CITY OF TURLOCK
Geer Road – Golden State Blvd to Taylor Rd
GEER ROAD (GOLDEN STATE BLVD TO TAYLOR RD)
PAVEMENT REHABILITATION PROJECT
CITY OF TURLOCK Page 2 of 5
Task 2.2. Preliminary Environmental Study (PES)
FCS will complete a PES form to evaluate the project. The PES will be provided to the City for review and submittal to the Caltrans District 10 Office of Local Assistance. The information in the PES form will be based on preliminary research and engineering, and exhibits will be prepared to support the information presented in the PES, including FEMA mapping, environmental justice data, visual impact assessment form, CNDDB mapping, etc.
Task 2.3. Attend Field Review Meeting
Once the City submits the PES form to Caltrans, FCS will coordinate with the assigned planner to set a date for a field review meeting. As part of the field review meeting, Caltrans will identify any additional technical studies that may be required to com plete NEPA processing. Possible additional technical analysis may include but is not limited to additional field surveys to confirm absence of cultural or biological resources, completion of an air quality conformity determination, or additional noise analysis. Following an approved PES, FCS may provide a revised scope of services to provide the technical studies requested by Caltrans to support NEPA documentation.
Task 2.4. Prepare Noise Technical Study
FCS will perform an evaluation of permanent and construction -related noise impacts. Code of Federal Regulations (CFR) 772 provides procedures for preparing operational and construction noise studies and evaluating noise abatement considered for federal and federal -aid highway projects. This scope assumes that the project would not substantially alter horizontally, or vertically, existing roadway alignments and would therefor e qualify as a Type III project, therefore requiring the preparation of a technical construction noise impact analysis.
As part of the analysis, the general characteristics of sound and the categories of audible noise will be described. The regulatory framework related to noise, including applicable federal, State (including Caltrans), and City plans, policies, and standard s, will be summarized. Nearby existing and future noise - sensitive receptors and noise sources will be identified and discussed, such as surrounding residential land uses.
Construction would involve the short -term operation of heavy equipment in the vicinity of sensitive receptor land uses. EPA-recommended noise emission levels will be used for the construction equipment.
The construction noise impact will be evaluated utili zing FHWA’s Roadway Construction Noise Model (RCNM) for predicting potential construction noise levels. Noise analysis requirements and thresholds of significance will be based on the sensitivity of the project area and Caltrans construction noise impact thresholds. FCS will also analyze potential vibration impacts from construction activities associated with development that could occur with implementation of the proposed project. FCS will utilize the methodology and thresholds contained in the Caltrans Tr ansportation and Construction Vibration Guidance Manual.
Feasible and applicable abatement will be identified for any construction noise impacts that are potentially significant, and the analysis will include an evaluation of significance after the application of abatement measures.
CITY OF TURLOCK
Geer Road – Golden State Blvd to Taylor Rd
GEER ROAD (GOLDEN STATE BLVD TO TAYLOR RD)
PAVEMENT REHABILITATION PROJECT
CITY OF TURLOCK Page 3 of 5
This scope assumes one round of comment from the City and from Caltrans on the technical memorandum. If additional technical memorandums are request, they would be performed under a separate scope and fee.
Task 2 Deliverables:
• Project Description
• PES Form
• Construction Noise Impact Assessment Technical Memorandum TASK 3. UTILITIES
Task 3.1. Final Design Utility Coordination
In order to obtain a utility certification from Caltrans Local Assistance, additional coordination will be required with utility owners. This additional coordination is needed to obtain additional information on ownership, installation date of facilities, and declared rights of each utility. This information will used to complete the LAPM forms as required in the following tasks.
Task 3.2. Prepare Utility and Right of Way Certification Documentation (Package 1 - Geer Road Golden State Blvd to Hawkeye Ave)
Mark Thomas will prepare a Report of Investigation and Notice to Owner for each utility company with facilities in the project limits following Chapter 14 of the Caltrans L ocal Assistance Procedures Manual .
Mark Thomas will coordinate with Caltrans District Utility Coordinator for review and approval prior to sending documents to the utility owners . Mark Thomas will also complete the utility portion of the right of way certification. These documents will be used to submit and receive an approved Right of Way Certification.
Task 3.2.1. Utility Agreements
If any utility company claims prior rights, the City may be responsible for relocation costs. A utility agreement will be required between the utility owner and the City. Mark Thomas will prepare the utility agreement and accompanying documents if required . This task assumes only 1 utility agreement will be prepared.
Task 3.3. Prepare Utility and Right of Way Certification Documentation (Package 2 - Hawkeye Ave to Monte Vista Ave)
Mark Thomas will prepare a Report of Investigation and Notice to Owner for each utility company with facilities in the project limits following Chapter 14 of the Caltrans L ocal Assistance Procedures Manual .
