. 2025-10 | PART 2 (PROPOSAL)
Construction Management and Inspection Services – Area 7 Septic to Sewer Conversion Project
STAFFING HOURS BY QUARTER
We estimate TRC’s construction management services to require approximately nine (9) months of field and administrative time, beginning Q2 (May) of 2026 and running through Q1 (February) of 2027.
Shown in the table below is our anticipated project staffing plan for our key construction management team members broken down by quarter for years 2026 and 2027 as requested in the RFQ/RFP. These hours are based on a construction schedule of 180 working days per Addendum No. 2 and anticipated start date in May 2026.
Details regarding the total hours for each task and subtask are listed in Section D, Estimate of Total Hours.
Project Staffing Hours by Quarter (2026 – 2027)
TRC Team Member 2026 - Q2
April-June
2026 - Q3
July - September
2026 – Q4
October - December
2027 – Q1
January - February
Justin Wehling
Construction Manager 12 12 12 16
Ben Orejel, PE
Office Engineer 54 54 54 54
Francisco Torres
Construction Inspector 270 270 270 270
Septic-To-Sewer Project – Hood and Franklin Communities, Sacramento County
EXHIBIT A
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Response to RFP/RFQ No. 2025-10 | PART 2 (PROPOSAL)
Construction Management and Inspection Services – Area 7 Septic to Sewer Conversion Project C. DETAILED APPROACH & CONSTRUCTION MANAGEMENT PLAN
PROJECT UNDERSTANDING
This project is proposed (in part) to address
health and safety concerns associated with
failing septic systems which could lead to the
degradation of groundwater quality. TRC
recognizes the value that this project will have
on the neighborhood once completed. The
overall project includes the installation of a
new sewer system with approximately 80,000
LF of sewer main and street reconstruction
(separate construction project, first phase).
The overall completed project will allow
property owners to decommission or abandon
their deteriorated existing septic systems and
be tied into the City of Modesto Sewer.
The RFP/RFQ provides for the following scope
of services for this conversion project:
• Pre Construction Lot Video and Post Construction Lot Videos • Construction Inspection for Quantity Tracking/Payment • Creation of Monthly Pay Estimates and supporting Documents
PROJECT APPROACH
The RFQ/RFP requests consultants to suggest changes to the scope of services that would add value to the Project. TRC has reviewed the contract documents and fully understands the goals, expectations, and anticipated challenges surrounding the Area 7 septic-to-sewer conversion project. TRC can provide ALL of the services listed in the Scope of Services; our value-add suggestion is to focus consultant services on construction inspection for quantity tracking/payment with meticulous documentation and document control using e-Builder, project oversight, and coordination. Our proposed core team has provided these same services (and then some) on many public utilities projects including sewer (gravity and force mains), water distribution and service systems, dry utilities, and a wide range of city infrastructure improvements.
Provided below are the key elements that comprise our construction management approach. TRC will adapt our proposed plan if requested by the City.
Quantity Tracking
Francisco (TRC) is our proposed Construction Inspector who will manage the quantity tracking for this project. He will meet with the contractor to field-measure quantities daily for each lot (per Addendum No. 1, approximately 64 lots). All measurements will be documented in a Daily Inspection Report (DIR) on e-Builder to track the quantity for each bid item at each lot. These DIRs will be reviewed by our Office Engineer, Ben Orejel, PE, who is well known to the City. Quantities will be added to a spreadsheet where each lot will be tracked specifically against the Engineer’s estimated quantities as shown on the plans. This will provide up-to-date documentation of quantities status for both under- and over-runs
EXHIBIT A
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Response to RFP/RFQ No. 2025-10 | PART 2 (PROPOSAL)
Construction Management and Inspection Services – Area 7 Septic to Sewer Conversion Project broken down specifically to each lot for the purpose of keeping the project on budget. This information will be provided weekly to the Utilities Engineering Department to keep them apprised to project progress. Ben will use these quantities to create pay sheets for each bid item documenting what is being paid each month.
Pay estimates will be created and submitted to the City for monthly payments.
Safe Work
TRC has demonstrated its commitment to safe work practices on past and present projects for and within the City of Modesto. We will do the same for Area 7 and are confident that our management and safety culture will create a working environment that identifies and eliminates unsafe conditions and allows each employee to return home safely every day while also meeting the construction schedule.
Although the contractor will ultimately be responsible for job site safety, TRC believes it is everyone’s responsibility to monitor the project for adherence to the safety requirements. This commitment to health and safety is a large part of our culture. TRC’s Safety Division periodically assigns a safety manager to conduct safety inspections on our projects in Modesto - at no cost to the City. Our philosophy is simple:
safety is integral to performing the work correctly and is not a separate activity that conflicts with production. We implement this philosophy by discussing potential issues at the contractor’s daily pre-task planning meetings between the contractor and inspection staff. This provides an opportunity for stakeholders to participate in proper planning and creating buy-in amongst the entire the team. It also fosters “what-if” discussions that lead to contingency plans and anticipated communication moments in the day. These meetings result in all personnel being cognizant of the day’s hazards, goals, required/recommended PPE, safety, or operational protocol to minimize hazards. They also serve as triggers for communication or plan revision. Although TRC does not generally stop work without explicit direction from the City, our team will shut down any unsafe operation without hesitation.
Traffic Control
A significant amount of the work will be located within private property, leaving many items for the field team to look out for each day, for example, property owners and their pets. These simple – yet important - observations will allow day-to-day operations to continue in a safe and successful manner, keeping the project moving forward and the residents informed. The TRC team will share the planned daily work with each affected resident to make sure they understand the work taking place, are aware of any potential risks at hand, and understand any instructions to stay clear of the work zone. The contractor will be responsible for taking extra caution during entering and exiting each lot.
TRC has extensive experience working in and around private properties. Our in-depth process includes preconstruction videos and documentation of lots/properties prior to entry. Post-construction videos and documentation are also made to see that properties are restored to their original condition or greater. We also have extensive knowledge of traffic control measures, practices, and the California MUTCD. This knowledge facilitates coordination with the contractor, waste management services, public transportation, and the City to maintain safe and unencumbered travel through the adjacent streets impacted by construction. Once traffic control has been set up per approved plans, we will walk/drive the alignment and detours to confirm that signage is clear and easy to follow. If modifications are required, we will promptly work with the contractorto improve any traffic control measures requiring improvement.Throughout each shift, we will confirm that traffic control measures are safe and in place.
For the Area 7 project, TRC anticipates construction work and traffic control to have a minor impact to residential trash collection, public transportation services, and emergency services. Our team will work with the contractor to sequence work in a mannerthat minimizes traffic impacts throughout construction to make the project as invisible and safe as possible to the local community.
EXHIBIT A
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Response to RFP/RFQ No. 2025-10 | PART 2 (PROPOSAL)
Construction Management and Inspection Services – Area 7 Septic to Sewer Conversion Project Impact to the Public
Being a good neighbor means minimizing the impacts and surprises to neighbors during construction and operations. This is accomplished through outreach and coordination, with which we can help support the City. Rest assured that all TRC onsite representatives at Area 7 are trained and experienced in providing standard outreach and coordination activities.
Documentation and Document Control
TRC will continue to use the City’s preferred Project Management Information System (PMIS), known as e-Builder, for administration of this contract. For the past eight years, we have used eBuilder for this purpose, with great success. The program serves as an automation/workflow tool for requests for information (RFI), submittals, change orders, document control, daily field reports, schedule management, and other items associated with construction management.
TRC’s approach to construction management typically encompasses the tasks as shown in the following table. We will modify our Scope of Services to best meet the City’s needs, expectations, and budget requirements for the Area 7 septic to sewer conversion project.
BEST PRACTICES TO MANAGE COST & SCHEDULE
Establish a master schedule based on independent baseline schedules developed by the contractor and implement a continuous process to help mitigate risk and find ways for schedule improvements
Identify key risks that could impact project costs and schedule and develop plans to mitigate potential overruns. This tool enhances cost predictability and allows us to find opportunities to improve schedules.
Create a risk register and rank various risk and opportunities that may impact the schedule.
Deliver accurate estimating throughout design, final cost negotiations, and construction.
Develop the final price, clarifying risk and quantifying what is and is not included in the price.
Engage stakeholders early and throughout construction to facilitate consensusbuilding and manage risks in a cost-effective manner. Collaborative activities include routine weekly status updates, standing progress meetings, periodic over-the-shoulder reviews, updates on changing field conditions, etc.
We will work with the City to finalize estimating tools, process controls, and procedures to manage costs and maintain schedules. We will identify key risks and begin mitigation efforts to deliver a successful project that meets the needs of the local community. Having used the best practices below to support the on-time, on-budget delivery of our previous City projects, we understand how to monitor, maintain, mitigate, and improve construction schedules and budgets.
Master Schedule
Risk Management Plan
Risk Register
Estimating
Negotiations
Collaboration
EXHIBIT A
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Response to RFP/RFQ No. 2025-10 | PART 2 (PROPOSAL)
Construction Management and Inspection Services – Area 7 Septic to Sewer Conversion Project Task Function & Approach Benefits Milestones & Deliverables Timeline
CONSTRUCTION
Quality Assurance/
Inspection
• Review plans/specs with contractor in advance of
initiation of work
• Identify possible safety, constructability, and permit compliance issues and initiate issue resolution tree
• Observe and monitor aspects of construction
• Notify contractor immediately of any noncompliance
• Prepare detailed daily inspection reports and provide photographic or video documentation of construction
process
• Encourage quality in the constructed product
• Makes sure completed project meets
expectations
• Reduces schedule delays when resolving
constructability, safety, or permit
compliance issues
• Enhances partnering between inspector
and field crews
• Daily inspection reports (submitted in eBuilder)
• Photography and video documentation
• Project files
Throughout construction on a daily basis
Issues Management/
Resolution
• Forward analysis of schedule and construction activities • Analyze project issues
• Provide recommendations to the City
• Provides proactive solutions to actual
field conditions
• Minimizes delays and cost
• Design clarifications
• Review comments to facilitate approval ofthe project specific traffic control plan (which reflects areas of construction activities within the schedule) in compliance with CA MUTCD • Review comments to facilitate approval of SWPPP/BMP Plan in compliance with the Construction General Permit (CGP) • Contract change orders
Throughout construction
Schedule • Monitor contractor Bi Weekly schedule provided during Bi weekly Meetings
•
• Reduces traffic impacts
• Improves project coordination
• Reduces costs
• Lessens delays, time-related disputes
• Biweekly progress meetings with agenda/meeting
minutes
• Weekly Statement of Working Days (WSWDs)
Throughout construction on a weekly basis
Cost Control • Monitor project funding and budgets
• Create contract item payments, material quantities, and change order payments
• Leads to effective use of funds
• Provides early warning of potential funding
problems
• Budget reports
• Cash flow analysis
• Cost estimate reviews
Throughout construction on a weekly basis
Change Orders • Review potential change orders for contractual and technical merit
• Prepare independent cost estimate and schedule analysis of work
• Negotiate and prepare change orders for execution using Change Order Request system
• Keep the City and contractor apprised of impact of
cumulative change orders
• Tracks potential change orders on
inspector’s daily reports
• Makes sure change orders reflect fair
price for added/deleted work; account
for contractor obligation; that conditions
do not conflict and are integrated;
comply withCaltrans auditrequirements
• Complete and timely field documentation of T&M cost
• Independent cost estimates
• Change Order Requestrecord describing need for change order
• Change orders ready for execution quickly
• Change order status and summary reports
Throughout construction on a weekly basis
Potential Claims/
DisputeResolution
• Identify potential claims issues in advance
• Review claims for merit, make recommendations, and
implement procedures for reducing the likelihood of
disputes and claims
• Assist in the resolution of disputes
• Allows for disputes to be avoided or resolved
quickly, thereby reducing cost
• Dispute avoidance procedures recommendations Throughout construction on a weekly basis Construction Issues
Management • Collaborate with affected parties and provide recommendations,
• Develop consensus for solution and implement solution • Reduces impactto construction
schedule and budget
• Provides solutions to actual conditions
found in field
• Builds a collaborative relationship with
stakeholders
• Establishes a consistent problemsolving procedure
• Design clarifications/revisions
• Construction procedures updates/revisions
• Permit clarifications/revisions
• Contract change orders
Throughout construction on a weekly basis
Progress Payments • Review contractor’s payment requests • Verify contractor pay items
• Prepare payment documentation for execution
• Prepare completion report on reimbursable items
• Verifies accuracy of quantities and
payment
• Controls project cost
• Verifies reimbursable costs
• Progress payment vouchers
• Reimbursement reports and Daily Inspection Reports
• Quantity calculation sheets
• Correspondence
Throughout construction on a monthly basis
EXHIBIT A
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Response to RFP/RFQ No. 2025-10 | PART 2 (PROPOSAL)
Construction Management and Inspection Services – Area 7 Septic to Sewer Conversion Project Task Function & Approach Benefits Milestones & Deliverables Timeline Site Safety
• Include safety considerations in daily task review with foremen
• Document “safe catches” and “near misses” and
discuss cause and affect with construction team
• Document/notify contractorif unsafe condition is
observed and notify City if contractor refuses to rectify unsafe conditions
• Improves jobsite safety
• Promotes collaboration between
stakeholders
• Prevents near misses from becoming
accidents
• Reduces repetitive accidents
• Avoids litigation
• Pre-task planning
reports
• Safe catch reports
• Near miss reports
• Accident reports
• Monthly reports
Throughout construction on a daily basis
POST-CONSTRUCTION
As-Built Drawings • Collect, review, and transmit contractor’s data to engineer monthly
• Make as-builts available for field staff reference
• Post as-builts in electronic project folder for successor projects
• Incorporates changes into record
drawings, and avoids repeat of design
errors and constructability issues
• Provides successor projects with accurate
location of utility connections
• Final as-builts posted on successor project web portal • Final as-builts delivered to City for acceptance
Throughout, so daily site observations during
construction are reflected within the As-Built
Drawings
Final Walk-through • Make final inspections and prepare punchlist with assignment of responsibility, location, and picture of
defective work
• Verify punchlist work is complete with date of verification and
picture
• Verify thatrequired certificates of compliance and asbuilt drawings have been delivered
• Punchlist can be filtered for ease of
scheduling and verification of
completion
• Project completed according to contract
documents
• Required contractor paperwork
delivered
• Punchlist with completion verification delivered to City and contractor
Throughout so daily site observations (noting
gaps or any corrections) made during
construction (as reflected within the punch list)
are addressed adequately
ProjectCompletion
Report/Final
Payment
• Process final progress payment
• Prepare final report and deliver project records to the City • Paperwork is completed • Final progress payment
• Notice of Completion
• Final report
Two weeks prior to project closeout and
hand-off
EXHIBIT A
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Response to RFP/RFQ No. 2025-10 | PART 2 (PROPOSAL)
Construction Management and Inspection Services – Area 7 Septic to Sewer Conversion Project
ORGANIZATION CHART
TRC has completed numerous infrastructure improvement projects for the City of Modesto. While each project has been unique, we have successfully managed each one with a core team of professionals that the City has come to trust. We will manage the Area 7 Septic-to-Sewer project in the same way. Justin Wehling will be at the helm as Construction Manager; Ben Orejel, PE, will serve as Office Engineer responsible for logging daily quantities from inspector logs and creating pay estimates for processing; and Aaron Kovar will serve as Construction Inspector responsible for the measuring of daily quantities and documentation of bid times on a Daily Inspection Report (DIR). Our proposed organization chart illustrates our understanding of the TRC team’s relationship with City of Modesto, Stanislaus County, and other key parties.
Francisco Torres
EXHIBIT A
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Response to RFP/RFQ No. 2025-10 | PART 2 (PROPOSAL)
Construction Management and Inspection Services – Area 7 Septic to Sewer Conversion Project
PROJECT-SPECIFIC EXPERIENCE SCOPE OF WORK EXPERIENCE
Recent City of Modesto Infrastructure Project ExperienceWork under City of Modesto Utilities Engineering Dept.Septic-to-Sewer Tie-in New Sewer Main/Lateral InstallationSeptic Tank Abandonment Restoration of Surface FeaturesWork in Unincorporated CommunitiesWastewater Infrastructure ImprovementsBackbone Infrastructure e-Builder ProficientProject OversightDocumentation / Document ControlProject ControlContract AdministrationConstruction Management / CoordinationConstruction Inspection for Quantity Tracking/PaymentStart-up and Closeout Team Member Education Yrs./TRC Yrs./Other % Avail.
Justin Wehling
Construction Manager General Studies 17 8 25% ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● Ben Orejel, PE
Office Engineer
BS, Civil
Engineering 29 2 50% ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ●
Francisco Torres
Construction Inspector
General Studies 1 1 100% ● ● ● ● ● ● ● ● ● ●
7\WH[WKUH
EXHIBIT A
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Response to RFP/RFQ No. 2025-10 | PART 2 (PROPOSAL)
Construction Management and Inspection Services – Area 7 Septic to Sewer Conversion Project D. ESTIMATE OF TOTAL HOURS
Based on our experience and review of the RFQ/RFP, project documents, and Addenda for the Area 7 Septic to Sewer Conversion project, our estimated duration of services is nine (9) months. This is a construction duration of 180 working days.
We anticipate the contractor will have several crews working onsite simultaneously throughout the duration of the project, with fluctuations in additional staffing once key elements, such as underground utilities, abandonment, and demolition of existing are completed.
Provided below is our estimate of total hours.
WORK PLAN AND DETAILED BREAKDOWN OF PROPOSED SCOPE OF SERVICES TRC will provide the measuring and documentation of quantities specific to each lot on a daily field report on E-builder and the creation of Pay estimates each month.
EXHIBIT A
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Response to RFP/RFQ No. 2025-10 | PART 2 (PROPOSAL)
Construction Management and Inspection Services – Area 7 Septic to Sewer Conversion Project E. PROPOSED INNOVATIONS
TRC may employ the following innovations - as they make sense - to create efficiencies in project documentation, reporting, and even improved service delivery. These tools have been successfully utilized on the following projects for the City of Modesto: Cesar Chavez Park Renovation, and Scenic Drive/Dry Creek Trail/Kansas Avenue/Neighborhood Traffic Calming Program Cycle 1.
DRONES
TRC has several FAA-licensed drone pilots with years of experience flying in urban settings. Using a drone during construction provides many advantages:
• Assists with pre-construction photos and video
• Documents progress of work
• Facilitates reviews of unsafe conditions or performing inspections in locations unsafe forpersonnel to access
• Enables SWPPP inspection of a site during winter conditions that may otherwise have difficult or unfavorable access issues
• Collects data on existing conditions to compare with as-built documents MOASURE 2 PRO
TRC recently purchased and began using a new innovative measurement device called Moasure 2 Pro, which allows our inspectors to simultaneously measure and draw complex and irregular job sites. This advanced motion-based measuring tool can be used for the following at the Area 7 Septic to Sewer project:
• Accurately measure quantities with a PDF of the
measurement to support pay estimates and provide
detailed back-up documents
• Record daily production data reports and exhibits
based on the collected measurements; attach PDF
report to our DIR and back up documentation
This device is capable of capturing x, y, and z data
as it moves from one point to another, automatically
calculating perimeter, area, elevation, and volume.
Once a measurement is completed, we can view,
edit, and save the measurements or export them as
a PDF or directly to your CAD software.
ACCURACY OF MOASURE 2 PRO
Linear Distance ± 0.3% error with 99.7%
accuracy
Perimeter ± 0.5% error with 99.5%
accuracy
Elevation ± 0.3% error with 99.7%
accuracy
Area ± 1% error with 99%
accuracy
Volume ± 1.5% error with 98.5%
accuracy
Layout ± 1% error 99%
accuracy
EXHIBIT A
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APPENDIX
Sample
Documents
Area 7
Septic-to-Sewer
Conversion
Project
EXHIBIT A
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RESIDENT ENGINEER’S WEEKLY DIARY
Report No. 21 Date: 09/26/2025.
Job Stamp:
2 Workday #93, September 22, 2025, Monday- Clear, 67-93 CONTROLLING OPERATION: FLUSH AND BACTERIA TEST/ 1” CONNECTION TO HOMES IN THE FIELD: LaFleur flushed the high chlorine out of the system at Colonial Heights. The water was being flushed into a diffuser box and tested for chlorine levels before going into the storm drainage. The crew was also at Lincoln Village connecting the new 1” water service line to the homes. The crew was working at Cameron Way. Today the crew only connected 4 homes.
Workday #94, September 23, 2025, Tuesday- Clear, 68-97 CONTROLLING OPERATION: FLUSH AND BACTERIA TEST/ 1” CONNECTION TO HOMES FIELD: LaFleur was onsite this morning and took bacteria test at Colonial Heights after it was flushed yesterday. All samples were taken from the locations that were agreed on. Test samples were taken to the lab for testing. The crew continues to connect the new 1” water service line to the homes on Cameron Way. Five (5) homes were connected today on Cameron Way.
Workday #95, September 24, 2025, Wednesday Cloudy, 68-86 CONTROLLING OPERATION: FLUSH AND BACTERIA TEST/ 1” CONNECTION TO HOMES IN THE FIELD: LaFleur was on this morning to take the second bacteria test sample at Colonial Heights since the one from yesterday passed. The samples were taken at the same locations as yesterday and taken to the FGL lab for testing. The other crew was working on Lincoln Village connecting the 1” water service to the home in the backyard.
The crew connected 10 homes today. Residents were told before any water was shut down. The crew placed topsoil at the locations where they had dug the line and made the connections. All the services were on Seward Way.
Workday #96, September 25, 2025, Thursday- Cloudy, 61-87 CONTROLLING OPERATION: 1” CONNECTION TO HOMES
IN THE FIELD: LaFleur received confirmation that the bacteria test taking yesterday on Colonial Heights were good so now they can tie the new system to the existing system. The crew also continued to connect the 1” water service to the homes on Sewerd Way. Today they connected 10 homes at the backyard. Once the lines were connected, the crew backfilled the dug areas with topsoil and left the backyard cleaned.
Workday #97, September 26, 2025, Friday- Cloudy, 65-91 CONTROLLING OPERATION: 1” CONNECTION TO HOMES-LINCOLN VILLAGE IN THE FIELD: LaFleur continues to connect 1” water service on Seward Way and on Gettysburg Place. The existing connections were disconnected, and the new service lines were connected. After each connection was done, the crew backfilled the dug area with topsoil. All areas were now secure, and work completed. Today the crew connected 11 services at the backyards.
BENJAMIN OREJEL Resident Engineer
Colonial Heights and Lincoln Village Project Phase 1A
(No.4600015528 & 4600015529)
9-26-2025
EXHIBIT A
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#
Address Street Street Connected From
Bid Item #17
Directional Bore
LF
Bid Item #18
Open Trench LF Date Installed
Bid Item #26
Meter Box
(Each)
1 8577 Balboa Avenue Balboa Avenue 136 0 7/24/2025 1
2 8565 Balboa Avenue Balboa Avenue 66 24 7/24/2025 1
3 8551 Balboa Avenue Balboa Avenue 136 0 7/23/2025 1
4 8539 Balboa Avenue Balboa Avenue 153 0 7/23/2025 1
5 8525 Balboa Avenue Balboa Avenue 113 25 7/23/2025 1
6 1815 Cortez Avenue Balboa Avenue 44 14 7/24/2025 1
7 1816 Cortez Avenue Cortez Avenue
8 8439 Balboa Avenue Balboa Avenue 0 0 7/23/2025 1
9 8427 Balboa Avenue Balboa Avenue 132 0 7/23/2025 1
10 8417 Balboa Avenue1 Balboa Avenue 151 0 7/23/2025 1
11 8405 Balboa Avenue Balboa Avenue 125 0 7/23/2025 1
12 8343 Balboa Avenue Balboa Avenue 62 12 7/23/2025 1
13 8331 Balboa Avenue Balboa Avenue 151 0 7/23/2025 1
14 8319 Balboa Avenue Balboa Avenue 62 5 7/22/2025 1
15 8307 Balboa Avenue Balboa Avenue 122 27 7/22/2025 1
16 8245 Balboa Avenue Balboa Avenue 126 0 7/22/2025 1
17 8233 Balboa Avenue Balboa Avenue 126 0 7/22/2025 1
18 8221 Balboa Avenue Balboa Avenue 135 0 7/21/2025 1
19 1815 Paloma Avenue Balboa Avenue 93 29 7/21/2025 1
20 8240 Balboa Avenue Balboa Avenue 38 0 7/22/2025 1
21 8308 Balboa Avenue Balboa Avenue 46 0 7/23/2025 1
22 1739 Barcelona Avenue Barcelona Avenue 139 0 7/7/2025 1 23 1731 Barcelona Avenue Barcelona Avenue 144 0 7/8/2025 1 24 1717 Barcelona Avenue Barcelona Avenue 125 0 7/9/2025 1 25 1705 Barcelona Avenue Barcelona Avenue 165 0 7/9/2025 1 26 1639 Barcelona Avenue Barcelona Avenue 0 0 7/25/2025 1 27 1629 Barcelona Avenue Barcelona Avenue 145 0 7/10/2025 1 28 1615 Barcelona Avenue Barcelona Avenue 104 11 7/10/2025 1 29 1607 Barcelona Avenue Barcelona Avenue 156 0 7/11/2025 1 30 1553 Barcelona Avenue Barcelona Avenue 150 0 7/11/2025 1 31 1541 Barcelona Avenue Barcelona Avenue 154 0 7/11/2025 1 32 1529 Barcelona Avenue Barcelona Avenue 145 0 7/11/2025 1 33 1517 Barcelona Avenue De Anza Avenue 100 24 7/11/2025 1 34 8307 De Anza Avenue Barcelona Avenue 80 10 7/11/2025 1 35 1738 Barcelona Avenue Barcelona Avenue 98 0 7/7/2025 1 36 1732 Barcelona Avenue Barcelona Avenue 165 14 7/8/2025 1 37 1718 Barcelona Avenue Barcelona Avenue 148 0 7/9/2025 1 38 1702 Barcelona Avenue Barcelona Avenue 120 0 7/9/2025 1 39 1640 Barcelona Avenue Barcelona Avenue 147 0 7/10/2025 1 40 1630 Barcelona Avenue Barcelona Avenue 100 20 7/10/2025 1 41 1618 Barcelona Avenue Barcelona Avenue 92 3 7/10/2025 1 42 1608 Barcelona Avenue Capistrano Avenue 50 0 7/14/2025 1 43 8240 Capistrano Avenue Barcelona Avenue 44 0 7/14/2025 1 44 1536 Barcelona Avenue Barcelona Avenue 170 0 7/11/2025 1 45 1528 Barcelona Avenue Barcelona Avenue 170 0 7/14/2025 1 46 1514 Barcelona Avenue Barcelona Avenue 158 0 7/14/2025 1 47 1502 Barcelona Avenue Barcelona Avenue 127 0 7/14/2025 1 48 1747 Paloma Avenue Paloma Avenue 95 10 7/15/2025 1
49 1735 Paloma Avenue Paloma Avenue 156 0 7/15/2025 1
50 1723 Paloma Avenue Paloma Avenue 156 0 7/15/2025 1
51 1711 Paloma Avenue Paloma Avenue 55 5 7/15/2025 1
52 1701 Paloma Avenue Paloma Avenue 149 6 7/15/2025 1
53 1641 Paloma Avenue Paloma Avenue 87 0 7/15/2025 1
54 1629 Paloma Avenue Paloma Avenue 120 5 7/15/2025 1
55 1617 Paloma Avenue Paloma Avenue 80 0 7/14/2025 1
56 1605 Paloma Avenue Paloma Avenue 50 0 7/14/2025 1
57 8140 Balboa Avenue Balboa Avenue 54 0 7/21/2025 1
58 1736 Paloma Avenue Paloma Avenue 62 2 7/15/2025 1
59 1724 Paloma Avenue Paloma Avenue 63 2 7/15/2025 1
60 1712 Paloma Avenue Paloma Avenue 80 22 7/15/2025 1
61 1702 Paloma Avenue Paloma Avenue 99 0 7/15/2025 1
62 1642 Paloma Avenue Paloma Avenue 174 0 7/15/2025 1
63 1630 Paloma Avenue Paloma Avenue 138 10 7/15/2025 1
64 1618 Paloma Avenue Paloma Avenue 68 0 7/14/2025 1
65 8139 Capistrano Avenue Capistrano Avenue 50 10 7/16/2025 1 66 8108 Balboa Avenue Balboa Avenue 50 0 7/21/2025 1
67 1735 Valencia Avenue Valencia Avenue 156 0 7/17/2025 1 68 1723 Valencia Avenue Valencia Avenue 88 8 7/17/2025 1 69 1711 Valencia Avenue Valencia Avenue 159 0 7/17/2025 1 70 1701 Valencia Avenue Valencia Avenue 74 15 7/17/2025 1 71 1641 Valencia Avenue Valencia Avenue 156 3 7/17/2025 1 72 1629 Valencia Avenue Valencia Avenue 156 0 7/16/2025 1 73 1617 Valencia Avenue Valencia Avenue 158 0 7/16/2025 1 74 8103 Capistrano Avenue Capistrano Avenue 50 0 7/16/2025 1 75 8044 Balboa Avenue Balboa Avenue 57 0 7/24/2025 1
76 1736 Valencia Avenue Valencia Avenue 150 0 7/17/2025 1 77 1724 Valencia Avenue Valencia Avenue 157 0 7/17/2025 1 78 1718 Valencia Avenue Valencia Avenue 167 0 7/17/2025 1 79 1654 Valencia Avenue Valencia Avenue 86 6 7/17/2025 1 80 1642 Valencia Avenue Valencia Avenue 70 18 7/17/2025 1 81 1630 Valencia Avenue Valencia Avenue 62 0 7/16/2025 1 82 1618 Valencia Avenue Valencia Avenue 76 20 7/16/2025 1 83 8035 Capistrano Avenue Capistrano Avenue 58 0 7/18/2025 1 84 1747 El Camino Avenue Balboa Avenue 57 0 7/24/2025 1 85 1735 El Camino Avenue El Camino Avenue 156 0 7/18/2025 1 86 1723 El Camino Avenue El Camino Avenue 160 0 7/18/2025 1 87 1711 El Camino Avenue El Camino Avenue 163 0 7/18/2025 1 88 1701 El Camino Avenue El Camino Avenue 82 5 7/18/2025 1 89 1639 El Camino Avenue El Camino Avenue 151 15 7/18/2025 1 90 1617 El Camino Avenue El Camino Avenue 165 0 7/18/2025 1 91 1615 El Camino Avenue El Camino Avenue 156 0 7/18/2025 1 92 8003 Capistrano Avenue Capistrano Avenue 52 0 7/18/2025 1 Actual Totals 10021 380 91
Price / Foot $ 33.00 $ 46.00 $ 3,100.00
Total Price to Date $ 330,693.00 $ 17,480.00 $ 282,100.00 Plan quantities 10000 600 92
$ 330,000.00 $ 27,600.00 $ 285,200.00
EXHIBIT A
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Attendees: TRC
City of ModestoBay Cities, Inc1. Previous Meeting Minutes
2. Contract Status/Time of Completion
Contract Time Specified + CCO Days 240 (19 days to be added per CCO's) First Working Day 3/24/2025
Working Days Up to Today (Meeting) 143
Days Remaining 97
New End Date 3/23/2026 4-20-2026 Tentative with CCO days Rain day 10-14-2025
3. 3-Week Look Ahead Schedule
Under review
10. Submittals
#05- Pedestrian Push Bottoms- Returned 3-11-225 NET
Pablo mentioned no (10-16)
4. CPM Review
5. Are there any items currently limiting you from completing this project on time?
6. Field Work
1. Subgrade for Roadway at Scenic Stage Construction
7. WPCP/Environmental
#08- Concrete Mix design (CDF Backfill), Returned 3-12-25 - NET
1. BMP's- Review once a week to make sure they are clean. #02- Solar Street Light (Single Arm & Dual Arm)- Returned 3-11-225- NET
8. Safety
No issues- closures per MUTCD
9. Traffic CoordinationLane closure locations
#07- Concrete Mix Design (Minor Concrete Mix)- Returned 3-12-25- NET #04- Vehicle detection Camera System- Returned 3-11-225- MCN #15- Public Notification Flyer- Returned 3-12-25 - MCN
#06- Standard Steel Pedestals & Posts-Returned 3-12-25- NET #10- Ductile Iron Pipe with (Poly Warp) Valves & Accessories- Returned 3-11-25 - NR #12- Vendor Statement for Electrical Items- Submitted on , Returned 3-11-25 - NET #13- Asphaltic Emulsion (SS-1H Oil Data Sheet)- Returned 3-12-25 - NET #14- BCPG Equipment List- Returned 3-12-25 - NET
#11- Filter Fabric Roll (MiraFi 140N)- Submitted on , Returned 3-12-25 - NET #09-Ductile Iron Pipe With (Poly Warp)- Pipe & Accessories- Returned 3-11-25 - NR
CITY OF MODESTO UTILITY DEPARTMENT
Scenic Drive Phase II, Dry Creek Trail Phase II, Kansas Avenue & Neighborhood Traffic Calming Program Cycle 1 Weekly Meeting No. 24, Week 30
Thursday, October 16, 2025
Meeting Agenda
Justin Wehling, Ben Orejel, Jeremy Roberts
Pablo, Hardik Nehra, JJ Gragg
10/2/2025
Jerry Casado, Michael Sacuskie, Nathan Tran, Andrea Meza, Sandeep Sandhu, Daniel Haakma, Roland Fecteau, Valeria Martinez
EXHIBIT A
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#37- Park Signage-Returned 3-19-25- A&R
#20- BCPG License & Permit- Returned 3-12-25 - NET
#21- BCPG SDS- Returned 3-12-25 - NET
#25- Reinforced Concrete Pipe (RCP)- Returned 3-12-25 - NET #39- Rockwell - Returned 3-19-25- NET
#53- Traffic Control Plans- Returned 3-24-25 - MCN
#52.1- Schedule of Values- Returned 4-01-2025- A&R
#24- Temporary ADA Ramps, Returned 3-12-25 - NET
#16.2- CPM Baseline Schedule- Returned 4-09-2025- MCN
#22- BCPG SDS Returned 3-10-25 - NR- Duplicate
#23- Heat Illness Prevention Plan (BCPG)- Returned 3-12-25 - NET #16.1- CPM Baseline Schedule- Returned 4-01-2025- A&R
#34.1- Truncated Domes (Cast Iron)- Returned 3-24-25- NET #16- CPM Baseline Schedule- Returned 3-20-25- A&R
#27- Water Pollution Control Plan- (WPCP)- Returned 3-18-25 - NET #18- Safety Documents- Returned 3-12-25 - NET
#19- Shoring Tabulations, Returned 3-13-25 - A&R
#26 - Epoxy Dowel Bars (HS-1CC)- Returned 3-12-25 -NET
#34- Truncated Domes (Cast Iron)- Returned 3-19-25- A&R #17- Superintendence - Returned 3-12-25 - NET
#42- Concrete Pavers-Returned 3-19-25- NET
#28- Permanent Striping- Returned 3-19-25- NET
#29- Bollards- Returned 3-12-25 - NET
#37.02- Park Signage-Submitted 10-15-2025-Nothing in file- Pablo to check #52.2- Schedule of Values- Returned 4-03-2025- NET
#32- Aggregate Base- (AB)- Returned 3-12-25 - NET
#30- 1/2" HMA- Returned 3-12-25 - NET
#43- Sand Plaster -Returned 3-19-25- NET
#52- Schedule of Values- Returned 3-20-25- A&R
#40- Storm Drain Manhole- Returned 3-19-25- NET
#37.01- Park Signage-Returned 3-24-25- A&R
#45- Pave Sealer-Returned 3-19-25- NET
#35 - Colored Cure & Seal-Returned 3-19-25- NET
#51- Slurry Seal Mix-Returned 3-19-25- A&R
#51.01- Slurry Seal Mix-Returned 5-08-2025- NET
#47- Confined Space Entry Plan-Returned 3-19-25- NET
#48- #48 Lead Compliance Plan (LCP)- Returned 3-19-25- NET #49- Slurry- Returned 3-19-25- NET
#44- Joint Fill (Polymeric Sand)- Returned 3-19-25- NET #36- Pave Cure Rex Clear (Concrete Curing)-Returned 3-19-25- NET #46- Fabric (Geotextile Filter Fabric)- Returned 3-19-25- NET #38- Catch Basins-Returned 3-19-25- NET
#31 - 1/2" RHMA-G- Returned 3-12-25 - NET
#33- 3/4" HMA- Returned 3-19-25- NET
#56.1-Park Signage for Dry Creek-Returned 3-28-25- MCN
#59- Minor Concrete Mix Designs (Vanguard)- Returned 3-24-25- NET #57-Pothole CDF Backfill Backup- Returned 3-34-25- NET
#58-Class II AB (Vanguard)-Returned 3-24-25- NET
#56-Park Signage for Dry Creek- Returned on 3-24-225- R&R #41- Temporary Drain Inlet Protection - Returned 3-19-25- NET #50- Emulsion- Returned 3-19-25- NET
#60- Public Notification Flyer Version 2-Returned on 3-24-25- A&R #60.1- Public Notification Flyer Version 2-Returned 4-01-2025- MCN #54- Decomposed Granite- (Gold Fines)- Returned 3-24-25 - R&R #19.1- Shoring Tabulations- Returned 3-19-25- NET
EXHIBIT A
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3. Monument Preservation-Returned 3-17-25
#98 CPM Update 3.0 (6-20-25)-Submitted 7-18-2025-Returned 8-7-2025 NET #67-Streetlight Pole Foundations Backup-Returned 3-26-25- A&R #87 Concrete Pavers Samples (Tahoe Sample)- Returned 5-23-2025-NET #88 C900 -12" DR14 From Vinyl tech-Returned 6-05-2025- NET #73- Concrete Pavers Sample- Returned 4-10-2025- MCN
#85.01 CMP Update 1.0 (4.20.25)- Returned 6-03-2025- NET
11. RFI's
#83- Pothole Data 2- Returned 5-07-2025- FIO
#90 Stamped Concrete Color-Returned 6-05-2025- MCN
#91 SWPPP Amendment #2- Returned 8-07-2025-NET
#75- Temporary Drain Inlet Protection 2- Returned 4-07-2025-NET #101 Combined Gradation Mix-Returned 9-16-2025- NET
#102 CPM Update 5.0 (8.20.25)- Submitted 10-13-2025- (3)-IR-Jerry Casado, Justin Wehling, Ben Orejel #77- Pedestrian Detour Plan- Returned 4-10-2025- MCN
#97 Traffic Control Plans (2.0)-Returned 7-21-2025-MCN
#99 Bollards on 11th Street-Returned 8-18-2025- MCN
#61.0- Traffic Signage-Returned 3-34-35- A&R
#64- Subcontractors List- Returned 3-26-25- NET
#63- Ductile Iron Pipe with (Poly Warp)- Valves & Accessories- Returned 3-24-25 - MCN #61.01- Traffic Signage- Returned 4-03-2025- NET
#67.01-Streetlight Pole Foundations Backup-Returned 4-15-2025- NET
6. Monument Preservation- Returned 4-07-2025
#71- Staging Traffic Control Plans- Returned 4-10-2025- MCN #69- Asphalt Rubber Binder Testing- Returned 3-25-25 - NET #62-Potholing Method- Returned 3-24-25- NET
#65- Chip Aggregate- Returned 3-25-25 - NET
#74- Trench Drain-Returned 4-10-2025- NET
#86 Curing Compound-Returned 5-13-2025- NET
#85 CMP Update 1.0 (4.20.25)- Returned 5-14-2025- R&R
#72- Pre-Construction Videos & Photographs- Returned 5-22-2025- NET #79- Quality Control Plan (HMA &RHMA)- Returned 5-15-2025- A&R #81- Pothole Data- Returned 5-01-2025- FIO
#82-Pre-Emergent Herbicide- Returned 4-28-2025- NET
#78- Pull Box-Returned 4-10-2025- R&R
4. Staging yard (RFI-2) Revision -1-Returned 3-18-25
2. Staging Yard- Returned 3-17-2025
1. ADA Ramps out of School Zone -Returned 3-10-2025-
#100 CPM Update 4.0 (07.20.2025)-Returned 9-15-2025-NET #70-Amendment #1- Returned 3-28-25- NET
#79.01- Quality Control Plan (HMA &RHMA)- Returned 5-28-2025- NET #84- Soil Sterilant- Returned 4-28-2025- NET
#76- Tenser NX750 Geogrid- Returned 4-10-2025-NET
#66- Streetlight Pole Foundations -Returned 3-26-25- NET
5. ADA Ramps in School Zones- Returned 3-18-25
#80- Pothole Data- Returned 4-14-2025- NR- Removed and replaced by Submittal #81 #89 Pothole Data 3- Returned 5-28-2025- NET
#92 CMP Update 2.0 (5.20.25)-Returned 7-07-2025- NET
#68- 13 Dust Control Plan & AIA Application- Returned 3-26-25- NET #93 Sidewalk, Curb and Gutter-Knife Rive Mix-Returned 6-24-2025 NET #94 Minor Concrete, Knife River-Returned 6-24-2025 NET
#95 Site Work & Slab on Grade- Returned 6-24-2025 NET
#96 Rockwell Frame & Cover Shop Drawings- Returned 6-24-2025 NET
EXHIBIT A
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12. PCO's/ CCO's
PCO Extra Work Tag #6-10 -Submitted 10-15-2025-IR-Ben Orejel PCO Dry Creek Trail Overrun Bid Quantities
14. Progress Payment
19. Storm Drain Schedule- Returned 6-02-2025
20. Skill and Trained Workforce- Returned 5-12-2025
PCO 06-. Revised plan to tombstone business sent to Bay Cities - Sent approval to proceed on 7-24-2025- (with extension of bid items and flashing beacon relocation.$75,909.32 (6 Days)-work completed
8. 36" Permanent Trench Plate Detail (RFI-7) Revision-1- Returned 4-02-2025
7. 36" Permanent Trench Plate Detail - Returned 3-26-25 PCO-03 Price to adjust swing gate at Dry Creek Trail-Sent approval to Pablo 6-3-2025, $1,290 - work completed
12. Conduit Depth & Pull Box- Returned 4-10-2025
Field Inspector shall be notified of any potential extra work before work it's performed and hours agreed to.