Mark Thomas will coordinate with Caltrans District Utility Coordinator for review and approval prior to sending documents to the utility owners. Mark Thomas will also complete the utility portion of the right of way certification. These documents will be used to submit and receive an approved Right of Way Certification.
CITY OF TURLOCK
Geer Road – Golden State Blvd to Taylor Rd
GEER ROAD (GOLDEN STATE BLVD TO TAYLOR RD)
PAVEMENT REHABILITATION PROJECT
CITY OF TURLOCK Page 4 of 5
Task 3.3.1. Utility Agreements
If any utility company claims prior rights, the City may be responsible for relocation costs. A utility agreement will be required between the utility owner and the City. Mark Thomas will prepare the utility agreement and accompanying documents if required . This task assumes only 1 utility agreement will be prepared.
Task 3.4. Prepare Utility and Right of Way Certification Documentation (Package 3 - Monte Vista Ave to Taylor Road)
Mark Thomas will prepare a Report of Investigation and Notice to Owner for each utility company with facilities in the project limits following Chapter 14 of the Caltrans Local Assistance Procedures Manual .
Mark Thomas will coordinate with Caltrans District Utility Coordinator for review and approval prior to sending documents to the utility owners. Mark Thomas will also complete the utility portion of the right of way certification. These documents will be used to submit and receive an approved Right of Way Certification.
Task 3.4.1. Utility Agreements
If any utility company claims prior rights, the City may be responsible for relocation costs. A utility agreement will be required between the utility owner and the City. Mark Thomas will prepare the utility agreement and accompanying documents if required . This task assumes only 1 utility agreement will be prepared.
Task 3 Deliverables:
• Report of Investigation (ROI) (Packages 1, 2, and 3)
• Notice to Owner (NTO) (Packages 1, 2, and 3)
• Utility Agreements (Packages 1, 2, and 3)
• Exhibit 13-A Right of Way Certification (Packages 1,2, and 3) TASK 4. REQUEST FOR AUTHORIZATION TO CONSTRUCT (CON RFA) Task 4.1. Prepare Required CON RFA Documentation (Package 1) In order for projects to qualify for federal reimbursement, the City must submit a Request For Authorization to Construct (CON RFA) to the local assistance engineer at Caltrans. In order to obtain approval for CON RFA, appropriate documentation must be provided to show compliance with federal requirements. These documents include Right of Way Certification, PS&E Checklist, DBE Goal Determination, and other federal language required to be included in the bid package. Mark Thomas’ role is to coordinate directly with Caltrans on behalf of the City. Mark Thomas will complete the required documentation and coordination for approval of the CON RFA. The City will be responsi ble for providing signatures on final versions of all documentation.
CITY OF TURLOCK
Geer Road – Golden State Blvd to Taylor Rd
GEER ROAD (GOLDEN STATE BLVD TO TAYLOR RD)
PAVEMENT REHABILITATION PROJECT
CITY OF TURLOCK Page 5 of 5
Task 4.2. Prepare Required CON RFA Documentation (Package 2) In order for projects to qualify for federal reimbursement, the City must submit a Request For Authorization to Construct (CON RFA) to the local assistance engineer at Caltrans. In order to obtain approval for CON RFA, appropriate documentation must be provided to show compliance with federal requirements. These documents include Right of Way Certification, PS&E Checklist, DBE Goal Determination, and other federal language required to be included in the bid package. Mark Thomas’ role is to coordinate directly with Caltrans on behalf of the City. Mark Thomas will complete the required documentation and coordination for approval of the CON RFA. The City will be responsible for providing signatures on final versions of all documentation.
Task 4.3. Prepare Required CON RFA Documentation (Package 3) In order for projects to qualify for federal reimbursement, the City must submit a Request For Authorization to Construct (CON RFA) to the local assistance engineer at Caltrans. In order to obtain approval for CON RFA, appropriate documentation must be provided to show compliance with federal requirements. These documents i nclude PS&E Checklist, DBE Goal Determination, and other federal language required to be included in the bid package. Mark Thomas ’ role is to coordinate directly with Caltrans on behalf of the City. Mark Thomas will complete the required documentation and coordination for approval of the CON RFA. The City will be responsible for providing signatures on final versions of all documentation.
Task 4 Deliverables:
• PS&E Checklist along with supporting documentation (Packages 1, 2, and 3) • Approved E-76 (From Caltrans) (Packages 1, 2, and 3)
ASSUMPTIONS
This scope of work has been prepared using the following assumptions:
• Right of way acquisitions are not assumed to be needed as part of this scope of work. If required, an amendment will be needed to supplement the budget for this additional effort and to be added to the right of way certification documentation.