13. PG&E Critical Facility- Returned 4-10-2025
10. Detectable Warning Surface Size- Returned 4-10-2025
15. Claim Process Clarification- Returned 4-30-2025
16 Surface Mount Sleeve- Returned 4-28-2025
17 Linear Drain Grates- Returned 4-30-2025
18, AC Removal at Curb Ramps- Returned 4-30-2025
PCO Add new storm drain system- Request sent 10-06-2025- Returned 10-15-2025-IR-City
11. Request to use city DWS Stockpile- Returned- 4-16-2025 PCO 05 Additional speed cushions at Hamble Lane- Sent approval-6-03-2025, $16,710.03- work completed Additional Days- Currently based off of PCO's Looking at 19 days,(2 weeks SD design, 3 days added Potholing, 6 days grading and demo at Memorial Arts) -5 additional days may be coming due to the time the water department took to relocate water line at Scenic east of Bodem. If there's a conflict with the abandon line, City will have Bay Cities remove it and cap it (material from city) at force account.
9. CB Location on Orangeburg & Kansas- Returned 4-17-2025
14. Decomposed Granite Substitution- Returned 4-22-2025 PCO-01 Price agreed for storm drain modifications along with days for delay-10 days PCO-02 Price agreed for potholing storm drain modifications, 6-16-2025, $5,156.10 /day. (3 days)- work completed PCO 08 Remove Tree- Sent approval to proceed 7-31-2025-$1,652- work completed PCO 09 Extra Work at Force Account- Various Bills submitted 9-03-2025- completed Approved $10,277.02 (0 days)
21. Catch Basin at Brighton & Scenic- Returned 10-02-2025 Justin mentioned there was extra work to regrade and excavate a location where water line was in conflict with storm drain at 8+30 going across street.
1. Disc Golf Signs (13)- Need to be Replaced (City to keep design provided, Michael to follow up with Disc Golf group to discuss a new Frame for signs- Michael to follow up this week. City has design and will get something together and send it over to TRC to send for a cost proposal from Bay Cities. Sent on 9-22-2025 Jeremy Roberts(TRC Inspector) will go and talk to Scenic Drive in Burger Restaurant to let them know work may start November 7 & 8. They will also be notified a week before work starts.
Survey requests through E Builder. Inspections to be scheduled through Justin PCO-04 DI installation at SW corner of Bodem and Scenic. Sent approval 6-03-2025, $13,501.97 - work completed PCO 07 Additional speed cushions at Wylie Drive- $8,355 per Each (Possible 3 to 4 speed Cushions will be installed)-Sandeep should have something approved so Bay Cities can proceed with installation within a week or two. Have to coordinate with school to get work done. Sandeep is obtaining required signatures to install speed cushions needs 23 at this time have 9. It may take 2 to 3 weeks. School principal mentioned that they would like to have no work on Wednesday since it's a minimum day. Any other day is ok and they can since notice to parents.
15. Public Outreach/ Public Notification
16. Other Issues or Comments
PCO Disc Golf Coarse Signs- Proposal Request sent 9-22-2025- Pablo sent it to Sierra Markings for Pricing- Sending to more businesses due to Sierra not able to perform work.
PCO Add Rod Couplers to Signal Bolts and Street Light bolts at NE corner of Bodem/Scenic-Proposal. Approved- $8,342.25 (0 days)
13. Surveys/ Inspections
Estimate #07 for 10/20
EXHIBIT A
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Next meeting 10-30-2025
3. Pablo asked Justin about what he was thinking about the traffic control for the new storm drain work. Bay Cities idea of keeping the #2 lane closed while doing work looks like the alternative they want to proceed. City will review but thinking same thing and closing lane west of Bodem.
2. Speed Bumps- Work is approved to proceed.- City will send official confirmation to proceed. School has requested no work on Wednesday since it a minimum day. Also mentioned that in the morning to start on the speed bump that is on the east end and once school traffic is cleared to start by school and move away from school zone to less interference with pickup traffic. Sandeep will send plan sheet with locations and also with change to refresh some markings in the area.
EXHIBIT A
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PROJECT NUMBER: 31
PROJECT NAME:
CONTRACTOR: 10/17/2025
1 10/12/2025 Sunday
2 10/13/2025 Monday Low 52 High 67 Cloudy 1 0 0
3 10/14/2025 Tuesday Low 54 High 61 Rain Day 0 1 0
4 10/15/2025 Wednesday Low 50 High 65 Cloudy 1 0 0
5 10/16/2025 Thursday Low 51 High 68 Clear 1 0 0
6 10/17/2025 Friday Low 54 High 74 Clear 1 0 0
7 10/18/2025 Saturday
8 Days this week (Total Lines 1 thru 7) 4 1 0
9 139 1 20
10 143 2 20
Change Order Time Adjustment Change Order
Days Approved
11 0
12 0
13 0
Computation of Extended Date for Completion Number of Days Numbered Day Date Year Month Day
2025 3 21
14 45737 3/24/2025
15 240
16 46100 3/19/2026
17 0
18 2
19 46104 3/23/2026
20 240 46104 3/23/2026
21 143
22 97
CONTROLLING ACTIVITY(IES)
REMARKS:
DATE:
Notes:
Change Order Numbers
REPORT NUMBER
WEEK ENDING (month, day, year)
Working Day No Work
Done on Controlling
Activity
(F)
Notice to Proceed Issued
Nonworking Day
( E )
Working Day
(D)
Weather Conditions or Other Explanation
( C )
Day
(B)
Date
(A)
1. When recording Non-Working days due to weather, state the reason why the day is unworkable when the weather description itself does not adequately describe the conditions. For example: "Clear-wet grade" to describe conditions when the weather is clear, but the grade is too wet to work.
Do not list merely as "Unworkable."
4. Do not include Non-working days which occur after expiration of the Extended Date of Completion. On contracts that are overtime, the total under Working Days shall not be greater than the total of the Revised Working Days (line 8). After approved total of working days has been reached, continue recording Working and Non-working days but do not add into the totals. Make statement under Remarks that the Working and Non-working days are shown for record only since the contract time has elapsed. If an extension of time is subsequently approved, determine new Extended Date of Completion by taking into account all Non-working days that are reachable.
2. Enter days on which no productive work has been performed on the controlling operation(s) for reasons other than weather.
3. List number of contract change orders providing the time extensions.
City of Modesto - Construction Administration Office
Weekly Statement of Working Days
2025-12 (101169, 101391, 101180, 101178, 101392, 101627) Scenic Drive Phase II
Bay Cities Paving & Grading
Days this report
Days previously reported (Take from previous week's report) Total working days to date (Lines 8 + 9)
Days previously reported (Taken from previous week's report) Total change order days to date (Line 11 + Line 12)
First working day
Original working days specified in contract
COMPUTED DATE FOR COMPLETION (Line 14 + Line 15)
Total change order days approved to date (From Line 13) Total Nonworking days to date (From Box 10E)
EXTENDED DATE FOR COMPLETION (Line 16 + Line 17 + Line 18) Revised working days for contract (Line 15 + Line 17)
Total working days to date (From Box 10D)
WORKING DAYS REMAINING (Line 20 - Line 21)
1.Stage Construction on Scenic east of Bodem-North SideINSPECTOR'S SIGNATURE:
The contractor will be allowed fifteen (15) days in which to protest in writing the correctness of the statement; otherwise, the statement shall be deemed to have been accepted by the contractor as correct.
Hot Mix AC at O ramps. Brighton and Scenic Flat work
Save
10-17-2025
EXHIBIT A
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EXHIBIT A
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EXHIBIT A
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APPENDIX
Exceptions to
City’s Standard
Consulting
Agreement
Area 7
Septic-to-Sewer
Conversion
Project
EXHIBIT A
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Construction Management and Inspection Services for the Area 7 Septic to Sewer Conversion Project
SAMPLE STANDARD AGREEMENT FOR CONSULTANT SERVICES
THIS AGREEMENT, made and entered into in the City of Modesto, State of California, this day of , 20 , (“Effective Date”) by and between the CITY OF MODESTO, a municipal corporation of the State of California, hereinafter referred to as "City", and (CONSULTANT), a California corporation, hereinafter referred to as "Consultant".
This Agreement is made with regard to the following recitals:
A. The City has determined that an should be prepared for the City to .
B. Consultant represents that it is qualified, willing and able to provide the services to prepare said document(s).
NOW, THEREFORE, in consideration of this Agreement, and the mutual promises, covenants, and stipulations hereinafter contained, the parties agree as follows:
1. SCOPE OF SERVICES
Consultant shall undertake and complete the preparation of the scope of work as set forth and described in the documents attached hereto and referred to as Exhibit (A) or "project". The Consultant shall perform the services as described in Exhibit (A) in a manner compatible with the standards of its profession and shall produce a fully complete project that is acceptable to City.
2. TERM OF AGREEMENT
This Agreement is effective as of the date first written above and will continue in effect until City's acceptance of and payment for all services authorized by City and performed by Consultant, unless terminated earlier in accordance with the provisions of the termination clause in this Agreement.
Consultant shall undertake and complete the preparation of the scope of work as set forth and described in the documents commonly referred to as “project” attached hereto as Exhibit (A) and made a part hereof. City hereby gives Consultant notice to proceed with the preparation of the project in the manner described in Exhibit (A), as of the Effective Date of this Agreement. Consultant shall diligently proceed with the preparation of the project and agrees to complete said preparation within the time period set forth in Exhibit (A).
3. COMPENSATION
Consultant agrees to accept a sum not to exceed $ (maximum compensation) as full remuneration for performing all services and furnishing all staffing and materials for CITY in accordance with Exhibit (A) attached hereto and for performance by Consultant of all of its duties and obligations under this Agreement, except that additional services may be compensated as described below.
The Compensation shall be paid pursuant in the manner and at the times set forth below:
CITY shall pay CONSULTANT on a time and materials basis for CONSULTANT’s actual costs for all work called for in Exhibit (A) to this AGREEMENT. All work to be performed under this AGREEMENT shall be billed at the hourly rates set forth in Exhibit (B) attached hereto.
EXHIBIT A
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Construction Management and Inspection Services for the Area 7 Septic to Sewer Conversion Project
CONSULTANT shall submit monthly invoices to CITY which include detailed tasks, hours worked, and billable rates for all work completed, and detailed receipts for any reimbursable expenses paid by CONSULTANT and identified in Exhibit (B) or approved by the CITY in writing. Expenses for travel reimbursement shall comply with the City's Administrative Directive (AD) 1.2, as amended periodically. The City's AD 1.2 can be accessible at the link provided - https://www.modestogov.com/DocumentCenter/View/24156/Citys-Administrative-Directive-12.
Additional services may be authorized by the City Manager in an amount up to, but not to exceed 10% of the agreed maximum compensation, or $ . In the event that additional services are deemed necessary, the Consultant shall provide a written request to the City Manager indicating the reason for additional work, scope and cost of such work. The City Manager shall provide a written response to the request, either approving or denying the additional expenditure. If additional services are requested and approved, they will be billed at the hourly rates set forth in Exhibit (B) and may not exceed the amount requested and approved in writing by the City Manager. In that event, the new total compensation shall not exceed $ . If additional services in excess of this amount are deemed necessary by City Staff, an amendment to this Agreement will be required and must be approved by the City Council prior to commencing the work, as provided in Paragraph 9 of this Agreement.
4. OBLIGATIONS OF CONSULTANT
Throughout the term of this Agreement, Consultant shall possess, or secure all licenses, permits, qualifications and approvals legally required to conduct business. Consultant warrants represents that it has all of the necessary professional capabilities and experience, as well as all tools, instrumentalities, facilities and other resources necessary to provide the City with the services contemplated by this Agreement. Consultant further warrants represents that it will follow the best current, generally accepted and professional practices to make findings, render opinions, prepare factual presentations, and provide professional advice and recommendations regarding this project.
5. PERFORMANCE BY KEY EMPLOYEE
Consultant has represented to City that , will be the person primarily responsible for the performance of the services referred to in this Agreement. City has entered into this Agreement in reliance on that representation by Consultant. Consultant therefore agrees that percent ( %) or more of the time to be devoted to the project that is the subject of this Agreement will be that of the above-named person.
6. OWNERSHIP OF DOCUMENTS/TITLE TO DATA
Ownership of Documents
All reports, drawings, designs, graphics, working papers and other incidental work or materials furnished hereunder shall become and remain the property of the City, and may be used by City as it may require without any additional cost to City. However, in the event City reuses or modifies any materials furnished to City by Consultant, without Contractor's involvement or consent, then Consultant shall not be responsible for the materials. No reports shall be used by the Consultant for purposes other than this Agreement without the express prior written consent of City.
Title to Data
EXHIBIT A
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Construction Management and Inspection Services for the Area 7 Septic to Sewer Conversion Project
If, as a part of the Agreement, Consultant is required to produce data such as, but not limited to, drawings, plans, specifications, calculations, models, flow diagrams, visual aids and other related materials, the originals of all such data generated under this Agreement will be delivered to City upon the completion or termination of services under the Agreement.
EXHIBIT A
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Construction Management and Inspection Services for the Area 7 Septic to Sewer Conversion Project
All materials, documents, data or information obtained from the City data files or any City medium furnished to Consultant in the performance of this Agreement will at all times remain the property of the City. Such data or information may not be used or copied for direct or indirect use by Consultant after termination of this Agreement without written consent of the City.
Notwithstanding anything to the contrary in this Agreement, data and materials are not intended nor shall they be construed to include Consultant's pre-existing intellectual property secured, developed, written, or produced by Consultant prior to the execution of this Agreement or developed concurrently with this Agreement but not specifically for this Agreement; Consultant shall retain all right, title and interest in any such pre-existing intellectual property.
7. NEWS AND INFORMATION RELEASE
Consultant agrees that it will not issue any news releases in connection with either the award of this Agreement, or any subsequent amendment of or efforts under this Agreement, without first obtaining review and approval of said news releases from City through the City Manager.
8. CONFLICT OF INTEREST
Consultant warrants that it presently has no interest and shall not acquire any interest, direct or indirect, which would create a "conflict of interest", as that term is defined in the Political Reform Act (Gov. Code 81000 et seq.), for the Consultant in the performance of this Agreement. Consultant warrants that, in performance of this Agreement, Consultant shall not employ any person having any such interest. Consultant understands that, if this Agreement is made in violation of Government Code 1090 et seq., the entire Agreement is void and Consultant will not be entitled to any compensation for services performed. Consultant agrees to file a Statement of Economic Interests with the City Clerk at the start and end of this Agreement if so required at the option of City.
9. AMENDMENTS
Both parties to this Agreement understand that it may become desirable or necessary during the execution of this Agreement, for City or Consultant to modify the scope of services provided for under this Agreement. Any material extension or change in the scope of work shall be discussed with City and the change and cost shall be memorialized in a written amendment to the original Agreement prior to the performance of the additional work.
Until a change order is so executed, City will not be responsible to pay any charges Consultant may incur in performing such additional services, and Consultant shall not be required to perform any such additional services.
10. INDEPENDENT CONTRACTOR
All acts of Consultant, its agents, officers, and employees and all others acting on behalf of Consultant relating to the performance of this Agreement, shall be performed as independent contractors and not as agents, officers, or employees of City. Consultant, by virtue of this Agreement, has no authority to bind or incur any obligation on behalf of City. Consultant has no authority or responsibility to exercise any rights or power vested in the City. No agent, officer, or employee of the City is to be considered an employee of Consultant. It is understood by both Consultant and City that this Agreement shall not under any circumstances be construed or considered to create an employer-employee relationship or a joint venture.
EXHIBIT A
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Construction Management and Inspection Services for the Area 7 Septic to Sewer Conversion Project
Consultant, its agents, officers and employees are and, at all times during the terms of this Agreement, shall represent and conduct themselves as independent contractors and not as employees of City.
EXHIBIT A
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Construction Management and Inspection Services for the Area 7 Septic to Sewer Conversion Project
Consultant shall determine the method, details and means of performing the work and services to be provided by Consultant under this Agreement. Consultant shall be responsible to City only for the requirements and results specified in this Agreement, and, except as expressly provided in this Agreement, shall not be subjected to City's control with respect to the physical action or activities of the Consultant in fulfillment of this Agreement. Consultant has control over the manner and means of performing the services under this Agreement. Consultant is permitted to provide services to others during the same period service is provided to City under this Agreement. If necessary, Consultant has the responsibility for employing other persons or firms to assist Consultant in fulfilling the terms and obligations under this Agreement.
If in the performance of this Agreement any third persons are employed by Consultant, such persons shall be entirely and exclusively under the direction, supervision, and control of Consultant. All terms of employment including hours, wages, working conditions, discipline, hiring, and discharging or any other term of employment or requirement of law shall be determined by the Consultant.
It is understood and agreed that as an independent Consultant and not an employee of City neither the Consultant or Consultant's assigned personnel shall have any entitlement as a City employee, right to act on behalf of the City in any capacity whatsoever as an agent, or to bind the City to any obligation whatsoever.
It is further understood and agreed that Consultant must issue W-2 forms or other forms as required by law for income and employment tax purposes for all of Consultant's personnel.
As an independent Consultant, Consultant hereby indemnifies and holds City harmless from any and all claims that may be made against City based upon any contention by any third party that an employer-employee relationship exists by reason of this Agreement.
11. ASSIGNMENT
Neither this Agreement nor any portion thereof shall be subcontracted or assigned without the express prior written consent of the City in each and every instance and such approval shall not be unreasonably withheld.
12. PATENT/COPYRIGHT MATERIALS
Unless otherwise expressly provided in the Agreement, Consultant shall be solely responsible for obtaining the right to use any patented or copyrighted materials in the performance of this Agreement. Consultant shall furnish a warranty of such right to use to City at the request of City.
13. NOTICES
Notice required by this Agreement shall be given in writing and shall be deemed given and effective upon receipt provided that such are delivered in accordance with the provisions of this Section. Notices shall be delivered either by: (a) personal delivery (including delivery by an overnight courier service which obtains confirmation of receipt); or (b) by facsimile, provided that such transmission is followed by delivery by an overnight courier service which obtains confirmation of receipt; or (c) postage prepaid, return receipt requested, certified mail; or (d) by electronic transmission subject to reasonable proof that the notice was both transmitted and received. Each such notice shall be sent to the parties at the address respectively set forth below or to such other address as a party may designate by written notice given in accordance with the provisions of this Section:
EXHIBIT A
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Construction Management and Inspection Services for the Area 7 Septic to Sewer Conversion Project
FOR CONSULTANT: Name:
Address:
Attention:
Phone:
Email:
( )
CITY: Name:
Address:
Phone:
Email:
City of Modesto
P.O. Box 642
Modesto, CA 95353
(209)
14. INSURANCE REQUIREMENTS
During the term of this Agreement, Consultant shall maintain in full force and effect at its own cost and expense the insurance coverage as set forth in the attached Exhibit (C) to this Agreement and shall otherwise comply with the other provisions of Exhibit (C) to this Agreement. Consultant is responsible for uploading updated insurance documentation to the City's "PINS Advantage" program.
15. TERMINATION OF AGREEMENT
Termination by City for Default of Consultant
Should Consultant default in the performance of this Agreement or materially breach any of its provisions, at its option, City may terminate this Agreement by giving written notification to Consultant provided that Consultant has not commenced to cure the breach or non-conforming Services within a reasonable amount of time, not to exceed seven (7) business days, of Consultant's notice of such breach or non-conformance. The termination date shall be the effective date of the notice. For the purposes of this section, material breach of this Agreement shall include, but not be limited to, any of the following: failure to perform required services or duties, willful destruction of City's property by Consultant, dishonesty or theft.
Termination by City for Convenience
The City may also terminate the Consultant's performance under the Agreement, either in whole or in part, at its own discretion, or when conditions encountered during the Work make it impossible or impracticable to proceed, or when the City is prevented from proceeding with the Agreement by act of God, by law, or by official action of a public authority, or upon a determination by the City that such termination is in the best interest and convenience of the City, or whenever the City is prohibited from completing the Work for any reason. The City shall provide no less than ten (10) calendar days written notice of its intent to terminate the Agreement for convenience and shall endeavor to provide the Consultant with consultation with the City prior to termination.
Post-Termination Procedure
Upon receipt of a written notice of termination pursuant to either of the foregoing paragraphs, the Consultant shall:
EXHIBIT A
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Construction Management and Inspection Services for the Area 7 Septic to Sewer Conversion Project
a. Cease its Work as directed in the notice of termination as of the termination date and see to it that its employees, subconsultants and agents are notified of such termination and act as specified in the notice of termination; b. Terminate all orders and subconsultants except as necessary to complete any portion of the Work that is not terminated;
c. If directed in writing by the City to do so, assign all right, title and interest in subcontracts and materials in progress to City and upon full compensation therefor, in which case the City will have the right at its discretion to settle, or pay any or all claims arising out of the termination of such subconsultants, but in no event shall recovery by any Consultant or subconsultant include lost profits for portions of the Work not completed or undertaken, including materials not delivered;
d. Deliver or otherwise make available to the City all data, drawings, specifications, reports, estimates, summaries and such other information and material as may have been accumulated by the Consultant in performing the Work whether completed or in process and that Consultant has been fully compensated for; e. Settle outstanding liabilities and claims, subject to the approval of City; f. Complete performance of such part of the Work as has not been terminated; g. Take such other actions as may be necessary, or as may be directed by the City for the protection and preservation of the Work and/or property related to the Work;
h. If City so requests, and at City's cost, Consultant shall provide sufficient oral or written status reports to make City reasonably aware of the status of Consultant's work on the project.
i. The Consultant understands and agrees that City may, in City's sole discretion, refuse to pay Consultant for that portion of Consultant's services which were performed by Consultant on the project prior to the termination date and which remain unacceptable and/or not useful to City as of the termination date.
City will pay Consultant an amount based on the percentage of satisfactory Work completed in accordance with the notice of termination. The final payment to the Consultant after termination for convenience shall be limited to amounts due and owing under the Agreement at time of termination, including the following:
a. The cost of settling and paying valid claims arising out of the termination of the Work such as subconsultant Agreements or Agreements for materials; b. The Agreement price allocable to the portion of the Work properly performed or goods supplied to the Work site by the Consultant as of the date of termination, as determined in accordance with the notice of termination, reduced by any sums previously paid to the Consultant.
Authorization to Terminate Agreement
Termination of the Agreement may be invoked by the City Manager, or his/her designee, subject to the right of the Consultant to appeal to the City Manager, or his/her designee’s, decision to the City Council. The Consultant shall appeal by notifying the City Clerk in writing within ten (10) calendar days of receipt of written notification from City of termination of the Agreement. In the
EXHIBIT A
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Construction Management and Inspection Services for the Area 7 Septic to Sewer Conversion Project
event that termination of this Agreement is upheld by the City Council, any cessation of payment
EXHIBIT A
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Construction Management and Inspection Services for the Area 7 Septic to Sewer Conversion Project
of delay claims, extended claims, Eichleay claims, or any other claims for delay shall be retroactive to the date of termination selected by the City Manager, or his/her designee.
16. CERTIFIED PAYROLL REQUIREMENT
If Consultant is performing "public works" as defined in Labor Code section 1720(a), Consultant shall pay all workers, and shall ensure its subcontractors pay all of their workers, engaged in performing the services described in Exhibit (A) not less than the general prevailing rate of per diem wages for work of a similar character in the locality in which the services describe in Exhibit (A) are to be performed, and not less than the general prevailing rate of per diem wages for holiday and overtime work as provided in the California Labor Code. In accordance with California Labor Code Section 1773.2, the City has obtained the general prevailing wages in the locality in which the services described in Exhibit (A) are to be performed for each craft or type of work needed to be as published by the State of California Department of Industrial Relations, Division of Labor Statistics and Research, a copy of which is on file in the City's Purchasing Department and shall be made available on request. Consultant must comply with all applicable laws and regulations that apply to wages earned in performance of the services describe in Exhibit (A), including those set forth in Labor Code section 1770 et. seq.
17. INDEMNITY
If Consultant is Design Professional performing design professional services, as defined California Civil Code section 2782.8, Consultant agrees to indemnify, defend, and hold harmless the City, its agents, officers, officials, and employees and volunteers from and against any and all claims, demands, costs, or liability that arise out of, or pertain to, or relate to to the extent caused by the negligence, recklessness, or willful misconduct of Consultant and its employees, officials, officers, agents or agents in the performance of services under this Agreement, but this indemnity does not apply to liability for damages arising from the sole negligence, or willful misconduct of the City. The City agrees that in no event shall the cost to defend charged to the Consultant exceed that Consultant's proportionate percentage of fault. However, notwithstanding the previous sentence, in the event one or more defendants is unable to pay its share of defense costs due to bankruptcy or dissolution of the business, the Consultant shall meet and confer with other parties regarding unpaid defense costs. This duty to indemnify shall not be waived or modified by contractual Agreement or acts of the parties.
If CONSULTANT is not a Design Professional performing Design Professional Services, the CONSULTANT shall hold the CITY, its agents, officers, and employees, and volunteers harmless from and save, defend and indemnify them against any and all claims, losses, liabilities, judgments or damages from every cause, including but not limited to injury to person or property or wrongful death, including reasonable costs and expenses of defense of any judicial or administrative action, to the extent caused by arising directly or indirectly out of any negligent or intentional act or omission of CONSULTANT, or its agents, officers, officials, employees, or volunteers relating to or during the performance of its obligations under this Agreement, except for claims arising from the sole negligence of the CITY.
To the fullest extent permitted under applicable law, Neither Party shall be liable to the Other Party for special, indirect, consequential, punitive, or exemplary damages.
Consultant's obligation to defend, indemnify, and hold the City, its agents, officers, officials, and employees harmless under the provisions of this paragraph is not limited to or restricted by any requirement in this Agreement for Consultant to procure and maintain a policy of insurance.
EXHIBIT A
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Construction Management and Inspection Services for the Area 7 Septic to Sewer Conversion Project
In the event that CONSULTANT or any employee, agent, or subcontractor of CONSULTANT providing services under this Agreement is determined by a court of competent jurisdiction or
EXHIBIT A
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Construction Management and Inspection Services for the Area 7 Septic to Sewer Conversion Project
the California Public Employees Retirement System (PERS) to be eligible for enrollment in PERS as an employee of CITY, CONSULTANT shall indemnify, defend, and hold harmless CITY for the payment of any employee and/or employer contributions for PERS benefits on behalf of CONSULTANT or its employees, agents, or subcontractors, as well as for the payment of any penalties and interest on such contributions, which would otherwise be the responsibility of CITY.
18. DISPUTE RESOLUTION
Venue for all claims, controversies, or disputes arising out of, or relating to the formation of this Agreement, or the breach, termination execution, enforcement, interpretation, or validity of this Agreement, including the determination of the scope or applicability of this contract provision shall be in the Superior Court of Stanislaus County or the United States District Court for the Eastern District of California.
19. ATTORNEY'S 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.
20. ENTIRE AGREEMENT
This Agreement and its exhibits contain the entire understanding between Consultant and City. Additional or new terms contained in this Agreement which vary from Consultant's proposal are controlling and are deemed accepted by Consultant by shipment of any article or other commencement of performance hereunder. All previous proposals, offers and communications relative to this Agreement, whether oral or written, are hereby superseded except to the extent that they have been incorporated into this Agreement. No future waiver of or exception to any of the terms, conditions, and provisions of this Agreement shall be considered valid unless specifically agreed to in writing by all the parties.
21. PARTIAL INVALIDITY
If any provision in this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions shall nevertheless continue in full force without being impaired or invalidated in any way.
22. WAIVER
The waiver by any party to this Agreement of a breach of any provision hereof shall be in writing and shall not operate or be construed as a waiver of any other or subsequent breach hereof unless specifically stated in writing.
EXHIBIT A
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Construction Management and Inspection Services for the Area 7 Septic to Sewer Conversion Project
23. AUDIT
The City's duly authorized representative shall have access at all reasonable times to all reports, contract records, contract documents, contract files, and personnel necessary to audit and verify Consultant's charges to City under this Agreement. Notwithstanding the foregoing, City's right to audit shall not extend to Consultant's overhead, markups, profit/loss information, fixed rates, unit prices, prices expressed as percentages or any trade secrets.
Consultant agrees to retain reports, records, documents, and files related to charges under this Agreement for a period of four (4) years following the date of final payment for Consultant services. City's representative shall have the right to reproduce any of the aforesaid documents.
24. GOVERNING LAW
This Agreement shall be governed according to the laws of the State of California.
25. HEADINGS NOT CONTROLLING
Headings used in the Agreement are for reference purposes only and shall not be considered in construing this Agreement.
26. COMPLIANCE WITH LAWS
Consultant shall insure compliance with all safety and hourly requirements for employees, in accordance with federal, state, and county safety and health regulations and laws. Consultant shall fully comply with all applicable federal, state, and local laws, ordinances, regulations and permits.
27. CITY BUSINESS LICENSE
Consultant will have a City of Modesto business license.
EXHIBIT A
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Construction Management and Inspection Services for the Area 7 Septic to Sewer Conversion Project
IN WITNESS WHEREOF, the City of Modesto, a municipal corporation, has authorized the execution of this Agreement by its City Manager and attestation by its City Clerk under authority of Resolution No. 20 - , adopted by the Council of the City of Modesto on the day of , 20 , and (CONSULTANT) has caused this agreement to be duly executed in as of the Effective Date.
CITY OF MODESTO
a municipal corporation
(CONSULTANT)
a California corporation*
By By
JOSEPH P. LOPEZ, City Manager
ATTEST:
Name
By
Name
Title
Title
By (Seal)
DIANE NAYARES-PEREZ, CMC, City Clerk
CONSULTANT's Federal ID#
APPROVED AS TO FORM:
By
JOSE M. SANCHEZ, City Attorney
APPROVED AS TO FORM:
By
MATTHEW BRALEY, Risk Manager
EXHIBIT A
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Construction Management and Inspection Services for the Area 7 Septic to Sewer Conversion Project
EXHIBIT C: INSURANCE REQUIREMENTS FOR PROFESSIONAL SERVICES Consultant 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 Consultant his agents, representatives, employees or subconsultants.
MINIMUM SCOPE AND LIMIT OF INSURANCE
Coverage shall be at least as broad as:
1. 1. Commercial General Liability (CGL): Insurance Services Office Form CG 00 01 covering CGL on an “occurrence” basis, including products and completed operations, property damage, bodily injury and personal & advertising injury with limits no less than $1,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location (ISO CG 25 03 or 25 04) or the general aggregate limit shall be twice the required occurrence limit.
2. Automobile Liability: ISO Form Number CA 00 01 covering any auto (Code 1), or if Consultant has no owned autos, hired, (Code 8) and non-owned autos (Code 9), with limit no less than $1,000,000 per accident for bodily injury and property damage.
3. Workers’ Compensation: as required by the State of California, with Statutory Limits, and Employer’s Liability Insurance with limit of no less than $1,000,000 per accident for bodily injury or disease.
(Not required if consultant provides written verification, it has no employees)
4. Professional Liability (Errors and Omissions) Insurance appropriates to the Consultant’s profession, with limit no less than $2,000,000 per occurrence or claim, $2,000,000 aggregate.
If the consultant 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 consultant. 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 Consultant 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 Consultant’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
EXHIBIT A
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Construction Management and Inspection Services for the Area 7 Septic to Sewer Conversion Project
The City of Modesto, its officers, officials, and 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 Consultant 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 Consultant’s insurance with coverage equal to ISO form CG 2010. If Completed Operations endorsement is required, a separate endorsement equal to ISO form CG 2037 is required.
Primary Coverage
The Additional Insured coverage under the Consultant’s policy shall be “primary and noncontributory” 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 Consultant’s insurance coverage to the sole negligence of the Named Insured.
Notice of Cancellation
Each insurance policy required above shall provide that coverage shall not be canceled, except with notice to the City of Modesto.
Waiver of Subrogation
Except for Professional Liability Insurance, Consultant hereby grants to City of Modesto a waiver of any right to subrogation which any insurer of said Consultant may acquire against the City of Modesto by virtue of the payment of any loss under such insurance. Consultant agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not the City of Modesto has received a waiver of subrogation endorsement from the insurer.
Self-Insured Retentions
All Self-insured retentions must be disclosed to Risk Management for approval and shall not reduce the limits of liability. The City of Modesto may require the Consultant to purchase coverage with a lower retention or provide proof of the 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 consultant or subconsultant who procured such insurance and shall not apply to the Indemnified Additional Insured Parties.
Acceptability of Insurers
Insurance is to be placed with insurers with a current A.M. Best’s rating of no less than A:VII, unless otherwise acceptable to the City of Modesto.
Claims Made Policies (applicable to Professional Liability only) If any of the required policies provide claims-made coverage:
1. The Retroactive Date must be shown and must be before the date of the contract or the beginning of contract work.
2. Insurance must be maintained, and evidence of insurance must be provided for at least five (5three (3) years after completion of the contract of work.
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 Consultant must purchase “extended reporting” coverage for a minimum of five (5 three (3) years after completion of work.
Verification of Coverage
EXHIBIT A
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Consultant shall furnish the City of Modesto with original certificates and amendatory endorsements or copies of the applicable policy language affecting 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 Consultant’s obligation to provide them. The City of Modesto reserves the right to require complete, certified redacted copies of Declaration Pages 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.
Subconsultants
Consultants shall require and verify that all subconsultants, 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 subconsultant’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 and Consultant shall be reimbursed for any increased premiums for such added coverage.
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
EXHIBIT A
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TRCCOMPANIES.COM
Area 7
Septic-to-Sewer
Conversion
Project
EXHIBIT A
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Estimate of Hours Worksheet December 29, 2025
Project Schedule
May Jun Jul Aug Sep Oct Nov Dec Jan Feb 189
31 30 31 31 30 31 30 31 31 28 Estimated Prof. Svcs NTP: May 1, 2026 21 21 22 21 21 23 20 20 22 19 Estimated Substantial February 2, 2027 PHASE 1: PRE-CONSTRUCTION 32 Completion (Construction): March 30, 2027 PHASE 2: CONSTRUCTION 152 159 152 152 166 145 145 159 75 PHASE 3: POST CONSTRUCTION 64 Estimated Manhours: 1,401 Position Name May Jun Jul Aug Sep Oct Nov Dec Jan Feb Hours CM/ Sr Inspector (Non-PW Duties) Justin Wehling 8 8 $ 1,760.24 OE./ RE (Non-PW Duties) Ben Orejel 8 8 $ 1,765.84
* Inspector (NPW) Francisco Torres 16 16 $ 2,928.00
CM/ Sr Inspector (Non-PW Duties) Justin Wehling 1 1 1 1 1 1 1 1 1 9 $ 1,980.27 OE./ RE (Non-PW Duties) Ben Orejel 25 26 25 25 27 24 24 26 14 216 $ 47,677.68 * Inspector (Day ST) Francisco Torres 84 88 84 84 92 80 80 88 40 720 $ 131,760.00 * Inspector (Day OT) Francisco Torres 42 44 42 42 46 40 40 44 20 360 $ 93,387.60 $ 274,805.55
$ 274,805.55
CM/ Sr Inspector (Non-PW Duties) Justin Wehling 8 8 $ 1,760.24 OE./ RE (Non-PW Duties) Ben Orejel 40 40 $ 8,829.20
* Inspector (NPW) Francisco Torres 16 16 $ 2,928.00
Vehicles Allowance 32 152 159 152 152 166 145 145 159 139 1,401 $ 7,677.48 $ 7,677.48
$ 7,677.48
$ 302,454.55
Notes and Assumptions:
• Fees are based on 180 day construction duration with professional services NTP anticipated in May 2026. • Should the actual schedule require more or less professional services than proposed adjustments to this estimate may be required. • Client will be billed only for hours worked. Night work and Overtime will be billed at a pro-rata adjusted rate. 3% annual escalation effective every July 1st. • Unless otherwise noted, above rates are straight-time rates. Overtime, rain, holidays and potential time extensions or delays may result in additional professional services. • Wages for inspection subject to Calif. Labor Code Section 1772. Rates are based on DIR Prevailing Wage Determination NC-63-3-9-2024-1 TRC will pay and bill accordingly. * Denotes employees/classifications that are subject to prevailing wage.
Full set of Inspector Bill Rates: Name
Construction Manager
RE/OE
Inspector (Group 1) Francisco Torres
OT
N/A
N/A
$ 183.00
$ 220.73
Justin Wehling $ 220.03
TOTAL OF CONTRACT
SUBTOTAL PHASE 2: CONSTRUCTION:
PHASE 3: POST CONSTRUCTION
City of Modesto | Construction Management and Inspection Services for the Area 7 Septic to Sewer Conversion Project SUBTOTAL ODC's:
PHASE 2: CONSTRUCTION
SUBTOTAL: LABOR
2026 2027
Totals
Ben Orejel
PHASE 1: PRE-CONSTRUCTION
ST
$ 242.00
DT
N/A
N/A
N/A
TRC Engineers, Inc.
EXHIBIT B
1 of 1
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EXHIBIT C – Insurance Requirement for Professional Services Consultant 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 Consultant his agents, representatives, employees or subconsultants.
MINIMUM SCOPE AND LIMIT OF INSURANCE
Coverage shall be at least as broad as:
1. 1. Commercial General Liability (CGL): Insurance Services Office Form CG 00 01 covering CGL on an “occurrence” basis, including products and completed operations, property damage, bodily injury and personal & advertising injury with limits no less than $1,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location (ISO CG 25 03 or 25 04) or the general aggregate limit shall be twice the required occurrence limit.
2. Automobile Liability: ISO Form Number CA 00 01 covering any auto (Code 1), or if Contractor has no owned autos, hired, (Code 8) and non-owned autos (Code 9), with limit no less than $1,000,000 per accident for bodily injury and property damage.
3. Workers’ Compensation: as required by the State of California, with Statutory Limits, and Employer’s Liability Insurance with limit of no less than $1,000,000 per accident for bodily injury or disease.
(Not required if consultant provides written verification, it has no employees)
4. Professional Liability (Errors and Omissions) Insurance appropriates to the Consultant’s profession, with limit no less than $2,000,000 per occurrence or claim, $2,000,000 aggregate.
If the consultant 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 consultant. 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 Consultant 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 #14..
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to a loss covered hereunder, shall be called upon to contribute to a loss until the Consultant’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
The City of Modesto, its officers, officials, and employees 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 Consultant 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 Consultant’s insurance with coverage equal to ISO form CG 2010. If Completed Operations endorsement is required, a separate endorsement equal to ISO form CG 2037 is required.
Primary Coverage
The Additional Insured coverage under the Consultant’s policy shall be “primary and noncontributory” 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 Consultant’s insurance coverage to the sole negligence of the Named Insured.
Notice of Cancellation
Each insurance policy required above shall provide that coverage shall not be canceled, except with notice to the City of Modesto.
Waiver of Subrogation
Except for Professional Liability Insurance, Consultant hereby grants to City of Modesto a waiver of any right to subrogation which any insurer of said Consultant may acquire against the City of Modesto by virtue of the payment of any loss under such insurance. Consultant agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not the City of Modesto has received a waiver of subrogation endorsement from the insurer.
Self-Insured Retentions
All Self-insured retentions must be disclosed to Risk Management for approval and shall not reduce the limits of liability. The City of Modesto may require the Consultant to purchase coverage with a lower retention or provide proof of the 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 consultant or subconsultant who procured such insurance and shall not apply to the Indemnified Additional Insured Parties.
Acceptability of Insurers
Insurance is to be placed with insurers with a current A.M. Best’s rating of no less than A:VII, unless otherwise acceptable to the City of Modesto.
Claims Made Policies (applicable to Professional Liability only) If any of the required policies provide claims-made coverage:
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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 three (3) years after completion of the contract of work.
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 Consultant must purchase “extended reporting” coverage for three (3) years after completion of work.
Verification of Coverage
Consultant shall furnish the City of Modesto with original certificates and amendatory endorsements or copies of the applicable policy language affecting 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 Consultant’s obligation to provide them. The City of Modesto reserves the right to require redacted copies of Declaration Pages of all required insurance policies, including endorsements required by these specifications, at any time. Failure to exercise this right shall not constitute a waiver of right to exercise later.
Subconsultants
Consultants shall require and verify that all subconsultants, 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 subconsultant’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 and Consultant shall be reimbursed for any increased premiums for such added coverage.
Certificate Holder Address
Proper address for mailing certificates, endorsements and notices shall be:
City of Modesto
Attn: Risk Management
1010 10th Street
Modesto, CA 95354
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CITY OF MODESTO
COUNCIL AGENDA REPORT
DATE OF MEETING:
May 5, 2026
Date: April 7, 2026
TO: Mayor and City Council
THROUGH: Joseph P. Lopez, City Manager
FROM: William Wong, Director of Utilities
SUBJECT: Purchase and Installation of Granular Activated Carbon for Water CONTACT: Manuel Martinez, Water Division Manager, [email protected], 209-342-4592
DESCRIPTION:
Consider approving an Agreement for the purchase and installation of granular activated carbon to Calgon Carbon Corporation, Moon Township, PA, for a total amount not to exceed $3,205,360 over five (5) years. (Funding Source: Water Fund, PCE Mitigation Fund)
STRATEGIC PLAN ELEMENT:
This recommended action is in conformance with City of Modesto 2025-2026 Strategic Plan Element: “Quality of Life”, Goal D: “Provide safe, efficient, and reliable infrastructure through proactive community investment, maintenance, and sustainability efforts." BACKGROUND:
The City of Modesto has ten (10) wells retrofitted with pressure vessels that require annual replacement of the Granular Activated Carbon (GAC). Each well has between one (1) to four (4) pressure vessels. The GAC must be United States virgin carbon meeting National Sanitation Foundation 61 standards. Virgin carbon is a high-quality, unused form of activated carbon that is primarily used for adsorption applications, including water purification. GAC is a filter used to remove and dissolve organics and contaminants from the groundwater supply. Carbon pressure vessels treat water by passing it through a fixed bed of GAC.
Staff must replace the GAC in these vessels to maintain the quality of the drinking water.
This process requires the spent GAC to be removed from the vessel and replaced with new GAC.
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City Council Meeting, May 5, 2026
Purchase and Installation of Granular Activated Carbon for Water
On March 8, 2016, by Resolution No. 2016-88, Council authorized the award of bid for the purchase and installation of GAC for the Utilities Department, Water Division, to Calgon Carbon Corporation (Calgon Carbon) for five (5) years at a total cost not to exceed $1,384,945.
On February 9, 2021, by Resolution No. 2021-039, Council authorized the extension of termination date of the Agreement with Calgon Carbon from the original term date of March 7, 2021, to a revised date of September 7, 2021.
On August 10, 2021, by Resolution No. 2021-324, Council authorized an Agreement utilizing the competitive bidding process from the City of Fresno, CA, with Calgon Carbon for a one-year agreement with four (4) one-year extension options, for an estimated annual amount of $660,000 and a total not to exceed $3,504,683 over five (5) years.