Project Manager*J. HernandezProject EngineerE. LappenProject AccountantSr. Project CoordinatorFCS $237 $171 $131 $150
1.0 Project Management
1.1 Project Management 40 4 16 60 12,417.64 0.00 12,417.64 Subtotal Phase 1 40 0 4 16 60 12,417.64 0.00 12,417.64
2.0 Environmental
2.1 Project Initation and Project Description 4 24 28 5,053.11 3,502.98 8,556.09
2.2 Preliminary Environmental Study (PES) 8 8 1,897.68 12,290.00 14,187.68
2.3 Attend Field Review Meeting 0 0.00 1,320.00 1,320.00
2.4 Prepare Noise Technical Study 8 8 1,897.68 17,250.00 19,147.68 Subtotal Phase 2 20 24 0 0 44 8,848.47 34,362.98 43,211.45
3.0 Utilities
3.1 Final Design Utility Coordination 16 40 56 10,635.81 0.00 10,635.81
3.2 Prepare Utility and Right of Way Certification Documentation (Package 1) 8 32 40 7,370.04 0.00 7,370.04
3.2.1 Utility Agreements (Package 1) 2 8 10 1,842.51 0.00 1,842.51
3.3 Prepare Utility and Right of Way Certification Documentation (Package 2) 8 32 40 7,370.04 0.00 7,370.04
3.3.1 Utility Agreements (Package 2) 2 8 10 1,842.51 0.00 1,842.51
3.4 Prepare Utility and Right of Way Certification Documentation (Package 3) 8 32 40 7,370.04 0.00 7,370.04
3.4.1 Utility Agreements (Package 3) 2 8 10 1,842.51 0.00 1,842.51 Subtotal Phase 3 46 160 0 0 206 38,273.48 0.00 38,273.48
4.0 Request for Authorization to Construct (CON RFA)
4.1 Prepare Required CON RFA Documentation (Package 1) 8 40 48 8,738.14 0.00 8,738.14
4.2 Prepare Required CON RFA Documentation (Package 2) 8 40 48 8,738.14 0.00 8,738.14
4.3 Prepare Required CON RFA Documentation (Package 3) 8 40 48 8,738.14 0.00 8,738.14 Subtotal Phase 4 24 120 0 0 144 26,214.41 0.00 26,214.41 TOTAL HOURS 130 304 4 16 454 0.00
OTHER DIRECT COSTS 0.00 0.00 0.00
TOTAL COST $30,837 $51,987 $524 $2,405 85,753.99 34,362.98 120,116.97
TOTAL COST
COST PROPOSAL FOR PROJECT SCOPE - : Geer Road - Federalization Total MT
Cost
Mark Thomas
Total
Hours
SubKEY STAFF
1/7/2025
Cost Proposal 1
Cost Plus Fixed Fee or Lump Sum
Note: Mark-ups are Not Allowed
Consultant: Mark Thomas & Company, Inc.
Project No. Contract No. Date 1/7/2025
DIRECT LABOR
Range Hours Average
Hourly Rate Total
$72 - $100 130.0 86.00$ 11,180.00$
$49 - $75 304.0 62.00$ 18,848.00$
$168 - $205 0.0 186.50$ - $
$115 - $150 0.0 132.50$ - $
$111 - $130 0.0 120.50$ - $
$111 - $130 0.0 120.50$ - $
$84 - $120 0.0 102.00 $ - $
$81 - $110 0.0 95.50 $ - $
$72 - $100 0.0 86.00 $ - $
$70 - $90 0.0 80.00 $ - $
$60 - $90 0.0 75.00 $ - $
$62 - $75 0.0 68.50 $ - $
$49 - $75 0.0 62.00 $ - $
$49 - $80 0.0 64.50 $ - $
$50 - $70 0.0 60.00 $ - $
$40 - $65 0.0 52.50 $ - $
$33 - $50 0.0 41.50 $ - $
$30 - $45 0.0 37.50 $ - $
$17 - $30 0.0 23.50 $ - $
$90 - $105 0.0 97.50 $ - $
$86 - $100 0.0 93.00 $ - $
$63 - $90 0.0 76.50 $ - $
$57 - $70 0.0 63.50 $ - $
$42 - $55 0.0 48.50 $ - $
$37 - $50 0.0 43.50 $ - $
$29 - $35 0.0 32.00 $ - $
$23 - $30 0.0 26.50 $ - $
$96 - $165 0.0 130.50 $ - $
$84 - $100 0.0 92.00 $ - $
$72 - $95 0.0 83.50 $ - $
$67 - $95 0.0 81.00 $ - $
$58 - $80 0.0 69.00 $ - $
$57 - $75 0.0 66.00 $ - $
$51 - $60 0.0 55.50 $ - $
$42 - $55 0.0 48.50 $ - $
$39 - $50 0.0 44.50 $ - $
$48 - $90 0.0 69.00 $ - $
$41 - $70 0.0 55.50 $ - $
$39 - $60 0.0 49.50 $ - $
$43 - $50 0.0 46.50 $ - $
$42 - $60 0.0 51.00 $ - $
$35 - $55 0.0 45.00 $ - $
$19 - $40 0.0 29.50 $ - $
$84 - $100 0.0 92.00 $ - $
$58 - $70 0.0 64.00 $ - $
$53 - $65 0.0 59.00 $ - $
$51 - $60 0.0 55.50 $ - $
$38 - $55 0.0 46.50 $ - $
$110 - $130 0.0 120.00$ - $
$168 - $195 0.0 181.50$ - $
Chainperson (OE3)
Apprentice (OE3)