On November 10, 2025, the City Manager approved the First Amendment to the Agreement to extend the term through June 30, 2026.
DISCUSSION:
On August 13, 2025, the City Manager authorized the Purchasing Manager to solicit procurement for the purchase of GAC. On December 7, 2022, the City of Tulare issued a Request for Bid (RFB) No. 23-773 for the purchase of approximately 240,000 pounds of GAC. On January 5, 2023, bids were opened at City of Tulare, City Clerk, 2nd Floor, 411 East Kern Avenue, Tulare, CA 93274. Three (3) bids were received and based on the lowest costs; an agreement was awarded to Calgon Carbon. Based on the responsive and responsible bidder offering the lowest cost, City staff recommends to award to Calgon Carbon Corporation, Moon Township, PA to purchase Granular Activated Carbon (GAC) for an amount not to exceed $3,205,360.
The City of Tulare is a government agency with their own procurement process that meets or exceeds the City’s requirements.
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 his or her discretion, determines that a process other than the formal bid procedure set for in Section 8-3.203 will result in procurement for the City at the lowest possible cost commensurate with the desired quality.” In addition, MMC 8-3.202(h) encourages the Purchasing Manager to join with the State of California and other units of government in cooperative purchasing plans when the best cost savings interest of the City would be served.
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City Council Meeting, May 5, 2026
Purchase and Installation of Granular Activated Carbon for Water
FISCAL IMPACT:
Spending for the past five years is summarized below:
Contract
Year
Expended
Year 1 $200,080
Year 2 $315,450
Year 3 $187,605
Year 4 $412,302
Year 5 $276,681
Grand Total $1,392,118
The Water Division is bringing three (3) additional well sites into service, Wells 70, 71 and 312, each of these sites require granular activated carbon (GAC) to ensure compliance with state regulations to maintain water quality. The projected annual amounts include a 15% increase from the cooperative purchasing agreement with Calgon Carbon for the purchase and installation of granulated activated carbon and a 5.5% CPI increase in contract years three (3) through five (5).
Expenditures are budgeted in the Utilities Department Water Fund, 4100-45050 and PCE (perchloroethylene) Mitigation Fund, 4112-45030.
Contract
Year
Term
Dates
Total
Amount
Year 1 7/1/2026-6/30/2027 $ 600,000
Year 2 7/1/2027-6/30/2028 $ 600,000
Year 3* 7/1/2028-6/30/2029 $ 633,000
Year 4* 7/1/2029-6/30/2030 $ 667,815
Year 5* 7/1/2030-6/30/2031 $ 704,545
Total Not To Exceed Over Five (5) Years $3,205,360
*Years 3 through 5 include an annual 5.5% Consumer Price Index increase.
The overall agreement total was calculated by forecasting CPI percentage increases based on an average of the CPI index over the last twelve (12) months. City staff project annual increases based on this estimated forecast. Annual increases will be calculated using the current CPI index at the time of the requested increase.
COMMITTEE RECOMMENDATION:
This item was considered by the Economic Development Committee at the April 6, 2026 meeting, where it was recommended that it be forwarded to Council. #15..
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City Council Meeting, May 5, 2026
Purchase and Installation of Granular Activated Carbon for Water
CEQA/NEPA REQUIREMENTS:
This item does not constitute a “project” within the meaning of California Environmental Quality Act (CEQA) Guidelines Section 15378 and requires no environmental review.
RECOMMENDED COUNCIL ACTION:
Staff Recommendation:
Resolution approving an Agreement with Calgon Carbon Corporation, Moon Township, PA, by utilizing the Competitive Bid Process with the City of Tulare, for a two (2) year Agreement with three (3) one-year extension options, for an estimated annual amount of $600,000 and a total amount not to exceed $3,205,360 over five (5) years; and authorizing the City Manager, or his designee, to execute the Agreement.
Approved by:
William Wong, Director of Utilities
Joseph P. Lopez, City Manager
Attachments:
1. Resolution
2. Agreement – Calgon Carbon Corporation
3. Cost Abstract
4. Exhibit A – Invitation to Bid for Granular Activated Carbon
5. Exhibit B - Calgon Carbon Corporation Submittal
6. Financial Interest Disclosure
7. Levine Act Form
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05/05/2026/Utilities/MMartinez/Item X 1 2026-XX
MODESTO CITY COUNCIL
RESOLUTION NO. 2026-?
RESOLUTION APPROVING AN AGREEMENT WITH CALGON CARBON
CORPORATION, MOON TOWNSHIP, PA, BY UTILIZING THE COMPETITIVE BID PROCESS WITH THE CITY OF TULARE, FOR A TWO (2) YEAR AGREEMENT WITH THREE (3) ONE-YEAR EXTENSION OPTIONS, FOR AN ESTIMATED ANNUAL AMOUNT OF $600,000 AND A TOTAL AMOUNT NOT TO EXCEED $3,205,360 OVER FIVE (5) YEARS; AND AUTHORIZING THE
CITY MANAGER, OR HIS DESIGNEE, TO EXECUTE THE AGREEMENT WHEREAS, the City of Modesto has ten (10) wells retrofitted with pressure vessels that require annual replacement of the Granular Activated Carbon (GAC); and
WHEREAS, each well has between one (1) to four (4) pressure vessels; and
WHEREAS, the GAC must be U.S. virgin carbon meeting National Sanitation Foundation (NSF) 61 standards. GAC is a filter used to remove and dissolve organics and contaminants from the groundwater supply. Carbon pressure vessels treat water by passing it through a fixed bed of GAC; and WHEREAS, staff must replace the GAC in these vessels to maintain the quality of the drinking water; and
WHEREAS, staff is bringing three (3) additional well sites into service, Wells 70, 71, and 312, each of these sites require GAC to ensure compliance with state regulations to maintain water quality; and
WHEREAS, on August 13, 2025, the City Manager authorized the Purchasing Manager to solicit procurement for the purchase of GAC; and WHEREAS, on December 7, 2022, the City of Tulare issued a Request for Bid (RFB) No. 23-773 for the purchase of GAC, and based on the responsible #15..
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05/05/2026/Utilities/MMartinez/Item X 2 2026-XX
and responsible bidder offering the lowest cost, an agreement was awarded to Calgon Carbon Corporation; and
WHEREAS, the City of Tulare is a government agency with their own procurement process that meets or exceeds the City’s requirements, City staff recommends awarding an agreement to Calgon Carbon Corporation for the purchase and installation of granular activated carbon; and WHEREAS, Modesto Municipal Code Section 8-3.203 generally requires all purchases, which meet or exceed $100,000 for material, equipment or contractual services to be formally bid. However, exceptions to the formal bidding process are granted in MMC 8-3.204(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 procurement for the City at the lowest possible cost commensurate with the desired quality”; and WHEREAS, in addition, MMC 8-3.202(h) encourages the Purchasing Manager to join with the State of California and other units of government in corporate purchasing plans when the best cost savings interest of the City would be served.
NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Modesto that it hereby approves an Agreement with Calgon Carbon Corporation, Moon Township, PA, by utilizing the Competitive Bid Process with the City of Tulare, for a two (2) year Agreement with three (3) one-year extension options, for an estimated annual amount of $600,000 and a total amount not to exceed $3,205,360 over five (5) years.
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05/05/2026/Utilities/MMartinez/Item X 3 2026-XX
BE IT FURTHER RESOLVED that the City Manager, or his designee, is hereby authorized to execute the agreement, in a form approved by the City Attorney.
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05/05/2026/Utilities/MMartinez/Item X 4 2026-XX
The foregoing resolution was introduced at a regular meeting of the Council of the City of Modesto held on the 5th day of May, 2026, by Councilmember ?, who moved its adoption, which motion being duly seconded by Councilmember ?, was upon roll call carried and the resolution adopted by the following vote:
AYES: Councilmembers:
NOES: Councilmembers:
ABSENT: Councilmembers:
ATTEST: ____________________________
DIANE NAYARES-PEREZ, CMC,
City Clerk
(SEAL)
APPROVED AS TO FORM:
BY: _____________________________
JOSE M. SANCHEZ, City Attorney
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1 ANNUAL AGREEMENT NO 308565
FOR FURNISHING AND INSTALLATION OF GRANULAR ACTIVATED CARBON AND
REMOVAL OF (GAC)
CALGON CARBON CORPORATION
This agreement, hereinafter called AGREEMENT, made and entered into in the City of Modesto, State of California, this _______ day of ________________, 2026, by and between the City of Modesto, a municipal corporation of the State of California, hereinafter called CITY, and Calgon Carbon Corporation, a California Corporation, hereinafter called CONTRACTOR.
W I T N E S S E T H:
WHEREAS, the Modesto City Council adopted Resolution No. 2026-______ authorizing the Award of agreement for the Furnishing and Installation of Granular Activated Carbon and Removal of (GAC) 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 Furnishing and Installation of Granular Activated Carbon and Removal of (GAC) as described in RFB #23-773, attached hereto as Exhibit “C” and made a part hereof (hereinafter called IFB). #15..
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2 NOW, THEREFORE, the parties hereto mutually agree as follows:
1. THE WORK:
a. CONTRACTOR shall furnish all labor, materials, equipment, fuel, tools, licenses, and insurance necessary to perform and complete the required work as specified in Exhibit “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 of $600,000. The total amount paid by CITY to CONTRACTOR over the full term of the AGREEMENT shall not exceed $3,205,360. Unless the services provided are for a lump sum or flat fee, fees for work performed by CONTRACTOR on an hourly basis shall not exceed the amounts shown on Bid attached hereto as Exhibit B.
AGREEMENT PRICING
Item Description Unit of Issue Unit Price Total
Installation of GAC by Slurry Method Pound $1.70 $34,000 Removal of adsorption vessel contents 20K Vessel $4,944 $4,944 Transport Adsorption vessel contents to
reactivation/destruction facility
20K Vessel $11,600 $9,456
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3 Total 20K Vessel $48,400
2. CITY REPRESENTATIVE:
CITY Representative: Jeremy Parnell, UTL Water Operations Superintendent (209) 342-4599 Purchasing Representative: Armando Fabro, Buyer, (209) 577-5420 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.
3. CONTRACTOR CONTACT:
Calgon Carbon Corporation
3000 GSK Drive
Moon Township, PA 15108
412.787.6700
Ben Goecke - [email protected] - 425.286.0754
Frederic (Eric) Forrester - [email protected] - 412.721.4592 Jeremy Jones - [email protected] - 412.419.5735
4. TERM OF AGREEMENT:
The term of the AGREEMENT shall be for a period of one (1) year, with four (4) one-year extension options at the sole discretion of CITY, for a total of up to five (5) years.
Year 1: July 1, 2026 through June 30, 2027
Year 2: July 1, 2027 through June 30, 2028
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4 Year 3: July 1, 2028 through June 30, 2029
Year 4: July 1, 2029 through June 30, 2030
Year 5: July 1, 2030 through June 30, 2031
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 first year shall be as follows:
Virgin GAC:
The fees payable pursuant hereto will be adjusted on July 1 of each calendar year by the annual percentage change in the following three price indices, in the proportion indicated next to each index:
1) U.S. Department of labor PPI for all other Basic Organic Chemicals Manufacturing: miscellaneous end-use chemicals and chemical products, excluding urea (PCU325199325199t) @ 40% weight 2) U.S. Department of labor CPI for urban wage earners for the U.S. City average (CWUR0000SA0) @ 40% weight
3) Transportation: U.S. Department of labor PPI by commodity for Transportation Services: Truck Transportation of freight (WPU3012) @ 20% weight
The percent adjustment shall be calculated by taking the percent difference for each index during the twelve-month period of the last completed contract year as compared to the twelve-month period from the contract year immediately preceding the last completed contract year. These percentages will then be averaged, per the proportions shown above, for calculating the final percent adjustment to which all virgin GAC will be subject.
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5 Annual Limits: Annual increases are limited to a maximum of 10% regardless of the above calculation, and annual decreases are limited to a maximum of 5% regardless of the above calculation. No amounts in excess of these limits (either increases or decreases) shall be carried over to subsequent years.
Initial Fee Limit: Regardless of any annual fee adjustment calculation, fees covered by this Agreement will at no time be reduced below the Initial Fee.
Custom Reactivated GAC (CMR):
The fees payable pursuant hereto will be adjusted on January 1 of each calendar year by the annual percentage change in the following three price indices, in the proportion indicated next to each index:
1) U.S. Department of labor PPI data for Utilities (PCU221---221---) @ 10% weight 2) U.S. Department of labor CPI for Urban Wage Earners for the West (CWUR0400SA0) @ 60% weight
3) U.S. Department of labor PPI by commodity for transportation services: Truck Transportation of freight (wpu3012) @ 30% weight
The percent adjustment shall be calculated by taking the percent difference for each index during the twelve-month period of the last completed contract year as compared to the twelve-month period from the contract year immediately preceding the last completed contract year. These percentages will then be averaged, per the proportions shown above, for calculating the final percent adjustment to which all virgin GAC will be subject.
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6 Annual Limits: Annual increases are limited to a maximum of 10% regardless of the above calculation, and annual decreases are limited to a maximum of 5% regardless of the above calculation. No amounts in excess of these limits (either increases or decreases) shall be carried over to subsequent years.
Initial Fee Limit: Regardless of any annual fee adjustment calculation, fees covered by this Agreement will at no time be reduced below the Initial Fee.
Additional Virgin Make-Up Pricing for CMR will follow the same fee adjustment as Virgin GAC.
Requests for price increases shall be submitted by CONTRACTOR in writing, thirty (30) days prior to the annual anniversary date of the AGREEMENT to be effective for the subsequent year.
Price adjustments for diesel fuel fluctuations may be considered. Thirty (30) day written notice is required for consideration. Any price adjustment shall be negotiated through the Purchasing Division and approved at the sole discretion of the CITY.
The index used to determine price adjustments on diesel fuel shall come from the Energy Information Administration Website: HTTPS://WWW.EIA.GOV/PETROLEUM/GASDIESEL/, California data.
5. INSURANCE REQUIREMENTS:
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 vendor is responsible for uploading and maintaining updated insurance.
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7 6. PAYMENT:
CONTRACTOR shall invoice CITY not less than once per month based on the cost for services performed and reimbursable costs incurred prior to the invoice date. All invoices shall be paid in full the following payment terms within thirty days after completion and acceptance of the Services by the CITY, and receipt of a properly prepared invoice, CITY will pay CONTRACTOR Net 30 terms via CITY’s ePay Program. The CITY is exempt from payment of Federal Excise Tax, and all invoices shall be exclusive of such excise tax.
Invoice to: City of Modesto
Attn: Accounts Payable
P.O. Box 642
Modesto, CA 95353
Email to: [email protected]
At a minimum, invoices shall state the following:
• This AGREEMENT 308565
• CITY department/division name and address
• Billing period
• Service hours worked day and week
• Unit price, extended price, sales tax and total
7. INDEMNITY:
The CONTRACTOR shall hold the CITY, its agents, officials, officers, employees, and volunteers, harmless from and save, defend and indemnify them against any and all claims, losses, liabilities, judgments or damages from every cause, including but not limited to injury to person or property or wrongful death, including reasonable costs and expenses of defense of any judicial or administrative action, arising directly or indirectly out of any negligent or intentional act or omission of CONTRACTOR, or its agents, officials, officers, employees, or volunteers relating to or during the #15..
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8 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.
8. VENUE & GOVERNING LAW:
Venue for any dispute or claim arising or related to this AGREEMENT its performance, breach, or interpretation (including issues about its validity or enforceability), shall be exclusively in the Superior Court of Stanislaus County or the United States District Court for the Eastern District of California This AGREEMENT shall be deemed made in, governed by, performed in, and construed and enforced in accordance with the laws of the State of California, without giving effect to its conflicts of laws provisions or principles.
9. ATTORNEYS’ FEES:
If a party to this AGREEMENT brings any action, including an action for declaratory relief, to enforce or interpret the provision of this AGREEMENT, the prevailing party shall be entitled to reasonable attorneys’ fees in addition to any other relief to which that party may be entitled. The court may set such fees in the same action or in a separate action brought for that purpose.
10. COMMENCEMENT AND COMPLETION OF THE WORK:
The work contemplated herein shall be commenced as immediately after the agreement administrator receives and has on file:
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9 a. Proofs of insurance (approved by CITY Risk Manager); and b. Resolution No.2026-_______;
c. CONTRACTOR Bid submittal;
d. RFB #23-773;
e. Contractor’s City of Modesto business license
11. TERMINATION OF SERVICES:
Termination for Default: In the event either party fails to perform under this AGREEMENT or breaches any condition contained herein, the other party shall notify in writing the breaching party of the non-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.
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:
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10 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; 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 #15..
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11 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:
j. The cost of settling and paying valid claims arising out of the termination of the SERVICES such as subcontractor agreements or contracts for materials; k. The AGREEMENT price allocable to the portion of the SERVICES properly performed or goods supplied to the work site by the CONTRACTOR as of the date of termination, as determined in accordance with the notice of termination, reduced by any sums previously paid to the CONTRACTOR for such SERVICES.
12. COMPLIANCE WITH ALL LAWS:
CONTRACTOR hereby agrees that CONTRACTOR and its subcontractors, if any, in the performance of the SERVICES described herein, will comply with all federal, state, county and municipal laws, rules and regulations which may be applicable to the work herein contracted for, whether now in existence or hereafter adopted.
13. FAILURE TO PERFORM SATISFACTORY WORK:
It is agreed and understood that if the CONTRACTOR fails to perform the SERVICES as specified herein, CITY's representative may:
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12 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.
14. ASSIGNMENT OF RIGHTS:
The CONTRACTOR offers and agrees, and will require all subcontractors and suppliers to agree, to assign to the CITY all rights, title, and interest in and to all causes of action it and they may have under Section 4 of the Clayton Act (15 United States code, Section 15) or under the Cartwright Act (Business and Professions Code, Section 16700 et seq.), arising from the acquisition of goods, services, or materials pursuant to this AGREEMENT or any allowed subcontract. The assignment made by CONTRACTOR and all assignments made by subcontractors and suppliers shall be made and become effective at the time the CITY makes final payment to The CONTRACTOR, without further acknowledgment by the parties (Government Code, Sections 4550-4554).
15. CITY PROCESS/PROCEDURE APPROVALS:
CITY approval of any process or procedure shall not relieve CONTRACTOR of its responsibility to furnish the required SERVICES meeting all specifications contained herein. #15..
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13 16. Contractor's Responsibility for Damages:
If CONTRACTOR damages any property belonging to the CITY or a third party, the CONTRACTOR will be required to make repairs immediately, at CONTRACTOR’s sole cost and expense, to the satisfaction of the CITY. In the event that CONTRACTOR fails to perform the necessary repairs, the CITY may either retain from the money due to CONTRACTOR an amount sufficient to repair the damage or perform the repairs and send an invoice to the CONTRACTOR for such costs, which shall be paid within thirty (30) days.
17. NOTICES:
Any notice, payment or instrument required or permitted by this AGREEMENT to be given or delivered to either party shall be deemed to have been received when personally delivered, or one calendar week following deposit of the same in any United States Post Office, registered or certified mail, postage prepaid, addressed as follows:
CONTRACTOR: Benjamin J. Goecke
Calgon Carbon Corporation
PO Box 347037
Allegheny, PA 15251
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.
18. 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.
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14 19. QUANTITIES:
No minimum or maximum is guaranteed or implied.
20. FUNDING:
All annual extensions are based upon continuous funding for that purpose by the City Council.
Failure to fund any annual extension shall result in an immediate termination of the AGREEMENT without redress.
21. OTHER GOVERNMENT/PUBLICLY FUNDED AGENCIES:
If mutually agreeable to all parties, the issuance of any resultant contract/purchase order referencing these specifications and modified by mutual agreement between all parties may be extended to other government or publicly funded agencies. It shall be understood that all terms and conditions as specified herein shall apply.
22. NON-DISCRIMINATION:
a. During the performance of this AGREEMENT, CONTRACTOR and any allowed subcontractors shall not unlawfully discriminate against any employee or applicant for employment because of race, color, ancestry, religion, sex, national origin, marital status, age, medical condition (cancer related), physical handicap (including AIDS), sexual orientation, or any other basis prohibited by Federal or California law. Equal employment opportunity extends, but is not limited to recruitment, compensation, benefits, layoff, termination, and all other conditions of employment.
The CONTRACTOR and any allowed subcontractors shall ensure that 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 #15..
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15 implementing Government Code, Section 12900, set forth in Chapter 5 of Division 4 of Title 2 of the California Administrative Code are incorporated into this contract by reference and made a part hereof as if set forth in full.
b. The CONTRACTOR and any allowed subcontractors shall give written notice of their obligations under this clause to labor organizations with which they have a collective bargaining or other agreement.
c. The CONTRACTOR shall include the nondiscrimination and compliance provisions of this clause in any allowed subcontracts to perform SERVICES.
d. The CONTRACTOR shall permit access by representatives of the Department of Fair Employment and Housing and the CITY upon reasonable notice at any time during the normal business hours, but in no case less than 24 hours’ notice, to such of its books, records, accounts, other sources of information and its facilities as said Department or CITY shall require to ascertain compliance with this AGREEMENT.
e. By executing this AGREEMENT, CONTRACTOR certifies that it shall follow and be in compliance with the Americans with Disabilities Act of 1990, the applicable administrative requirements promulgated in response thereto, and any other applicable Federal laws and regulations relating to handicap discrimination and participation and will continue to do so for at least the duration of the AGREEMENT and any extensions thereof.
23. CONTRACTOR LICENSES & PERMITS:
CONTRACTOR warrants and represents that it possesses and shall maintain all licenses and shall secure and maintain all necessary permits necessary to perform the SERVICES.
24. RECORDS:
All final versions of reports, data, maps, models, charts, studies, surveys, photographs, memoranda, plans, studies, specifications, records, files, or any other documents or materials, in electronic #15..
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16 or any other form, that CONTRACTOR prepares or obtains pursuant to this Agreement and that relate to the matters covered hereunder shall be the property of the CITY. CONTRACTOR hereby agrees to deliver those documents to the CITY upon termination of the AGREEMENT, and the CITY may use, reuse or otherwise dispose of the documents without CONTRACTOR’s permission. It is understood and agreed that the documents and other materials, including but not limited to those described above, prepared pursuant to this AGREEMENT are prepared specifically for the City and are not necessarily suitable for any future or other use.
25. FACILITIES AND EQUIPMENT:
Except as set forth herein, CONTRACTOR shall, at its sole cost and expense, provide all facilities and equipment that may be necessary to perform the services required by this AGREEMENT. CITY shall make available to CONTRACTOR only the facilities and equipment listed in EXHIBIT “A” and “B”, and only under the terms and conditions set forth herein.
26. INDEPENDENT CONTRACTOR; NOT AGENT:
At all times during the term of this AGREEMENT, CONTRACTOR shall be an independent contractor and shall not be an employee of CITY. CITY shall have the right to control CONTRACTOR only insofar as the results of CONTRACTOR’s services rendered pursuant to this AGREEMENT. Except as City may specify in writing, CONTRACTOR shall have no authority, express or implied, to act on behalf of CITY in any capacity whatsoever as an agent. CONTRACTOR shall have no authority, express or implied, pursuant to this AGREEMENT to bind City to any obligation whatsoever.
27. DRUG FREE WORKPLACE:
CONTRACTOR certifies that it is following and in compliance with Sections 8350 8355 of Chapter 5.5 of the Government Code, Drug Free Workplace Act whereby each person or organization awarded 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. #15..
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17 28. ASSIGNMENT:
Neither this AGREEMENT nor any SERVICES hereunder shall be subcontracted or assigned by CONTRACTOR without the prior written consent of the CITY in each and every instance.
29. WAIVER:
The waiver by any party to this AGREEMENT of a breach of any provision hereof shall be in writing and shall not operate or be construed as a waiver of any other or subsequent breach hereof unless specifically stated in writing.
30. HEADINGS NOT CONTROLLING:
Headings used in the Agreement are for reference purposes only and shall not be considered in construing this AGREEMENT.
31. MISCELLANEOUS:
Time is of the essence in CONTRACTOR’s performance under each provision of this AGREEMENT.
32. ENTIRE AGREEMENT:
This Agreement and its exhibits contain the entire understanding between CONTRACTOR and CITY. Additional or new terms contained in this AGREEMENT which vary from CONTRACTOR’S bid are controlling and are deemed accepted by CONTRACTOR by performance of any SERVICES or other commencement of performance hereunder. 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.
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18 33. PARTIAL INVALIDITY:
If any provision in this AGREEMENT is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions shall nevertheless continue in full force without being impaired or invalidated in any way.
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19 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. 2026-_______, adopted by the Council of the City of Modesto on the ________ day of __________________, 2026, and Calgon Carbon Corporation has caused this Agreement to be duly executed. #15..
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2 0
Exhibit D:
Insurance Requirements for Most Contracts
(Not for Professional Services or Construction Contracts) 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.
4. Contractors’ Pollution Legal Liability and/or Asbestos Legal Liability with limits no less than $1,000,000 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 noncontributory, additional insured, Self-Insured Retentions (SIRs), indemnity, and defense requirements. The Umbrella or Excess policies shall be provided on a true “following form” or broader coverage basis, with coverage at least as broad as provided on the underlying Commercial General Liability insurance. No insurance policies maintained by the Additional Insureds, whether primary or excess, and which also apply to a loss covered hereunder, shall be called upon to contribute to a loss until the Contractor’s primary and excess liability policies are exhausted.
The insurance policies are to contain, or be endorsed to contain, the following provisions:
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2 1
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.
Waiver of Subrogation
Contractor hereby grants to City of Modesto a waiver of any right to subrogation which any insurer of said Contractor may acquire against the City of Modesto by virtue of the payment of any loss under such insurance.
Contractor agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not the City of Modesto has received a waiver of subrogation endorsement from the insurer.
Self-Insured Retentions
All Self-insured retentions must be disclosed to Risk Management for approval and shall not reduce the limits of liability. The City of Modesto may require the Contractor to purchase coverage with a lower retention or provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention. Any and all deductibles and SIRs shall be the sole responsibility of Contractor or subcontractor who procured such insurance and shall not apply to the Indemnified Additional Insured Parties.
Acceptability of Insurers
Insurance is to be placed with insurers with a current A.M. Best’s rating of no less than A:VII, unless otherwise acceptable to the City of Modesto.
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 #15..
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2 2
endorsements are to be received and approved by the City of Modesto Risk Services before work commences.
However, failure to obtain the required documents prior to the work beginning shall not waive the Contractor’s obligation to provide them. The City of Modesto reserves the right to require complete, certified copies of all required insurance policies, including endorsements required by these specifications, at any time. City reserves the right to obtain a full certified copy of any insurance policy and endorsements. Failure to exercise this right shall not constitute a waiver of right to exercise later.
Subcontractors
Contractors shall require and verify that all subcontractors, or other parties hired for this work, purchase and maintain coverage for indemnity and insurance requirements as least as broad as specified in this agreement to the extent they apply to the scope of the subcontractor’s work with the same certificate of insurance requirements and naming as additional insureds all parties to this contract.
Special Risks or Circumstances
City of Modesto reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances.
Certificate Holder Address
Proper address for mailing certificates, endorsements and notices shall be:
City of Modesto
Attn: Risk Management
1010 10th Street
Modesto, CA 95354
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Bid #
Title
Dqte/Time
23-773
Gronulqted Activoted Corbon
Thursdoy, Jonuory 5,2023 ol 2:00 p.m.
Bid Opening Summory Sheet
Altesled ond Opened By:
Recorded By:
Wilness:Wilness:
De Clerk
".1
43 2
I
12 1 Ir0
9 8
7 6
5 cotsoncorbon -f,lln M
Nome of Compony
bmd4dBtffieg. (nrbon Su,Onlq TA ,gy2o(kt/.]
Aqueous Vets
3e\l 6ar.ill'ns, CA
Moon Township, PA
Redding, CA
City
ffiqb,oot rs lflO,rzstp
hxq , 411 .oa h qt',ffiooo
bqss\x.oo /$ql,t:qc
Amount
Note: Bids/RFP's ore subjeci to review ond verificotion. #15..
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CALGON CARBON CORPORATION
SERVICE AGREEMENT
This Service Agreement (this "Agreemenf') is entsred into as of April srh, 2023 (thc "Effective Dato") by and between the City of Tirlare, a California Municipality, located at 41 1 East Kern Ave, Tulare,CA93274 f'subscriber") and Calgon Carbon Corporatiou, a Delaware corporation, located at 3000 GSK Drive, Moon Township, PA 15108 ("CCC').
In consideration of the mutual agroements herein contained and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and intending to be legally bound hereby, the parties hereto agree as follows:
l. CCC will supply products and servicos for the treatment of 1,2,3-TCP and DBCP (the 'Application") at Subscriber's sj.tes listed and descrjbed in Exhibit I (the'iSites"). This Agreement is speoific to the Applisation at the Sites. CCC's scope of supply and responsibilities are further dsfined in Exhibit II and Subscriber's responsibilities are further defined in Exhibit III.
2, Any CCC-owned equipment included as part of this Agreement may not be used for other purposes or taken to other facilities without the prior writtsn gon$ent of CCC. ln addition, CCCowned equipment may not be altered without tbe prior written consent of CCC and only employees of Subscriber that have bseu authorized and trained on the use of the equipment may operate such equipment- Al[ equipment supplied by CCC during the Term of this Agreement shall reinain the proparly of CCC at all times. Any activated oarbon used in CCC's adsorption equipment must be supplied by CCC. If the Subscriber decides to utilize activated carbon from a supplier other than CCC, then CCC will have the right to tenninate this Agreementupon thirty (30) days written notice,
3. This Agreement shallbe in effect from the Effective Date through April4th,20241the "Initial Term'). T'hereafter, this Agreement shall automatically renew for successive oile-year periods (each, a "Ronewal Tsm" and, together with the Initlal Term, the "Term"), unless terminated by either party upon written notice at least thirty (30) days prior to the end of the Initial Term or the Renewal Term, as applioable. Any equipment and activated carbon shall be removed within thirty (30) dayn following the effective date of'termination of this Agreement.
Subscriber shall provide CCC with reasonable access in order to affect such removal.
4. The Subscriber shall pay CCC the following fees:
One (1) Vessel Exchange with Filtrasorb 400
One (l) Vessel Exchange with OLC 12x40
Two (2) Vessel Exchange with Filtrasorb 400
Two (2) Vessel Exchange with OLC 12x40
${5,694.00
$47,859.00
$91,388.00
$95,718,00
AII feeo will be firm for the Initial Term, with an adjusbnent for any Renewal Term in accordance with the Fee Adjustment clause in EXUbil-yU.
The fees in this Agreenrent are based upon CCC performing the responsibilities as described in Exhibit U during normal working hours, and under reasonable order procCIsing conditions. If Revised June 1,2022 Page I oflS
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CALGON CARBON CORPORATION
SERVICE AGREEMENT
overtime costs flre incuned solely for Subscriber's convenience, CCC rsservec the right to invoice Subscriber for docunrented overtime expens€s. ln addition, rush shipments (less than 3 business days' notice) will be subject to a surcharge on the carbon supply fee, as well as any additional freight charges incurred as a result of employing multiple trailers to meet Subsuiber's requirements. The surcharge will be based on the CCC Rush Order Policy in Exhibit V. 5, CCC will invoice Sub,scriber mobilization fees and carbon delivery fees upon delivery.
CCC will invoice Subscriber subsequent monthly service fees each month (the day coirciding with that of the original delivery date). CCC will invoics subscriber demobilization fees upon tennination of this Agreement,
Subscriber agrees to remit payment within thirty (30) days of the invoise date. All invoices mu;t be paid in full. lf Subscriber disputes any portion of an invoice, itwill pay the entire invoice when due and once the dispute is resolved, any resulting credit will be made against subsequent invoices. Late payrnents (payments made after thirty (30) days of invoice date) will be subject to a penalty of 1,25% per month.
6, At the request of the Subscriber, technical assistance will be provided by CCC in an effort to aid in thc optirnization of results for the Subscriber's specific application" Such assistance will be provided upon such tenns as may be mutually agreed upon by both pa(ies. An additional fee may apply,
7 , Any spent activated carbon covered by this Agreement will be subjected to reactivation acceptance testing by CCC a.s described in Exhibit VI. Further, CCC will periodically retest the spent activated sarbon to assure it remains acceptable for reactivation. CCC resetves the right to apply a surcharge for readivation of spent carbon with quality tbat creates excessive corrosion, siagging, exotlrermic reactions, or other operational problems including lower furnace operating rat;t. If the spent activated carbon becomes unacceptable for reactivation, disposal of the carbon will be the responsibitity of the Subscriber. Subscriber will provide any information required by CCC relative to evaluating carbon acceptance. CCC reserves the right to reject any and all activated sarbon if, in its judgment, it is unsuitable for reactivation. CCC reserves the right to reactivate the spent carbon at any of its reactivation facilities where carbon acceptance exists.
Title for spent activated carbon shall pass to CCC following (i) comptetion of acceptance testing and confinnation by CCC that the spent activatsd carbon is suitable for reactivation and (ii) the loading of the spent activated carbon on CCC's kucks for transportation to one of CCC's facilities,
6- All of the Exhibits referenced in this Agrcemcnt are attached hereto and nrade a part of this Agreement.
g. This Agreement constitutes the entire agteement between CCC and $ubsoriber and may not be modifiod ex.cept by a writing signed by the authorjzed representatives of each of the parties. CCC shall be obligated to perform only in accoldance with the terms of this Agreement and any terms and conditions confained in any purchase order which are difforent from, conflict with or add to the provisions of this Agreeinent shall be deemed to materially alter them and are hereby objected to and rejected by CCC.
Revised June l,2022 Page2cflS
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CALGON CARBON CORPORATION
SERVICE AGREEMENT
CALGON CARBON CORPORATION
By
Name Jeremy J. Jones
fi11s DWS Project Manager
p1sp A412O12023
as to
wt/'
CITY OF TULARE, CA
Name ,fl' //r '' 7' '
Title
By
Date 4zrz9
of T\rlare
City
City
Roviscd Junc 1.2022 Poge 3 of l8
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CALGON CARBON CORPORATION
SERVICE AGREEMENT
Location
Well Site (7 sltes)
WELL NO. WELL I,D. NO.
54r001501 I
54r00t501?
54r00t 5048
s4 I 001 505 I
s4l 00 r 5055
5410015056
54r 001 5069
EXTIIBIT I
SUBSCNIBER'S SITES
Blackstone @
Sonora
GAC Capaclty
20,000 lbs. per vessel
WELL DIAMETNR
LOCATIONS AND NUMBER
OF
ADSORBERS
ll
t7
34 35
37 38
44 Continental
Ave., South of O
sr.
Cross Ave. &
Delwood St.
Bardsley Ave.
East of Mooney
2315 Ship Rock
Ave.
510N, Laspina
Ave. @
Rails to Trails
crossing
C.O.S Collcge
Farm / Campus
Two 12'
dianroter
absorbers
Four 12'
diameter
absorbers
Four l2'
diameter
absorbers
Four l2'
diameter
absorbers
Four l2'
diameler
absorbers
Four 12'
diarneter
absorbers
Four l2'
diameter
absorbers
TOTAL
AMOUNT OF
CARBON IN
$ERVICE
(LBS.)
40,000lbs.
80,000|bs.
80,000lbs.
80,000lbs,
80,000 lbs.
80,000Ibs.
80,000lbs.
Revised June 1,2022 Prge4 oflS
#15..
- 872 -
CALGON CARBON CORPORATION
SSRVICE AGNEEMENT
EXHIBIT II
RESPONSTBILTTIES OF CALGON CARBON CORPORATION
1. Supply rcquested GAC, delivered by truckload.
2, Removal of spent rnedia and haul away, plus delivery and installation of virgin msdia.
3. Spent carbon reactivation acceptance testing. Subscriber is responsible for all third party costs of the testing (including laboratory costs), when applioablq and completing ths Adsorbate Profile Docunent (APD).
4. Speut carbon reactivation; provided that the spent cnrbon continues to be acceptable to CCC for reactivation (see Exhibit V$. Should the spent oarbon become unacceptable, CCC will consult with Subscriber regarding the disposal of such opent media; provided, however, such disposal shall be the responsibility of the Subscriber, including all costs of disposal.
Rcvlsed June l, ?022 Page5oftS
#15..
- 873 -
CALGON CARBON CORPORATION
SERVICE AGREEMENT
EXHIBIT III
RESPONSIBILITIES OF SUBSCRI BAR
l. Site access (within 100 feet for transfer equipment) and utilities for media hansfers:
b. lVater at approximately I.00 gpm
c. Power(ll0V' 20A)
e. Drainage point access to drain water from bulk trailers during and after transfer
2. Disposal of backwash/backflush, forward flush during start-up conditioning and all other transfer water.
3. Equipment decontamination, as required.
4. Complete Adsorbate Profile Documsnt and submit necessary samples to en$ure compliance with Carbon Acceptance procedures.
Rer'lsed Junc l, 2022
EXHIBIT IV
Page6oflS
#15..
- 874 -
CATCON CARBON CORPORATION
$ERVICD AGREAMENT
GEN'IERAL TtrRilIS AI{D CONDII'IONS
t. A$$lCNil,tENTl Neither pany may n,tnign this Agreertent, includingrvithout linritatir>t any of its riglrts or crtrligotions hersunder, witlrout the express wrilten $on$enl of the o*er palty ftereto; provided that CCC may assign this Agreernenl, including rvilhout liuritstion any of its rights or obligations hereundern to nny of its parenls, subsidiaries or affilintes or to nny third palty which rncrgcs u'ith CCC or ncquircs all or substantially all of its busiilcss and nsssts or a substanlial part of its asseB or husifles* relating lo the prcdncls or services $'ithout $ubscriber's $0{$snl.
2. RO. SgE MAJEU8€; Neither pafiy shall be liable lo the othsr pnrty for failure to per:form any of its obligations bereunder (except for tlre poynent of nroneyi due to an Act of Ood, terorisnl court ordero accidcnt, firc, floodn riot, rvar, sabotagc, cxploeicn, stdkc or labor distuubnncc {horuevcr neithsr perry shsll be obligated to settle.any striks nr sirnilar dispute evs{ if it in able ta do so), nalional rlet'ense noquirernents, gove,tnrnental lnlv, ordinance, rule or regulation* rvhether vali<l or ilrvalid, oxtrsordiflflry failure of equiprnent or apparatus, inabilily to obtain electricity or other ry'pe of energy, rarv materitl shortagr, equipnrent or transportalion rhortage ar uunvailatlility, or any sirnilu or different conlingency bryond the pnrty?s reasonable csnfrol whiclr rvould makc pcrforrnancc impractical, u'hcthcr or not the contingcncy is of thc salnc class as thone enurnernted above (the foregoing conditiorts aud eve.flts herein refbrred to ittdividunlly and collectively ns
n'Forc.s Majeure"). The party invuklng Force Majeure nhall provide lhe other parry with lrrcmpt *ritten neitificafion atd slrall advise the otherpany of its s$tiilate a$ to wheh ihe Force Majeure condition u,ill end. lf CCC invakes Forcc Majeure related to pert or all of the ,ser,l'ices provided lrereundsr, no fees relsted to the areas c.oversd by the Force Majeure claim shall bc payablc sa long es thc Irorcc [4ajcurc condition contiiluss. lf Subscribcr iilt'okcs ]orce Maj*ure, only those fees associat'd *.ith the on-site equipment will be payable during the.period ol"Force Majeure,
3. SONnNgnNgIES: CCC is responsibile under this Agreenreut for ttre s*fE haridling, transportation, autl reectivaiion of speut carbon, generated by Subscriber in the application covelecl by this Agreement, iu compliance with all lnws, regulatictts, and orders, for bcth parties' prolcction, Thcrcforc, if thc loadiug of contarninants on thc carbon cxcecds safc limits for Lnndling nr reactivation ng established by govemmental larv, regulation, or order related to regulated substarce.r, or lirnits inrposod indepenclently by CCC 10 be prutectir*e of its personnel, equipnrer:t, operrtiCIn$! or reputation, ttsR CCC utroll ndvise Sutrscritrer that it t*nilot remove the spent carbon for rcastiyaticn ss is and the parties shall work together ta take cotrective action.
Potsntial coffsctive sshltionr may include r lirniting the atnount of contnnrinants on each load of carbcl, spccinl handling of thc carbon st thc sitc or rcactivation c$ntor, cmployitrg nltcmats transportation options, or arranging for spent cartron dispo*al. Cosls incurflsd tbr nuch cotrectivo actitlirs are not CovEred by ihe fees pror'ideel herein, nnd they shsll be to the account of Subrcriber, oncc the coffecti\te action plan is agreed kr by Subscriber'
4. UOUIPMII].IT Drt li AND QON r ccc's prnctice is ta examine sll cquiprncniprior to shipmcnt to crlsulr thnt thc cqnipmcnt is in good condition rvhcn it is shippcd.
SlbicriUer will be rcsionsible lbr exanrining the equipment rvlr*u it arivss to etl$ur* that it is in Rer.hcd Jtna l, !0I! fngr ? of t$
#15..
- 875 -
CALGON CARBON CORPORATION
SERVICE AGREEMENT
satisfaotory oporating condition. If the equipment is damaged in transit, Subscriber must prornptly notify CCC.
lf the equipment is damaged by the Subscriber after arrival at the facility, CCC reserves the right to charge the Subscriber for the actual repair or replacenrent costs. lf the adsorption equipment or carbon transport trailer, through its use by Subscriber, becomes contaminated so that decontanrination is required, Subscriber will be responsible for the cosk of suoh decontamination. If decontamination is impractical as detennined by CCC' Subscriber hcreby agrees to puchase the adsorptiorr oquipment (or transport trailer) at a mutually agreed upon fair market price.
5. fEE ADJUSTMENT: Following the lnitial Tenn, the fees payable pursuant to this Agreement will be adjusted, efTective January I st of each calendar year, using the Fep Adjustment meohanism as dercribed in Exhibit VII.
6, DELIVEWS AND-SI'PNT-IKAN$PORI: CCC's fees are based upon an average site time for a carUon delivory of four (4) hours. For delays tltat are due to Subscriber-related activities or procedures, CCC relerves the right to charge the Subscriber demurrage fces (see ExhibilV) for every hour in excess of the four (4) hour delivery time.
If spelf media is classified as hazadous, transportation of spent media is by a hazardous carrier' Cgston:er will be required to supply and prepare all required manjfests. Subscriber ocknowledges that as many as thirty (30) days may be needed to arange hazardous transportation.
CCC reserves the right to pass along fuel surcharges to Subscriber in order to cover increases in fuel costs durtng the time between the date that this Agreement is executed and the actual date that the products are shipped. This surcharge will consist of a $200 minimum charge per order from all facilities plus a-mileage charge baied on the diffurence between the base of $3.00/ gal and the fuel index at the time of actual delivery (see Exbibit V). Tbe mileage will tre established at the time of delivery by CCC Customer Service Representatives. ?. ftEI{D SERI/JCE: When Field Service is included in the CCC responsibilities (Erhibit II), se*ice *iti be performed durir:g nonnal operating hours of Monday to Friday. Subscriber may be invoiced for rveekend ond holiday work (see Exhibit $.
Subscriber will provide adequate access to the vessel(s), air and water for the exchanges, and snsuro that the vessel is equippecl with media discharge and media fill lines terminated rvith Cam-lok fittings, as well as all other items included in Exhibjt lll.
For extrenp and inclement wsathor conditious (temperatures below 30 F or above 90 F; wind greater lhan 1.5 rnpb; heavy rain or snow, etc.), work may be postponed fOr safety reasons' To frevent fieezing of spent media during cold weather, liquid phase vessels must be completely drained and blown down and vapor units must remain in operation until time of service. In some situations, exceptional provisions (e.g. portable heaters, tarps, etc.) tnoy be used to complete the Revised June l, 2022 Page 8 of l8
#15..
- 876 -
CAI"GON CARBON CORPORATION
SERVICE AGRAEh{ENT
ri,ork. Costs of such provisions afc tlrc lcsponsibility of thc Subscribcr. lnparsable rcadrvays ar a *ile rvill be con$idered a $efety hazard and Sutrscritrer may be invoiced for deloy 0r sancellstir:n cli*rges,
Pricing is bared on exchange qunntities as designoted in Sxhibit.tl. lf rernove'd or replaced quantiiy is greatcr, thc invoiccwill rctlcct nctual quantity and additional cosls for tran*pottation, fisld service srew and nraterinl.
lf ropairs to a rrorr-CCC vesgel are requirecl" lubor and charge$ for additional materitls *nd equiprlept will be invoicsd. Add:itional chargen may be included for rvait time, poor equipntent acceis, diffrcult tp remove or install medis, excessive trailer drain times, or otlter delnys, Exhibit V prcsctts thc pricc schcdulc (in US dollars) for additiottal chargcs, All prders which include Field $ervice.e ffty require ihe conpletion ol a Pre-Visit Checklist and Serviee Request Fonn prior t0 scheduling the vi$it'
S. UA&BANIX: CCC: lvnrrant$ that all activated carbon pruducts (at the time of delivery) and *srvicc* Gt thc tirnc of pcrfomranci) prnvidcd untler this Agrccmcnt shall conforn to the .speciflcriions for such product or servicc as publislred by CCC from tirne to time during the tcrm ottitis Agreement. $ubscriber shall promplly notify CCC erf any non-confornring goods or serviees. Thereafter, CCC shall sonfiml that r:rtn-conforrnity sntl, at CCC'$ olltioll ffd cxfjeils$, repuir or replace the non*confonling prcduct or service. This shall serve ss Subscriber's solp arid exclusive rernedy. THERIJ ARXINO WARRANTIES h'IADIIWITH RECARD TO'lHB
ACTIVATSD CARBON PRODUCTS OR SEITVICES TO BE TROVIDIID PURSUANT TO THI$ ACREEMENT OTHER THAN THOSE CONTAINED IN THIS PARAGRAPH. ALL OTHER WARRANTIES, EITHER EXI'RESSED OR IMPLtrED, ARg HSREBY DISCLAIMBTJ, INCI,UDINC ANY WARI{ANTY OF MBRCHA}{TABII"ITY ANTJ FITNE$S FOR A PARTICULAR PURPOSE.
ln 1o everrt shafi CCC have any obligation lo provide coffeclive tvarranty sclicesn in wftole or itt part! fl$ tho result of (i) nonual wcai and tcai, (ii) accidcnt, disastcr or svent of Force Majcirrg, iiii;.nrisuse, fault or neglig*nce of or by Subscribor, (ir,) use of thrl sewice equipment or goods in a *a*ner fitr which they rver* not designed, (v) exlernal *au$e$ $uph as, bul rrot limit+el lo, porv€r failure or electrical po$er $Hrgoll, $'i) impropsr $torage and handling of the sErviee' equipmenl 0r goods, or (r.ii) use of the selice equiprnc$ or goods in cornbinntion n'ith equiprnent or soffware Iiof supplied by CCC. If CCC provides services or replacernent parts tlrat ars nol coveled by this ,r*rronfy, Subicribcr shull pay hCC drcrcfor at CCC's lhcn prcl'ailing timc nnd mntcrials ratcs. g, INDET\4NIFICATIOIII Suhs*ritrer shsll indernnif and save CCC hannles$ 4t,sll tintes from arr<l nsoitr$G;t 1fanitlty oil *scount of any and all clsirn$, rlamages, ltrw suits, litigolion, ,*purii*r, cour:sel fees, aud compentation relating to pruperfy dsm$gc$ or iqiuries (including death), ur:iring out of its perfornrnnce under [his Agreernent. Subscriber n'ill reimbutxe CCC fot danrngcs to thc adsorpion systcrn, to tlrc adsorpfiott systom sitc,_to CCC's othcr cquipnrcnt on the a&orption site, including without linrit*tion, tlre CCC bulk delivery trailero or to the nctivnted sarbr:n cau*ed by {a} the negligerrce.or willful ntis*onduct.of Subncriber, i$ enrployec*, Rqriscrl Junu I,1013 fngil I sf !S
#15..
- 877 -
CAI,GON CA RBOTN CORI'ORATION
$SNVICD AGRf,EMENT
rcprcscntativs$, or ngsilts or (b) opcration of nuch cquiprncr:t by auyonc othcr than traitred arithorised employees of Subsuiber. In tlro case of repeated acts of nogligence or willful nriscorrducr of u$€ hy unauthorized irrdil,iduals* CCC shall have tbe additional right to tentinate this Agre+nrent,
10, LIMITATION Of I.lA.ntLlTY: \lotwithstsnding rny provision to the contmry ltorcin, the partics hcrcto sgrec tlmt in no cvcnt shall CCC or ils cotrtractors or eupplicrs of atry ticr bc liablc to $1bs$riber fo-r any indirect, *pucial, consequential, incid*ntal or punitive darnages ns a resull qf any r:laim of any kind arising out rrlor relaling 10 lhil Agreemont, whdher in contiuct, cr in tort (inclucling rrsglige,nc$ or strie.t liability). Notrvittrslatding any provisiorl to fhe.contrary herein, for all losses, dnmnges, liabilities or ercpsn$cs (including attcnrey's fees and uosts), whether for iudenrrfty or negligence, including €ffcrs, onissions or otlter acts, or rvillful nrlsconduct or bascd il contrast, B'arrafity (inclnding any costs and fces for repairing, rcplacing or re-performing rcrvices or curing a brsash hercof), of for aly other cause of action firrdividually, alClaint"; colledively, "Chim$"), CCC's liability. including the liability of its insu$rs, ernployees, agent$, directors, anql offisers md all sther per$sns fsr whoff CCC is legally responsible. shnll not, to the maxinrum sxtcnt pemritted by law, exceed in the cumulative aggregetc ivith respect 1o all Clninrs arising out of or relatEd to this Agreement, tlie lesser of,(a) tlrc totat smount of compcnsation paid to CCC hercundcr, nnd (b) One Milliou Dollats ($t,000,000).
All Clairns slrall be decrnecl ruaived u*less made iil rvritilrg within ninety (90) days of'the occuffsnce giving rise to thp Clninr. Subscriber shall mnintnifl insurauce on all equipment and goods to be scryicod heieunrler in amounte at nll times equal to theh ftl| replnceineut cost, and irrch insuragcs shall rcmain in cffcct rcgardlcss of ttrc couss of thc loss or daruagg n'cn if such loss or damage shall be c.aused by CCC. $ubscriber and its insurur shall waive all subrogatian rights under iuch policies, CCC shsll have no liabilily lo $ubsmiber for any losse"s that are iniure<l against, $r were required to bs insurerl tgaii:st, by Subscriber pursuant to the previutrs sentence. Fgfihenuorr, Subssribel rvill hold CCC hannless fl'otn and ngainst liens aud clshns against tlre adsorptipn system due to iis lacation on Subrcriber's prentises.
I l. TAXISS. PtiRN4lTS. TARIIFS ANA!!gSNS]ES: Thc fccs prcvidcd for in this-Agt'ccmsnt to be pflid by Sutrsc*Uei to CCC do not include nny trute$, licenses, governntent_tyiffj or other a$$e$$tn€fits. $ubscriber agrcos to pay ilny $f,les and use t&xes upon or ff€ll$ui$d by CCC's sen'ice$ provided berouldsr and for all applicable lic$nses, property taxes, psrsonal protrrerty tnxss and othcr taxes, fees, license$r gortsrrullelrt tariffs or other s$$esrmonts intposed on thc adsorption systenr {or cnrbon} anct the adsorption s}.$tem site or upon the instsllation and opcmiion ofthc adsorption sy$tcrn (or carbon) nnd will prcpalc nnd subrnit nll documertts, p10ns, and sc.hedules nn}ich inay be'requirecl by gsveflunentnl agencie,r u'ith tlre reasonnbl* assistnnce of CCC wherr uess.sslry. $ubscriber nhall provid* Cef *'ilh a direct pay pentit hr sales tax, an affi<lavit 6f sales tax exemption, or arl affiqluvit that equi.prnent, proeiuct*, ond servi*es are exempt from snlEs tax, or CCC has ths right to inyoice Subscrilrer for snid taxes an each invoicE.
12. VlDl:ql1f,P'I"NG: Irrorn tims to tirnc ccrtain Subsribcrs dcsirc to vidcotapn thc activitics of CCC r.l*es*ntutiosr during presefitatiorls, conductance of training, or othet on'site activities, lf Sutrrcriirer rJe*ires to videotape suc.h aclivitiss, a $eporflie vidootaping agreement *hall be Rrltlsed Juns I, t0!! Pnge l0ollll
#15..
- 878 -
C AT,GON CARBOIT CORPORATTON
$ERVICtr AGRAEMENT
cxocutcdr hr thc intcrest of protecting botlr parties fiom atty liabilitics which nray potcntinlly figsult frorn such videotaping.
13, $ONFtrQSNII,A.LITY; Other than in the performanes ofthe tenns of th{t Agreement, neither Subscriber nor its agents, einployees, or snbcontrscturs shall use or disclose to Eny persoll or entity any confideirtial ilrfornration of CCC (whethm written, oral, electrunic or other form) that is obtainpd or othcru.isc prcporcd or discovercd in comeclion with this Agrcuncnt.
Subsuiber agrces ihaf all pricing, discounts, de*ign dran'ings and tochnieal infomation that CCC providec tq $ubtoriher are the eonfidential and proprie{ory infrrmation of CCC, whelher or not otherq'ise irlerrtifiecl as such. The obligations under thir section contlnue porpetually a{rd survive the terrnination or expimtion of any underlying agreeinent between the parties. T'he provisiono cf this section relating to use end disclosure shnll not apply to tny infonnation that: {a) is or bccourcs gcnerally svailablc to tlrc public othcr than as a rcsult of a disclosurc by Subscribur undor thisAgrsfmentl (b) becomes availablc fo $ubssriber from a sourcs other thnn CCC nnithout breach of any obligation of con{identiality; (c) wae independerrtly devoloped by Subscriber without violation of CCC's rights arrd wittriaut rsference to the eonfi*lential infonnation, as Evidenced by written record$, rnaintained in the ordinary coums of business by Subscriber; {d) is used or discloscd n'ith tlre prior u'ritten apprcval of CCC; (e) is infornration prcviously known to Subscribcr as cvidcnccd by writtcn rccords rnaintsi$cd by Subsmibcr in thc brdinary coul se of business, nnd not otherv\'tse subje*t lo illy confideutiality restrictions; or {f $ubicriber becomes legally conrpelled (by oral clus$tion$, in(errogttorios, requestt f'or infonnation $r decuments, sutrpoenas, invesligativs d$ff,ands of $itnilar proeess) to tliselose. If Sgbscribpr lreconres legally compclled (Nry ornl questions, intenugatories, requests for infomration or documents, subpoenas, investigative delnands or similar procss*) to disclosc any of thc confidcntial hlfonnntion, Subscibcr shnll providc CCC with prompt writtctt noticc so thnt CCC may sqek a Froteotiys ordor or othor appropriate remedy or waivs conaptianco with the provisions of this Agreement. If sueh prot$ctive order or other re*rody is ne"rt obtairtedo or if CeC ivaives conrpliunce with the pnrvisions of this Agreernent, $ubscriber shall fumish only that portion oftlie conficlenlial infon:rntion which Subscriber is legally required to tlisclose arrd shall Lxercise its reasonntrlc efforts to obtain relinbls a$iltraucs that con{idential tlentrnelrt shall bc ncsorded the confidential information,
t4, MANAGEMENT pF CHANGET CCC is constantly striving to improve its products and capabillties end ro lrrovide the best product lo it cutrt$rters. eCC may from tiffe to tinre drlveltlp pruduct improvcrnent$ or rllteratisn$ with respect to the pnclucB hercuncler (tlte "Product i,lprov*mrnts"), and CCC mny implerlent such Proqluct Inrprovements without notice to $glscriber so long as the performance of the produc.ts will not be nrnterially dimininhed, as dctcrnrincd in CCC's solc discrction, $nd so long as CCC has not scpnrntcly agrccd in rvriting to provide sucft notification to Subscriber. In the cvent that CCC lras agreed in writing to providc iotic,e tlt"Prpduct Impr0r,en':eflt$ to Sult$cribet {the "Nolise"io then GCC *hall provide *uslt N*ticc ir: accordaarce witfi the tsrrns $st forth irt tlie sepnr{te lYriling.
I J. EXFORISON-TBQL$: Subscriber acknowledgw that the products and related technalogy arc subicct to U.S, Jxpo* controls and cconornic satrctiotts, rvhich may includc th* Int']matiCInal.
Trsf'fijin Arms Regulations t*lTAR"), the Export Adnrinistration Rogulotions ("EAR") and regularigns prrrrnulgated by rhe U.$, Departnrent ol-tlte Treasury Ofiice ol'Foreign Assets Rr'{i$cd Juns t. t0:? fngs I I ol'lf
#15..
- 879 -
CAI'COFT CARBOT$ CORPORATION
SERVICII AGRDNMBNT
Control. Subscriber furthcr ackuorvlcdgcs that thc rocxporf of thc products and/or rclatcd technology ta a third country or retran*fer to an unflpproved end usf'r may require a licsn'ce or other auth0riy.ation from the Govemment ol-lhe United Slfltes. $uch licens€$ 0r other authorizalions rn{y iruBose firrther re*tdsti$ff on the regxFort or rstr*ntf,er of tN:e'ptoduct$ and/or relatcd technology, U.S. larv also restricts tlre rceryrorl or rc'tr*nsfer of U'S'-arigin good*, teclrnology, or selices to sountrips or psrsons sutrject lo U.S. sanctious or elnbmgoes' Subsribei nsrc*s to cornply n'ith all npplicnbtc U.S. export control and cconomic sanstions lalvs and ragulniioirs. it is the sols responeibility of the $ubssriber to apply for-andcbtain any n€cs$$;{y lieenr$ $r other authcriratiqrrr* prior lo any r$sxport 0f r*tr,aflsfer of the producl* and/or relateil teolrnology. CCC mak.eu ilt lvaranty that any such lic{rlrscs or ntber suttlorizations will be granted" and shall haye no liability for $ubscri.ber's inabitity to obtnin such ticenses or othsr authorizntion or for any violation by $ubscriber of any applicable expott contn,l and/or econoRric sanctions laws and rcgulntions. $ubscribcr rvill indcurnify CCC and hold it harrnless frorn any liabiliry resuNring from Subsuiber's rniolation of this pmrnisiotl ar applicable exporl laws or regulations. ].Iotwilhstserding nny other prcrvision in this Agreernenl CCC shall hrve the right to ieffrinr*e thi* Agroentent inrnrediately upon the detcnnlnation by CCC, irt CCC's sole discretio&, thflt $ubscriber has breacheel, intends to breach, cr insists upon bleaching nny of the provisions irr this section.
16, TERMI.N^TISN: CCC tray cancel thisAgreenrent if any ol:th* firllon'ing octtlr$:
(s) Sutt$criher becomss insolvent; (b) Subscriber ceas$s 1o csnduci its operationt in the norrnll course of busifiess; (c) Subscdber is unsble l0 ms$ its obligation$ a$ they n]aturel or adnrit ir:
rvriting such inability or fails to pr:ovide arlequate s$surance$ of itx abiliry to perform its ogligntions hsrsundeu (d) Subscriber filss a volnntary perition in hankruptcy; ('e) $utrscrlber suff"r* thc filing of an involuntnry petition in bankruptcy *nd ihc satnc is tot dismisscd ll'ithin rhirry (30) dayiafter filiug; (t) a ieieiver, custodian or lrustee is appointed for Subscriber or for a sr,t statrtiit part of it.r property; (g) $ubseriber fftils to nrake Feymenl on the tenns and rvithin {he tig:e speeifie{ in thi* Agreeincn! or brEaches any other obligatious under this Agreeuient; or 111) SubscribEl cxecutes an nssignmelrt for the benelit of its crEditoru, In the eveut of such iancellation, CCC shall have all rights and ren:edies set forth in the UCC of any npplicable jurisdiction and all other remedies available at lnrv or in equity. l?. ApIrLlgSBLElAl\i: Tlrix Agreement will be governed by, construed and enforsed in occordunee witlt rlrs la*s of the Coirrnnonrvsnlth of Pennsylvania, *lithout reguds to its confliet of low principles. The UN Conveirtior: rn Contracts for the Inteniational Sale of Goods shall llst applyto the trensaction reprs$ented hereby. The pnrties he.relo agree to tlre exch.tsive jurisdictian of giy stsre sourt situatsdln Allegheny County. Pennsy[vania ar in any Federal csil$ sittrnted in thc \Vcstcnr District of Pcttnsylvanin'
1fi. Ii4I"qCFLL4NEOU$; (rt ti flre evcrrt of ary lcgal prcceeding br:tween CCC ancl Subscriber relnting ts thi$ Agleement, ne.itlrEr party rnay claim the right to a trisl byjury; nnd both parties rvsivE nny right thiy nrny hnve under applicable lax'or othe rn'ise to a trisl by jury' - iUl ln thc cvcnt thst sny onc or morc provisions containcd lrcrcin shnll bc hcld by a *nurt nf .orlpetent jurisdiction to 6e invalid. illegal or unsnforceable in any rs$psct. the vatidity, Ra!irad Jnnr 1,30?l lhg* l2el'tg
#15..
- 880 -
CALGON CARBON CORPORATION
SERVICE AGREEMENT
legalify and enforceability of tbe remaining provisions contained herein shall renrain in full force and effect, unless the revision materially changes the bargain. (c) CCC's failure to enforce, or CCC's waiver of a breach of, any provision contained herein shall not constitute a waiver of any other breach or of such provision, (d) CCC reserves the right to correct clerical, aritltmetical, or stenographic errors or omissions in this Agreement.
(e) Any notice or communication reguired nr permitted hereunder shall be in writing and shall be deemed received when personally delivered or three (3) business days after being sent by certifred mail, postage prepaid, to a party at the address specified herein, or at such other address as eithcr parly may from time to time designate to the othcr. (0 Subscriber egrse$ that it will not use CCC's na:ne(s), logo(s) or mark(s) in any public somnrunication or press release, or for any other rnarketing or promotional purpose, rvithout CCC's prior written consent.
(g) Tlris Agleement does not constitute either party as the agent or legal representative of tlre other for any purpose whatsoever.
Rcvlsed June l, ?022 ?uge 13 of I 8
#15..
- 881 -
CALGON CARBON CORPORATION
SERVICE AGREEMENT
EXHIBIT V
RATO SCHIDULE FOR ADDITIONAL CHARGES
The fallowing rush fees (in US dollars) will apply for shipments with less than three (3) business days'notice. Allruslr fees are flat fees.
Same day shipping.
Next day shipping.
Two-day shipping
The following rates (in US dollan) will apply to co$t over-runs Labor, Regular
Labor, Engineer
Labor, Per Diern
Labor, Weekend & Holiday
Service Vehicle Mileage
Vacuum Equtp. Demurrage
Bulk Trailer Demurrage
Bulk Trailer Overnight
$500 (Note: Order musl be received before noon EST.)
$400
$300
$l I SAnan hour
$120/man hour
$250/man night
1,5X labor rates
$3.57lmile
$57.14/hour
$85.71lhour
$228,51lnight
Subcontract<lrs and Parls Cost + 20%
Rerised June 1, 2022 Page 14 of I I
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CALGON CARBON CORJORATION
SERVICE AGREEMENT
EXHIBIT VI
GUIDELINES FOR RETURN FOR RIACTIVATTON
OF GRANULAR ACTIVATED CANBON
l. SPENT PROFILINC: To protect both the Subscriber and CCC from liability, spent media will not be removed fronr the job site without an approved profile. Federal and state regulations aro very striot concerning storage and transportation of non-profiled matarial. Since the spent media review and approval process requires varying amounts of time (generally two to tlrreo weeks), customsrs are required to get aoceptar:cepriorto nredia exchange. If the spentmedia does not havo acceptance at the time of service, tho spent msdia will be removcd at a later date and additional charges may result.
In order to pro{ile the spent media for reactivation (or disposal}, the Subscrjber is required to fully complete CCC's Adsorbate Profile Document (APD) and submit a spent media sample as described in the APD. Sanrple generation is best accornplished by using a Carbor: Acceptance canister which can be arranged through CCC's Customer Service Department. Ths spent media sample will be analyzed to ensure compliance of the APD.
2. ACCEPTANCE CRITERIA FORNON-RCRA and RCRA SPENT GAC: ThE aCCCPTANCC criteria attached hereto as Attachment I to Exhibit VI MUST be nret for return of spent GAC for reactivation.
Subscriber acknowledges and agrce$ that these criteria are subject to change witltout notice depending on permit renewals at each individqal reaotivation facility' Rer4sed June l,2022 Page 15 of I li
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CALGON CARBON CORPORATION
SERVICE AGREEMENT
Attachment I to Exhibit Vl
oeoral Catonnpoc'drrrce CriffitoaRCf,Arndlloo*CnAStcrf C.rboo RetttE bC.lgon Crrtoo C&orff
Lrlrff Inill.!!$ts3{..q!!allaal!!80$aDrai
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#15..
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CALGON CARBON CORPORATION
SERVICE AGREEMENT
NXHIBIT VII
FAE ADJUSTMENT
Virgln GAC:
ftre feei payable pursuant hereto witl bo adjusted on (month and date) of each calendar year by the annual percentage change in the following three price indices, in the proportion indicated next to each index:
I ) U.S. Department of Labor PPI f:or All Other Basic Organic Chemicals Manufacturing:
Miscellaneous end-use ohemicals and chemical ptuducts, excluding urea (PCU325 I 99325 I 99T) @ 40Yoweight
2) U,S. Department of Labor CPI for Urban Wage Earners for the U.S. City Average (CWUR0000SA0) @ 4A% rveight
3) Transpo*ation: U.S. Departnront of Labor PPI by Commodity for'fransportation Serviccs:
Truck Transportation of Freight (WPU3012) @ 20% weight
The percent adjustment shall be calculsted by taking the perccnt tliffcrence for each index during the twelve month period from (month and date) througb (month and date) of the last completed calendar year as cornpared to the hvelve month period from (month and date) through (month and date) of the calendar year immediately preceding the last completed calendar year. These percentages willthen be averaged per the proportions shown above for calculating the final percent adjustment to which allvirgin OAC will be subject'
Annual Limits: Annual increases are limited to a maximum of l0% regardless of the above calculation, and annual decreases are limited to a maximuur of 5% regardless of the above calculation. No amounts in excess of these limits (either increases or decreases) shall be carried over t0 subsequent Years.
Initial Fec Limitl Regardless of any annual fee adjustment calculation, fees covered by this Agreement will at no tilne be reduced below tho lnitial Fee.
Custom Reqctivqfed .QAC (CMR):
@iiriireretowillbsadjustedon(nronthanddate)ofeachcalendaryearby ths annuat percentage change in the fotlcwing three price indices, in the proportion indicated next to eaoh index:
1) U.S. Department of Labor PPI Data for Utilitiss (Pcu22t---221--, @ n% weight ei U.S. Department of Labor CPI far Urban Wage Earners for the West (CWUR0400SA0) @ 60% weight
3) U.S. Defartmcnt of Labor PPI by Comrnodity for Transportation Services: Truck Tfansporlati on of Frei ght (WPU 3 0 I 2) @ 30% wei ght The percent adjusffient shall be calculated by taking the percent differcnce for cach index during the twelve roonth period from (month and date) through (month and date) of the last completed calendar year as compared to the twelve month period from (month and date) through (month and date) of ihe calsndar year inrnediatoly preoeding the last complated oalendar year. These Rerisod June 1,20?2 I'agelTollS
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CALGON CARBON CORPOfuTTTON
SERVICE AGREEMENT
perc€ntages will then be averaged per the proportions shown above for calculating the final percent adjustment to which all reactivated carbon will be subject.
Annual Limits; Annual increases are limited to a maximum of l0% regardless of the above calculation, and annual decreases are limited to a maximum of 5% regardless of the above calculation. No arnounts in excess of thsse limits (either increases or decreases) shall be carried over to subsequent years.
Initial Fee Limit: Regardless of any amual fee adjustrnent calculation, fees covered by this Agreement will at no time be reduced below the Initial Fee' Additio4al Virgin Make-Un Pricins for CryIR:
The custom reaiiivated carbon (CMR) fee in the Agreement includes ?0% virgin make-up CAC.
In those cases where additioual virgin make-up GAC in excess of 20% is required to meet quality control requirements or to replace spent GAC that was fouled and could not be clcanod, the additional virgin make-up GAC shall be provided at an initial cost of $1.8011b, This price shall also be adjusted on an annual basis, using fhe following indioes in the proportion indicated next to each indei (note: Annual and lnitial Fee Limits apply here as for Virgin GAC above):
1) U.S. Deparrment clf Labor PPI for All Other Basic Organic Chemicals Manufacturing:
Miscellaneous End-use chemicals and chemical products, excluding urea (PCU325 1 9 932s t 991) @ 40% wei ght
2) U.S. Departrnent of tabor CPI for Urban Wage Earner$ for the U,S, City Average (C\VUR0000SA0) @ 40% weight
3) iransportation: U.S, Departlnent of Labor PPI by Commodity for Transportation Services:
TruckTransportation of Freight (WPU30I2) @ 20%weight
Revised June 1, 2022 PagE l8 0f I I
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FINANCIAL INTEREST DISCLOSURE
Any contract award 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 Vendor until all person with a direct or indirect financial interest of greater than $2,000 in the Vendor are identified by name.
Vendor must therefore complete this Financial Interest Disclosure Form, 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 Vendor shall identify any person with a financial interest in the Vendor 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 Vendor 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 Vendor 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 Vendor 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.
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Print Names of Persons Having a Financial Interest in Vendor 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 Vendor Signatory:
Signature of Vendor Representative:
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California Levine Act Disclosure
California Government Code Section 84308, also known as the "Levine Act", prohibits City “officers” from participating in any action related to a license, permit, or other entitlement for use (a “proceeding”) if such member accepts, solicits, or directs political contributions from a party to the proceeding or their agent totaling more than $500 while the proceeding is pending before the agency, and for twelve (12) months following the date a decision concerning the proceeding has been made. The Levine Act also requires disclosure of such contribution by a party to the proceeding.
Section 84308(a)(4) of the Levine Act defines an "officer" as follows: “Officer” means any elected or appointed officer of an agency, any alternate to an elected or appointed officer of an agency, and any candidate for elective office in an agency. The term “officer” is further defined 2 Cal. Code Regs. Section 18438.1, which states:
An officer of an agency includes only those persons who make, participate in making, or in any way attempt to use their official position to influence a decision in the license, permit, or entitlement for use proceeding, or who exercise authority or budgetary control over the agency of officers who may do so, and:
(1) Serve in an elected position, including an official appointed to an elected position due to an interim vacancy or an election otherwise canceled because the official was the sole candidate for the position; (2) Serve as a member of a board or commission;
(3) Serve as the chief executive of a state agency, or county, city or district of any kind; or (4)Have decision making authority with respect to the proceeding involving a license, permit, or other entitlement for use and is also a candidate for elected office or has been a candidate for elective office in the 12 months prior to the proceeding.
A list of Modesto City Council Board Members can be found online at: Modesto City Council https://modestogov.com/706/Council-Members (modestogov.com). The party making this certification is responsible for determining whether a recipient of a political contribution is a City officer prior to answering the following questions:
1. Have you, your company, or any agent on behalf of you or your company, made any political contributions of more than $500 to any City officer, in the twelve (12) months preceding the date of the submission of your proposals or the anticipated date of any Council action related to this contract?
___ YES If yes, please identify the Council Member(s):
___ NO
2. Do you, or your company, or any agent on behalf of you or your company, anticipate or plan to make any political contribution of more than $500 to any City officer in the twelve (12) months following any Council action related to this contract?
___ YES If yes, please identify the Council Member(s):
___ NO
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Answering YES to either of the questions above does not preclude the City of Modesto from awarding a contract to your firm or taking any subsequent action related to the contract. It may, however, preclude the identified City officer from participating in any actions related to such contract.
HEREBY CERTIFY UNDER PENALTY OF PERJURY UNDER THE LAWS OF THE STATE OF CALIFORNIA THAT THE FOREGOING IS TRUE AND CORRECT.
_________________ _____________________________
Date Signature of authorized individual
_____________________________
Company/Applicant Name
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CITY OF MODESTO
COUNCIL AGENDA REPORT
DATE OF MEETING:
May 5, 2026
Date: April 28, 2026
TO: Mayor and City Council
THROUGH: Joseph P. Lopez, City Manager
FROM: DeAnna Christensen, Director of Finance
SUBJECT: Banking Services Agreement, Letter of Credit and Standby Certificate Purchase Agreement Extensions
CONTACT: Dianne Love, Purchasing Manager, [email protected], 209-571-5164
DESCRIPTION:
Consider approving the Award of Proposal and Agreement for Banking Services to BMO Bank N.A., Sacramento, CA for a total amount not to exceed $282,220 over six (6) years; approving a three-year extension for the Irrevocable Direct Pay Letter of Credit (LOC) issued by BMO Bank N.A. supporting the Lease Revenue Refunding Bonds Series 2008 (LRB Bonds); approving a three-year extension for the Standby Certificate Purchase Agreement with BMO Bank N.A. supporting the Water Refunding Revenue Certificate of Participation 2008 Series A (Water COPS). (Funding Source: Various Funds)
STRATEGIC PLAN ELEMENT:
This item supports the City of Modesto 2025-2026 Strategic Plan focus of Governance and Service Delivery under Goal H: Achieve Long-Term Financial Sustainability.
BACKGROUND:
Lease Revenue Refunding Bonds Series 2008 (LRB Bonds)
The LRB Bonds were issued to refund the Series 1998 and Series 2007 Lease Revenue Bonds (together the “Prior Bonds”) in the amount of $65,170,000. The bond balance for these bonds as of March 1, 2025, is $32,755,000 with a maturity date of September 1, 2033. The Prior Bonds were issued to assist in the financing of certain public capital improvements in the City which consist of the following: (i) the former Redevelopment Agency’s parking garage, (ii) the City’s one-half interest in the CityCounty Joint Power Agency’s administration building, (iii) the City’s police headquarters #17..
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City Council, May 5, 2026
Banking Services Agreement, Letter of Credit and Standby Certificate Purchase Agreement Extensions
building and police operations building, (iv) certain miscellaneous City properties and (v) the City’s one-half undivided interest in the Communications Dispatch Center. The LRB Bonds are variable rate bonds that currently reset on a weekly basis and require a credit and liquidity facility.
On June 7, 2016, by Resolution 2016-243, the City approved a three-year extension of the LOC for these Bonds at 60 basis points (0.60%) and a reduction in banking pricing modification by around 21% with Bank of America. Bank of America also removed the requirement for the City to maintain a $7 million reserve for the General Fund unassigned fund balance.
On July 10, 2018, by Resolution 2018-276, the City Council approved an Amendment of the Banking Services Agreement with Bank of America to align the expiration dates for the banking services and LOC to June 2019. The City was then in the process of developing a Request for Proposal (RFP) to solicit the LOC and banking services for the City to evaluate the service needs, governmental banking services, and overall cost savings for these services.
On May 7, 2019, by Resolution 2019-224, the City Council approved a Reimbursement Agreement among Bank of the West, the City of Modesto and Modesto Public Financing Authority related to the authority’s LRB Bonds for a four-year term. The four-year term was at 37.5 basis points (0.375%) per year which was a decrease of 22.5 basis points (0.225%) from the prior agreement with Bank of America. On June 22, 2019, the Bank of America LOC was replaced with a Bank of the West LOC. In early 2023, Bank of the West was acquired by BMO Harris Bank, N.A., now known as BMO Bank N.A..
On April 11, 2023, by Resolution 2023-190, the City Council approved a three-year extension of the BMO Bank N.A. LOC supporting the LRB Bonds with an expiration date of June 8, 2026. The three-year term was at 34 basis points (0.34%) per year which was a decrease of 2.5 basis points (0.025%) from the original agreement with BMO Bank N.A.
Water Refunding Revenue Certificates of Participation 2008 Series A (Water COPS) The Water COPS were issued to refund the 2006 certificates of participation issued to provide funding for construction for new downstream water facilities and various water distribution systems improvements. The Water COPS had an original outstanding par amount of $47,625,000. The Water COPS are variable rate certificates that reset on a weekly basis and require a liquidity facility. The obligations due on these certificates of participation is $35,165,000 as of March 1, 2026, with a final maturity date of October 1, 2036.
On May 26, 2020, under Resolution 2020-241, Council approved a three-year extension of the irrevocable direct pay letter of credit issued by JPMorgan Chase Bank, National #17..
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City Council, May 5, 2026
Banking Services Agreement, Letter of Credit and Standby Certificate Purchase Agreement Extensions
Association, which supported the Water COPS. The three-year extension was at a 57.5 basis points (0.575%) per year from the prior agreement.
On April 13, 2023, under Resolution 2023-191, Council approved a three-year Standby Certificate Purchase Agreement (SCPA) with BMO Harris Bank N.A., now known as BMO Bank N.A., supporting the Water COPS. The three-year term was at 30 basis points (0.30%) per year, which was a decrease of 27.5 basis points (0.275%) from the prior agreement with JP Morgan. On June 8, 2023, the JPMorgan Chase Bank, National Association, LOC was replaced with the BMO Bank N.A. SCPA. The SCPA will expire on June 8, 2026.
Banking Agreement
The City requires Treasury services to manage and maintain day-to-day cash deposits and disbursements for the City business activities. City staff needs to maintain daily reporting to monitor all banking activity and manage the bank reconciliation for all City accounts. As part of these services, the City needs to ensure to utilize a banking institution that maintains up-to-date security controls to eliminate fraud and cybersecurity activity for all City banking activity. In addition, this agreement incorporates services for the City’s commercial card program and virtual card payments to the City’s vendors. By incorporating the banking services and the LOC and SCPA for the City’s LRB Bonds and Water COPs, the City has generated significant savings due to reductions in banking fees and aggregate fees for the LOC and SCPA.
On May 7, 2019, by Resolution 2019-225, the City Council approved the Award of Proposal and Agreement for Banking Services to Bank of the West, Monterey Park, CA, for a four-year Agreement with three (3) one-year extension options, for an annual cost not to exceed $30,691 and a total amount not to exceed $213,374 over seven (7) years with an expiration date of May 7, 2026.
DISCUSSION:
On February 4, 2025, the City Manager authorized the Purchasing Manager to solicit the procurement for Banking Services and Liquidity Services. On December 19, 2025, the Purchasing Division issued Request for Proposals (RFP)-00011 for the Banking Services and Liquidity Services on the City’s OpenGov public bidding website under various commodity codes.1 817 Prospective bidders were notified online, and 33 bidders downloaded the bid which included one (1) local bank.
On January 27, 2026, six (6) proposals were formally opened in the City Clerk’s office and broadcast via Microsoft Teams Livestream. Six (6) chose to respond, there were no local proposals, and two (2) proposals were deemed non-responsive, since they did not meet all of the specification requirements defined in the proposal. 1 20911, - Accounting, Financial and Bookkeeping services, 91804- Accounting and Financing Consulting Services, 91849 – Financial Consulting, 94600 – Financial Services, 94625 – Banking Services, 94656 – Investment Management Services, 95800 – Management Services, 96258 – Professional Services
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City Council, May 5, 2026
Banking Services Agreement, Letter of Credit and Standby Certificate Purchase Agreement Extensions
An evaluation committee comprised of six (6) City staff members which included the Director of Finance, Accounting Manager, Senior Financial Analyst, two (2) Financial Analysts (Payroll and Accounts Payable) and an Account Technician (Cashiering) evaluated the proposals. The evaluation was based on the following criteria:
• Security Measure to minimize fraud
• Ability to provide efficient and user-friendly web-based products and services • Ability to support products and provide both online and live training • Reliability, experience, and quality of customer service • Experience in providing services to the public sector, as well as dedicated resources and personnel
• Financial strength and capitalization in banking market • Client References
• Cost
Based on being ranked highest in total evaluation criteria, the evaluation committee recommends awarding the proposal for the Banking Services and Liquidity Services to BMO Bank N.A., Sacramento, CA. The top two (2) highest ranked proposers were provided an opportunity to present to the evaluation committee to highlight why they should be the awarded the banking services agreement, and BMO Bank showcased their customer service and service skills in the public sector market. Additionally, BMO demonstrated their expertise in the banking market and their on-going efforts to stay on top of this changing market, especially with fraud and security measures across all services.
Modesto Municipal Section 8-3.203 requires all purchases, which meet or exceed $100,000 for material, equipment or contractual services to be formally bid. Based on the responsive and responsible highest score proposer offering the Banking Services and Liquidity Services which conforms to the Modesto Municipal Code, 8-3.203, City staff recommend the Award of Proposal for Banking Services and Liquidity Services to BMO Bank N.A., Sacramento, CA.
FISCAL IMPACT:
As part of the Banking Services agreement with BMO Bank N.A, they are committed to providing the following competitive pricing and incentives:
• $25,000 Renewal Bonus as part of the continuing partnership • $19,500 Retentive Incentives includes:
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City Council, May 5, 2026
Banking Services Agreement, Letter of Credit and Standby Certificate Purchase Agreement Extensions
o Six-month analysis fee waiver
o Complimentary Banking Supplies
o Scanners – No cost check deposit scanner
When comparing the banking fee pricing for the Banking Services, BMO Bank N.A was the second lowest priced proposal, but they also incorporated estimated banking supplies that were not factored by the other proposers.
For the Liquidity Services, BMO Bank was the lowest bidder for the aggregate LOC and SCPA fees compared to the other banking firms. Their bid was an estimated $38,000 lower over a 3-year extension term compared to next lowest bid by Bank of America.
LOC
(3 years)
SCPA
(3 years)
Total
Liquidity
Fees
Additional
Fees2
Total
Aggregate
Cost
BofA $305,194 $289,238 $594,433 $345,000 $939,433
BMO $257,006 $298,569 $555,574 $100,000 $655,574
JP Morgan $679,128 $447,853 $1,126,981 $356,000 $1,482,981 Wells Fargo $391,871 $345,220 $737,092 $371,600 $1,108,692 CEQA/NEPA REQUIREMENTS:
This item does not constitute a “project” within the meaning of California Environmental Quality Act (CEQA) Guidelines Section 15378 and requires no environmental review.
COMMITTEE RECOMMENDATION:
This item was then presented to the Finance Committee on April 27, 2026, and the Committee recommended forwarding the item to Council for approval.
RECOMMENDED COUNCIL ACTION:
Staff Recommendations:
Resolution approving the Award of Proposal and Agreement for Banking Services to BMO Bank National Association (NA), Sacramento CA for a two (2) year agreement with four (4) one-year extension options, for an estimated annual amount of $47,037 and a total amount not to exceed $282,220 over six (6) years and authorizing the City Manager or his designee to execute the Agreement.
2 Apart from the annual liquidity fees there are other one-time upfront costs to be considered. An “extension” with the City’s current provider BMO Bank would result in much lower upfront costs relative to a “replacement” liquidity facility with a new bank. A “replacement” requires more work and documentation - negotiating new agreements with the replacement bank, revisions to the Official Statements and new ratings – resulting in higher upfront costs for the bank’s counsel, bond counsel, municipal advisor, trustee, remarketing agent, remarketing agent counsel and rating agencies. The total variance in upfront fees to “extend” versus “replace” is estimated at ~$245,000 resulting in aggregate variance in annual liquidity fees and up-front fees to over $283,000 in favor of BMO Bank.
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City Council, May 5, 2026
Banking Services Agreement, Letter of Credit and Standby Certificate Purchase Agreement Extensions
Resolution of the City Council of the City of Modesto relating to Modesto Public Financing Authority Lease Revenue Refunding Bonds Series 2008; approving Amendment No. 2 to Reimbursement Agreement among BMO Bank N.A., City of Modesto and Modesto Public Financing Authority; Amendment No. 2 to Fee Letter Agreement; and a Supplement of to Official Statement; and authorizing certain other related actions.
Resolution of the City Council of the City of Modesto relating to Water Refunding Revenue Certificates of Participation, 2008 Series A; approving Amendment No. 1 to Standby Certificate Purchase Agreement among BMO Bank N.A., City of Modesto and Modesto Public Financing Authority; Amended and Restated Fee Letter Agreement; and a Supplement to Remarketing Memorandum; and authorizing certain other related actions.