2-Person Crew (OE3)
3-Person Crew (OE3)
Survey Technician III
Survey Technician II
Survey Technician I
SUE Program Manager
Chief of Party (OE3)
Instrumentperson (OE3)
Asst Surveyor II
Asst Surveyor I
Survey Specialist III
Survey Specialist II
Survey Specialist I
Lead Survey Technician
Survey Manager II
Survey Manager I
Project Surveyor III
Project Surveyor II
Project Surveyor I
Asst Surveyor III
Sr. Landscape Architect
Landscape Architect
Landscape Designer II
Landscape Designer I
Landscape Intern
Survey Division Manager
Design Engineer I
Technician
Intern
LAUD Division Manager
Sr. LAUD Project Manager
LAUD Project Manager
Sr. Project Engineer
Sr. Technical Engineer
Project Engineer
Civil Engineering Designer
Sr. Technician
Design Engineer II
Engineering Manager
Design Manager
Sr. Project Manager
Sr. Technical Lead
Project Manager
Technical Lead
Principal
Classification/Title
Geer Road - Federalization
Sr. Engineering Manager
Project Manager *J. Hernandez
Project Engineer E. Lappen
Name
Prime Consultant
Subconsultant
2nd Tier Subconsultant
$55 - $65 0.0 60.00 $ - $
$139 - $165 0.0 152.00$ - $
$101 - $120 0.0 110.50$ - $
$94 - $110 0.0 102.00 $ - $
$106 - $125 0.0 115.50$ - $
$48 - $70 0.0 59.00 $ - $
$41 - $50 0.0 45.50 $ - $
$30 - $40 0.0 35.00 $ - $
$103 - $125 0.0 114.00$ - $
$70 - $85 0.0 77.50 $ - $
$39 - $75 0.0 57.00 $ - $
$65 - $75 0.0 70.00 $ - $
$35 - $60 4.0 47.50 $ 190.00$
$44 - $65 16.0 54.50 $ 872.00$
$37 - $55 0.0 46.00 $ - $
$40 - $55 0.0 47.50 $ - $
$28 - $40 0.0 34.00 $ - $
$37 - $55 0.0 46.00 $ - $
$36 - $45 0.0 40.50 $ - $
$57 - $80 0.0 68.50 $ - $
$43 - $65 0.0 54.00 $ - $
$34 - $45 0.0 39.50 $ - $
LABOR COSTS
a) Subtotal Direct Labor Costs 31,090.00 $
b) Anticipated Salary Increases (see page 2 for calculation) (0.00) $ c) TOTAL DIRECT LABOR COSTS [(a) + (b)] 31,090.00$
INDIRECT COSTS
d) Fringe Benefits (Rate: 92.57%) e) Total Fringe Benefits [(c) x (d)] 28,780.01$ f) Overhead (Rate: 58.18%) g) Overhead [(c) x (f)] 18,088.16 $ h) General and Administrative (Rate: 0.00%) i) Gen & Admin [(c) x (h)] - $ j) TOTAL INDIRECT COSTS [(e) + (g) + (i)] 46,868.18$
FIXED FEE k) TOTAL FIXED FEE [[(c) + (j)] x fixed fee 10.00 %] 7,795.82$ l) CONSULTANT'S OTHER DIRECT COSTS (ODC) - ITEMIZE (Add additional pages if necessary Quantity Unit Unit Cost
0 miles $0.67 - $
0 miles $0.67 - $
0 EA $0.05 - $
0 sheets $1.00 - $
0 sheets $0.35 - $
0 sheets $0.05 - $
0 LS $500.00 - $
0 EA $15.00 - $
0 EA $5,000.00 - $
0 LS $1,000.00 - $
0 LS $1,000.00 - $
0 LS $3,000.00 - $
0 Day $260.00 - $
0 Day $8,000.00 - $
l) TOTAL OTHER DIRECT COSTS -$
m) SUBCONSULTANTS' COSTS (add additional pages if necessary) Subconsultant 1: FCS 34,362.98 $
m) TOTAL SUBCONSULTANTS' COSTS34,362.98$
n) TOTAL OTHER DIRECT COSTS INCLUDING SUBCONSULTANTS [(l) + (m)] 34,362.98$ TOTAL COST [(c) + (j) + (k) + (n)] 120,116.97$
NOTES:
Graphic Designer
Sr. Project Assistant
Project Assistant
Sr. Technical Writer
Technical Writer
Sr. Graphic Manager
Sr. Graphic Designer
Sr. Funding Specialist
Funding Specialist
Project Accountant Manager
Project Accountant
Sr. Project Coordinator
Project Coordinator
Sr. Planner
Planner II
Planner I
Funding Manager
Division Manager - CM
Area Manager - CM
Project Manager - CM
Sr. Resident Engineer
Utility Locator (North)
2. The cost proposal format shall not be amended. Indirect cost rates shall be updated on an annual basis in accordance with the consultant’s annual accounting period and established by a cognizant agency or accepted by Caltrans.