Approved by:
DeAnna Christensen, Director of Finance
Joseph P. Lopez, City Manager
Attachments:
1. Resolution (3)
2. Banking Services Agreement – BMO
3. Exhibit C – RFP Document
4. Exhibit D – Insurance Requirements
5. Exhibit E – Pricing
6. Exhibit F – Contract for Deposits
7. Exhibit G – Treasury Service Master Agreement
8. Exhibit H – Commercial Account Agreement
9. Exhibit I – Corporate Card Agreement
10. 2026 OS Supplement No. 5 LOC Extension - Modesto LRBs 2008
11. BMO Amendment No. 2 to Fee Letter Agreement (2008 LRBs)
12. BMO Amendment No. 2 to Reimbursement Agmt (2008 LRBs)
13. Supplement No. 1 to Remarketing Memorandum
14. Amended and Restated Fee Letter Agreement
15. Amendment No. 1 Standby Certificate Purchase Agreement #17..
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05/5/2026/FIN/DLove/Item X 1 2026-XX
MODESTO CITY COUNCIL
RESOLUTION NO. 2026-XX
RESOLUTION APPROVING THE AWARD OF PROPOSAL AND AGREEMENT
FOR BANKING SERVICES TO BMO BANK NATIONAL ASSOCIATION (NA), SACRAMENTO, CA FOR A TWO (2) YEAR AGREEMENT WITH FOUR (4)
ONE-YEAR EXTENSION OPTIONS, FOR AN ESTIMATED ANNUAL AMOUNT OF $47,037, AND A TOTAL AMOUNT NOT TO EXCEED $282,220 OVER SIX (6) YEARS AND AUTHORIZING THE CITY MANAGER, OR HIS DESIGNEE,
TO EXECUTE THE AGREEMENT
WHEREAS, the City requires Treasury services to manage and maintain day-to-day cash deposits and disbursements for the City business activities; and WHEREAS, City staff needs to maintain daily reporting to monitor all banking activity and manage the bank reconciliation for all City accounts; and WHEREAS, as part of these services, the City needs to ensure to utilize a banking institution that maintains up-to-date security controls to eliminate fraud and cybersecurity activity for all City banking activity; and WHEREAS, this agreement incorporates services for the City’s commercial card program and virtual card payments to the City’s vendors; and WHEREAS, by incorporating the banking services and the LOC and SCPA for the City’s LRB Bonds and Water COPs, the City has generated significant savings due to reductions in banking fees and aggregate fees for the LOC and SCPA; and
WHEREAS, on May 7, 2019, by Resolution 2019-225, the City Council approved the Award of Proposal and Agreement for Banking Services to Bank of the West, Monterey Park, CA, for a four-year Agreement with three (3) one-year extension options, for an annual cost not to exceed $30,691 and a total amount #17..
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05/5/2026/FIN/DLove/Item X 2 2026-XX
not to exceed $213,374 over seven (7) years with an expiration date of May 7, 2026; and
WHEREAS, on February 4, 2025, the City Manager authorized the Purchasing Manager to solicit the procurement for Banking Services and Liquidity Services; and
WHEREAS, on December 19, 2025, the Purchasing Division issued Request for Proposals (RFP)-00011 for the Banking Services and Liquidity Services on the City’s OpenGov public bidding website under various commodity codes; and
WHEREAS, 817 Prospective bidders were notified online, and 33 bidders downloaded the bid which included one (1) local bank; and WHEREAS, on January 27, 2026, six (6) proposals were formally opened in the City Clerk’s office and broadcast via Microsoft Teams Livestream; and WHEREAS, six (6) chose to respond, there were no local proposals, and two (2) proposals were deemed non-responsive, since they did not meet all of the specification requirements defined in the proposal; and WHEREAS, an evaluation committee comprised of six (6) City staff members which included the Director of Finance, Accounting Manager, Senior Financial Analyst, two (2) Financial Analyst (Payroll and Accounts Payable) and an Account Technician (Cashiering) evaluated the proposals; and WHEREAS, based on being ranked highest in total evaluation criteria, the evaluation committee recommends awarding the proposal for the Banking Services and Liquidity Services to BMO Bank N.A., Sacramento, CA; and #17..
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WHEREAS, the top two (2) highest ranked proposers were provided an opportunity to present to the evaluation committee to highlight why they should be the awarded bank, and BMO Bank showcased their customer service and service skills in the public sector market; and
WHEREAS, BMO demonstrated their expertise in the banking market and the on-going efforts to stay on top of this changing market especially with fraud and security measures across all services; and
WHEREAS, Modesto Municipal Section 8-3.203 requires all purchases, which meet or exceed $100,000 for material, equipment or contractual services to be formally bid; and
WHEREAS, based on the responsive and responsible highest score proposer offering the Banking Services and Liquidity Services which conforms to the Modesto Municipal Code, 8-3.203, City staff recommends the Award of Proposal for Banking Services and Liquidity Services to BMO Bank N.A., Sacramento, CA.
NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Modesto that it hereby approves the Award of Proposal and Agreement for Banking Services to BMO Bank National Association (NA), Sacramento CA for a two (2) year agreement with four (4) one-year extension options, for an estimated annual amount of $47,037 and a total amount not to exceed $282,220 over six (6) years.
BE IT FURTHER RESOLVED, the City Manager, or his designee, is authorized to execute the Agreement, in a form approved by the City Attorney #17..
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05/5/2026/FIN/DLove/Item X 4 2026-XX
The foregoing resolution was introduced at a regular meeting of the Council of the City of Modesto held on the 5th day of May, 2026, by Councilmember _____, who moved its adoption, which motion being duly seconded by Councilmember _____, was upon roll call carried and the resolution adopted by the following vote:
AYES: Councilmembers:
NOES: Councilmembers:
ABSENT: Councilmembers:
ATTEST: _____________________________
DIANE NAYARES-PEREZ, CMC,
City Clerk
(SEAL)
APPROVED AS TO FORM:
BY: ________________________________
JOSE M. SANCHEZ, City Attorney
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05/12/2026/Finance/DLove/Item X 1 2026-XX
MODESTO CITY COUNCIL
RESOLUTION NO. 2026-XX
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF MODESTO
RELATING TO MODESTO PUBLIC FINANCING AUTHORITY LEASE
REVENUE REFUNDING BONDS SERIES 2008; APPROVING AMENDMENT NO. 2 TO REIMBURSEMENT AGREEMENT AMONG BMO BANK N.A., CITY OF MODESTO AND MODESTO PUBLIC FINANCING AUTHORITY;
AMENDMENT NO. 2 TO FEE LETTER AGREEMENT; AND A SUPPLEMENT TO OFFICIAL STATEMENT; AND AUTHORIZING CERTAIN OTHER
RELATED ACTIONS
WHEREAS, the City of Modesto is a charter city and municipal corporation duly organized and existing under and by virtue of the Constitution and laws of the State of California (the “City”), and
WHEREAS, the Modesto Public Financing Authority (the “Authority”) is authorized under the Marks-Roos Local Bond Pooling Act of 1985, constituting Article 4, Chapter 5, Division 7, Title 1 (commencing with Section 6584) of the California Government Code, as amended (the “Act”), to lease and/or purchase real property and to issue bonds for the financing and refinancing of public capital improvements whenever there are significant public benefits, and WHEREAS, the Authority previously issued its $65,170,000 original aggregate principal amount of Modesto Public Financing Authority Lease Revenue Refunding Bonds Series 2008 (the “2008 Bonds”), and
WHEREAS, Bank of America, N.A., as Credit Facility Provider, issued its Irrevocable Transferable Letter of Credit dated August 28, 2008 (the “Initial Credit Facility”) to provide credit support for the 2008 Bonds, and WHEREAS, on June 13, 2019, the City replaced the Initial Credit Facility with a replacement letter of credit (the “Current Credit Facility”) by BMO Bank N.A. #17..
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(formerly known as BMO Harris Bank N.A. and successor in interest to Bank of the West) (the “Bank”); and
WHEREAS, in connection with the issuance of the Current Credit Facility, the City, the Authority and the Bank entered into a Reimbursement Agreement and related Fee Letter Agreement; and
WHEREAS, on May 12, 2023, the City, the Authority and the Bank entered into an Amended No 1. to Reimbursement Agreement and related Amendment No. 1 to Fee Letter Agreement in connection with an extension of the stated expiration date of the Current Credit Facility; and
WHEREAS, the Current Credit Facility has a stated expiration date of June 8, 2026; and
WHEREAS, prior to the expiration date thereof, the City wishes to extend the Current Credit Facility; and
WHEREAS, in connection with the extension of the Current Credit Facility, the City, the Authority and the Bank will enter into an Amendment No. 2 to Reimbursement Agreement (the “Reimbursement Agreement Amendment”) and related Amendment No. 2 to Fee Letter Agreement (the “Fee Letter Amendment”), and
WHEREAS, in connection with the extension of the Current Credit Facility, the City and the Authority will prepare a supplement to the Official Statement for the 2008 Bonds describing certain material information regarding the Bank, the Current Credit Facility and the Reimbursement Agreement (as amended by the Reimbursement Agreement Amendment) (the “Supplement to Official Statement”), #17..
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05/5/2026/Finance/DLove/Item X 1 2026-XX
and
WHEREAS, all acts, conditions and things required by the laws of the State of California to exist, to have happened and to have been performed precedent to and in connection with the consummation of the transactions authorized hereby do exist, have happened and have been performed in regular and due time, form and manner as required by law, and the City is now duly authorized and empowered, pursuant to each and every requirement of law, to consummate such transactions for the purpose, in the manner and upon the terms herein provided, NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Modesto, as follows:
Section 1. Findings. The City Council hereby specifically finds and determines that the actions authorized hereby constitute and are with respect to the public affairs of the City and that the statements, findings and determinations of the City set forth above and in the preambles of the documents approved herein are true and correct and that the consummation of the transactions contemplated therein shall result in significant public benefits to the City.
Section 2. Approval of the Reimbursement Agreement Amendment and Fee Letter Amendment. The City Council hereby approves the extension of the Stated Expiration Date of the Current Credit Facility. The Reimbursement Agreement Amendment and related Fee Letter Amendment proposed to be executed and entered into by the City, in the forms presented at this meeting and on file with the City Clerk, are hereby approved, and each of the City Manager and the Finance Director, acting singly, is hereby authorized and directed, for and in #17..
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05/5/2026/Finance/DLove/Item X 1 2026-XX
the name and on behalf of the City, to execute and deliver the Reimbursement Agreement Amendment and Fee Letter Amendment in substantially said forms, with such changes therein as such officer executing the Reimbursement Agreement Amendment and Fee Letter Amendment may require or approve, such approval to be conclusively evidenced by the execution and delivery thereof.
Section 3. Approval of the Supplement to Official Statement. The Supplement to Official Statement proposed to be executed and delivered by the City, in the form presented at this meeting and on file with the City Clerk, is hereby approved, and each of the City Manager and the Finance Director, acting singly, is hereby authorized and directed, for and in the name and on behalf of the City, to execute and deliver the Supplement to Official Statement in substantially said form, with such changes therein as such officer executing the Supplement to Official Statement may require or approve, such approval to be conclusively evidenced by the execution and delivery thereof.
Section 4. Attestations. The City Clerk is hereby authorized and directed to attest the signature of the City Manager and the Finance Director and to affix and attest the seal of the City, as may be required or appropriate in connection with the documents approved by this Resolution.
Section 5. Other Actions. The officers of the City are hereby authorized and directed, jointly and severally, to do any and all things and to execute and deliver any and all documents which they may deem necessary or desirable in order to consummate the transactions authorized hereby and to carry out, give effect to and comply with the terms and intent of this Resolution, the #17..
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05/5/2026/Finance/DLove/Item X 1 2026-XX
Reimbursement Agreement Amendment, the Fee Letter Amendment and the Supplement to Official Statement; and all such actions heretofore taken by such officers are hereby ratified, confirmed and approved.
Section 6. Effective Date. This Resolution shall take effect immediately upon its passage.
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05/5/2026/Finance/DLove/Item X 1 2026-XX
The foregoing resolution was introduced at a regular meeting of the Council of the City of Modesto held on the 5th day of May, 2026 by Councilmember _________, who moved its adoption, which motion being duly seconded by Councilmember ______, was upon roll call carried and the resolution adopted by the following vote:
AYES: Councilmembers:
NOES: Councilmembers:
ABSENT: Councilmembers:
ATTEST: ___________________________
DIANE NAYARES-PEREZ, CMC
City Clerk
(SEAL)
APPROVED AS TO FORM:
By: __________________________________
JOSE M. SANCHEZ,
City Attorney
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05/12/2026/Finance/DLove/Item X 1 2026-XX
MODESTO CITY COUNCIL
RESOLUTION NO. 2026-XX
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF MODESTO
RELATING TO WATER REFUNDING REVENUE CERTIFICATES OF
PARTICIPATION, 2008 SERIES A; APPROVING AMENDMENT NO. 1 TO
STANDBY CERTIFICATE PURCHASE AGREEMENT AMONG BMO BANK
N.A., CITY OF MODESTO AND MODESTO PUBLIC FINANCING AUTHORITY; AMENDED AND RESTATED FEE LETTER AGREEMENT; AND A
SUPPLEMENT TO REMARKETING MEMORANDUM; AND AUTHORIZING
CERTAIN OTHER RELATED ACTIONS
WHEREAS, the City of Modesto is a charter city and municipal corporation duly organized and existing under and by virtue of the Constitution and laws of the State of California (the “City”), and
WHEREAS, the City has caused to be executed and delivered the $47,625,000 City of Modesto, California Water Refunding Revenue Certificates of Participation, 2008 Series A (the “2008 Certificates”); and WHEREAS, in connection with the issuance of the 2008 Certificates, Bank of America, N.A., as liquidity facility provider, the City, and the Modesto Public Financing Authority (the “Authority”) previously entered into a Standby Certificate Purchase Agreement, dated as of May 1, 2008 (the “Original Standby Certificate Purchase Agreement”), relating to the performance of certain duties with respect to the remarketing of the 2008 Certificates; and
WHEREAS, the Original Standby Certificate Purchase Agreement was later replaced with an irrevocable direct-pay letter of credit (the “Letter of Credit”) issued by JPMorgan Chase Bank, N.A. (“JPMorgan”) pursuant to the terms of a Reimbursement Agreement, dated as of July 1, 2011, as amended, by and between the City and JPMorgan; and
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05/5/2026/Finance/DLove/Item X 2 2026-XX
WHEREAS, on June 7, 2023, the City replaced the Letter of Credit with a liquidity facility provided by BMO Bank N.A. (formerly known as BMO Harris Bank N.A.) (the “Liquidity Provider”), under a Standby Certificate Purchase Agreement (the “Standby Certificate Purchase Agreement”), among the Liquidity Provider, the City, and the Authority; and
WHEREAS, in connection with the Standby Certificate Purchase Agreement, the City, the Authority and the Liquidity Provider entered into a Fee Letter Agreement; and
WHEREAS, the Standby Certificate Purchase Agreement has a stated expiration date of June 8, 2026; and
WHEREAS, prior to the expiration date thereof, the City wishes to extend the Standby Certificate Purchase Agreement; and
WHEREAS, in connection with the extension of the Standby Certificate Purchase Agreement, the City, the Authority and the Liquidity Provider will enter into an Amendment No. 1 to Standby Certificate Purchase Agreement (the “Standby Certificate Purchase Agreement Amendment”) and related Amended and Restated Fee Letter Agreement (the “Amended and Restated Fee Letter”), and
WHEREAS, in connection with the extension of the Standby Certificate Purchase Agreement, the City and the Authority will prepare a supplement to the Remarketing Memorandum for the 2008 Certificates describing certain material information regarding the Liquidity Provider and the Standby Certificate Purchase Agreement (as amended by the Standby Certificate Purchase Agreement #17..
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05/5/2026/Finance/DLove/Item X 3 2026-XX
Amendment) (the “Supplement to Remarketing Memorandum”), and WHEREAS, all acts, conditions and things required by the laws of the State of California to exist, to have happened and to have been performed precedent to and in connection with the consummation of the transactions authorized hereby do exist, have happened and have been performed in regular and due time, form and manner as required by law, and the City is now duly authorized and empowered, pursuant to each and every requirement of law, to consummate such transactions for the purpose, in the manner and upon the terms herein provided, NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Modesto, as follows:
Section 1. Findings. The City Council hereby specifically finds and determines that the actions authorized hereby constitute and are with respect to the public affairs of the City and that the statements, findings and determinations of the City set forth above and in the preambles of the documents approved herein are true and correct and that the consummation of the transactions contemplated therein shall result in significant public benefits to the City.
Section 2. Approval of the Standby Certificate Purchase Agreement Amendment and Amended and Restated Fee Letter. The City Council hereby approves the extension of the Stated Expiration Date of the Standby Certificate Purchase Agreement. The Standby Certificate Purchase Agreement Amendment and related Amended and Restated Fee Letter proposed to be executed and entered into by the City, in the forms presented at this meeting and on file with the City Clerk, are hereby approved, and each of the City Manager and the Finance #17..
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05/5/2026/Finance/DLove/Item X 4 2026-XX
Director, acting singly, is hereby authorized and directed, for and in the name and on behalf of the City, to execute and deliver the Standby Certificate Purchase Agreement Amendment and Amended and Restated Fee Letter in substantially said forms, with such changes therein as such officer executing the Standby Certificate Purchase Agreement Amendment and Amended and Restated Fee Letter may require or approve, such approval to be conclusively evidenced by the execution and delivery thereof.
Section 3. Approval of the Supplement to Remarketing Memorandum.
The Supplement to Remarketing Memorandum proposed to be executed and delivered by the City, in the form presented at this meeting and on file with the City Clerk, is hereby approved, and each of the City Manager and the Finance Director, acting singly, is hereby authorized and directed, for and in the name and on behalf of the City, to execute and deliver the Supplement to Remarketing Memorandum in substantially said form, with such changes therein as such officer executing the Supplement to Remarketing Memorandum may require or approve, such approval to be conclusively evidenced by the execution and delivery thereof.
Section 4. Attestations. The City Clerk is hereby authorized and directed to attest the signature of the City Manager and the Finance Director and to affix and attest the seal of the City, as may be required or appropriate in connection with the documents approved by this Resolution.
Section 5. Other Actions. The officers of the City are hereby authorized and directed, jointly and severally, to do any and all things and to execute and deliver any and all documents which they may deem necessary or desirable in #17..
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05/5/2026/Finance/DLove/Item X 5 2026-XX
order to consummate the transactions authorized hereby and to carry out, give effect to and comply with the terms and intent of this Resolution, the Standby Certificate Purchase Agreement Amendment, the Amended and Restated Fee Letter and the Supplement to Remarketing Memorandum; and all such actions heretofore taken by such officers are hereby ratified, confirmed and approved.
Section 6. Effective Date. This Resolution shall take effect immediately upon its passage.
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05/5/2026/Finance/DLove/Item X 6 2026-XX
The foregoing resolution was introduced at a regular meeting of the Council of the City of Modesto held on the 5th day of May, 2026 by Councilmember _________, who moved its adoption, which motion being duly seconded by Councilmember ______, was upon roll call carried and the resolution adopted by the following vote:
AYES: Councilmembers:
NOES: Councilmembers:
ABSENT: Councilmembers:
ATTEST: ___________________________
DIANE NAYARES-PEREZ, CMC
City Clerk
(SEAL)
APPROVED AS TO FORM:
By: __________________________________
JOSE M. SANCHEZ,
City Attorney
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1 ANNUAL AGREEMENT FOR
BANKING SERVICES AND LIQUIDITY FACILITIES – AGREEMENT #321980 This agreement, hereinafter called AGREEMENT, made and entered into in the City of Modesto, State of California, this _______ day of ________________, 2026, by and between the City of Modesto, a municipal corporation of the State of California, hereinafter called CITY, and BMO Bank N.A., a National banking association, hereinafter called CONTRACTOR.
W I T N E S E T H:
WHEREAS, the Modesto City Council adopted Resolution No. 2026- ______ authorizing the Award of Proposal and agreement for the Banking Services and Liquidity Facilities 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 Banking Services and Liquidity Facilities as described in RFP-00011, attached hereto as Exhibit “C” and made a part hereof (hereinafter called RFP).
NOW, THEREFORE, the parties hereto mutually agree as follows:
1. THE WORK:
A. CONTRACTOR shall furnish all labor, materials, equipment, fuel, tools, licenses, and insurance necessary to perform and complete the required work as specified in Exhibit “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. #17..
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2 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 of $47,037. The total amount paid by CITY to CONTRACTOR over the full term of the AGREEMENT shall not exceed $282,220. Unless the services provided are for a lump sum or flat fee, fees for work performed by CONTRACTOR on an hourly basis shall not exceed the amounts shown on Bid attached hereto as Exhibit "B".
F. The AGREEMENT pricing is attached hereto as Exhibit "E". Pricing during AGREEMENT Year one and two shall be as set forth in Exhibit "E", attached hereto and made a part hereof by this reference.
G. The AGREEMENT shall include Contract for Deposit of Public funds is attached hereto as Exhibit "F", attached hereto and made a part hereof by this reference.
H. The AGREEMENT shall include Treasury Service Master Agreement (TSMA) is attached hereto as Exhibit "G", attached hereto and made a part hereof by this reference.
I. The AGREEMENT shall include Commercial Account Agreement (CAA) is attached hereto as Exhibit "H", attached hereto and made a part hereof by this reference.
J. The AGREEMENT shall include Corporate Card Agreement (CCA) is attached hereto as Exhibit "I", attached hereto and made a part hereof by this reference.
2. CITY REPRESENTATIVE:
CITY Representative is: Maria Garnica, [email protected] Purchasing Representative: Carol Wattle, [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.
3. CONTRACTOR CONTACT:
Robye Kumar
(916) 213-4401
[email protected]
4. TERM OF AGREEMENT:
The term of the AGREEMENT shall be for a period of two (2) years, with four (4) one-year extension options at the sole discretion of CITY, for a total of up to six (6) years.
Year 1: JUNE 1, 2026 through MAY 31, 2027
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3 Year 2: JUNE 1, 2027 through MAY 31, 2028
Year 3: JUNE 1, 2028 through MAY 31, 2029
Year 4: JUNE 1, 2029 through MAY 31, 2030
Year 5: JUNE 1, 2030 through MAY 31, 2031
Year 6: JUNE 1, 2031 through MAY 31, 2032
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.
Price adjustments for diesel fuel fluctuations may be considered. Thirty (30) days written notice is required for consideration. Any price adjustment shall be negotiated through the Purchasing Division and approved at the sole discretion of the CITY.
The index used to determine price adjustments on diesel fuel shall come from the Energy Information Administration Website: HTTPS://WWW.EIA.GOV/PETROLEUM/GASDIESEL/, California data.
5. INSURANCE REQUIREMENTS:
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 vendor is responsible for uploading and maintaining updated insurance.
6. PAYMENT:
CONTRACTOR shall invoice CITY not less than once per month based on the cost of 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 by 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:
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4 • This AGREEMENT number 321980
• CITY department/division name and address
• Billing period
• Service hours worked day and week
• Unit price, extended price, sales tax and total
7. VENUE & GOVERNING LAW:
Venue for any dispute or claim arising or related to this AGREEMENT its performance, breach, or interpretation (including issues about its validity or enforceability), shall be exclusively in the Superior Court of Stanislaus County or the United States District Court for the Eastern District of California.
This AGREEMENT shall be deemed made in, governed by, performed in, and construed and enforced in accordance with the laws of the State of California, without giving effect to its conflicts of laws provisions or principles.
8. 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.2026 - _______;
C. CONTRACTOR Bid submittal;
D. RFP-00011;
E. Contractor’s City of Modesto business license
9. TERMINATION OF SERVICES:
Termination for Default: In the event either party fails to perform under this AGREEMENT or breaches any condition contained herein, the other party shall notify in writing the breaching party of the nonperformance. Within 10 days after receipt of notification, the breaching party shall correct any nonperformance to the reasonable satisfaction of the non-breaching party, or such other time as may be identified in the notice. Failure to correct any non-performance shall allow the non-breaching party to terminate this AGREEMENT for cause.
Termination by City for Convenience: The City may also terminate this AGREEMENT the Contractor's performance under the Agreement, either in whole or in part, at its own discretion and without cause upon 30 days' notice.
Post-Termination Procedure
Upon receipt of a written notice of termination pursuant to either of the foregoing paragraphs, the CONTRACTOR shall:
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5 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; 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.
J. 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:
K. The cost of settling and paying valid claims arising out of the termination of the SERVICES such as subcontractor agreements or contracts for materials; L. 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.
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6 10. 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.
11. FAILURE TO PERFORM SATISFACTORY WORK:
It is agreed and understood that if the CONTRACTOR fails to perform the SERVICES as specified herein, CITY's representative may:
A. Consent to accept such unsatisfactory service with an appropriate adjustment in contract price, based on established cost factors,
B. Have such required work done by CITY forces or otherwise, and charge the cost thereof to the CONTRACTOR, or
C. Recommend termination of AGREEMENT between said the CONTRACTOR and the City of Modesto.
Those discrepancies and deficiencies in the SERVICES that 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.
12. 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.
13. 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.
14. 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:
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7 CONTRACTOR: BMO Bank N.A.
Attention: Robye Kumar
500 Capitol Mall Suite 1200
Sacramento, CA 95814
(916) 213-4401
[email protected]
CITY: City of Modesto
Purchasing Division
Attention: Carol Wattle
P.O. Box 642
Modesto, CA 95353
(209) 577-5405 [email protected]
Each party may change its address for delivery of notice by delivering written notice of such change of address to the other party.
15. 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.
16. QUANTITIES:
No minimum or maximum is guaranteed or implied.
17. 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.
18. 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.
19. 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 #17..
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8 CONTRACTOR and any allowed subcontractors shall comply with the provisions of the Fair Employment and Housing Act (Government Code, Section 12900 et seq.) and the applicable regulations promulgated thereunder (California Administrative Code, Title 2, and Section 7285.0 et seq.). The applicable regulations of the Fair Employment and Housing Commission implementing Government Code, Section 12900, set forth in Chapter 5 of Division 4 of Title 2 of the California Administrative Code, are incorporated into this contract by reference and made a part hereof as if set forth in full.
B. The CONTRACTOR and any allowed subcontractors shall give written notice of their obligations under this clause to labor organizations with which they have a collective bargaining or other agreement.
C. The CONTRACTOR shall include the nondiscrimination and compliance provisions of this clause in any allowed subcontracts to perform SERVICES.
D. The CONTRACTOR shall permit access by representatives of the Department of Fair Employment and Housing and the CITY upon reasonable notice at any time during the normal business hours, but in no case less than 24 hours’ notice, to such of its books, records, accounts, other sources of information and its facilities as said Department or CITY shall require to ascertain compliance with this AGREEMENT.
E. By executing this AGREEMENT, CONTRACTOR certifies that it shall follow and be in compliance with the Americans with Disabilities Act of 1990, the applicable administrative requirements promulgated in response thereto, and any other applicable Federal laws and regulations relating to handicap discrimination and participation and will continue to do so for at least the duration of the AGREEMENT and any extensions thereof.
20. 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.
21. 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.
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9 22. 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.
23. 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.
24. 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.
25. 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.
26. HEADINGS NOT CONTROLLING:
Headings used in the Agreement are for reference purposes only and shall not be considered in construing this AGREEMENT.
27. MISCELLANEOUS:
Time is of the essence in CONTRACTOR’s performance under each provision of this AGREEMENT.
28. ENTIRE AGREEMENT:
The Commercial Account Agreement and Treasury Services Master Agreement, between CONTRACTOR and CITY, each currently in effect (together, the "Bank Agreements"), 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 RFP, attached hereto as Exhibit C, are incorporated herein. In the event of a conflict between the Bank Agreements and the RFP or this AGREEMENT, the Bank Agreements shall control. In the event of a conflict between the RFP and this AGREEMENT, this AGREEMENT shall control. All previous bids, offers and communications related #17..
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10 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.
29. PARTIAL INVALIDITY:
If any provision in this AGREEMENT is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions shall nevertheless continue in full force without being impaired or invalidated in any way.
IN WITNESS WHEREOF, the CITY OF MODESTO, a municipal corporation, has authorized the execution of this Agreement by its City Manager and attested by its City Clerk under authority of Resolution No. 2026 - _______, adopted by the Council of the City of Modesto on the 5th day of May, 2026 and BMO Bank N.A. has caused this Agreement to be duly executed. #17..
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1 REQUEST FOR PROPOSALS (“RFP”) NO. RFP-00011
FOR
BANKING SERVICES AND LIQUIDITY FACILITIES
PROPOSALS DUE: January 27, 2026 at 11:00 am
CITY OF MODESTO CONTACT: Carolanne Wattle, Senior Buyer E-MAIL ADDRESS: [email protected]
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BANKING SERVICES AND LIQUIDITY FACILITIES
2 Table Of Contents
NOTICE TO PROPOSERS
CALENDAR OF EVENTS
VIRTUAL BID OPENING
GENERAL PROPOSAL REQUIREMENTS
AWARD OF AGREEMENT
PRICING SCHEDULE
PROPOSAL
TECHNICAL SPECIFICATIONS AND REQUIREMENTS
SAMPLE STANDARD AGREEMENT FOR CONSULTANT SERVICES
EXHIBIT C: INSURANCE REQUIREMENTS FOR SERVICES
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3 NOTICE TO PROPOSERS
NOTICE IS HEREBY GIVEN that the City of Modesto, County of Stanislaus, State of California (“City”), will receive proposals (each, a "Proposal") through its OpenGov Procurement portal from qualified Proposers (each, a “Proposer”) for the furnishing of Banking Services and Liquidity Facilities services (the “Services”) for the City of Modesto, Finance Department, Accounting Division. Proposals are due prior to 11:00 am on Tuesday, January 27, 2026.
Any equipment, materials, and supplies shall be furnished F.O.B. City of Modesto (delivery charges borne by Proposer, included in the Services pricing herein, and not separately charged to the City). Proposers are highly recommended to download all RFP documents from the City’s Purchasing Division website at https://procurement.opengov.com/portal/modestogov/projects/150467; RFP documents shall include all specifications necessary for Proposers to submit a responsive Proposal.
Each Proposal shall be submitted electronically through the City's OpenGov Procurement portal prior to 11:00 am on Tuesday, January 27, 2026 at which time Proposals will be opened and recorded. All Proposals shall be available for review following City Council award approval at the Purchasing Division, 1010 Tenth Street, 5th Floor, Suite 5300, Modesto, CA 95354.
Proposals will be received only in the manner shown above, and prior to the time indicated. Any Proposal received at or after said time and/or date, or in a manner other than the manner stated above cannot be considered and will be ignored.
The City of Modesto assumes no responsibility for delay in the upload or submittal of a Proposal. Proposals received in any other format will not be accepted.
The City reserves the right to reject any or all Proposals or to waive any informalities or minor irregularities in a Proposal.
No Proposer may withdraw its Proposal for a period of one hundred twenty (120) days after the date set for the opening thereof.
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4 CALENDAR OF EVENTS
RFP Issued: December 19, 2025
Questions Due via City's OpenGov
Procurement portal:
January 2, 2026, 5:00pm
Addendum Issued (if required): January 13, 2026
Proposal Due Date & Time: January 27, 2026, 11:00am
Approximate Contract Award Date: May 2026
CITY CONTACT
All questions regarding these specifications, terms, and conditions shall be submitted through the Question & Answer area of the City's OpenGov Procurement portal prior to 5:00 pm on Friday, January 2, 2026.
The City will respond to questions through the OpenGov portal where answers can be found in the Question & Answer tab; however, if a response to a question elicits a change to the bid documents, an addendum will be posted through the OpenGov portal under the Addenda & Notices tab. All contact between Proposer and the City regarding the Proposal process shall be through the City's OpenGov Procurement portal. Attempts by the Proposer to contact City personnel regarding this RFP and associated process may result in disqualification of the Proposer. Notwithstanding the foregoing, information intentionally or un-intentionally provided by any person other than the City Contact may not be correct and will not be binding upon the City.
PROPOSER FAMILIARITY WITH SERVICE CONDITIONS
It is the responsibility of each Proposer to become familiar with all of the specifications, terms and conditions and the site condition (if applicable). The Proposer agrees to and acknowledges all RFP specifications, terms, and conditions and indicates the ability to perform by submission of a Proposal. By the submission of a Proposal, the Proposer 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
Proposer agrees that any agreement resulting from City’s acceptance of its Proposal, together with the terms in any City agreement and associated specifications provided by the City to Proposer therewith, shall comprise the entire agreement between City and Proposer. Moreover, Proposer agrees that any additional or contrary terms contained in Proposer’s acknowledgement of, shall be null and void. #17..
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5 VIRTUAL BID OPENING
The City of Modesto will be broadcasting Proposal openings live electronically via Microsoft Teams at 11:00 am (Pacific Time) on Tuesday, January 27, 2026. The City Clerk Record of Proposal document should be available on the City's OpenGov Procurement portal by the end of the same day.
The public Proposal opening for this Request for Proposals will be available using the URL link provided below. By submitting your Proposal for the above-stated RFP you acknowledge, understand, and agree to this modified Proposal opening procedure.
URL: https://teams.microsoft.com/l/meetupjoin/19%3ameeting_NTI0YzBiMDMtNDQ0Yi00YjNlLWIwZjYtYzg4ZDVjMDdkM2Mz%40thread.v2/0?co ntext=%7b%22Tid%22%3a%22125ccacf-fc61-463c-9976-
189f876ff90b%22%2c%22Oid%22%3a%229715c333-c997-4dd7-8984-12cd4deaa705%22%7d Call-In#: 1 469-998-7409
Conference ID: 961 656 049#
Should you have any questions regarding this, please do not hesitate to contact Carolanne Wattle. #17..
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6 GENERAL PROPOSAL REQUIREMENTS
PROPOSAL SUBMITTAL
Proposers shall submit proposals through the City's OpenGov Procurement portal. No hard copy proposals or proposals submitted in any other manner as that prescribed within this Request For Proposal will be accepted.
CONFIDENTIAL PROPOSER INFORMATION
It is the responsibility of the Proposers to identify information in their Proposal 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.
PROPOSER COSTS INCURRED IN RESPONDING TO RFP
All costs associated with the preparation and submission of a Proposal shall be borne by the Proposer.
ADDENDA
In order to obtain any addenda information, throughout the RFP period, Proposer is responsible for regularly checking this RFP on the City of Modesto’s OpenGov Procurement portal at https://procurement.opengov.com/portal/modestogov/projects/150467. Changes identified in any addenda issued will modify this RFP and specifications. The addenda will become a part of this RFP and Proposer’s resultant Proposal. Proposer shall individually acknowledgement every addendum as part of their proposal to indicate that the Proposer has confirmed that it has received all addenda issued for RFP and has included costs for such in the Proposal submitted. Failure to acknowledge all issued addenda may cause Proposer’s Proposal to be considered nonresponsive.
PROPOSER EXCEPTIONS
All exceptions taken to this RFP and associated specifications shall be specifically and clearly identified on Exceptions, Clarifications and Amendments Form provided with this RFP. Failure to comply with this provision may deem the Proposal 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 services required by the City. The Purchasing Manager or designated agent shall make the final decision regarding the acceptability of equipment, materials and/or services with exceptions.
COMPLETE PROPOSAL DOCUMENT
The following City of Modesto forms provided with this RFP constitute the makeup of a complete Proposal document and shall be signed wherever indicated and be submitted to the City as required by this RFP.
Failure to furnish any of these documents or information required within such documents may result in disqualification of Proposer.
• Pricing Schedule
• Proposer Exceptions, Clarifications, Amendments (if applicable) #17..
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7 • Proposer Customer References
• Financial Interest Disclosure
• Proposer Company History Statement
• Proposer Financial Statements
• Addenda Acknowledgement
• Proposer Experience and Certifications
• California Levine Act Disclosure
CITY ACCEPTANCE/REJECTION OF IRREGULAR PROPOSALS
An agreement shall be awarded to the Proposer whose Proposal 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 Proposals or to waive any informalities or minor irregularities in a Proposal.
COMPLIANCE/NON-COMPLIANCE
If Proposer cannot comply with a specification requirement in this RFP, note such requirement(s) on the Exception, Clarifications, Amendments Form provided with this RFP. Please be sure to note the specification paragraph, your exception, and your recommendation for each individual exception. The Purchasing Manager will evaluate your recommendation. If after evaluation it is determined that the Proposer is not in compliance with the specification, the Proposal may be rejected.
PROPOSED PRICING FORMAT
• The cost of labor, equipment, fuel, licenses, bonds, permits, and insurance necessary to perform the required services shall be included in Proposal pricing, along with Proposer’s profit margin and any other cost factors.
• Unless otherwise stated, the Proposer 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. • Proposer shall use the pricing schedule provided in this RFP to present Proposal pricing. No other form or format shall be accepted. Proposal 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.
INDEMNITY
Proposer, if awarded an agreement, 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, #17..
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8 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 Proposer, its agents, officers, employees, and volunteers relating to or during the performance of its obligations under this Proposal. 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 in this Proposal for Proposer 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 is apportioned to Contractor in accordance with the provisions contained in indemnity.
PROPOSER REPRESENTATION
Proposer represents that:
• Proposer 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.
• Proposer has made all reasonable investigations essential to a full understanding of the difficulties, which may be encountered in performing the work.
• Proposer will complete the proposed services for the compensation stated in any resultant agreement. • Proposer assumes full and complete responsibility for all conditions relevant to the proposed services and all risks in connection therewith.
• Proposer represents that it is fully qualified to perform the proposed services in accordance with the terms of any resultant agreement within the time specified therein.
RFP TERMS
The City is soliciting Proposals from qualified firms (each a “Proposer”) to fulfill the City’s requirements per the specifications, terms and conditions contained in this Request for Proposals (“RFP”). Obligations assumed by such signature will include the following:
1. Preparation of Proposals:
a. All prices and notations made on any forms provided by the City must be clearly 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 Proposal. b. Quote price as specified in Proposal. No alterations or changes of any kind shall be permitted to the Proposal Form. Responses that do not comply shall be subject to rejection in total.
2. Taxes and Freight Charges:
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9 a. Unless otherwise required and specified in the RFP, 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 Proposal. 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 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.
3. Award:
a. Unless otherwise specified by the Proposer or the RFP gives notice of an all-or-none award, the City may accept any item or group of items of any Proposal. b. Proposals are subject to acceptance by the City at any time within one hundred twenty (120) days of opening, unless otherwise specified in the RFP. A Proposer shall not change its Proposal within such time frame
c. A valid contract based on the sample agreement attached to the RFP and the Proposal shall be mailed, or otherwise furnished, to the successful Proposer within the time for acceptance specified, and such contract shall be a binding contract 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.
4. Patent Indemnity: Proposers who do business with the City shall hold the City, its officers, agents and employees, harmless from liability of any nature or kind, including cost and expenses, for infringement or use of any patent, copyright or other proprietary right, secret process, patented or unpatented invention, article or appliance furnished or used in connection with the contract or purchase order.
5. 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 Proposer’s expense.
6. Rights and Remedies of City’s for Default:
a. In the event any item furnished by the Proposer in the performance of the contract or purchase order should fail to conform to the specifications therefore or to the sample submitted by the #17..
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10 Proposer with its Proposal, the City may reject the same, and it shall thereupon become the duty of the Proposer 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 Proposer fail, neglect or refuse so to do the City shall thereupon have the right to purchase in the open market, in lieu thereof, a corresponding quantity of any such items and to deduct from any moneys due or that may there after come due to Proposer, or send an invoice to the Proposer 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 Proposer 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 Proposer.
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.
7. Payment Terms and Methods: Proposer 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
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.
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11 8. California Government Code Section 4552: In submitting a Proposal to a public purchasing body, the Proposer offers and agrees that if the Proposal is accepted, it will assign to the purchasing body 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 goods, materials, or services by the Proposer for sale to the purchasing body pursuant to the Proposal. Such assignment shall be made and become effective at the time the purchasing body tender’s final payment to the Proposer.
9. 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 in under a contract or purchase order resulting from this Proposal.
10. Minor Irregularities: The City reserves the right, in its sole discretion, to waive any informalities or minor irregularities in a Proposal.
PROPOSAL PROTEST AND APPEAL PROCEDURES
Proposers wishing to protest or appeal a contract award decision by the City of Modesto must follow the procedures provided in this section. Protests or appeals which are not submitted in accordance with these procedures will not be reviewed.
Definitions
For the purposes of these procedures: "Days" means working days in which City Hall is open for business, excluding holidays and weekends.
"Proposal" 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 an Interested Party may lodge a protest.
Protest Procedures
• Only a Proposer who has actually submitted a Proposal is eligible to submit a protest against the City’s Announced Decision.
• Subcontractors are not eligible to submit bid protests. • A Proposer 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. #17..
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12 • The protest shall be delivered or sent by registered mail and received by the deadline, or protest will be automatically rejected. Protestors who choose to be represented by legal counsel are responsible for the associated expenses.
• The protest shall be accompanied by a certified or cashier's check in the amount of $300.00, (except for protests of Federally Funded agreements) made payable to the Clerk of the City of Modesto. Protests filed without the requisite fee will be rejected without any additional review. • The protest filed with the Director of Finance shall:
A. Include the name, address, email address and business telephone number of the protestor; B. Identify the under protest by name, Request for Proposal (RFP) or Request for Proposal (RFP) number, and Proposal/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.
• Proposal Protests: A Proposer shall follow, in order, the following steps:
A. Protest to Director of Finance: Upon receipt of a complete and timely protest, the Director of Finance shall review all the submitted materials and shall create and retain a written record of the review. The Director of Finance shall respond at least generally to each material issue raised in the protest not later than ten (days after receipt of the protest. Notice of the Director of Finance's decision may be given by letter mailed through U.S. Postal Service.
All protests to the Director of Finance shall either be delivered to:
City Clerk’s Office
Attn: Director of Finance
1010 Tenth St. Suite 6600
Modesto CA 95354
Or mailed to:
City Clerk’s Office
Attn: Director of Finance
PO Box 642
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13 Modesto CA 95353
B. Appeal to Deputy City Manager: At the protestor’s discretion, the further decision of the Director of Finance decision 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
C. 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 fifteen days after the date of the Deputy City Manager's decision. The City Clerk will calendar the protest for Council hearing and give notice of the time and place of the hearing as provided in Modesto Municipal Code Sections 1-4.01 through 1-4.05. The City Council’s decision on the appeal shall be final.
All protest appeals to the City Council shall either be delivered to:
City Clerk’s Office
Attn: City Council
1010 Tenth St. Suite 6600
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14 Modesto CA 95354
Or mailed to:
City Clerk’s Office
Attn: City Council
PO Box 642
Modesto CA 95353
D. Optional Alternative Process for Protests of Procurement Actions Exceeding $250,000: A Bidder protesting procurements exceeding $250,000 shall comply with the procedures contained herein, except that in lieu of appeal to the Deputy City Manager a protestor may request that the protest be heard and decided at an administrative hearing.
A written request for administrative hearing shall be accompanied by a certified or cashier's check in the amount of $1,500, (except for protests of Federally Funded projects); The request for hearing shall include the specific grounds of the appeal.
The City of Modesto shall select and engage an impartial and qualified person to act as hearing officer in the pending protest. The protestor shall have the right to twice reject the selected hearing officer, provided that the City is notified of such rejection within three days of notice to protestor of the name of the hearing officer.
The protest shall be heard not later than twenty days after receipt of protestor's request for hearing and the selection of a hearing officer. Protests not made in a timely manner shall be deemed withdrawn, unless the City and the protestor mutually agree otherwise in writing. The protestor’s failure to accept a hearing officer after the third attempt by City staff to identify an impartial hearing officer shall be deemed a withdrawal of the protest.
The costs of the hearing officer and expenses of the protest shall be borne by the protestor. The sums deposited with the request for hearing shall be credited to the costs of the hearing officer and other hearing expenses.
E. 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 #17..
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15 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.
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BANKING SERVICES AND LIQUIDITY FACILITIES
16 AWARD OF AGREEMENT
• The City may award one or more agreements to one or more Proposer 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. • The City reserves the right to select that Proposal, which best suits the City’s needs. Price is only one factor that will be considered by the City when awarding an agreement. Regardless of City staff’s recommendation, the City Council reserves the right to award an agreement to the Proposer 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.
• It is the City's preference to award both banking and liquidity services to a single proposer that offers the most competitive combined proposal and cost structure. However, the City reserves the right to award banking services and liquidity services to separate proposers if deemed in its best interest. If pricing for banking services is contingent upon the provision of liquidity services or vice versa, proposers must clearly state this in their proposal. Proposer's may also choose to submit proposals limited to either banking services or liquidity services, at their discretion. • The City will appoint a selection committee to evaluate each Proposer’s submitted Proposal. The City will evaluate Proposals on a 100-point scale based upon the following weighted scoring:
No. Evaluation Criteria Scoring Method Weight (Points)
1. Security Measures to minimize fraud
activity
Points Based 10
(10% of Total)
2. Ability to provide efficient and userfriendly web-based products and servicesPoints Based 10 (10% of Total)
3. Ability to support products and provide
both online and live training
Points Based 15
(15% of Total)
4. Reliability, experience, and quality of
customer service
Points Based 15
(15% of Total)
5. Experience in providing services to the
public sector, as well as dedicated
resources and personnel
Points Based 15
(15% of Total)
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REQUEST FOR PROPOSALS # RFP-00011
BANKING SERVICES AND LIQUIDITY FACILITIES
17 6. Financial strength and capitalization in
banking market
Points Based 10
(10% of Total)
7. References Points Based 10
(10% of Total)
8. Costs Points Based 15
(15% of Total)
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REQUEST FOR PROPOSALS # RFP-00011
BANKING SERVICES AND LIQUIDITY FACILITIES
18 PRICING SCHEDULE
All labor, materials, equipment, tools, fuel, licenses, bonds, insurance and other expenses necessary for Proposer to perform the required services shall be included in Proposal pricing. Proposal 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 City Form provided for Exceptions, Clarifications, and Amendments.
**In instances where extended pricing is requested within a proposal, and in cases where this results in a 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.** NOTE TO PROPOSERS: Be sure to enter leading "0." for dollars amounts less than $1
ACCOUNT SERVICES
Line Item Description Estimated
Quantity
Unit of
Measure
Unit Cost Total
1 ACCOUNT ANALYSIS-PAPER
STMT
12 EA
2 ACCOUNTS REPORTED 144 EA
3 ACH CREDIT 5,592 EA
4 ACH CREDIT RECEIVED 5,256 EA
5 ACH CREDITS RETURNED 12 EA
6 ACH DEBIT 1,188 EA
7 ACH DEBIT RECEIVED 540 EA
8 ACH DEBITS RETURNED 12 EA
9 ACH DETAIL REVERSAL 24 EA
10 ACH FRAUD CONTROL
MAINTENANCE
108 EA
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REQUEST FOR PROPOSALS # RFP-00011
BANKING SERVICES AND LIQUIDITY FACILITIES
19 Line Item Description Estimated
Quantity
Unit of
Measure
Unit Cost Total
11 ACH FRAUD PREVENTION 12 EA
12 ACH MONTHLY MAINT 12 EA
13 ALERTS PREMIUM 1,704 EA
14 ALTERNATE ADDRESS 12 EA
15 AUTOMATED VOIDS/ ADDS 168 EA
16 AUTOMATIC CREDIT 1,404 EA
17 AUTOMATIC DEBIT 1,404 EA
18 AUTOMATIC TRANSFER ACCT 72 EA
19 BAI DOWNLOADED
TRANSACTIONS
16,872 EA
20 BAI DOWNLOADS 120 EA
21 BAL REPORTING PER
TEMPLATE
936 EA
22 BALANCE ADMIN FEE 145,692 EA
23 BALANCE REPORTING
ARCHIVE-2 YEAR
12 EA
24 BALANCE REPORTING MAINT 12 EA
25 BUSINESS BANKING DEPOSITS 60 EA
26 BUSINESS BANKING
MAINTENANCE
96 EA
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REQUEST FOR PROPOSALS # RFP-00011
BANKING SERVICES AND LIQUIDITY FACILITIES
20 Line Item Description Estimated
Quantity
Unit of
Measure
Unit Cost Total
27 CASH VAULT DEPOSITS - CV2 972 EA
28 CB ACH REPORTS 36 EA
29 CHECK DEBITS 14,352 EA
30 CHECKS DEPOSITED NOT ON
US
48 EA
31 CHK ISSUANCE FILE
TRANSMISSION
204 EA
32 COIN FURNISHED - ROLLS -
CV2
240 EA
33 COMM BANK ACH
TRANSMISSIONS
24 EA
34 COMM BK ACH CREDITS 39,180 EA
35 COMM BK ACH DEBITS 24 EA
36 CONCENTRATION DEBIT
PRENOTES
12 EA
37 CORP IMAGE DEP BASE FEE
PER ACCT
12 EA
38 CORP SWEEP-INVESCO/ AIM
FUNDS
12 EA
39 CORPORATE ACCOUNT
MAINTENANCE
24 EA
40 CSV DOWNLOADED
TRANSACTIONS
156,684 EA
41 CSV DOWNLOADS 312 EA
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REQUEST FOR PROPOSALS # RFP-00011
BANKING SERVICES AND LIQUIDITY FACILITIES
21 Line Item Description Estimated
Quantity
Unit of
Measure
Unit Cost Total
42 CURRENCY DEP - STD (PER
$100) - CV2
54,396 EA
43 CURRENCY FURNISHED NON -
STD - CV2
24 EA
44 DOMESTIC WIRES CREDITS 24 EA
45 E-ANALYSIS STMT # OF
ACCESSES
60 EA
46 EDI/EFT CREDITS RCVD - CCD+ 1,512 EA
47 EDI/EFT CREDITS RECEIVED -
CTX
48 EA
48 EPA-EXCEPTION ITEMS 132 EA
49 FULL RECON MAINTENANCE 24 EA
50 FULL RECON PER ITEM 14,436 EA
51 ICL DEPOSIT 516 EA
52 INDEX RETRIEVALS 336 EA
53 INQUIRY IMAGES RETRIEVED 336 EA
54 ITEMS ON OTHER BANKS 140,424 EA
55 MAIL FEE FOR RESEARCH
RESULTS
72 EA
56 MISMATCH POSITIVE PAY
AUTO
132 EA
57 NOC CORRECTION 24 EA
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REQUEST FOR PROPOSALS # RFP-00011
BANKING SERVICES AND LIQUIDITY FACILITIES
22 Line Item Description Estimated
Quantity
Unit of
Measure
Unit Cost Total
58 ON US DEPOSIT ITEMS 12 EA
59 ON US ITEMS 9,060 EA
60 ONLINE ACCOUNTS-SAME
DAY (TIER 1)
48 EA
61 ONLINE ACCOUNTS-SAME
DAY (TIER 2)
72 EA
62 ONLINE ACH MAINTENANCE 48 EA
63 ONLINE ACH REPORTS 24 EA
64 ONLINE BOOK TRANSFER 108 EA
65 ONLINE DOMESTIC WIRE 216 EA
66 ONLINE USER FEE 168 EA
67 ORIGINATED SAME DAY ACH
CREDITS
132 EA
68 OTHER CORPORATE CREDITS 12 EA
69 POSITIVE PAY AUTO RETURN 72 EA
70 POSITIVE PAY MAINTENANCE 24 EA
71 POSITIVE PAY PLAN 14,436 EA
72 POSITIVE PAYEE MONTHLY
MAINT
24 EA
73 POSITIVE PAY-PAYEE PER
ITEM
14,436 EA
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REQUEST FOR PROPOSALS # RFP-00011
BANKING SERVICES AND LIQUIDITY FACILITIES
23 Line Item Description Estimated
Quantity
Unit of
Measure
Unit Cost Total
74 PREFUNDING MAINTENANCE 48 EA
75 PREVIOUS DAY DR/CR ITEMS 22,068 EA
76 PREVIOUS DAY DR/CR ITEMS
(FIRST 1,000)
12,000 EA
77 REG CHECKING-PAPER STMT 12 EA
78 RETURN EXCEPTIONS
REDEPOSITED
132 EA
79 RETURN IMAGES RETRIEVED 204 EA
80 RETURN ITEMS CHARGED
BACK
180 EA
81 SAME DAY DR/CR ITEMS 30,612 EA
82 TAX PAYMENTS-IMPOUND 96 EA
83 TOUCHTONE/STANDING
ORDER - CV2
12 EA
84 VAULT CHECK DEPOSIT 72 EA
85 WIRE TRANSFER CREDITS 24 EA
86 WIRE TRANSFER DEBITS 216 EA
87 ZBA CONCENTRATION
ACCOUNT FEE
12 EA
88 ONLINE ACCOUNT - SAME
DAY
2 EA
89 DELUXE SUPPLIES ORDER 5 EA
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REQUEST FOR PROPOSALS # RFP-00011
BANKING SERVICES AND LIQUIDITY FACILITIES
24 Line Item Description Estimated
Quantity
Unit of
Measure
Unit Cost Total
TOTAL
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REQUEST FOR PROPOSALS # RFP-00011
BANKING SERVICES AND LIQUIDITY FACILITIES
25 PROPOSAL
Proposer’s submission should include all City of Modesto forms as provided. If any form is not applicable, Proposer should write or type “Not Applicable” on it but still include the form in your submission.
RFP ACKNOWLEDGEMENT AND PROPOSAL
RFP ACKNOWLEDGEMENT*
The party submitting acknowledges receipt of the referenced RFP and/or Addenda and offers and agrees to furnish the articles and/or services specified on behalf of the Proposer indicated in Proposer’s Proposal and Forms provided by the City attached hereto and made a part hereof, this includes any forms for the pricing proposed on the Pricing Schedule.
By checking the "please confirm" box below, you acknowledge the above statement. ☐ Please confirm
*Response required
PAYMENT TERMS AND METHODS*
Proposer is able to choose from either of the following payment methods and associated timings:
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 Proposer’s pricing proposal hereunder. Information about enrolling in MasterCard ePay program can be obtained from the City’s contact listed on the Cover Page of this RFP.
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. #17..
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REQUEST FOR PROPOSALS # RFP-00011
BANKING SERVICES AND LIQUIDITY FACILITIES
26 Please select which option for payment terms and method you accept. ☐ Option A (Preferred)
☐ Option B
*Response required
PROPOSER COMPANY INFORMATION
PROPOSER COMPANY FULL LEGAL NAME*
Please provide the full legal name of the company on this proposal. It may already be provided elsewhere, but please provide here to confirm.
*Response required
PROPOSER COMPANY MARKETPLACE (OR DBA) NAME*
Please provide the Company Marketplace Name or DBA (if applicable). It may already be provided elsewhere, but please provide here to confirm.
NOTE: If the company is not operating under an additional name or a dba, then you may state "N/A" here.
*Response required
TYPE OF LEGAL ENTITY*
Is the Proposer Company a Corporation, Limited Liability Company, Partnership, or Sole Proprietorship? If the Proposer Company is something other than one of the above options, please answer "No" here and you will be asked to provide more information after this question. ☐ Yes
☐ No
*Response required
When equals "Yes"
TYPE OF LEGAL ENTITY - SELECT*
Please select which of the following legal entity options under which the Proposer Company operates. ☐ Corporation
☐ Limited Liability Company
☐ Partnership
☐ Sole Proprietorship
*Response required
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REQUEST FOR PROPOSALS # RFP-00011
BANKING SERVICES AND LIQUIDITY FACILITIES
27 When equals "Yes"
LEGAL ENTITY STATE OF REGISTRATION*
In which State is the Proposer Company registered?
*Response required
When equals "No"
TYPE OF LEGAL ENTITY - OTHER*
You have indicated that the Proposer Company does not operate as a Corporation, a Limited Liability Company, a Partnership, or as a Sole Proprietorship. Please explain and be sure to note which State the Proposer Company is registered/established.
*Response required
PROPOSER COMPANY HEADQUARTERS ADDRESS*
Please provide the full street address for the headquarters of the Proposer Company. Be sure to include the following:
• Full Street Address
• City
• State
• Country
• Postal Code
*Response required
COMPANY WEBSITE ADDRESS
Please provide the full company website address for the Proposer Company.
PROPOSAL CONTACT PERSON DETAILS*
Please provide the following information for the Contact person for this proposal:
• Name
• Title
• Phone (Office)
• Phone (Mobile)
• Mailing Address (Street Address, City, State, Postal Code) #17..
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REQUEST FOR PROPOSALS # RFP-00011
BANKING SERVICES AND LIQUIDITY FACILITIES
28 • Fax Number
• Email
*Response required
FEDERAL TAXPAYER IDENTIFICATION NUMBER (TIN)*
Please provide the Proposer Company's Federal Taxpayer Identification Number here. *Response required
DUNS & BRADSTREET (DUNS) NUMBER
Please provide the Proposer Company's Duns & Bradstreet (DUNS) Number here.
PROPOSER OFFICER NAMES AND TITLES*
Please provide the Names and Titles of the Top Three Proposer Officers in the following manner:
• Full Name, Full Title
• Full Name, Full Title
• Full Name, Full Title
*Response required
YEARS IN BUSINESS*
For how long has the Proposer Company been in business? Please indicate in number of years. *Response required
CLOSEST PROPOSER OFFICE*
Please provide the address for the Proposer Office closest to the City of Modesto. Please be sure to provide:
• Full Street Address
• City
• State
• Country
• Postal Code
*Response required
CITY OF MODESTO BUSINESS LICENSE*
Does the Proposer Company currently possess a valid City of Modesto Business License? #17..
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REQUEST FOR PROPOSALS # RFP-00011
BANKING SERVICES AND LIQUIDITY FACILITIES
29 NOTE: An answer of "No", does not exclude the proposal from evaluation as it is not required until the contract begins.
☐ Yes
☐ No
*Response required
When equals "Yes"
CITY OF MODESTO BUSINESS LICENSE NUMBER*
You have indicated that the Proposer Company already possesses a City of Modesto Business License, please provide the business license number here.
*Response required
PROPOSER FINANCIAL STATEMENTS*
Minimum Qualifications are mandatory for proposal consideration, and at a minimum shall include the following:
Financial Stability:
City staff will request financial statements from the proposer whose proposal is determined to best meet the City’s needs, as determined by the selection committee. Within two (2) business days of City request, proposer shall provide a copy of their company’s most recent professionally prepared Financial Statements (Income Statement and Balance Sheet). These statements, if un-audited, shall be accompanied by a cover letter that states the name and title of the preparer, the basis of the financial statement presentation (cash or accrual) and whether these statements have been prepared in accordance with Generally Accepted Accounting Principles for the most recent fiscal year end of the proposer. Audited financial statements shall be submitted in their entirety, including the auditor’s opinion and notes to the financial statements.
A separate document shall be provided and signed under penalty of perjury by the proposer’s financial officer or owner that explains the proposer’s inability to provide statements for a fiscal period that ended at least eight (8) months before the required date of submittal, if such inability exists.
One complete set of Financial Statements shall be submitted within two (2) business days of City request.
Financial Statements, whether delivered via email, by an employee of the proposer, U.S. Postal Service, courier or package delivery service must be received by the City of Modesto, Purchasing Division within two (2) business days of request. Financial statements delivered via email should be sent to [email protected]. If sent via email, proposer is encouraged to follow-up with a phone call to Carolanne Wattle at (209) 577-5406, to confirm receipt. Failure of proposer to provide requested documents within two (2) business days, may disqualify proposer from further consideration. The City of Modesto assumes no responsibility for delay in the delivery of the Financial Statements to the City. #17..
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REQUEST FOR PROPOSALS # RFP-00011
BANKING SERVICES AND LIQUIDITY FACILITIES
30 CITY OF MODESTO, PURCHASING DIVISION
1010 10TH STREET, SUITE 5300
ATTN: Carolanne Wattle
Banking Services and Liquidity Facilities #RFP-00011
MODESTO, CA 95354
By checking the box below, Proposer confirms that they understand the financial statement requirements as set forth above.
☐ Please confirm
*Response required
CITY FORMS
PROPOSER EXCEPTIONS, CLARIFICATIONS, AMENDMENTS?*
Does the Proposer have any exceptions, clarifications, or amendments to this RFP, sample agreement, or its associated specifications?
☐ Yes
☐ No
*Response required
When equals "Yes"
PROPOSER EXCEPTIONS, CLARIFICATIONS, AMENDMENTS*
Please download the below documents, complete, and upload. • Proposer_Exceptions,_Clarif...
*Response required
PROPOSER CUSTOMER REFERENCES*
Please download the below documents, complete, and upload. • Proposer_Customer_Reference...
*Response required
FINANCIAL INTEREST DISCLOSURE*
Please download the below documents, complete, and upload. • Financial_Interest_Disclosu...
*Response required
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REQUEST FOR PROPOSALS # RFP-00011
BANKING SERVICES AND LIQUIDITY FACILITIES
31 PROPOSER COMPANY HISTORY STATEMENT*
Please download the below documents, complete, and upload. • Proposer_Company_History_St...
*Response required
PROPOSER EXPERIENCE AND CERTIFICATIONS*
Please download the below document, complete, and upload. • Proposer_Experience_and_Cer...
*Response required
CALIFORNIA LEVINE ACT DISCLOSURE*
Please download the below documents, complete, and upload. • Modesto_Levine_Act_Statemen...
*Response required
ADDITIONAL PROPOSAL ITEMS
ADDITIONAL INFORMATION (IF NEEDED)
For any additional information requested or required by any of your previously provided answers or as stated within this RFP please upload the additional documentation here.
REQUESTED EXHIBITS TO BE INCLUDED*
Please add the following Exhibits to your proposal here. · Security Features – Describe the existing security features that relate to the entire scope of services outlined in this proposal that are designed to limit access to the City’s cash while it is under the proposer’s control. · Banking Services Proposal Form (Include all fees, even those of any sub-contractors (such as credit card processors).
· Standard Bank Fee Schedule for Government /Corporate Clients (at minimum, include all items on Exhibit “B”)
· Sample Account Analysis Statement and User’s Guide
· Sample Partial Account Reconciliation Reports
· Relevant Cash Management Agreements
· Bank Credit Ratings
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REQUEST FOR PROPOSALS # RFP-00011
BANKING SERVICES AND LIQUIDITY FACILITIES
32 · Most Current Annual Report
*Response required
SUBMITTAL CONFIRMATION*
Proposer hereby certifies that all information provided within this submittal is accurate to the best of their knowledge and acknowledges that they have provided proof of their authority to submit a proposal on behalf of the stated Company Name committing them to the information contained within said submittal.
By checking the "please confirm" box below, you certify the above statement. ☐ Please confirm
*Response required
#17..
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REQUEST FOR PROPOSALS # RFP-00011
BANKING SERVICES AND LIQUIDITY FACILITIES
33 TECHNICAL SPECIFICATIONS AND REQUIREMENTS
SCOPE OF WORK
A. General Banking Service Requirements – The City requires the services of a secure Federal or State chartered banking institution experienced in successfully providing a full range of banking services to public agencies. The selected proposer must be capable of supporting the following City activities:
1. Demand Deposit Accounts – The City currently uses three (3) (checking) accounts, one (1) investment sweep account, one (1) money market account, and six (6) Depository Zero Balance Accounts. Some are low volume, low balance accounts. The City may require additional special purpose checking accounts and may wish to set up Zero Balance Accounts (ZBA) in the future. The general account serves as the concentration account for disbursements and deposits. The schedule of bank accounts below reflects the desired account structure. The City does not guarantee that the balances will be maintained at these same levels.
Name of Account Balances (as of 11/30/2025 end of business) Main Account (Sweep, Disbursements, Deposits, Parent ZBA) $10,000,000 Customer Service Account (Depository Zero Balance) $0
Creekside Golf Account (Depository Zero Balance) $0
Dryden Golf Account (Depository Zero Balance) $0
Water ARRA Account (Checking Account) $36,289
Payroll Account (Checking Account) $42,245
Parking Service Account (Depository Zero Balance) $0
Investment Sweep Account $17,261,781
First Responder Account (Depository Zero Balance) $0
McHenry Trust Settlement Account (Money Market) $392,762 FSA Contributions Account (Checking Account) $24,975
2. Collateralization of Deposits – The selected proposer shall have procedures for collateralizing public funds deposits acceptable to the City and in compliance with State law.
3. Bank Compensation – The City compensates for banking services primarily with balances and desires monthly billing for any account analysis deficiencies. Earnings credit shall be given for collected balances, and itemized charges shall be paid by earnings credit or payment through the primary demand deposit account.
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REQUEST FOR PROPOSALS # RFP-00011
BANKING SERVICES AND LIQUIDITY FACILITIES
34 4. Wire Transfers – The City currently transacts wire transfers by the Internet, initiating approximately fifteen (15) outgoing wires per month. The City also receives approximately six (6) incoming wires per month.
5. Deposit Activity - The City currently uses an armored car service for daily deposit pick-ups at the following locations: Finance Department, and two (2) City golf courses. The Finance Department requires service Monday through Friday (except City-observed holidays). The golf courses require service on Monday, Wednesday, and Friday. The armored car service is contracted with and paid for directly by the City and is not paid for through account analysis.
Total monthly deposits consist of approximately 13,000 checks, and over $425,000 in coin and currency. The bank will automatically make one attempt to process the deposit a second time (reclear). Checks that are ultimately returned (NSF) will be mailed to the Finance Department and will be made available online. The City requires the ability to use the local branch to make branch deposits, to get change, to allow employees to cash payroll checks, and for other miscellaneous activities. Branch deposits will occur during the day or through night drop. Each City department or division will have a unique identifier number printed on their deposit slips.
6. Account Reconciliation - The City currently issues approximately 1,300 Accounts Payable, Payroll, and other checks monthly and uses full account reconciliation with daily data transmissions of paid check information from the bank. This service essentially serves as reverse positive pay, with the City accepting and matching files daily to its financial system.
7. Other Transfer Activity- The City also transacts transfers in & out with California Asset Management Program (CAMP).
8. Direct Deposit of Payroll – Direct deposit of payroll is currently in place with all of the City’s 1,500+ employees participating. The payroll files are sent to the bank by data transmission on Wednesday for paydays which occur every other Friday. The City requires immediate notification of any changes or problems and the ability to re-send a file or to delete a file.
9. Payroll Tax and Sales Tax Processing - The City requires the ability to report and pay state/federal tax withholdings and sales tax remittances through an online portal. The City requires immediate notification of any changes or problems and the ability to update or delete transmitted information. #17..
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REQUEST FOR PROPOSALS # RFP-00011
BANKING SERVICES AND LIQUIDITY FACILITIES
35 10. Overnight Sweep - The City may utilize an automatic, overnight DDA Sweep where all collected funds in excess of a designated peg balance are swept into an investment fund.
11. Balance Reporting - The City currently accesses daily balance reporting information (prior and current day) via on-line bank access on its accounts.
12. Merchant Bankcard - The City currently accepts Visa, MasterCard and Discover credit card payments via walk-up payment and online payments averaging approximately $9.3 million in collections a month. The City contracts with ELAVON and Paymentus for these services. Proposer will need to interface with these systems to accept these deposits into the cities bank account. The City has twenty-four (24) ELAVON merchant accounts. The City also contracts with BrainTree for payments accepted by phone via Interactive Voice Response (IVR).
13. Electronic Funds Transfer Services -. The City accepts payments from online banking payment sources with automatic uploading to its utility billing system. The City currently transfers up to three (3) secure FTP ACH text files over the internet on a daily basis (Monday-Friday) containing checks for same day deposit using a secured file transfer software. The City needs proposer to accept image file of checks to allow for electronic transfer of all checks (check 21).
14. Positive Pay - The City currently utilizes positive pay services to provide early fraud detection and prevention through the review of suspicious or unauthorized checks before they are paid. The proposer shall develop check issue data (including payee verification) in the format and medium to meet City requirements.
The positive pay service shall include such services as payment of matching checks, exception reports; return instructions, return of checks, and holdover exceptions. The positive pay would be tied to our General and Payroll account.
15. Payroll Cards - The issuance of a payroll card must be available for employees who are unable to take advantage of direct deposit, including temporary, part-time, contracted, and unbanked employees. These cards should be funded based on the net payroll amount earned and employees shouldn’t need a credit check to be issued a card.
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REQUEST FOR PROPOSALS # RFP-00011
BANKING SERVICES AND LIQUIDITY FACILITIES
36 16. Commercial Credit Cards – The City would utilize the banking services to facilitate our commercial credit card programs, Electronic Payments (ePay) and Purchase Cards (pCard).
17. Online Access - The bank will provide the City a method to access the City’s accounts online. The City desires to perform, at a minimum, the following functions online:
• Place and remove stop payments
• Place wire transfers
• Fraud manager (positive pay exceptions)
• Returned items decisions
• Statements and notices
• Transaction search
• Make online payroll tax payments
• Obtain the balance of all accounts daily and all previous transactions in a defined period • View cashed checks online
• View automated reconciliation lan report (ARP)
18. The City currently has the option for placing stop payment orders over the phone or electronically.
19. Implementation Plan – The selected proposer shall offer an implementation plan that will result in a smooth and low-cost transition to a new banking institution or to enhanced services with the City’s current bank within a reasonable established timeline (to be determined in contract).
20. Letter of Credit or other liquidity facility services for two outstanding variable rate series.
MINIMUM REQUIREMENT
A. Qualified Depository
Any financial institution submitting a proposal must be a qualified public depository, as defined by California General Statutes, and must perform its obligation under this proposal in compliance with #17..
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REQUEST FOR PROPOSALS # RFP-00011
BANKING SERVICES AND LIQUIDITY FACILITIES
37 all Federal and State laws and regulations, statutes and polices including but not limited to the new NACHA regulations and any future updates.
B. Federal Reserve Member
The bank must be a member of the Federal Reserve System. The bank must be a Federally or State of California chartered financial institution and in good standing among other comparable banks.
C. Capitalization
Proposers must be adequately capitalized to accommodate the City’s cash and management needs.
CITY REPRESENTATIVE
Work under any resulting agreement shall be performed under the general technical guidance and direction of the City Representative. The City Representative is not authorized to commit 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 accepted only by written change to the agreement, issued by the City of Modesto Purchasing Manager or her designee.
PROPOSAL PREPARATION
Proposal shall include responses to the sections described below. In those instances where specific questions are asked, each question shall be repeated in the proposal with the response following the question.
Extraneous or marketing information shall not be included. All responses to the questions outline below shall be submitted as part of the ADDITIONAL INFORMATION section.
If a service requirement cannot be met, Proposer shall indicate "No Proposal" in the relevant section of the proposal. In this case, proposer may offer an alternative equivalent service.
A. Demand Deposit Accounts - Two (2) pages maximum. Provide answers for the following questions:
1. Does proposer offer Electronic Bank Statements, whereby the City can receive its bank statement in an electronic file in a custom format? Please specify what type of information is available on the same day.
2. How many days after month-end will the City receive its bank and analysis statements? If this information is available electronically, how many days after month-end is it available?
3. Does proposer offer Zero Balance Accounts (ZBA’s)? If so, please describe the service.
4. Does proposer allow for statements to be generated on dates other than the end of the month, i.e., based on the City's current schedule? Is this information available electronically?
5. Will proposer guarantee to extend the same pricing structure and terms to any new accounts required during the term of the agreement?
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REQUEST FOR PROPOSALS # RFP-00011
BANKING SERVICES AND LIQUIDITY FACILITIES
38 B. Collateralization of Deposits - One (1) page maximum plus contract. Provide the following information:
1. Describe proposer’s procedures for collateralizing public funds deposits.
2. What types of securities are used as collateral?
3. Which department is responsible for tracking deposits and monitoring collateral?
4. What is proposer’s current level ($ amount) of public funds deposits and the related collateral?
5. What is the frequency of reporting to the State Treasurer’s Office?
6. Include a copy of proposer’s Contract for Deposit of Moneys in this Section.
C. Bank Compensation – Two (2) pages maximum. Provide the following information:
1. What is proposer’s Earnings Credit Rate (ECR) based on, and how is it calculated?
2. What was proposer’s actual ECR for the months of February, March, and April 2025?
3. What account analysis settlement period will be offered? Monthly, quarterly, or semi-annually?
4. Detail exactly which types of items and services can be applied against the City's account analysis in addition to standard bank services. Is there a mark-up for any of the items? If so, how much?
5. Will the City have the option of compensating on a fees or balances basis? Describe any differences in related costs to the City with either option.
6. How long will the City have to notify proposer of any errors on the account analysis? How long will it take for proposer to correct any billing errors on account analysis?
7. What procedure is used to make any adjustments to account analysis statements, and how long does it take for adjustments to take effect? How are adjustments handled if the analysis period has already ended?
D. Wire Transfers - One (1) page maximum. Provide the following information:
1. Describe proposer’s on-line wire transfer service capabilities and security features and what specifically is recommended for the City’s use and consideration.
2. Indicate if the software used to transmit wire transfers is proprietary or provided by a third party.
Describe the arrangement with any third party provider. #17..
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39 3. What safeguards and security measures does proposer have in place to protect the City from unauthorized transfers in and out of the City’s accounts?
4. What is the cut-off time for same day processing of a wire? E. Deposit Activity - Two (2) pages maximum. Provide the following information:
1. What is proposer’s closest full-service branch to Tenth Street Place (TSP)? (1010 Tenth Street)
2. What is the required deposit preparation for encoded checks? Un-encoded checks?
3. Describe the bank’s cash deposit requirements. How should the coin and currency deposits be bundled? Is there a maximum dollar amount allowed for daily coin deposits?
4. Describe in detail proposer’s procedures for handling deposit adjustments. What documentation on discrepancies does the proposer provide? Is the documentation different for cash deposits and check deposits? What is the minimum adjustment amount? How soon would support documentation of a deposit discrepancy be provided to the City?
5. How are deposit adjustments and the related notification and support documentation handled for night drop deposits?
6. Describe proposer’s returned item handling and notification procedures. How long does it take for returned items to be sent to the City? Can proposer provide returned item information that include the City department that deposited it, i.e., by identification or location number? Can this information be provided electronically?
7. What are the cut-off times for deposits at proposer’s local branch and at proposer’s Operations Center to ensure same day credit? Where is the Operations Center/Cash Vault located?
8. Can proposer provide messenger service for routine business items or check deposits? If so, what is the monthly charge?
9. Can change orders for $500 or less, in cash and currency, be made available to City departments without advance notice? Can change order requests be order by phone for pick-up by armored car services to be delivered to city office?
10. Can proposer provide emergency cash, up to $50,000, with 24 hours’ notice on a confidential basis to the City's Public Safety Department? (The currency needs to be in various denominations and used bills, and such transactions should be exempt from federal and state cash deposit reporting.) #17..
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40 11. Does proposer have the ability to provide a lock-box service for utility payments and other similarly grouped large-volume payments utilizing a local post-office box as the point of collection? If so, please describe the details on how this works and the pricing for this service.
F. Account Reconciliation - Three (3) pages maximum. Provide the following information:
1. Does proposer offer full account reconciliation with data transmission capabilities? If so, please describe the services and what is recommended for the City’s’ consideration.
2. Describe proposer’s options for providing stop payment services. How long is a stop payment effective? How often do stop payments need to be reinstated? Can stops be reinstated automatically? Can reinstated stops expire?
3. Will proposer guarantee payment of all items even if it results in the account being overdrawn temporarily for the day? What costs will be incurred and how will they be calculated?
4. Does proposer have the ability to confirm the status of a check as of the issue date?
5. Describe proposer’s check truncation service and how to receive or make copies of paid items. How long does it take to obtain a copy of a paid check? What is proposer’s record retention policy for paid checks?
6. What is proposer’s fine sorting charge per item?
7. Does proposer offer a CD-ROM imaging service? If so, please describe the service, including the quality of the images. What are the options for sorting the images and obtaining printed lists from the CD? Are the CD’s archive quality to ensure long-term storage and retrieval by City? G. State Activity - One (1) page maximum. Provide the following information:
1. Is proposer an approved State of California depository?
2. What is the charge per transfer to CAMP? From CAMP?
3. Describe the CAMP transfer process. Are the transfers done by telephone, terminal, fax, wire transfer, etc.?
4. Does proposer have an office in Sacramento that maintains a direct DDA banking relationship with the State Treasurer’s Office and the State Controller’s Office? H. Direct Deposit of Payroll – Two (2) pages maximum. Provide the following information:
1. Describe proposer's ACH and direct deposit service.
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41 2. What are the different ACH file transmission options available to the City?
3. What are the transmission deadlines for direct deposit ACH files? When (day and time) does proposer need the file from the City?
4. Describe proposer’s back-up plans for data transmissions. • What screening measures does proposer use to minimize errors on files sent to clients (ABA screening, etc.)?
• What special banking programs are available to employees who use direct deposit? • Do you have a prepaid payroll debit card program available to employees who do not have a bank account? Please describe how this program works.
I. Payroll Tax and Sales Tax Processing - One (1) page maximum. Provide the following information.
1. Describe proposer’s payroll tax withholding, sales tax remittance services and security features, and their related costs.
2. What are the transmission deadlines for tax payments?
3. Describe proposer’s back up plan for data transmissions.
J. Commercial Card Programs – ePay and Pcard – - Two (2) page maximum plus prospectus. Provide the following information:
1. Please describe the commercial card programs offered.
2. Does the proposer allow for credits/reimbursements applied to electronic payments ePay?
3. Describe the reporting available for ePay transactions, can reports be exported in excel format for easier reconciliation?
4. Does the proposer utilize a third-part software or portal to manage commercial cards? Or are commercial cards (ePay and Pcards) managed through the main bank's portal? K. Overnight Sweep - One (1) page maximum plus prospectus. Provide the following information:
1. Describe proposer’s DDA sweep service.
2. Is proposer’s sweep an end-of-day or intra-day sweep?
3. What sweep investments or funds are available for public funds clients? #17..
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42 4. Does the fund(s) meet the California Government Code for allowable investments? What is the size of the sweep fund(s)? Include a prospectus in this section.
5. What are the costs associated with sweep (monthly maintenance, set-up charges, fund expenses, transaction fees, etc.)?
6. Is a peg balance required? If so, how much? What are the procedures for changing the peg?
7. How many of proposer’s public agency clients use sweep? Cite three (3) such clients and provide contract information for each.
8. Provide indicative rates on proposer’s sweep product’s fund(s) for each of the past three (3) months.
L. Balance Reporting - One (1) page plus sample reports. Provide the following information:
1. Describe proposer’s on-line information reporting system.
2. How can reports be custom-tailored for the end-user?
3. Can the City obtain current day (intra-day) information? If so, describe the service and cut-off time.
4. What are the computer hardware and software specifications for proposer’s on-line system?
5. Provide a sample of prior day and intra-day reports that are the best example of the system’s capabilities. Include the reports in this section.
6. What is proposer’s contingency plan for providing this information in the event of unexpected bank systems problem or natural disasters?
7. Can proposer provide credit or deposit information by location or identifier number? Can deposit adjustments also be listed by location number?
M. Merchant Bankcard - Four (4) pages maximum. Provide the following information:
1. Describe proposer's bankcard and point-of-sale processing capabilities. Does proposer offer an integrated PC-based networking system, whereby transaction can be input and traced centrally by the City? What software does proposer use for card processing?
2. What authorization methods does proposer support and/or recommend?
3. Does proposer contract out its Merchant Bankcard services? If so, who is the processor? #17..
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43 4. Quote a discount rate and any other applicable charges (including those of any sub-contractors) for the credit card processing described above. Quote rates for both swiped and non-swiped transaction.
5. What are the fees associated with debit card transactions?
6. How is the applicable interchange fee determined for each transaction? What does proposer recommend to minimize interchange fees?
7. When and how will the discount rate and other fees be charged to the City? How frequently are these fees considered for adjustment?
8. Describe proposer's reporting methodology and how adjustments and chargeback's are handled. Are chargeback's and other debit adjustments netted from daily proceeds or debited separately? Is the discount fee refunded when a chargeback or refunds occurs? Provide an example report that clearly shows how a chargeback is reflected.
9. When and how will the City receive funds for each day's transactions? Is settlement by ACH or Fed Wire? Are settlement amounts listed separately on the bank statement or do they appear as one lump sum? Can proposer break out settlement amount by the location? What is preferred? List preference and specify if it is normal approach or requires special handling and fees.
10. Can proposer supply the City with the terminals, printers, and pin pads? If so, provide the cost to lease and purchase the requisite equipment.
N. Electronic Funds Transfer Services - Three (3) pages maximum. Provide the following information:
1. Describe proposer's EFT and ACH services. Does proposer offer both ACH debit and credit programs?
2. Detail all of the costs including hardware, software, and special programming that are required for the implementation.
3. Does proposer offer an electronic bill payment service? If so, describe the service.
4. Does proposer offer account verification services to prevent credits to the City’s account from electronic bill payment sources without the correct account identifying information (account masking)?
O. Controlled Disbursement - Two (2) pages maximum. Provide the following information:
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44 1. Does proposer offer controlled disbursement services? If so, what points are offered? What are the benefits of using controlled disbursement?
2. If controlled disbursement is utilized, are the points single presentments or dual presentments? What are the reporting times for each day's presentment totals?
3. How are the presentment totals reported? By what time each day would the City receive information on 100% of its clearings?
4. Can full account reconciliation and positive pay be used with the proposer’s controlled disbursement services?
5. Detail the costs associated with proposer's controlled disbursement services.
P. Cash Vault Services –Three (3) pages maximum. Provide the following information.
1. Identify the general location of the Cash Vault, branch or other service centers where the deposits of the City’s Cashiering Operations will be recorded.
2. Branch ability to accept transit division canisters of unsorted coins and large volumes of small sometimes crumpled currency, count and credit to our account? What measures do you take to insure proper accountability?
3. Separate detail of costs associated with the transportation and counting of transit fare revenue.
Q. Misc. Statements/Questions - Three (3) pages maximum. Provide the following information:
1. Does the proposer have the ability to provide the City with letters of credit for various business transactions if requested?
2. What is proposer’s policy regarding daylight overdrafts (DODs)? Is there a charge for DODs; and if so, how is it calculated?
3. The selected proposer will be required to provide certain transaction confirmations and respond to other requests for data as needed from the City's auditors. Will proposer be able to comply with such requests?
4. How are supply orders handled? Can proposer accept supply orders from a list of authorized individuals only? If not, will proposer be able to keep a record of which City department or individual ordered supplies, so orders can be researched and traced easily? Is there a mark-up on supply orders? If yes, how much?
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45 5. Describe proposer’s disaster contingency plans, contact list and backup systems which would enable the City to continue operations in the event of an emergency or disaster of manmade or natural origin.
R. Implementation Plan and Costs - Two (2) pages maximum. Provide the following information:
1. Describe proposer’s plan to implement the required services and to ensure a smooth, error-free conversion.
2. Detail all costs and the responsible party (proposer or City) associated with the conversion to all of the services described in this Request for Proposal.
3. What size conversion allowance will proposer provide to the City? State a specific dollar amount.
4. Explain proposer’s plan for on-site training for City personnel for all of the services selected.
5. Describe in detail how proposer handles problem resolution, customer service, day-to-day contact, and ongoing maintenance for governmental clients.
S. Service Enhancements - Four (4) pages maximum. The City wishes to create efficiencies; make improvements, where possible; and take advantage of new, applicable technologies. Based on the information provided in this RFP and proposer’s knowledge of the public sector, describe any services or technological enhancements, not previously mentioned, that should be considered for further improving the effectiveness of the City’s treasury management operations.
T. LOC/SCPA for 2008 LRBs and 2008A Water COPs – Provide the following information:
A. Credit Ratings: Provide your bank’s long and short-term credit ratings over the past three years from Moody’s Investor Service, S&P Global Ratings, and Fitch Ratings. Also, indicate if the bank is under credit watch, review, or negative outlook by any rating agency. Please also indicate whether there have been any material negative developments since the last ratings reviews which the bank expects may have a negative impact on its ratings.
B. Credit Approval Process: Indicate whether your firm has credit approval in place by the date of the proposal submittal. if not, please describe the approval process and indicate the timing for credit approval once an award is made. Please indicate any issues or concerns in closing this transaction by June 8, 2026.
C. Key Terms and Documents: The City would prefer to conform to its existing Reimbursement Agreement and/or the Standby Certificate Purchase Agreement. Interested Banks should clearly indicate any and all changes to the Reimbursement Agreement or Standby Certificate Purchase Agreement required as a part of their proposal. Changes after proposal submittal may not be considered.
1. Describe all proposed financial covenants/financial reporting requirements.
2. Detail any other material proposed terms or conditions or requirement your firm has. #17..
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46 D. Team and Contact Information: Identify which executive from your bank will be responsible for this transaction and provide the names, titles, and full contact information for the entire team. Provide the name of the legal firm you would use and the contact information for the attorney who would represent you in this transaction.
E. Cost Proposal and Key Terms: Please complete the following table with the proposed pricing and terms.
1. If proposing different price and terms, please provide a separate table for each of the below:
i. 2008 LRBs LOC
ii. [2008 LRBs SBPA]
iii. 2008A Water COPs LOCs
iv. 2008A Water COPs SCPAs
2. Please provide the estimated legal fees to establish the liquidity facilities in the table below. Is the bank willing to cap legal fees?