3. Anticipated salary increases calculation (page 2) must accompany.
Per Diem
MTLS Mobile Scanner
Misc. Surveys (Maps, PTR's etc.)
Safety Plan
Traffic Control
Description of Item
Mileage
Copies
1. Key personnel must be marked with an asterisk (*) and employees that are subject to prevailing wage requirements must be marked with two asterisks (**). All costs must comply with the Federal cost principles. Subconsultants will provide their own cost proposals Mileage - Survey
Reproductions - full size
Reproductions - half size
Structure/Quantity Calculations
Misc. Costs
Overnight Mail/Mail
Potholing
Cost Proposal 1
Cost Plus Fixed Fee or Lump Sum
1. Calculate Average Hourly Rate for 1st year of the contract (Direct Labor Subtotal divided by total hours) Direct Labor Subtotal
per Cost Proposal
Total Hours per
Cost Proposal Avg Hourly Rate Year Contract Duration
$31,090.00 / 454.0 = $68.48 Year 1 Avg Hourly Rates
2. Calculate hourly rate for all years (Increase the Average Hourly Rate for a year by proposed escalation %) Average Hourly Rate Escalation
Year 1 $68.48 + 0.00% = $68.48 Year 2 Avg Hourly Rate
Year 2 $68.48 + 0.00% = $68.48 Year 3 Avg Hourly Rate
Year 3 $68.48 + 0.00% = $68.48 Year 4 Avg Hourly Rate
Year 4 $68.48 + 0.00% = $68.48 Year 5 Avg Hourly Rate
Year 5 $68.48 + 0.00% = $68.48 Year 6 Avg Hourly Rate
Year 6 $68.48 + 0.00% = $68.48 Year 7 Avg Hourly Rate
3. Calculate estimated hours per year (Multiply estimate % each year by total hours) Estimated %
Completed Each Year
Total hours per
Cost Proposal
Total Hours per
Year
Year 1 100% x 454.0 = 454.0 Estimated Hours Year 1
Year 2 0% x 454.0 = 0.0 Estimated Hours Year 2
Year 3 0% x 454.0 = 0.0 Estimated Hours Year 3
Year 4 0% x 454.0 = 0.0 Estimated Hours Year 4
Year 5 0% x 454.0 = 0.0 Estimated Hours Year 5
Year 6 0% x 454.0 = 0.0 Estimated Hours Year 6
Total 100% Total 454.0
4. Calculate Total Costs including Escalation (Multiply Average Hourly Rate by the number of hours) Avg Hourly Rate
(calculated above)
Estimated hours
(calculated above) Cost per Year
Year 1 $68.48 x 454.0 = $31,090.00 Estimated Cost Year 1 Year 2 $68.48 x 0.0 = $0.00 Estimated Cost Year 2
Year 3 $68.48 x 0.0 = $0.00 Estimated Cost Year 3
Year 4 $68.48 x 0.0 = $0.00 Estimated Cost Year 4
Year 5 $68.48 x 0.0 = $0.00 Estimated Cost Year 5
Year 6 $68.48 x 0.0 = $0.00 Estimated Cost Year 6
Total Direct Labor Cost with Escalation $31,090.00
Direct Labor Subtotal before Escalation $31,090.00
Estimated total of Direct Labor Salary Increase($0.00)Transfer to Page 1 NOTES:
4. Calculations for anticipated salary escalation must be provided.
CALCULATIONS FOR ANTICIPATED SALARY INCREASES
1. This is not the only way to estimate salary increases. Other methods will be accepted if they clearly indicate the % increase, the # of years of the contract, and a breakdown of the labor to be performed each year.
2. An estimation that is based on direct labor multiplied by salary increase % multiplied by the # of years is not acceptable. (i.e. $250,000 x 2% x 5 yrs = $25,000 is not an acceptable methodology)
3. This assumes that one year will be worked at the rate on the cost proposal before salary increases are granted.
Cost Proposal 1
Cost Plus Fixed Fee or Lump Sum
Certification of Direct Costs:
Prime Consultant or Subconsultant Certifying:
Name: R. Matt Brogan Title*: Vice President
Signature: Date of Certification (mm/dd/yyy): 01/07/2025 Email: [email protected] Phone Number: (916) 381-9100 List services the consultant is providing under the proposed contract:
Address: 701 University Avenue, Suite 200, Sacramento, CA 95825 *An individual executive or financial officer of the consultant’s or subconsultant’s organization at a level no lower than a Vice President or a Chief Financial Officer, or equivalent, who has authority to represent the financial information utilized to establish the cost proposal for the contract.
All costs must be applied consistently and fairly to all contracts. All documentation of compliance must be retained in the project files and be in compliance with applicable federal and state requirements.
Costs that are noncompliant with the federal and state requirements are not eligible for reimbursement.
Local governments are responsible for applying only cognizant agency approved or Caltrans accepted Indirect Cost Rate(s).
I, the undersigned, certify to the best of my knowledge and belief that all direct costs identified on the cost proposal(s) in this contract are actual, reasonable, allowable, and allocable to the contract in accordance with the contract terms and the following requirements:
1. Generally Accepted Accounting Principles (GAAP)
2. Terms and conditions of the contract
3. Title 23 United States Code Section 112 - Letting of Contracts
4. 48 Code of Federal Regulations Part 31 - Contract Cost Principles and Procedures
5. 23 Code of Federal Regulations Part 172 - Procurement, Management, and Administration of Engineering and Design Related Service
6. 48 Code of Federal Regulations Part 9904 - Cost Accounting Standards Board (when applicable)
EXHIBIT 10-H1
Cost Proposal
Prime Consultant Subconsultant 2nd Tier Subconsultant Consultant:
Project No. Contract No. Date
Range Hours Actual Hourly
Rate Total
70-100 20 80.00$ 1,600.00$
40-70 35 58.00$ 2,030.00$
60-90 5 69.71$ 348.55$
30-60 5 35.00$ 175.00$
80-110 100.00 $ - $
40-70 12 51.00 $ 612.00$
30-60 60 36.00 $ 2,160.00$
40-70 9 55.00 $ 495.00$
30-60 9 36.20 $ 325.80$
80-110 5 97.50 $ 487.50$
40-70 5 50.00 $ 250.00$
40-70 58.00 $ - $
40-70 29 41.00 $ 1,189.00$
30-60 33.50 $ - $
40-70 40.25 $ - $
20-50 31 25.00 $ 775.00$
30-60 34.00 $ - $
40-70 55.00 $ - $
LABOR COSTS
10,447.85$
-$
c) TOTAL DIRECT LABOR COSTS [(a) + (b)]10,447.85$
INDIRECT COSTS
34.00% ) e) Total Fringe Benefits [(c) x (d)] 3,552.27$
0.00% ) g) Overhead [(c) x (f)] - $
165% ) i) Gen & Admin [(c) x (h)] 17,238.95 $
j) TOTAL INDIRECT COSTS [(e) + (g) + (i)] 20,791.22$
FIXED FEE k) TOTAL FIXED FEE [(c) + (j)] x fixed fee:10% 3,123.91$ l) CONSULTANT'S OTHER DIRECT COSTS (ODC) - ITEMIZE (Add additional pages if necessary) Quantity Unit Unit Cost Total
Miles 0.67$ - $
Miles 0.67$ - $
-$
l) TOTAL OTHER DIRECT COSTS -$
m) SUBCONSULTANTS' COSTS (Add additional pages if necessary) m) TOTAL SUBCONSULTANTS' COSTS -$
n) TOTAL OTHER DIRECT COSTS INCLUDING SUBCONSULTANTS [(l) + (m)]-$ TOTAL COST [(c) + (j) + (k) + (n)] 34,362.98$
NOTES:
1. 2.
3. Senior Scientist I
FCS International, Inc. dba FirstCarbon Solutions
Note: Mark-ups are Not Allowed
DIRECT LABOR
Classification/Title Name
Philip Ault, MS, LEED APAssociate Director
ES Project Manager
Senior Biologist II
Biological Monitor
Senior Attorney
GIS Scientist II
Associate II
Senior Scientist I
Associate II
Cultural Resources Specialist
ES Project Manager
ES Analyst
Senior Managing Editor
Document Specialist
Director
Archeological Manager II
Air Quality Associate
a) Subtotal Direct Labor Costs
b) Anticipated Salary Increases (see page 2 for calculation) d) Fringe Benefits (Rate:
f) Overhead & G&A (Rate:
h) General & Admin (Rate:
Description of Item
The cost proposal format shall not be amended. Indirect cost rates shall be updated on an annual basis in accordance with the consultant's annual accounting period and established by a cognizant agency or accepted by Caltrans.
Anticipated salary increases calculation (page 2) must accompany.
Subconsultant 1:
Subconsultant 2:
Key personnel must be marked with an asterisk (*) and employees that are subject to prevailing wage requirements must be marked with two asterisks (**). All costs must comply with the Federal cost principles. Subconsultants will provide their own cost proposals.