3. Please provide any other costs or key terms for your firm not already listed in the table.
Proposed Pricing
Facility Term 2 Year 3 Years 4 Years 5 Years Other
____
Years
Annual Fee (% or
bps)
Upfront Fee (if any)
Draw Fee ($)
Draw Cap (if
applicable)
Bank Rate
Default Rate
Term Out Period
and Related
Provisions
Early Termination
Provisions +
Termination Fees
Rating Downgrade
Provisions
Legal Fees ($)
Fee Cap (if
applicable)
Other Fees and
Expenses
(please specify)
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47 EXHIBITS TO BE INCLUDED
The Exhibits requested should be uploaded under the requested section. • Security Features – Describe the existing security features that relate to the entire scope of services outlined in this proposal that are designed to limit access to the City’s cash while it is under the proposer’s control.
• Banking Services Proposal Form (Include all fees, even those of any sub-contractors (such as credit card processors).
• Standard Bank Fee Schedule for Government /Corporate Clients (at minimum, include all items on Exhibit “B”)
• Sample Account Analysis Statement and User’s Guide
• Sample Partial Account Reconciliation Reports
• Relevant Cash Management Agreements
• Bank Credit Ratings
• Most Current Annual Report
PRICING SCHEDULE
Proposer shall use the pricing schedule provided to present their proposal pricing for Account Services. The liquidity facility/Letter of Credit Pricing shall be provided under the ADDITIONAL INFORMATION section. No other form or format shall be accepted.
AWARD OF PROPOSAL
A. Proposals shall be evaluated by a committee and in accordance with the RFP section entitled “Award of Agreement.”
B. The committee shall recommend award to the proposer who, in its opinion, has submitted the proposal that best serves the overall interests of the City. Award may not necessarily be made to the proposer with the lowest price.
C. The City reserves the right to decline to award a contract if it is determined that the proposed pricing is not competitively priced based on similar contracts with public agencies within the State of California.
D. The City reserves the right to select that proposal, which best suits the City’s needs. Regardless of City staff’s recommendation, the City Council reserves the right to award a contract to the proposer 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.
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48 TERM OF AGREEMENT
The term of the agreement shall be for a period of two (2) years with four (4) one-year extension options at the sole discretion of City, for a total of up to six (6) years.
A. Pricing shall remain firm for the first two years of any agreement, which may be awarded pursuant to this RFP.
B. Price increases for subsequent agreement years three, four, five, and six 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 Consultant(s) in writing, ninety (90) days prior to the annual anniversary date of the agreement to be effective for the subsequent year.
TERMINATION OF SERVICES
The City reserves the right to discontinue service with the contractor upon failure to meet contractual expectations and/or obligations, as recommended by the Purchasing Manager, or designee.
The City reserves the right to review the service contractor’s performance at any time with or without the knowledge or consent of the contractor. Cancellation of services shall be determined by the collaborative efforts of the Technical Liaison, Purchasing Manager, or designee, and at the discretion of the Purchasing Manager, after reviewing the incident(s) of failure to perform.
The contractor shall provide the City at least one hundred eighty (180) days prior written notice of its intent to terminate any agreement. In case of termination by the City or contractor, the contractor will work with the City to ensure a smooth banking transition.
ASSIGNMENT
No portion of the banking services contract shall be subcontracted or assigned without the express prior written consent of the City in each and every instance.
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
REQUIRED LICENSES
Prior to beginning any service that shall be furnished under this specification, the Proposer 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 Proposer shall maintain a City of Modesto business license for the duration of the agreement.
PAYMENT
All invoices shall be paid in full within thirty (30) days after satisfactory performance of services, and receipt of a properly prepared invoice in duplicate, subject to cash discounts allowed and stated in the proposal. #17..
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49 SAMPLE STANDARD AGREEMENT FOR CONSULTANT SERVICES
THIS AGREEMENT made and entered into in the City of Modesto, State of California, this ______ day of _________________, 20___, (“Effective Date”) by and between the CITY OF MODESTO, a municipal corporation of the State of California, hereinafter referred to as "CITY", and (CONSULTANT), a California corporation, hereinafter referred to as "CONSULTANT".
This AGREEMENT is made with regard to the following recitals:
a. The CITY has determined that an ______________ should be prepared for the CITY to _________________.
b. CONSULTANT represents that it is qualified, willing, and able to provide the services to prepare said document(s).
NOW, THEREFORE, in consideration of this AGREEMENT, and the mutual promises, covenants, and stipulations hereinafter contained, the parties agree as follows:
1. SCOPE OF SERVICES
CONSULTANT shall undertake and complete the preparation of the scope of work as set forth and described in the documents attached hereto and referred to as Exhibit (A) or "Project". The Consultant shall perform the services as described in Exhibit (A) in a manner compatible with the standards of its profession and shall produce a fully complete project that is acceptable to City.
2. TERM OF AGREEMENT
The term of the AGREEMENT shall be for a period of two (2) years, with three (4) one-year extension options at the sole discretion of CITY, for a total of up to six (6) years.
Year 1: MONTH DD, 20___ through MONTH DD, 20___
Year 2: MONTH DD, 20___ through MONTH DD, 20___
Year 3: MONTH DD, 20___ through MONTH DD, 20___
Year 4: MONTH DD, 20___ through MONTH DD, 20___
Year 5: MONTH DD, 20___ through MONTH DD, 20___
Year 6: MONTH DD, 20___ through MONTH DD, 20___
Price increases for subsequent AGREEMENT years, three, four, five, and six 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 CONSULTANT in writing, ninety (90) days prior to the annual anniversary date of the AGREEMENT to be effective for the subsequent year. #17..
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50 3. COMPENSATION
CONSULTANT agrees to accept a sum not to exceed $_________ (maximum compensation) as full remuneration for performing all services and furnishing all staffing and materials for City in accordance with Exhibit (A).
The Compensation shall be paid pursuant in the manner and at the times set forth below:
CITY shall pay CONSULTANT on a time and materials basis for CONSULTANT’s actual costs for all work called for in Exhibit (A) to this AGREEMENT. All work to be performed under this AGREEMENT shall be billed at the hourly rates set forth in Exhibit (B) attached hereto. CONSULTANT shall submit monthly invoices to CITY which include detailed tasks, hours worked, and billable rates for all work completed, and detailed receipts for any reimbursable expenses paid by CONSULTANT and identified in Exhibit (B) or approved by the CITY in writing.
CITY shall pay CONSULTANT [TO BE DETERMINED BY RFP RESPONSE IN FINAL AGREEMENT, EITHER “Net 30 terms via CITY’s ePay Program” or “Net 45 Days via manual check”.]
4. OBLIGATIONS OF CONSULTANT
Throughout the term of this AGREEMENT, CONSULTANT shall possess, or secure all licenses, permits, qualifications and approvals legally required to conduct business. CONSULTANT warrants that it has all of the necessary professional capabilities and experience, as well as all tools, instrumentalities, facilities and other resources necessary to provide the CITY with the services contemplated by this AGREEMENT.
CONSULTANT further warrants that it will follow the best current, generally accepted and professional practices to make findings, render opinions, prepare factual presentations, and provide professional advice and recommendations regarding this project.
5. PERFORMANCE BY KEY EMPLOYEE
CONSULTANT has represented to CITY that __________ will be the person primarily responsible for the performance of the services referred to in this AGREEMENT. CITY has entered into this AGREEMENT in reliance on that representation by CONSULTANT. CONSULTANT therefore agrees that _____ percent (____%) or more of the time devoted to the project that is the subject of this AGREEMENT will be that of the above-named person.
6. OWNERSHIP OF DOCUMENTS/TITLE TO DATA
Ownership of Documents
All reports, drawings, designs, graphics, working papers and other incidental work or materials furnished hereunder shall become and remain the property of the CITY, and may be used by CITY as it may require without any additional cost to CITY. No reports shall be used by the CONSULTANT for purposes other than this AGREEMENT without the express prior written consent of CITY.
Title to Data
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51 If, as a part of the AGREEMENT, CONSULTANT is required to produce data such as, but not limited to, drawings, plans, specifications, calculations, models, flow diagrams, visual aids and other related materials, the originals of all such data generated under this AGREEMENT will be delivered to CITY upon the completion or termination of services under the AGREEMENT. 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.
All materials, documents, data or information obtained from the CITY data files or any CITY medium furnished to CONSULTANT in the performance of this AGREEMENT will at all times remain the property of the CITY. Such data or information may not be used or copied for direct or indirect use by CONSULTANT after termination of this AGREEMENT without written consent of the CITY.
7. NEWS AND INFORMATION RELEASE
CONSULTANT agrees that it will not issue any news releases in connection with either the award of this AGREEMENT, or any subsequent amendment of or efforts under this AGREEMENT, without first obtaining review and approval of said news releases from City through the CITY Manager.
8. CONFLICT OF INTEREST
CONSULTANT warrants that it presently has no interest and shall not acquire any interest, direct or indirect, which would create a “conflict of interest”, as that term is defined in the Political Reform Act (Gov. Code § 81000 et seq), for the CONSULTANT in the performance of this AGREEMENT. CONSULTANT warrants that, in performance of this AGREEMENT, CONSULTANT shall not employ any person having any such interest. CONSULTANT understands that, if this AGREEMENT is made in violation of Government Code § 1090 et seq., the entire AGREEMENT is void and CONSULTANT will not be entitled to any compensation for services performed. CONSULTANT agrees to file a Statement of Economic Interests with the City Clerk at the start and end of this AGREEMENT if so, required at the option of CITY.
9. AMENDMENTS
This AGREEMENT, including the Exhibits attached hereto, may be amended only by a writing signed by both Parties. CITY will not be responsible to pay any charges CONSULTANT may incur in performing services not identified in Exhibit (A) unless first authorized by the CITY in writing.
10. INDEPENDENT CONTRACTOR
All acts of CONSULTANT, its agents, officers, and employees and all others acting on behalf of CONSULTANT relating to the performance of this AGREEMENT, shall be performed as independent contractors and not as agents, officers, or employees of CITY. Except as CITY may specify in writing, CONSULTANT has no authority to bind or incur any obligation on behalf of CITY. CONSULTANT has no authority or responsibility to exercise any rights or power vested in the CITY. It is understood by both CONSULTANT and CITY that this AGREEMENT shall not under any circumstances be construed or considered to create an employer-employee relationship or a joint venture. CONSULTANT, its agents, officers and employees are and, at all times during the terms of this AGREEMENT, shall represent and conduct themselves as independent contractors and not as employees of CITY. #17..
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52 CONSULTANT shall determine and control the method, details and means of performing the work and services to be provided by CONSULTANT under this AGREEMENT. CONSULTANT shall be responsible to CITY only for the requirements and results specified in this AGREEMENT, and, except as expressly provided in this AGREEMENT, shall not be subjected to CITY's control with respect to the physical action or activities of the CONSULTANT in fulfillment of this AGREEMENT. CONSULTANT is permitted to provide services to others during the same period service is provided to CITY under this AGREEMENT. If necessary, CONSULTANT has the responsibility for employing other persons or firms to assist CONSULTANT in fulfilling the terms and obligations under this AGREEMENT.
If in the performance of this AGREEMENT any third persons are employed by CONSULTANT, such persons shall be entirely and exclusively under the direction, supervision, and control of CONSULTANT. All terms of employment including hours, wages, working conditions, discipline, hiring, and discharging or any other term of employment or requirement of law shall be determined by the CONSULTANT.
It is understood and agreed that as an independent contractor and not an employee of CITY neither the CONSULTANT or CONSULTANT's assigned personnel shall have any entitlement as a CITY employee, right to act on behalf of the CITY in any capacity whatsoever as an agent, or to bind the CITY to any obligation whatsoever. It is further understood and agreed that CONSULTANT must issue W-2 forms or other forms as required by law for income and employment tax purposes for all of CONSULTANT's personnel. As a independent CONSULTANT, CONSULTANT hereby indemnifies and hold CITY harmless from any and all claims that may be made against CITY based upon any contention by any third party that an employer-employee relationship exists by reason of this AGREEMENT.
11. ASSIGNMENT
Neither this AGREEMENT nor any portion thereof shall be subcontracted or assigned, without the express prior written consent of the CITY in each and every instance.
12. PATENT/COPYRIGHT MATERIALS
Unless otherwise expressly provided in the AGREEMENT, CONSULTANT shall be solely responsible for obtaining the right to use any patented or copyrighted materials in the performance of this AGREEMENT. CONSULTANT shall furnish a warranty of such right to use to CITY at the request of CITY.
13. NOTICES
Notice required by this AGREEMENT shall be given in writing and shall be deemed given and effective upon delivery provided that such are delivered in accordance with this Section. Notices shall be delivered either by: (a) personal delivery; (b) overnight courier service which obtains confirmation of delivery; or (c) certified mail, return receipt requested, if delivery is confirmed by a return receipt; or (d) by electronic transmission subject to reasonable proof that the notice was both transmitted and received. Each such notice shall be sent to the parties at the address respectively set forth below or to such other address as a party may designate by written notice given in accordance with this Section:
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REQUEST FOR PROPOSALS # RFP-00011
BANKING SERVICES AND LIQUIDITY FACILITIES
53 FOR CONSULTANT: Name:
Address:
Attention:
Phone: ()
Email:
CITY: Name:
Address:
Phone:
Email:
City of Modesto
Purchasing Division
P.O. Box 642
Modesto, CA 95353
(209)
14. INSURANCE REQUIREMENTS
During the term of this AGREEMENT, CONSULTANT shall maintain in full force and effect at its own cost and expense the insurance coverage as set forth in the attached Exhibit (C) to this AGREEMENT and shall otherwise comply with the other provisions of Exhibit (C) to this AGREEMENT. CONSULTANT is responsible for uploading updated insurance documentation to the City's "PINS Advantage" program.
15. TERMINATION OF AGREEMENT
Termination by CITY for Default of CONSULTANT
Should the CONSULTANT default in the performance of this AGREEMENT or materially breach any of its provisions, at its option, CITY may terminate this AGREEMENT by giving written notification to CONSULTANT. The termination date shall be the effective date of the notice. For the purposes of this section, material breach of this AGREEMENT shall include, but not limited to, any of the following: failure to perform required services or duties, willful destruction of City's property by CONSULTANT, dishonesty or theft.
Termination by CITY for Convenience
The City may also terminate the CONSULTANT's performance under the AGREEMENT, either in whole or in part, at tis own discretion, or when conditions encountered during the services make it impossible or impracticable to proceed, or when the City is prevented from proceeding with the AGREEMENT by act of God, by law, or by official action of a public authority, or upon a determination by the City that such termination is in the best interest and convenience of the City, or whenever the City is prohibited from completing the services for any reason. The City shall provide no less that ten (10) calendar days written notice of its intent to terminate the AGREEMENT for convenience and shall endeavor to provide the CONSULTANT with consultation with the City prior to termination.
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REQUEST FOR PROPOSALS # RFP-00011
BANKING SERVICES AND LIQUIDITY FACILITIES
54 Post-Termination Procedure
Upon receipt of a written notice of termination pursuant to either of the foregoing paragraphs, the CONSULTANT shall:
a. Cease its work as directed in the notice of termination as of the termination date and see to it that its employees, subconsultants and agents are notified of such termination and act as specified in the notice of termination;
b. Terminate all orders and subconsultants except as necessary to complete any portion of the work that is not terminated;
c. If directed in writing by the CITY to do so, assign all right, title and interest in subcontracts and materials in progress to CITY, in which case the CITY will have the right at its discretion to settle, or pay any or all claims arising out of the termination of such subconsultants, but in no event shall recovery by any CONSULTANT or subconsultant include lost profits for portions of the work not completed or undertaken, including materials not delivered; d. Deliver or otherwise make available to the CITY all data, drawings, specifications, reports, estimates, summaries and such other information and material as may have been accumulated by the CONSULTANT in performing the work whether completed or in process; e. Settle outstanding liabilities and claims, subject to the approval of CITY; f. Complete performance of such part of the work as has not been terminated; g. Take such other actions as may be necessary, or as may be directed by the CITY for the protection and preservation of the work and/or property related to the work; h. If CITY so requests, and at CITY's cost, CONSULTANT shall provide sufficient oral or written status reports to make CITY reasonably aware of the status of CONSULTANT's work on the project.
i. The CONSULTANT understands and agrees that CITY may, in CITY's sole discretion, refuse to pay CONSULTANT for that portion of CONSULTANT's services which were performed by CONSULTANT on the project prior to the termination date and which remain unacceptable and/or not useful to CITY as of the termination date.
CITY will pay CONSULTANT an amount based on the percentage of satisfactory work completed in accordance with the notice or termination. The final payment to the CONSULTANT after termination for convenience shall be limited to amounts due and owing under the AGREEMENT at time of termination, including the following:
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REQUEST FOR PROPOSALS # RFP-00011
BANKING SERVICES AND LIQUIDITY FACILITIES
55 j. The cost of settling and paying valid claims arising out of the termination of the work such as subconsultant AGREEMENTs or contracts for materials;
k. The AGREEMENT price allocable to the portion of the work properly performed, or goods supplied to the work site by the CONSULTANT as of the date of termination, as determined in accordance with the notice of termination, reduced by any sums previously paid to the CONSULTANT.
Authorization to Terminate Agreement
Termination of the AGREEMENT may be invoked by the City Manager, or his/her designee, subject to the right of the CONSULTANT to appeal the City Manager, or his/her designee's, decision to the City Council.
The CONSULTANT shall appeal by notifying the City Clerk in writing within ten (10) calendar days of receipt of written notification from City of termination of the AGREEMENT. In the event that termination of this AGREEMENT is upheld by the City Council, any cessation of payment of delay claims, extended claims, Eichleay claims, or any other claims for delay shall be retroactive to the date of termination selected by the City Manager, or his/her designee.
16. INDEMNITY
If CONSULTANT is Design Professional performing design professional services, as defined in California Civil Code section 2782.8, CONSULTANT agrees to indemnify, defend, and hold harmless the CITY, its agents, officers, officials, employees and volunteers, from and against any and all claims, demands, costs, or liability that arise out of, or pertain to, or relate to the negligence, recklessness, or willful misconduct of CONSULTANT and its employees, officials, officers, agents or agents in the performance of services under this AGREEMENT, but this indemnity does not apply to liability for damages arising from the sole negligence, or willful misconduct of the CITY. The CITY agrees that in no event shall the cost to defend charged to the CONSULTANT exceed that CONSULTANT's proportionate percentage of fault. However, notwithstanding the previous sentence, in the event one or more defendants is unable to pay its share of defense costs due to bankruptcy or dissolution of the business, the CONSULTANT shall meet and confer with other parties regarding unpaid defense costs. This duty to indemnify shall not be waived or modified by contractual AGREEMENT or acts of the parties.
If CONSULTANT is not a Design Professional performing Design Professional Services, the CONSULTANT shall hold the CITY, its agents, officers, employees, and volunteers harmless from and save, defend and indemnify them against any and all claims, losses, liabilities, judgments or damages from every cause, including but not limited to injury to person or property or wrongful death, including reasonable costs and expenses of defense of any judicial or administrative action, arising directly or indirectly out of any negligent or intentional act or omission of CONSULTANT, or its agents, officers, officials, employees, or volunteers relating to or during the performance of its obligations under this AGREEMENT, except for claims arising from the sole negligence of the CITY.
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REQUEST FOR PROPOSALS # RFP-00011
BANKING SERVICES AND LIQUIDITY FACILITIES
56 CONSULTANT's obligation to defend, indemnify, and hold the CITY, its agents, officers, and employees harmless under the provisions of this paragraph is not limited to or restricted by any requirement in this AGREEMENT for CONSULTANT to procure and maintain a policy of insurance.
In the event that CONSULTANT or any employee, agent, or subconsultant of CONSULTANT providing services under this AGREEMENT is determined by a court of competent jurisdiction or the California Public Employees Retirement System (PERS) to be eligible for enrollment in PERS as an employee of CITY, CONSULTANT shall indemnify, defend, and hold harmless CITY for the payment of any employee and/or employer contributions for PERS benefits on behalf of CONSULTANT or its employees, agents, or subconsultants, as well as for the payment of any penalties and interest on such contributions, which would otherwise be the responsibility of CITY.
17. DISPUTE RESOLUTION
Venue for all claims, controversies, or disputes arising out of, or relating to the formation of this AGREEMENT, or the breach, termination execution, enforcement, interpretation, or validity of this AGREEMENT, including the determination of the scope or applicability of this AGREEMENT provision shall be in the Superior Court of Stanislaus County or the United States District Court for the Eastern District of California.
18. ATTORNEY'S FEES
If a party to this AGREEMENT brings any action, including an action for declaratory relief, to enforce or interpret 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.
19. ENTIRE AGREEMENT
This AGREEMENT and its exhibits contain the entire understanding between CONSULTANT and CITY. All previous proposals, 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 of or exception to any of the terms, conditions, and provisions of this AGREEMENT shall be considered valid unless specifically agreed to in writing by all the parties.
20. PARTIAL INVALIDITY
If any provision in this AGREEMENT is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions shall nevertheless continue in full force without being impaired or invalidated in any way.
21. WAIVER
The waiver by any party to this AGREEMENT of a breach of any provision hereof shall be in writing and shall not operate or be construed as a waiver of any other or subsequent breach hereof unless specifically stated in writing.
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REQUEST FOR PROPOSALS # RFP-00011
BANKING SERVICES AND LIQUIDITY FACILITIES
57 22. AUDIT
The CITY's duly authorized representative shall have access at all reasonable times to all reports, contract records, contract documents, contract files, and personnel necessary to audit and verify CONSULTANT's charges to CITY under this AGREEMENT.
CONSULTANT agrees to retain reports, records, documents, and files related to charges under this AGREEMENT for a period of four (4) years following the date of final payment for CONSULTANT services. CITY's representative shall have the right to reproduce any of the aforesaid documents.
23. GOVERNING LAW
This AGREEMENT shall be governed according to the laws of the State of California.
24. HEADINGS NOT CONTROLLING
Headings used in the AGREEMENT are for reference purposes only and shall not be considered in construing this AGREEMENT.
25. COMPLIANCE WITH LAWS
CONSULTANT shall insure compliance with all safety and hourly requirements for employees, in accordance with federal, state, and county safety and health regulations and laws. CONSULTANT shall fully comply with all applicable federal, state, and local laws, ordinances, regulations and permits.
26. CITY BUSINESS LICENSE
CONSULTANT will have a City of Modesto business license. #17..
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REQUEST FOR PROPOSALS # RFP-00011
BANKING SERVICES AND LIQUIDITY FACILITIES
58 IN WITNESS WHEREOF, the City of Modesto, a municipal corporation, has authorized the execution of this Agreement by its City Manager and attestation by its City Clerk under authority of Resolution No. 20______ - _________, adopted by the Council of the City of Modesto on the _______ day of __________ , 20___, and (CONSULTANT) has caused this agreement to be duly executed as of the Effective Date.
STO
ration
(CONSULTANT)
a California corporation*
__________________________ By ________________________________ H P. LOPEZ, City Manager Name Title
By ________________________________
Name Title
__________________________ (Seal)
NAYARES-PEREZ, CMC, City Clerk
CONSULTANT's Federal ID# ______________
TO FORM:
__________________________
. SANCHEZ, City Attorney
TO FORM:
__________________________
HEW BRALEY, Risk Manager
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REQUEST FOR PROPOSALS # RFP-00011
BANKING SERVICES AND LIQUIDITY FACILITIES
59 EXHIBIT C: INSURANCE REQUIREMENTS FOR SERVICES
Consultant 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 Consultant, his agents, representatives, employees or subcontractors.
MINIMUM SCOPE AND LIMIT OF INSURANCE
Coverage shall be at least as broad as:
1. Commercial General Liability (CGL): Insurance Services Office Form CG 00 01 covering CGL on an “occurrence” basis, including products and completed operations, property damage, bodily injury and personal & advertising injury with limits no less than $1,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location (ISO CG 25 03 or 25 04) or the general aggregate limit shall be twice the required occurrence limit.
2. Automobile Liability: ISO Form Number CA 00 01 covering any auto (Code 1), or if Contractor has no owned autos, hired, (Code 8) and non-owned autos (Code 9), with limit no less than $1,000,000 per accident for bodily injury and property damage.
3. Workers’ Compensation: as required by the State of California, with Statutory Limits, and Employer’s Liability Insurance with limit of no less than $1,000,000 per accident for bodily injury or disease.
(Not required if consultant provides written verification, it has no employees)
4. Professional Liability (Errors and Omissions) Insurance appropriates to the Consultant’s profession, with limit no less than $2,000,000 per occurrence or claim, $2,000,000 aggregate.
If the Consultant 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 Consultant 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 #17..
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REQUEST FOR PROPOSALS # RFP-00011
BANKING SERVICES AND LIQUIDITY FACILITIES
60 covered hereunder, shall be called upon to contribute to a loss until the Consultant'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
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 Consultant 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 Consultant's insurance with coverage equal to ISO form CG 2010. If Completed Operations endorsement is required, a separate endorsement equal to ISO form CG 2037 is required.
Primary Coverage
The Additional Insured coverage under the Consultant'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 Consultant's insurance coverage to the sole negligence of the Named Insured.
Notice of Cancellation
Each insurance policy required above shall provide that coverage shall not be canceled, except with notice to the City of Modesto.
Waiver of Subrogation
Consultant hereby grants to City of Modesto a waiver of any right to subrogation which any insurer of said Consultant may acquire against the City of Modesto by virtue of the payment of any loss under such insurance.
Consultant agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not the City of Modesto has received a waiver of subrogation endorsement from the insurer.
Self-Insured Retentions
All Self-insured retentions must be disclosed to Risk Management for approval and shall not reduce the limits of liability. The City of Modesto may require the Consultant 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 Consultant or subcontractor who procured such insurance and shall not apply to the Indemnified Additional Insured Parties.
Acceptability of Insurers
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REQUEST FOR PROPOSALS # RFP-00011
BANKING SERVICES AND LIQUIDITY FACILITIES
61 Insurance is to be placed with insurers with a current A.M. Best’s rating of no less than A:VII, unless otherwise acceptable to the City of Modesto.
Claims Made Policies (applicable to Professional Liability only) If any of the required policies provide claims-made coverage:
1. The Retroactive Date must be shown and must be before the date of the contract or the beginning of contract work.
2. Insurance must be maintained, and evidence of insurance must be provided for at least five (5) years after completion of the contract of work.
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 Consultant must purchase “extended reporting” coverage for a minimum of five (5) years after completion of work.
Verification of Coverage
Consultant 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 Consultant'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.
Subconsultants
Consultant shall require and verify that all subconsultants, 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 subconsultant’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:
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REQUEST FOR PROPOSALS # RFP-00011
BANKING SERVICES AND LIQUIDITY FACILITIES
62 City of Modesto
Attn: Risk Management
1010 10th Street
Modesto, CA 95354
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1 Exhibit D:
Insurance Requirements for Most Contracts
(Not for Professional Services or Construction Contracts) 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.
If the contractor maintains broader coverage and/or higher limits than the minimums shown above, the City of Modesto requires and shall be entitled to the broader coverage and/or the higher limits maintained by the contractor. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City of Modesto.
Umbrella or Excess Coverage
The Contractor may use Umbrella or Excess Policies to provide the liability limits as required in this agreement.
This form of insurance will be acceptable provided that all of the Primary and Umbrella or Excess Policies shall provide all of the insurance coverages herein required, including, but not limited to, primary and noncontributory, additional insured, Self-Insured Retentions (SIRs), indemnity, and defense requirements. The Umbrella or Excess policies shall be provided on a true “following form” or broader coverage basis, with coverage at least as broad as provided on the underlying Commercial General Liability insurance. No insurance policies maintained by the Additional Insureds, whether primary or excess, and which also apply to a loss covered hereunder, shall be called upon to contribute to a loss until the Contractor’s primary and excess liability policies are exhausted.
The insurance policies are to contain, or be endorsed to contain, the following provisions:
Additional Insured Status
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2 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.
Waiver of Subrogation
Contractor hereby grants to City of Modesto a waiver of any right to subrogation which any insurer of said Contractor may acquire against the City of Modesto by virtue of the payment of any loss under such insurance.
Contractor agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not the City of Modesto has received a waiver of subrogation endorsement from the insurer.
Self-Insured Retentions
All Self-insured retentions must be disclosed to Risk Management for approval and shall not reduce the limits of liability. The City of Modesto may require the Contractor to purchase coverage with a lower retention or provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention. Any and all deductibles and SIRs shall be the sole responsibility of Contractor or subcontractor who procured such insurance and shall not apply to the Indemnified Additional Insured Parties.
Acceptability of Insurers
Insurance is to be placed with insurers with a current A.M. Best’s rating of no less than A:VII, unless otherwise acceptable to the City of Modesto.
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 #17..
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3 obligation to provide them. The City of Modesto reserves the right to require complete, certified copies of all required insurance policies, including endorsements required by these specifications, at any time. City reserves the right to obtain a full certified copy of any insurance policy and endorsements. Failure to exercise this right shall not constitute a waiver of right to exercise later.
Subcontractors
Contractors shall require and verify that all subcontractors, or other parties hired for this work, purchase and maintain coverage for indemnity and insurance requirements as least as broad as specified in this agreement to the extent they apply to the scope of the subcontractor’s work with the same certificate of insurance requirements and naming as additional insureds all parties to this contract.
Special Risks or Circumstances
City of Modesto reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances.
Certificate Holder Address
Proper address for mailing certificates, endorsements and notices shall be:
City of Modesto
Attn: Risk Management
1010 10th Street
Modesto, CA 95354
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Exhibit 2:
BMO Banking Services
Proposal Pricing Form
#17..
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REQUEST FOR PROPOSALS # RFP-00011
BANKING SERVICES AND LIQUIDITY FACILITIES
18 PRICING SCHEDULE
All labor, materials, equipment, tools, fuel, licenses, bonds, insurance and other expenses necessary for Proposer to perform the required services shall be included in Proposal pricing. Proposal 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 City Form provided for Exceptions, Clarifications, and Amendments.
**In instances where extended pricing is requested within a proposal, and in cases where this results in a 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.** NOTE TO PROPOSERS: Be sure to enter leading "0." for dollars amounts less than $1
ACCOUNT SERVICES
Line Item Description Estimated
Quantity
Unit of
Measure
Unit Cost Total
1 ACCOUNT ANALYSIS-PAPER
STMT
12 EA
2 ACCOUNTS REPORTED 144 EA
3 ACH CREDIT 5,592 EA
4 ACH CREDIT RECEIVED 5,256 EA
5 ACH CREDITS RETURNED 12 EA
6 ACH DEBIT 1,188 EA
7 ACH DEBIT RECEIVED 540 EA
8 ACH DEBITS RETURNED 12 EA
9 ACH DETAIL REVERSAL 24 EA
10 ACH FRAUD CONTROL
MAINTENANCE
108 EA
$0.00 $0.00
$10.00 $1,440.00
$0.06 $335.52
$0.06 $315.36
$2.00 $24.00
$0.06 $71.28
$0.06 $32.40
$8.00 $96.00
$10.00 $240.00
$4.50 $486.00
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REQUEST FOR PROPOSALS # RFP-00011
BANKING SERVICES AND LIQUIDITY FACILITIES
19 Line Item Description Estimated
Quantity
Unit of
Measure
Unit Cost Total
11 ACH FRAUD PREVENTION 12 EA
12 ACH MONTHLY MAINT 12 EA
13 ALERTS PREMIUM 1,704 EA
14 ALTERNATE ADDRESS 12 EA
15 AUTOMATED VOIDS/ ADDS 168 EA
16 AUTOMATIC CREDIT 1,404 EA
17 AUTOMATIC DEBIT 1,404 EA
18 AUTOMATIC TRANSFER ACCT 72 EA
19 BAI DOWNLOADED
TRANSACTIONS
16,872 EA
20 BAI DOWNLOADS 120 EA
21 BAL REPORTING PER
TEMPLATE
936 EA
22 BALANCE ADMIN FEE 145,692 EA
23 BALANCE REPORTING
ARCHIVE-2 YEAR
12 EA
24 BALANCE REPORTING MAINT 12 EA
25 BUSINESS BANKING DEPOSITS 60 EA
26 BUSINESS BANKING
MAINTENANCE
96 EA
$0.00 $0.00
$0.00 $0.00
$0.00 $0.00
$52.00 $624.00
$0.06 $10.08
$0.00 $0.00
$0.00 $0.00
$8.00 576.00
$0.00 $0.00
$0.00 $0.00
$0.00 $0.00
$0.10 $14,569.20
$0.00 $0.00
$0.00 $0.00
$1.20 $72.00
$7.00 $672.00
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REQUEST FOR PROPOSALS # RFP-00011
BANKING SERVICES AND LIQUIDITY FACILITIES
20 Line Item Description Estimated
Quantity
Unit of
Measure
Unit Cost Total
27 CASH VAULT DEPOSITS - CV2 972 EA
28 CB ACH REPORTS 36 EA
29 CHECK DEBITS 14,352 EA
30 CHECKS DEPOSITED NOT ON
US
48 EA
31 CHK ISSUANCE FILE
TRANSMISSION
204 EA
32 COIN FURNISHED - ROLLS -
CV2
240 EA
33 COMM BANK ACH
TRANSMISSIONS
24 EA
34 COMM BK ACH CREDITS 39,180 EA
35 COMM BK ACH DEBITS 24 EA
36 CONCENTRATION DEBIT
PRENOTES
12 EA
37 CORP IMAGE DEP BASE FEE
PER ACCT
12 EA
38 CORP SWEEP-INVESCO/ AIM
FUNDS
12 EA
39 CORPORATE ACCOUNT
MAINTENANCE
24 EA
40 CSV DOWNLOADED
TRANSACTIONS
156,684 EA
41 CSV DOWNLOADS 312 EA
$1.10 $1,069.20
$0.12 $4.32
$0.04 $574.08
$0.05 $2.40
$0.00 $0.00
$0.085 $20.40
$33.75 $810.00
$0.03 $1,175.40
$0.17 $4.08
$0.03 $0.36
$35.00 $420.00
$100.00 $1,200.00
$7.00 $168.00
$0.00 $0.00
$0.00 $0.00
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REQUEST FOR PROPOSALS # RFP-00011
BANKING SERVICES AND LIQUIDITY FACILITIES
21 Line Item Description Estimated
Quantity
Unit of
Measure
Unit Cost Total
42 CURRENCY DEP - STD (PER
$100) - CV2
54,396 EA
43 CURRENCY FURNISHED NON -
STD - CV2
24 EA
44 DOMESTIC WIRES CREDITS 24 EA
45 E-ANALYSIS STMT # OF
ACCESSES
60 EA
46 EDI/EFT CREDITS RCVD - CCD+ 1,512 EA
47 EDI/EFT CREDITS RECEIVED -
CTX
48 EA
48 EPA-EXCEPTION ITEMS 132 EA
49 FULL RECON MAINTENANCE 24 EA
50 FULL RECON PER ITEM 14,436 EA
51 ICL DEPOSIT 516 EA
52 INDEX RETRIEVALS 336 EA
53 INQUIRY IMAGES RETRIEVED 336 EA
54 ITEMS ON OTHER BANKS 140,424 EA
55 MAIL FEE FOR RESEARCH
RESULTS
72 EA
56 MISMATCH POSITIVE PAY
AUTO
132 EA
57 NOC CORRECTION 24 EA
$0.0009 $48.9564
$0.12 $2.88
$8.00 $192.00
$0.00 $0.00
$0.06 $90.72
$0.06 $2.88
$1.25 $165.00
$35.00 $840.00
$0.03 $433.08
$0.65 $335.40
$0.025
$8.40
$0.055 $18.48
$0.03 $4,212.72
$0.00 $0.00
$0.75 $99.00
$0.00 $0.00
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REQUEST FOR PROPOSALS # RFP-00011
BANKING SERVICES AND LIQUIDITY FACILITIES
22 Line Item Description Estimated
Quantity
Unit of
Measure
Unit Cost Total
58 ON US DEPOSIT ITEMS 12 EA
59 ON US ITEMS 9,060 EA
60 ONLINE ACCOUNTS-SAME
DAY (TIER 1)
48 EA
61 ONLINE ACCOUNTS-SAME
DAY (TIER 2)
72 EA
62 ONLINE ACH MAINTENANCE 48 EA
63 ONLINE ACH REPORTS 24 EA
64 ONLINE BOOK TRANSFER 108 EA
65 ONLINE DOMESTIC WIRE 216 EA
66 ONLINE USER FEE 168 EA
67 ORIGINATED SAME DAY ACH
CREDITS
132 EA
68 OTHER CORPORATE CREDITS 12 EA
69 POSITIVE PAY AUTO RETURN 72 EA
70 POSITIVE PAY MAINTENANCE 24 EA
71 POSITIVE PAY PLAN 14,436 EA
72 POSITIVE PAYEE MONTHLY
MAINT
24 EA
73 POSITIVE PAY-PAYEE PER
ITEM
14,436 EA
$0.05 $0.60
$0.03 $271.80
$0.00 $0.00
$0.00 $0.00
$0.12 $2.88
$0.35 $37.80
$8.00 $1,728.00
$0.00 $0.00
$0.00 $0.00
$3.00 $216.00
$0.00 $0.00
$0.04 $577.44
$55.00 $1,320.00
$0.00 $0.00
$2.50 $330.00
$0.00 $0.00
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- 993 -
REQUEST FOR PROPOSALS # RFP-00011
BANKING SERVICES AND LIQUIDITY FACILITIES
23 Line Item Description Estimated
Quantity
Unit of
Measure
Unit Cost Total
74 PREFUNDING MAINTENANCE 48 EA
75 PREVIOUS DAY DR/CR ITEMS 22,068 EA
76 PREVIOUS DAY DR/CR ITEMS
(FIRST 1,000)
12,000 EA
77 REG CHECKING-PAPER STMT 12 EA
78 RETURN EXCEPTIONS
REDEPOSITED
132 EA
79 RETURN IMAGES RETRIEVED 204 EA
80 RETURN ITEMS CHARGED
BACK
180 EA
81 SAME DAY DR/CR ITEMS 30,612 EA
82 TAX PAYMENTS-IMPOUND 96 EA
83 TOUCHTONE/STANDING
ORDER - CV2
12 EA
84 VAULT CHECK DEPOSIT 72 EA
85 WIRE TRANSFER CREDITS 24 EA
86 WIRE TRANSFER DEBITS 216 EA
87 ZBA CONCENTRATION
ACCOUNT FEE
12 EA
88 ONLINE ACCOUNT - SAME
DAY
2 EA
89 DELUXE SUPPLIES ORDER 5 EA
$0.00 $0.00
$0.04 $882.72
$0.00 $0.00
$1.00 $132.00
$1.00 $204.00
$2.25 $405.00
$0.00 $0.00
$3.00 $288.00
$3.00 $36.00
$1.10 $79.20
$0.00 $0.00
$0.00 $0.00
$40.00 $480.00
$0.00 $0.00
$305.44 $1527.20
$0.04 $480.00
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REQUEST FOR PROPOSALS # RFP-00011
BANKING SERVICES AND LIQUIDITY FACILITIES
24 Line Item Description Estimated
Quantity
Unit of
Measure
Unit Cost Total
TOTAL
$40,460.2364
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- 995 -
Exhibit 2a:
BMO Corporate Card
Financial Proposal
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- 996 -
Incentive Potential
(Year 1)
Incentive
Potential
(Full Term)
(1) Total Potential Incentive (see details below) $152,500 $662,500 (2) Bonus Payment $25,000 $25,000
$127,500 $637,500
US One Card US VPAYO
Annual Charge
Volume
US One Card Basis
Point Rebate at 14
CHD
US VPAYO Basis Point
Rebate at 14 CHD
$1,000,000 1.00% 1.00%
$2,500,000 1.35% 1.35%
$5,000,000 1.60% 1.60%
$7,500,000 1.70% 1.70%
$10,000,000 1.80% 1.80%
Charge Vol. assumption $2,500,000 $5,000,000 $0 $0 $0 $0 CHD Base Input 14
Product Offer
Products Annual Volume Total Cards Rewards Annual Fee
$2,500,000 194 No Waive
USA BMO VPAYO $5,000,000 0 n/a N/A
Total Program $7,500,000 194
Terms and Conditions
(1) This proposal is based on the above card type, spend, liability and Rewards eligibility assumptions. If the actual program is set up or maintained differently than stated below, the Bank reserves the right to modify incentives offered.
Our full range of commercial card products and electronic payment solutions can help you streamline payment processing, improve control, and drive costs out of your organization. As a leading North American issuer of Commercial and Corporate cards, you'll benefit from unsurpassed global acceptance, detailed transaction data, and best-in-class online reporting tools.
BMO Bank will pay a Contract Bonus of $25,000 for executing a 5 year term. (3) Performance Incentive
An annual incentive will be paid based on number of Customer Held Days (CHDs) and total annual Charge Volume.
USA BMO One Card
The first contract year shall commence on the effective date of the Agreement and continue for a period of twelve (12) months. Each contract year thereafter shall be a period of twelve (12) months Charges incurred in a foreign currency will be converted into local currency at the applicable conversion rate plus a fee as set forth in the applicable Customer Agreement, currently 2% of the converted amount. This includes the currency conversion fee charged by the Association. Settlement Period means the average number of days between the time that billing statements are generated and the time that the Bank receives payment. © 2025 Bank of Montreal. This document contains trade secrets and proprietary and confidential information of Bank of Montreal and its affiliates. Use for any purpose other than for which this document was provided by Bank of Montreal, or reproduction, distribution, or disclosure of this document, in whole or in part, or any information contained herein without the express written permission of Bank of Montreal is prohibited. 2025 v7.10 (2) BMO Bank will pay a Contract Bonus based on executing a 5 year term.The incentive will be paid within 90 days after the effective date of the Agreements. For any contract year in which annual volume does not reach $6,000,000 Customer shall refund to BMO Bank a prorated portion of 1/5 of the Contract Bonus. (3) This incentive will be paid within 60 days after the end of each contract year. All charge volume associated with large ticket spend will qualify for rebates but will be paid at 75 basis point (bps). Annual charge volume will be calculated as purchases less returns, credits, ATM, Warehouse and cash advances. For all transactions passed by the merchant(s) through the Transaction Processor classified as the following transaction types: Data Rate III, International (standard and other non-large ticket), and Charities, the bank will pay 100 basis point (bps). The Transaction Processors definition of the transaction types noted may change during the term of this Agreement and will be adjusted accordingly to match the definition for rebate calculations. Transaction Processors negotiated supplier rates: The Bank will pay 0 basis points on transaction volume derived from Transaction Processors negotiated supplier rates. Extend Virtual Card volume: Transaction volume incurred on a Virtual Card issued through third-party Extend (“Extend Volume”) as a Vendor Payment Solution will be included to determine the applicable Annual NTV tier at which the Rebate will be paid but the Rebate earned on Extend Volume will be paid at 75% of the Earned Incentive Rate.