ConsultantFCS International, Inc. dba FirstCarbon Solutions Project No. Contract No. Date
1. Calculate Average Hourly Rate for 1st year of the contract (Direct Labor Subtotal divided by total hours) Avg Hourly 5 Year Contract
Rate Duration
$ 10,447.85 = $ 46.43 Year 1 Avg Hourly Rate Avg Hourly Rate
Year 1 $ 46.43 + = $ 48.76 Year 1 Avg Hourly Rate Year 2 $ 48.76 + = $ 51.19 Year 2 Avg Hourly Rate Year 3 $ 51.19 + = $ 53.75 Year 3 Avg Hourly Rate Year 4 $ 53.75 + = $ 56.44 Year 4 Avg Hourly Rate Year 5 $ 56.44 + = $ 59.26 Year 5 Avg Hourly Rate Total Hours
per Year
Year 1 100.00% * = 225.0 Estimated Hours Year 1
Year 2 * = 0.0 Estimated Hours Year 2
Year 3 * = 0.0 Estimated Hours Year 3
Year 4 0.00% * = 0.0 Estimated Hours Year 4
Year 5 0.00% * = 0.0 Estimated Hours Year 5
Total 100% = 225.0
Year 1 $ 46.43 * = $ 10,447.85 Estimated Hours Year 1 Year 2 $ 48.76 * = $ - Estimated Hours Year 2 Year 3 $ 51.19 * = $ - Estimated Hours Year 3 Year 4 $ 53.75 * = $ - Estimated Hours Year 4 Year 5 $ 56.44 * = $ - Estimated Hours Year 5 = $ 10,447.85
= $ 10,447.85
= $ - Transfer to Page 1
NOTES:
1. 2.
3. 4.
I, the undersigned, certify to the best of my knowledge and belief that all direct costs identified on the cost proposal(s) in this contract are actual, reasonable, allowable, and allocable to the contract in accordance with the contract terms and the following requirements:
1. Generally Accepted Accounting Principles (GAAP)
2. Terms and conditions of the contract
CALCULATIONS FOR ANTICIPATED SALARY INCREASES
2. Calculate hourly rate for all years (Increase the Average Hourly Rate for a year by proposed escalation %) Proposed Escalation
5%
5%
Direct Labor Subtotal Total Hours
per Cost Proposal per Cost Proposal
225
Completed Each Year per Cost Proposal
225.0
225.0
225.0
225.0
5%
5%
3. Calculate estimated hours per year (Multiply estimate % each year by total hours) Estimated % Total Hours
5%
225
0 0
0 0
Total Direct Labor Cost with Escalation
225.0
Total
4. Calculate Total Costs including Escalation (Multiply Average Hourly Rate by the number of hours) Avg Hourly Rate Estimated hours Cost per Year(calculated above) (calculated above) Certification of Direct Costs:
Direct Labor Subtotal before Escalation
Estimated total of Direct Labor Salary Increase
This is not the only way to estimate salary increases. Other methods will be accepted if they clearly indicate the % increase, the # of years of the contract, and a breakdown of the labor to be performed each year.
An estimation that is based on direct labor multiplied by salary increase % multiplied by the # of years is not acceptable. (i.e. $250,000 x 2% x 5 yrs = $25,000 is not an acceptable methodology).
This assumes that one year will be worked at the rate on the cost proposal before salary increases are granted.
Calculations for anticipated salary escalation must be provided.
3. Title 23 United States Code Section 112 - Letting of Contracts
4. 48 Code of Federal Regulations Part 31 - Contract Cost Principles and Proceedures
5. 23 Code of Federal Regulations Part 172 - Procurement, Management and Administration of Engineering and Design Related Service
6. 48 Ccode of Federal Regulations Part 9904 - Cost Accounting Standards Board (when applicable) All costs must be applied consistently and fairly to all contracts. All documentation of compliance must be retained in the project files and be in compliance with applicable federal and state requirements. Costs that are noncompliant with the federal and state requirements are not eligible for reimbursement.
Local governments are responsible for applying only cognizant agency or Caltrans accepted Indirect Cost Rate(s).
Name: Title *:
Signature: Date of Certification: 7/11/2024
Email: Phone number: 559.930.6191 (cell)
Address:
List services the consultant is providing under the proposed contract:
Prime Consultant or Subconsultant Certifying:
* An individual executive or financial officer of the consultant's or subconsultant's organization at a level no lower than a Vice President or a Chief Financial Officer, or equivalent, who has authority to represent the financial information utilized to establish the cost proposal for the contract.