If experience or cost of funds varies significantly, pricing is subject to change.
Customer Held Days (CHDs) are the average number of days between the time billing statements are generated and the time payment is received from the Customer. Rebates are net of credit losses from all products.
Early Payment Incentive 0.5 basis point (bps) will be added to the Earned Incentive Rate for every CHD less than 14 that the Customer and their Cardholders remit payment. 1 bps will be subtracted from the Earned Incentive Rate for every CHD greater than 14 up to 30 CHD that Customer and their Cardholders remit payment. If average annual CHDs exceed 30, no incentive will be paid. The Earned Incentive Rate is the Basis Point Rebate adjusted for the Early Payment Incentive. Any rates offered as part of this proposal in respect of Large Ticket Spend, Data Rate III, International, Charities and Transaction Processer negotiated supplier rates that are paid as flat bps and not a percentage of specified volume transaction are not subject to adjustment by the Earned Incentive Rate or other adjustments provided in the Corporate Card Agreement.
Rebate Adjustment: Any 50 bps +/- change in the US Federal Funds Rate will impact the listed rebate rate by -/+4bps.
ID: CBAN171369City
Treasury & Payment Solutions
Corporate Card program offer for City of Modesto based on a 5 year term Offer Valid Through 09-Apr-26
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Exhibit 2b:
Elavon Pricing
Schedule
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- 998 -
BMO Payment Solutions by Elavon
EXHIBIT 2
CITY OF MODESTO PRICING SCHEDULE
We propose two pricing options:
• Option 1, Service Fee:
We propose our Service Fee Program that would allow the City to offset the cost of acceptance.
When collecting payments for taxes, government fees, tuition and education expenses, a 2.40% Service Fee can be applied to both card-present and card-not-present payments. Under this program, with the cardholder’s approval, the cardholder would pay the processing fees and not the City.
• Option 2, Interchange & Assessments Fees plus:
The pricing for Visa, MasterCard and Discover transactions will be based on the Pass-Through of those Associations’ respective Interchange & Assessments Fees (cost) plus $0.025* per authorization fee.
ONE-TIME FEES / PER MERCHANT ACCOUNT
Set-Up/Reprogramming Fee $WAIVED
MONTHLY FEES / PER MERCHANT ACCOUNT
Monthly Minimum $WAIVED
PCI Security Program Fee $10
PER OCCURRENCE FEES
Chargeback/Retrieval Fee $15
NSF/Returned Item Fee $20
Voice Authorization Fee $0.85
*Processing on the Elavon Network
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- 999 -
Exhibit 2c:
BMO Pricing
Proforma
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- 1000 -
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- 1001 -
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- 1002 -
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- 1003 -
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- 1005 -
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- 1007 -
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Rev 11/2024_Ver. 4.0 Page 1 of 11
Treasury Services Master Agreement
This Treasury Services Master Agreement (this Master Agreement of the Bank representative signing this Master Agreement, between Client BMO Bank N.A. Bank . This Master Agreement includes the terms and conditions pursuant to which Bank will provide to Client its treasury and payment solutions Services . Any reference in any existing or future agreement between Client and Bank to a Global Treasury Management Services Master Agreement or any other prior services agreement for treasury and payment solutions products and services shall be deemed to be a reference to this Master Agreement.
In consideration of the mutual promises herein, Client and Bank agree as follows:
1. Services. Bank will make available to Client the Services selected by Client and described on the Service Selection Form, which is part of this Master Agreement (as updated or amended from time to time, the ). By completing and
signing the Service Selection Form for a particular Service or Services, Client selects that Service or Services and agrees to the terms and conditions of the related service description, including any appendices (the ), and
other Service Documentation (as defined below) for that Services. Client may add Services by submitting to Bank an executed copy of the Service Selection Form for the new Service. Any other services or features Bank provides in connection with a Service which are not listed in the Service to this Master Agreement and any related Service
Documentation. Other than as expressly set forth herein or in the Service Documentation for a particular Service, the Services are only available for commercial cash management banking purposes and may not be used for personal or
consumer banking purposes of any kind.
Upon acceptance and approval by Bank of this Master
Agreement and the Service Selection Form for the Services Client requests, and the completion of any required setup process, Bank will make the requested Services available to Client. If Client does not execute the Service Selection Form for a particular Service, but nevertheless uses that Service in any manner, first such use constitutes
agreement to the Service Documentation for that Service, including the applicable Service Description, in the form Bank presented to Client.
2. Governing Agreements and Documentation. (a) Service Documentation. use of the Services is governed by this Master Agreement and the following
Service Documentation
of which are incorporated by reference into this Master Agreement (as applicable):
Service Descriptions;
Service Selection Forms;
setup and security instructions and procedures; and
user guides, questionnaires, and other instructions
and manuals for Services provided by Bank (as
User Guides .
If there is any conflict between any term or provision of the Service Documentation for a particular Service and
the terms and provisions of this Master Agreement, the
Service Documentation will control with respect to such Service to the extent of such conflict. If there is any conflict among the Service Documentation for a particular Service, the Service Description will control to the extent of the conflict. Terms which are defined in this Master Agreement have the given meaning when used in the
Service Documentation unless otherwise specified.
All deposit account(s) that are enrolled in the Services (the ) will remain subject to the applicable
deposit account agreement ( ) and
use of the Services will also be governed by such
Account Agreement, which is incorporated by reference
in this Master Agreement. If there is any conflict between the applicable Account Agreement and this Master
Agreement or any Service Documentation, then this
Master Agreement or the Service Documentation
controls. Capitalized terms used herein and not otherwise defined shall have the meaning given in the applicable
Account Agreement.
(b) Service Changes. Bank may from time to time add to, discontinue or modify the Services and may update or
make changes in the Service Documentation relating to a Service. Bank will give Client notice of any material
change and such change will be effective as of the date specified in the notice sent to Client. Bank reserves the right to notify Client of changes and updates electronically or by Internet posting, mailing, or other means permitted by law. The right to change fees and charges and the
right to change the terms of this Master Agreement are
addressed in Section 12.
(c) Authorized Individuals; Contact Information. Before accessing any Service, Client must provide to Bank (or
there must be on file with Bank) a signed and completed Certificate of Account Resolutions in the form provided by Bank or other form acceptable to Bank Account
Resolutions . The Account Resolutions evidence the
Authorized Individuals
signing this Master Agreement, the Service Selection
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Rev 11/2024_Ver. 4.0 Page 2 of 11
Form, and any authorization forms, and provide Bank with any contact information that Bank may require in
connection with use of a Service. Bank is entitled
to rely on such authorization and contact information
according to its terms until Bank receives properly
authorized written notice in the form provided by Bank or other form acceptable to Bank that the existing
authorization and/or contact information is changed or
terminated and Bank has a reasonable opportunity to act on such notice. If Client instead chooses to communicate changes to Bank by some other means, Bank is entitled
(but not obligated) to rely on such communications and
the changes as having been duly authorized by Client if Bank in good faith believes the communications came
from someone authorized by Client to deliver it. Bank will not be responsible for losses if Client fails to timely and properly notify Bank of changes in authorization and/or contact information. Client must also promptly notify Bank in writing of any change to name or address.
3. Obligations and Acknowledgments.
(a) Account Statements and Reconciliation. At
election, Bank will either provide to Client electronically through Bank Online Banking for Business Service
OLBB
canceled checks, and other information regarding the
Accounts and Account activity, including any activity
resulting from Services. Client agrees to promptly
examine each such statement, notice, canceled check,
and other information (whether originals, images, copies, or in other formats) and to promptly notify Bank of any erroneous charges, payments, missing or incorrect
deposits, credits, debits, or other entries to Accounts ( ) or other Account problems, including a forged or
unauthorized signature or alteration, or unauthorized or missing endorsement, in accordance with the
requirements and procedures, including time frames,
provided in the applicable Account Agreement. If Client fails to notify Bank as described above, Bank will not be obligated to re-credit or refund the amount of the error or Account problem and Client will be precluded from
asserting the error or Account problem against Bank. If Client makes a claim for an error or problem, Client
agrees to cooperate with Bank in the investigation of the situation (including providing an appropriate affidavit as Bank may request) and any effort by Bank to recover
funds on or behalf.
Unless Bank has otherwise agreed in the Service
Documentation for any Service Bank provides to Client,
funds transfers to and from Accounts will be reflected on the periodic statements Bank sends or makes available to Client or the applicable Account owner.
(b) Electronic Information. Some Services allow Client to view and receive information about Account balances,
activity, transactions, and other cash management
information electronically, via the Internet through one of Bank access Services, or by other electronic means.
Account information changes frequently and is subject to updating, verification, and correction. Since the
information may change during the delay between when
the information was last sent to Client or posted by Bank and when Client receive or access the information, Bank assumes no responsibility for reliance on such
information which is subsequently updated, verified, or corrected.
(c) Vendors. If Client engages any third party in
Vendor
agent. Client is solely responsible for ensuring
that Vendor complies with obligations
under this Master Agreement and the Service
Documentation (including Security Procedures, as
defined below, relating to the Services). Client is bound by all information, Orders (as defined herein), entries, or other instructions provided on behalf by Vendors
all as though such information, Orders, entries, or other instructions were provided by Client. Client confirms that Client grants authority to Vendors to legally bind Client with respect to their use of the Services. Client is liable for (i) any
obligations under this Master Agreement and the Service Documentation, (ii) all fees, costs, and expenses owed to each Vendor for its services on behalf, and
(iii) any claims, damages, costs, and expenses incurred by Client or Bank
perform, or delay or error in performing, its services on behalf.
(d) Use of Third Parties by Bank. Bank may use the services, software, hardware or equipment of third parties to
provide or facilitate all or any portion of the Services, including call centers, Website hosts, contractors,
processors, and the like. Client agrees that Bank may
disclose to any such third party any information regarding Client necessary to provide the Service and related
support to Client.
(e) Money Laundering and Funding of Terrorism. Client
acknowledges that transactions made on behalf
may be subject to federal and state laws and regulations governing transactions in currency and other monetary
instruments relating to money laundering activities and the funding of terrorism and that such laws and
regulations may impose severe criminal penalties on
those who participate or assist in such activities or in structuring of such activities to avoid reporting
requirements. Client acknowledges that Bank may
monitor transactions for compliance with such laws and
regulations. Client agrees that Client will not engage in any transaction which would violate, or result in a
payment in violation of, federal or state laws or
regulations, including, without limitation, the federal laws and regulations administered by bank regulatory
agencies and the Office of Foreign Assets Control
( ) relating to money laundering and the funding of
terrorism.
(f) Right of Setoff and Security Interest. In addition to its other rights under this Master Agreement and the Account Agreement, Bank and each of its Affiliates may exercise the right of set-off against any or all of Accounts
and deposits and Client grants Bank a first priority security interest in all Accounts maintained by Client now or in the future with Bank or any of Bank Affiliates to secure
payment of any and all obligations regarding Services
provided under this Master Agreement and the Service
Documentation, whether direct or indirect, absolute or
contingent, due or to become due, whether now existing
#17..
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Rev 11/2024_Ver. 4.0 Page 3 of 11
or hereafter arising, and whether several, joint or joint and several. For purposes of this Master Agreement,
means any corporation, limited liability
company, or other legal entity that controls, is controlled by, or is under common control with another legal entity.
4. Security Procedures. (a) Verification. Bank requires that the authenticity of any ACH
entry data, batch release, electronic data or transmission, or other instruction to transfer or pay funds or pay, return, Orders Bank in
name in connection with any Service be verified
pursuant to security procedures as provided in this
Master Agreement or in the applicable Service
Security Procedures . Bank may also
require that other instructions Client issues to Bank be delivered and accepted in compliance with Security
Procedures.
(b) Acceptance of Security Procedures. Client should
carefully review the Security Procedures in light of the size, amount, and frequency of transactions.
use of each Service indicates agreement
that the Security Procedures for the Service are
commercially reasonable. If instead of accepting and
following the Security Procedures Bank offers, Client
chooses to communicate to Bank pursuant to some other
procedure, Client is refusing the Security Procedures
Bank recommends as commercially reasonable and
Client will be bound by any Order or other instruction
issued in name and accepted by Bank in
compliance with the procedure Client chooses.
(c) Security Procedure Limitations. Client acknowledges that the Security Procedures are used to verify the authenticity of, but not to detect errors in, any Order transmitted by . From time to time Bank may
at its option use additional procedures to verify or
authenticate Orders. The Security Procedures do not
verify the actual identity of the users of the Services and do not monitor the actions of the users to determine
whether their Orders exceed the scope of their authority.
The Security Procedures are in addition to, and do not
limit, revoke, or affect the authority of any Authorized Individual to transmit Orders or any agreement now or
hereafter existing between Client and Bank relating to
Orders. Bank may continue to rely upon such authority
and agreements and Bank is authorized to act upon
Orders received from persons acting pursuant to such
authority or agreements.
5. Confidentiality and Security.
(a) Confidential Service Information. Client agrees that it is responsibility to maintain the security and strict
confidentiality of all account numbers, codes, and
identification data, such as customer identification
numbers ( ) and passwords (
) and user identification numbers ( )
and passwords ( ), provided to or used
by Client Identification
Data
Service or Account, including the Security Procedures
Confidential Service Information . Client should
disclose the Identification Data and the Confidential
Service Information only to Authorized Individuals and
Vendors who need to know the information in order to
carry out their responsibilities with respect to the Services.
Client also agrees to maintain the confidentiality of all Service Documentation, software, and other proprietary
information regarding the Services which Bank provides
to Client.
(b) Effective Policies and Procedures. Client represents and warrants to Bank that Client has in place, and will maintain and enforce, effective policies and procedures to prevent unauthorized access to the Accounts, the Identification Data, the Confidential Service Information, and the
Services, including unauthorized and erroneous
transmission of Orders and other communications to
Bank. Client agrees to take all steps necessary to ensure the security, accuracy, authenticity, confidentiality, and legitimacy of all communications to Bank and all access to the Services.
(c) Notification of Loss. If at any time any Identification Data or Confidential Service Information has been lost, stolen, or misused, or Client believes that the security of
communications between Client and Bank may be or has
been compromised or is in any way insecure, Client must notify Bank immediately (with confirmation in writing) and assist Bank in investigating and remedying the situation. notice will not affect any action taken by Bank,
including transfers made or instructions carried out prior to the time Bank has received the notice and has had a
reasonable opportunity to act on it.
(d) Obligations of Bank Regarding Confidential Information.
Except as otherwise provided herein or in any Service
Documentation, Bank will maintain the confidentiality of the information Client provides to Bank in connection with the Services in accordance with its normal procedures for safeguarding commercial customer information, and
Bank agrees to use such information only to provide the Services to Client and as otherwise required by law or
permitted in any agreement between Client and Bank.
Bank may disclose information (i) which is or becomes
public other than as a result of disclosure by Bank in
violation of this Section, (ii) which was or becomes
available to Bank on a non-confidential basis from a thirdparty who is not known by Bank to be bound by a confidentiality agreement with Client with respect to such information, (iii) which is developed by Bank separate and apart from any disclosure by Client, (iv) to Affiliates of Bank, or to companies who provide services to Bank as
described in Section 3(d), (v) as permitted under the
Account Agreement or any other agreement between
Client and Bank, (vi) in connection with any litigation involving, or the enforcement of its rights and remedies under or in connection with, this Master Agreement or any other agreement between Client and Bank, and (vii) to the extent required by applicable laws, regulations, or rules, including, where applicable, the rules of NACHA The
Electronic Payments Association® or other funds transfer systems used in connection with a funds transfer
Applicable Law , or court orders or other
legal process (including in connection with examinations by banking authorities or to comply with subpoenas,
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Rev 11/2024_Ver. 4.0 Page 4 of 11
summonses, search warrants, or requests from
government agencies).
(e) Use of Confidential Service Information. All uses of the Services in accordance with the Security Procedures will be deemed to be authorized by and binding on Client or
the applicable Account owner. failure to protect
Identification Data and Confidential Service Information may allow an unauthorized party to (i) use the Service(s), (ii) access electronic communications and financial data, and (iii) send Orders and communications to Bank or
receive information from Bank. To the maximum extent
permitted by law, Bank shall have no responsibility or
liability whatsoever for any loss due to any unauthorized Order, instruction or other communication from Client,
Vendor, or any Authorized Individual to Bank,
except to the extent that such loss is determined by an arbitrator in accordance with Section 16 or by a court of competent jurisdiction by a final and non-appealable order to have resulted from Bank gross negligence or willful
misconduct.
(f) Unencrypted Messages. Client recognizes that
unencrypted messages including email are not secure. If Client chooses to communicate with Bank by email, Client acknowledges that Bank may rely on the contents of the
email as having been authorized by Client, if Bank
accepts and acts on it in good faith. Client agrees that Bank may reply to Client in an email with the requested information. Client assumes the entire risk for any such unencrypted electronic communications.
6. Events of Default.
The occurrence of any of the following shall constitute an Event of Default
(a) Failure to Pay or Perform. If Client fails to pay when due any amount payable, fails to satisfy any condition Client is required to satisfy, or fails to observe or perform any agreement or obligation, under this Master Agreement,
any Service Documentation, or any other agreement
between Client and Bank;
(b) Incorrect or Misleading Statements. If any representation or warranty made by Client in this Master Agreement, any Service Documentation, or any other agreement between
Client and Bank, or any certificate or statement of fact or any other communication from Client to Bank, is found to have been incorrect or misleading on or as of the date
made in any respect Bank considers material;
(c) Insolvency, etc. If Client is or becomes insolvent or bankrupt or is dissolved, liquidated or wound up; or any substantial assets of Client are seized or otherwise
attached pursuant to legal process or other means; or any step or proceeding is taken by or against Client under or in respect of any bankruptcy, insolvency, reorganization or other similar law affecting creditors' rights, including a resolution passed by directors, partners,
managers, or members; or any assignment is made for
of Bank the financial condition of Client has become
impaired;
(d) Judgments. If one or more judgments, decrees, or orders is rendered against Client for the payment of money and any of such judgments, decrees or orders would, in
Bank opinion, have a material adverse effect and
continue unsatisfied and in effect for a period of more than ten (10) business days without being vacated,
discharged, satisfied or stayed pending appeal; or
(e) Unenforceable Provisions. If any provision of this Master Agreement Bank considers material is determined by an
arbitrator in accordance with Section 16 or a court of
competent jurisdiction to be unenforceable.
7. Termination.
(a) This Master Agreement will continue in full force and effect until all Services have been terminated. Any
Service may be terminated at any time by either Client or Bank
the other party. Only the Service specified in such notice will be terminated, and no other Services will be affected. (b) Bank may, at its option, immediately and without any notice or other action (i) terminate this Master Agreement or any or all Services upon the occurrence and during
continuance of an Event of Default, and (ii) terminate any Service if Bank determines that the Service has not been used by Client for a period of at least 12 months.
(c) Upon termination of any Services under this Master
Agreement:
Client will immediately return to Bank or destroy the
originals and all copies (in all formats and media) of
software programs Bank licensed to Client, all User
Guides, and all security and access devices with
respect to those terminated Services.
Any licenses granted by Bank to Client with respect
to those terminated Services under the applicable
Service Documentation will automatically terminate.
(d) Even if this Master Agreement or any or all Services are terminated, this Master Agreement shall continue in full force and effect as to all transactions that Bank began processing before such termination and the provisions of Sections 5, 8, 9, 10, 13, and 16 will survive any
termination of this Master Agreement and the relevant
Service.
8. Indemnity. Client agrees to indemnify Bank, Bank Affiliates, and each of their respective officers, directors, employees, agents, and service providers (collectively, ) for, and
defend and hold harmless each of the Indemnified Parties from and against, any and all actions, losses, damages, claims, demands, liabilities, costs, or expenses, including (collectively ), resulting directly or indirectly from
Bank performance under this Master Agreement or Bank
provision of any Service (including, without limitation, any and all Claims in connection with complying with or responding to subpoenas, summonses, search warrants, or requests or
demands from government agencies), except to the extent that such Claims are determined by an arbitrator in
accordance with Section 16 or a court of competent jurisdiction by a final and non-appealable order to have resulted from Bank gross negligence or willful misconduct.
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9. Limitation of Liability.
IN NO EVENT UNDER ANY THEORY SHALL BANK, OR
ANY OTHER INDEMNIFIED PARTY HAVE ANY LIABILITY
TO CLIENT OR ANY OTHER PERSON OR COMPANY FOR
ANY CLAIM OR DAMAGE OF ANY KIND (WHETHER IN
TORT, CONTRACT OR OTHERWISE) ARISING OUT OF,
OR RELATING TO, BANK
MASTER AGREEMENT OR BANK
SERVICE, EXCEPT TO THE EXTENT THAT SUCH CLAIMS
OR DAMAGES ARE DETERMINED BY BINDING
ARBITRATION IN ACCORDANCE WITH SECTION 16 OR A
COURT OF COMPETENT JURISDICTION BY A FINAL AND
NON-APPEALABLE ORDER TO HAVE RESULTED FROM
BANK GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT; PROVIDED THAT IN NO EVENT SHALL
BANK OR ANY OF ITS AFFILIATES, OR ANY OF THEIR
RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES,
AGENTS, OR SERVICE PROVIDERS, HAVE ANY LIABILITY
TO CLIENT OR ANY PERSON OR COMPANY FOR
INDIRECT LOSSES, SPECIAL, CONSEQUENTIAL,
INCIDENTAL, OR PUNITIVE DAMAGES, OR DAMAGES
FOR LOST BUSINESS, PROFITS, OR REVENUE,
GOODWILL, OR ANTICIPATED SAVINGS, EVEN IF BANK
OR ANY SUCH OTHER PARTY IS AWARE OF THE
POSSIBILITY OF, OR COULD REASONABLY FORESEE,
SUCH DAMAGES.
TO THE EXTENT THAT PROVISIONS OF APPLICABLE
L
RESPONSIBILITY FOR ITS FAILURE TO EXERCISE
ORDINARY CARE, BANK RESPONSIBILITY TO CLIENT
UNDER THIS MASTER AGREEMENT AND THE SERVICE
DOCUMENTATION IS LIMITED TO THE EXERCISE OF
ORDINARY CARE IN PROVIDING THE SERVICES TO
CLIENT. ORDINARY CARE IS TO BE EVALUATED BASED
ON REASONABLE COMMERCIAL BANKING STANDARDS
PREVAILING IN BANK INDUSTRY AND LOCATION FOR
SIMILARLY SITUATED COMMERCIAL BANKS.
or relating to this Master Agreement and any Service,
regardless of the form of action, is limited to direct losses and limited to an amount not to exceed twelve (12) times the fees paid by Client during the month immediately preceding the month in which the loss or damage was incurred.
Bank is not liable for any failure or delay in carrying out any of its obligations under this Master Agreement or any Service Documentation if such failure or delay results from Bank acting in accordance with requirements of Applicable Laws or from acts of God, strike or stoppage of labor, power or equipment failure, disruptions in telecommunications systems or the financial markets, adverse weather conditions, or any other cause beyond its control. Bank has no responsibility and will incur no liability for any act or failure to act by any other financial institution, intermediary, or any other third party including any failure, delay or error by any Federal Reserve Bank or other intermediary bank in timely presenting data or checks to Bank.
10. Fees and Charges. Client agrees to pay fees and other charges for each Service as Bank establishes from time to time or maintain
compensating balances as Bank may permit. Bank may
amend its fees and charges from time to time in accordance with Section 12 below. Client authorizes Bank to access any one or more Accounts to debit fees and other charges, even if doing so creates an overdraft.
Bank may provide Client with monthly compensation
statements indicating the fees owing by Client and debited from one or more Accounts for the Services and the interest paid or charged to Client. Client will verify the statements and notify Bank in writing of any errors, irregularities or omissions within (a) 30 days of the mailing of the compensation
statement to Client, or (b) if not mailed, within 30 days of the delivery or availability of the compensation statement to Client.
At the end of the 30-day period it will be conclusively settled between Client and Bank that the compensation statement is accurate, all fees and amounts charged as set out in the compensation statement are properly chargeable, and Client will not be entitled to be credited with any sum not credited in the compensation statement.
Notwithstanding the foregoing, Bank has the right at any time to make adjustments for any amounts improperly credited and any alleged errors, irregularities, or omissions or to charge back items for which payment has not been received.
Bank may assess finance charges on any amount due to Bank under this Master Agreement that is not paid by Client within thirty (30) days of receipt of statement or an invoice
showing the amount due.
11. Notices. Except as may be otherwise specified in the Service Documentation for a particular Service, all notices and other communications by Client or Bank relating to this Master Agreement and/or any Service Documentation generally shall be in writing and:
if to Client, addressed to primary address as
shown on Bank
delivered electronically;
if to Bank, addressed to Documentation Analysis and
Control at: BMO Bank N.A., Documentation Analysis
and Control, 320 South Canal Street, 14W, Chicago,
Illinois 60606, or at such other address as Bank may
specify in writing.
Any notice or communication to Bank will be effective when it is actually received, and Bank has had a reasonable time to act on it. Bank is entitled to rely on any written notice or other communication that Bank believes in good faith to be genuine and to have been signed, sent, or authorized by
authorized representative. Bank is permitted, at its sole discretion, to act on email notices from Client sent to [email protected] or otherwise, although Bank shall be under no obligation to do so. Bank reserves the right to give notices and communications to Client in such form or medium as Bank considers reasonable and by such means as are
permitted by Applicable Law.
12. Amendments. Bank may amend this Master Agreement or the fees and charges applicable to a particular Service by written notice sent to Client in accordance with Section 11, above. Except #17..
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as specifically provided in the Service Documentation for any Service, any amendment to this Master Agreement (including changes in fees and charges) will be effective thirty (30) days after notice of the amendment is sent to Client. This paragraph does not apply to the changes and updates described in
Section 2 of this Master Agreement under
13. Representations and Warranties; Agreement to
Provide Information. (a) Representations and Warranties of Client. In addition to any other representations and warranties herein or in the Service Documentation, Client represents and warrants
to Bank, and agrees with Bank, that:
(i) its execution, delivery, and performance of this
Master Agreement has been duly and properly
authorized by all necessary corporate or other
organizational action and governmental action and
does not violate any provision of law, its certificate or articles of incorporation, by-laws or other
organizational agreement, or any material agreement
binding upon it;
(ii) the person or persons signing this Master Agreement on its behalf are authorized to do so;
(iii) this Master Agreement is its valid, legal and binding obligation enforceable against it in accordance with
its terms; and
(iv) the establishment and maintenance of the Accounts
with Bank and use of the Services are for
legitimate business purposes only and comply fully
with Applicable Law.
(b) Representations and Warranties of Bank. Bank
represents and warrants to Client, and agrees with Client that:
(i) its execution, delivery, and performance of this
Master Agreement has been duly and properly
authorized by all necessary corporate or other
organizational action and governmental action and
does not violate any provision of law, its charter or
by-laws or other organizational agreement, or any
material agreement binding on it;
(ii) the person or persons signing this Master Agreement on its behalf are authorized to do so; and
(iii) this Master Agreement is its valid, legal, and binding obligation enforceable against it in accordance with
its terms.
EXCEPT AS EXPRESSLY PROVIDED ELSEWHERE IN
THIS MASTER AGREEMENT OR IN ANY SERVICE
DOCUMENTATION, BANK MAKES NO OTHER
REPRESENTATIONS OR WARRANTIES, EITHER
EXPRESS OR IMPLIED, OF ANY KIND WITH RESPECT
TO ANY SERVICE OR BANK PERFORMANCE OF
THE SERVICES, INCLUDING, WITHOUT LIMITATION,
THOSE OF MERCHANT-ABILITY AND FITNESS FOR A
PARTICULAR PURPOSE. NO DESCRIPTIONS OR
SPECIFICATIONS CONSTITUTE REPRESENTATIONS
OR WARRANTIES OF ANY KIND.
(c) Agreement to Provide Information. Client agrees that Client shall promptly furnish to Bank such information
respecting business and financial condition, in
such form and manner, as Bank may reasonably request
from time to time. Client represents and warrants to Bank that all such information is true, complete, and correct in all material respects.
14. Affiliates.
If Client has one or more Affiliates, Bank may upon request provide one or more Services to that Affiliate under this Master Agreement. If Bank agrees to allow an Affiliate to access a Service under this Master Agreement, the Affiliate and Client must execute and deliver to Bank an addendum to this Master Agreement or other appropriate documentation required by Bank. Any such Affiliate using Services becomes a party to this Master Agreement, the relevant Service Selection Form and Service Documentation on a joint-and-several basis as Client
15. Other Provisions. (a) This Master Agreement and the Service Documentation constituting a part of this Master Agreement together with the Account Agreement constitute the entire agreement
between Client and Bank with respect to the Services and supersedes and replaces any previously made proposals,
representations, warranties or agreements, express or
implied, either oral or in writing.
(b) Client may not assign this Master Agreement or any of rights hereunder without Bank prior written
consent. Bank may not assign this Master Agreement
without prior written consent, except that Bank
may assign this Master Agreement, in whole or in part,
without such consent to any of Bank Affiliates or in
connection with the merger, consolidation, reorganization or acquisition of substantially all the assets of Bank. Any purported assignment of this Master Agreement by Client without Bank written consent is void.
(c)
remedy under this Master Agreement will operate as a
waiver of such right or remedy; and no single or partial exercise by a party of any right or remedy under this
Master Agreement will preclude any additional or further exercise of such right or remedy or the exercise of any other right.
(d) If a provision of this Master Agreement is held to be invalid, illegal, or unenforceable, the validity, legality, or enforceability of the other provisions of this Master
Agreement will not be affected or impaired by such
holding.
(e) This Master Agreement is binding upon and will inure to the benefit of the parties and their respective successors and permitted assigns. Except as explicitly provided
herein, this Master Agreement is not for the benefit of any other person and no other person shall have any right
against Client or Bank hereunder.
(f) Where appropriate, terms defined in this Master
Agreement in the singular shall be deemed to include the #17..
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plural and those defined in the plural shall be deemed to include the singular.
(g) This Master Agreement may be executed in multiple
counterparts with the same effect as if Client and Bank had executed the same document, and all counterparts
must be construed together as one instrument. Delivery
of an executed counterpart by facsimile or other electronic means is effective as delivery of a manually signed
counterpart.
(h) This Master Agreement is governed by and must be
construed in accordance with the laws of the State of
Illinois, including the Uniform Commercial Code as in
UCC").
The parties acknowledge that certain provisions of the
UCC contain provisions which by the express terms of the UCC may not be varied by agreement of the parties (a "Non-variable Obligation"). To the extent that any provision of this Master Agreement purports to vary such Non-variable Obligation, the parties acknowledge that
their respective rights and obligations under this Master Agreement are subject to the Non-variable Obligation.
16. Claims Subject to Arbitration. Bank and Client agree to arbitrate all disputes or claims between them arising out of or relating in any way to the Services, this Master Agreement, any applicable Service Descriptions, any other agreement related to the Services, or any transactions arising hereunder or thereunder, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory. This arbitration provision is intended to be broadly interpreted and to cover, without limitation, any claims that arose before the effective date of this Master Agreement or any prior services agreement (including, but not limited to, claims relating to advertising, promotions, or disclosures) and any claims that may arise after the termination of this Master Agreement. This arbitration provision will survive the
termination of the Services and/or this Master Agreement.
This Master Agreement evidences a transaction in interstate commerce, and thus the Federal Arbitration Act, 9 U.S.C. § 1 et. seq., governs the interpretation and enforcement of this provision. An American Arbitration Association AAA
arbitrator will decide the substance of all Claims in accordance with all Applicable Law, including recognized principles of equity and statutes of limitations, and will honor all claims of privilege recognized by law.
Unless both Client and Bank agree otherwise, each party must bring all related or similar Claims in a single arbitration proceeding. If Client or Bank later initiates a subsequent arbitration asserting Claims that are related or similar to ones that were raised by such party in an earlier-filed arbitration, the AAA or the arbitrator will either: (i) consolidate the subsequent arbitration with the earlier proceeding if it is ongoing or (ii) dismiss the subsequent arbitration if it raises Claims that would be barred by Applicable Law if brought in court.
(a) Notice of Dispute and Arbitration Procedures. A party who intends to pursue a Claim must first send to the other a letter describing the Claim and containing the information Notice of Dispute . Any Notice of
Dispute sent to Bank should be addressed to:
BMO Bank N.A.
Documentation Analysis and Control
320 South Canal Street, Floor 14W
Chicago, IL 60606
Any Notice of Dispute sent to Client by Bank will be sent to the address in Bank records that is associated with
Account at the time the Notice of Dispute is sent.
The Notice of Dispute must (a) describe the nature and
basis of the Claim; (b) set forth the specific relief sought; (c) set forth the name and address of the claimant; and (d) include the Services and/or the provision of the
applicable agreement to which the Claim relates. If Bank and Client do not reach an agreement to resolve the
Claim described in the Notice of Dispute within forty-five (45) days after the Notice of Dispute is received, Client or Bank may commence an arbitration proceeding with the
AAA. If Client or Bank attempts to commence arbitration proceedings before providing the requisite Notice of
Dispute, the other party may inform the AAA of this
agreement and direct it to refrain from commencing
administration of arbitration proceedings until the
requisite time period for notice has passed. Neither Client nor Bank will disclose to the arbitrator the existence, amount, or terms of any settlement offers made by either party until after the arbitrator issues a final award
resolving the Claim.
Dispute Resolution Procedures, as amended from time to
AAA Rules
and will be administered by the AAA.
The arbitrator is bound by the terms of this Master
Agreement. All issues are for the arbitrator to decide, except those issues relating to the arbitrability of Claims or the scope, and enforceability of this arbitration
provision, including the interpretation of the prohibition of class and representative actions and non-individualized relief, are for the court to decide. The right to a hearing will be determined by the AAA Rules. Any in-person
arbitration hearing will take place in Chicago, Illinois.
Regardless of the manner in which the arbitration is
conducted, the arbitrator, upon the request of either party made prior to the closing of the hearing (or, if there is no oral hearing, prior to or along with submission of final documents to the AAA), will issue a reasoned written
decision sufficient to explain the essential findings and conclusions on which the award, if any, is based. Unless otherwise agreed by Client and Bank, any award will be
rendered by the arbitrator not later than fourteen (14) days from the date of the closing of the hearing or, if there is no final statements and proofs to the arbitrator in accordance with the AAA Rules.
(b) Prohibition of Class and Representative Actions and NonIndividualized Relief. The arbitrator may award injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief necessitated claim; any injunctive relief must
be individualized in nature and cannot affect individuals other than the claimant. CLIENT AND BANK AGREE
THAT EACH MAY BRING CLAIMS AGAINST THE
OTHER ONLY IN OR INDIVIDUAL
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CAPACITY AND NOT AS A PLAINTIFF OR CLASS
MEMBER IN ANY PURPORTED CLASS OR
REPRESENTATIVE PROCEEDING, OR AS A PRIVATE
ATTORNEY GENERAL OR ON BEHALF OF THE
GENERAL PUBLIC. Further, unless both Client and Bank
agree otherwise, the arbitrator may not consolidate more claims and may not otherwise preside
over any form of a representative or class proceeding. If a court decides that any part of this arbitration provision (other than the prohibition of class or representative
actions and/or consolidation) is invalid or unenforceable, the other parts of this arbitration provision will still apply. prohibition of class or representative actions and/or
consolidation is invalid or unenforceable, then the entirety of this arbitration provision will be null and void.
(c) Access to Government Agencies. This arbitration
provision does not preclude Client from bringing issues to the attention of federal, state, or local agencies. Such agencies can, if the law allows, seek relief against Bank on behalf.
(d) Other Remedies. This arbitration provision and the
exercise of any of the rights Client and Bank have under this provision will not prohibit Client or Bank from
exercising any lawful rights either Client or Bank have to use other remedies available to preserve, foreclose or
obtain possession of real or personal property or exercise self-help remedies, including set-off rights as described in this Master Agreement.
[Remainder of page intentionally blank]
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By signing below, Client and Bank agree to the terms and conditions set forth in this Treasury Services Master Agreement, effective as of the date set forth in the space provided under Bank signature below. * Provide second signature if required by Account Resolutions or other authorizing documents accepted by Bank.
X _________________________________ X ______________________________ By: By:
Title: Title:
Tax Identification Number:
BMO BANK N.A.
X _________________________________ Title: Authorized Individual Dated________________________, ______
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SERVICE SELECTION FORM
This Service Selection Form Service Selection Form Treasury Services Master Agreement (as amended from Master Agreement Client and Bank . Capitalized terms used but not defined in this Service Selection Form have the meanings given in the Master Agreement.
Service Selections.
Client hereby elects to receive and requests from Bank the Services identified below in this Service Selection Form. Bank will provide to Client the Service(s) selected by Client upon Bank acceptance and approval of this Service Selection Form and the completion of any required setup process.
Representations and Warranties.
In addition to the terms and conditions included in the Master Agreement:
(a) Client represents and warrants to Bank that Client has received and read the Service Documentation for the Services Client selects and Client agrees to be bound by all terms, conditions and procedures included in the Master Agreement, this Service Selection Form, and all applicable Service Documentation. (b) The person executing this Service Selection Form on behalf certifies to Bank that he or she is an Authorized Individual, and/or is otherwise authorized to act on behalf, as provided in authorizing documents, with full power and authority to execute this Service Selection Form on behalf.
Designated Personnel.
Client acknowledges and agrees that when Client specifies to Bank a person as a Corporate Administrator, Designated Contact, or otherwise, that person has the requisite authority to perform the duties of the position as described in the Master Agreement and/or the relevant Service Documentation on behalf.
Changes.
If Client wishes to change any of the features or service options for a Service already selected, including changing designated personnel for a particular Service, Client may do so by having an Authorized Individual complete and execute a setup form provided by Bank, or some other form acceptable to Bank. If Client chooses to communicate a change to Bank by any other means, Bank is entitled (but not obligated) to rely on the change communicated to Bank if Bank in good faith believe it was communicated to Bank by someone authorized to do so on behalf.
Additional Services.
If Client wishes to add a Service, Client must complete a new Service Selection Form for the additional Service and any other setup documentation Bank may require.
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SERVICES SELECTED:
By signing below, Client selects the Services indicated above and certifies that Client has received, read and agree to the terms and conditions of the Service Documentation for the selected Services:
X
* Provide second signature if required by Account
Resolutions or other authorizing documents accepted by
Bank.
X
Name:
Title:
Name:
Title:
Account Validation Service Foreign Exchange Service
ACH Fraud Control Service Liquidity Portal Service
ACH Origination Service Loan Pay and Drawdown Service
ACH Third Party Servicer/Sender Lockbox Distributed Capture Service Autoconnect Service Multicurrency Deposit Account Service BMO Sync National Retail Lockbox Service
Check Debit Block Service National Wholesale Lockbox Service Check Imaging Service Online Banking for Business Service Cash Vault Service Online Billpay Consolidator Service
Comprehensive Payables/EDI Origination Service Online Billpay Service Comprehensive Payables Service (One or More Pay
Types)
Payments with Zelle Service
Comprehensive Receivables/EDI Collections Service Positive Pay Service Controlled Disbursement Service Real Time Payment Services Convenience Pay Service Regional Lockbox Service (Basic Wholesale, Wholesale, Hybrid and Retail Lockbox)
Corporate Image Cash Letter Service Remote Deposit Service Commercial Sweep to Loan Service Reverse Positive Pay Service Commercial Sweep to Loan and Mutual Fund
Service
Safekeeping Service
Commercial Sweep to Mutual Fund Service Sweep to Corporate Money Market Correspondent Image Cash Letter Service Tax Payment Service DirectBiller / DirectPay Manager Service V-PAYO Service File Transfer Facility Service Wire Transfer Service
BMO BANK N.A.
X
Its: Authorized Individual
Accepted on________________________, ______
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This Commercial Account Agreement (the “Agreement”) applies to each commercial deposit account established by you with BMO Bank N.A. or BMO Harris Central N.A. previously, at this time, or in the future, except for deposit accounts governed by the Deposit Account Agreement for Personal and Business Accounts. In this Agreement, the terms “you” and “your” refer to the owner(s) of an applicable commercial deposit account (the “Account”) and to authorized representatives as appropriate. The terms “us,” “we,” and “our” refer to BMO Bank N.A. or BMO Harris Central N.A., as applicable. This Agreement replaces any prior agreement between you and us regarding the Account. By signing a signature card, signing corporate account resolutions, or using the Account after the receipt of this Agreement, you accept and agree to all terms and conditions in this Agreement as may be modified by us from time to time. This Agreement incorporates the Funds Availability Policy attached hereto. The Account may be used for business purposes only and not for personal, family, or household purposes of any kind.
1. Authorization Forms
We require separate account authorization forms which designate the person or persons authorized to access the Account and conduct banking business with us and the limitations, if any, on their authority. We will honor such authorization according to its terms until we receive properly authorized written notice that the existing authorization is changed or terminated and we have a reasonable opportunity to act on such notice. We will not be responsible for any losses if you fail to timely and properly notify us of changes in authorization or authorized individuals. You must also promptly notify us in writing of any change in the name of your company or your address.
If you allow Items to be written and presented before we receive properly completed authorization forms, we may either refuse to pay the Items (even though there are funds in the Account) or elect to pay the Items, in which event you bear sole responsibility for such Items. Regardless of our election, we will not be liable to you with respect to such Items or our handling of the Items.
2. TIN
You must provide us with your Taxpayer Identification Number (“TIN”), certify its authenticity, and provide us with other requested identification information before the Account is opened. If we have not received your certified TIN and the other requested information, we may refuse to accept your initial deposit, pay interest on your balances, or permit withdrawals or transfers, and may close the Account. Any interest paid prior to receipt of your certified TIN is subject to back-up withholding under IRS regulations.
3. USA Patriot Act
To help the government fight the funding of terrorism and money laundering activities, Federal law requires all financial institutions to obtain, verify, and record information that identifies each person or business entity which opens an Account.
When you open an Account with us, you must provide us with your name, principal and local (if different) address, date of establishment, employer identification number, and other information. You must also provide us with your organizational documents when requested. We may also seek identification information about individuals who will have authority over the Account, initially and in the future. You agree that we may seek information about you from third parties to confirm CommercialAccountAgreement #17..
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