• CEQA/NEPA Documentation
• Technical Studies (Air Quality, Biological Resources, Cultural Resources, Noise) • Regulatory Permitting Services
Philip Ault, MS, LEED AP
7726 N. First Street, #413, Fresno, CA 93720
[email protected]
Associate Director
ID
Task Name Duration Start Finish Predecessors
1 NTP (Assumed) 0 days Mon 8/28/23Mon 8/28/23
2 Meetings 420 days Mon 9/4/23Mon 4/14/25
3 Kick-off 0 days Mon 9/4/23Mon 9/4/231FS+1 wk
4 Public Meeting #1 0 days Mon 5/13/24Mon 5/13/2415FS+4 wks 5 Public Meeting #2 0 days Mon 4/14/25Mon 4/14/2552FS+4 wks 6 Preliminary Engineering 165 days Tue 8/29/23Mon 4/15/24 16 Geotech 415 days Tue 9/12/23Mon 4/14/25
17 Prepare Permit 2 wks Tue 9/12/23Mon 9/25/237
18 City Approval 2 wks Tue 9/26/23Mon 10/9/2317
19 Field Work and Lab Analysis 6 wks Tue 10/10/23Mon 11/20/2318 20 Geotechnical Investigation Memo 8 wks Tue 11/21/23Mon 1/15/2419 21 City Review 1 wk Tue 1/16/24Mon 1/22/2420
22 Revise Geotechnical Investigation Memo 4 wks Tue 3/18/25Mon 4/14/2521,52 23 Final Geotechnical Investigation Memo 0 days Mon 4/14/25Mon 4/14/2522 24 Utility Coordination 490 days Tue 9/12/23Mon 7/28/25 25 Submit Utility "A" Letters 4 wks Tue 9/12/23Mon 10/9/237 26 Prepare Conflict Mapping 6 wks Tue 3/18/25Mon 4/28/2552 27 Utility "B" Letters 8 wks Tue 4/29/25Mon 6/23/2526,49 28 Prepare Relocation Plans 4 wks Tue 6/24/25Mon 7/21/2527 29 Utility "C" Letters 1 wk Tue 7/22/25Mon 7/28/2528
30 Utility Certification 0 wks Mon 7/28/25Mon 7/28/2529 31 Right of Way Certification 40 days Tue 7/29/25Mon 9/22/25 32 Prepare Right of Way Certification 2 wks Tue 7/29/25Mon 8/11/2530 33 Caltrans Review 4 wks Tue 8/12/25Mon 9/8/2532
34 Revisions 2 wks Tue 9/9/25 Mon 9/22/2533
35 Right of Way Certification 0 days Mon 9/22/25Mon 9/22/2534 36 Grant Applicaton 270 days Tue 6/11/24Mon 6/23/25
37 Prepare/Submit Grant Application(s) 8 wks Tue 6/11/24Mon 8/5/247,15FS+8 wks 38 Grant Application results 0 days Mon 10/28/24Mon 10/28/2437FS+3 mons 39 Amendment for Project Federalization 10 wks Tue 10/29/24Mon 1/6/2538 40 City Approves Task Order 2B 0 days Mon 1/6/25Mon 1/6/2539 41 Environmental Document 120 days Tue 1/7/25 Mon 6/23/25 42 Prepare PES Form 8 wks Tue 1/7/25 Mon 3/3/2540
43 Caltrans Review and Field Meeting 2 wks Tue 3/4/25 Mon 3/17/2542 44 Technical Study (Noise Memo Assumed) 8 wks Tue 3/18/25Mon 5/12/2543 45 Caltrans Review 6 wks Tue 5/13/25Mon 6/23/2544
46 Caltrans Issues NEPA CE 0 wks Mon 6/23/25Mon 6/23/2545 47 Contract Bid Documents 360 days?Mon 6/17/24Fri 10/31/25 48 PS&E Package 180 days Tue 1/7/25 Mon 9/15/25
49 Prepare 60% Plans 8 wks Tue 1/7/25 Mon 3/3/2540
50 Prepare Engineer's Estimate 2 wks Tue 2/18/25Mon 3/3/2549FF 51 QA/QC 2 wks Tue 3/4/25 Mon 3/17/2549
52 Submit 60% Plans and Estimate 0 days Mon 3/17/25Mon 3/17/2551 53 City Review/Comment 2 wks Tue 3/18/25Mon 3/31/2552
54 Prepare 90% PS&E 8 wks Tue 4/1/25 Mon 5/26/2553
55 Prepare Technical Specifications 2 wks Tue 5/13/25Mon 5/26/2554FF 56 QA/QC 2 wks Tue 5/27/25Mon 6/9/2554
57 Submit 90% PS&E 0 days Mon 6/9/25Mon 6/9/2555,56
58 City Review/Comment 2 wks Tue 6/10/25Mon 6/23/2557
59 Prepare 100% PS&E 8 wks Tue 6/24/25Mon 8/18/2558
60 Revise Technical Specifications 2 wks Tue 8/5/25 Mon 8/18/2559FF 61 QA/QC 2 wks Tue 8/19/25Mon 9/1/2560
62 Submit Final Plans 2 wks Tue 9/2/25 Mon 9/15/2561
63 Approved PS&E 0 days Mon 9/15/25Mon 9/15/2562
64 Caltrans Construction Authorization 125 days Mon 9/22/25Mon 3/16/26 65 Right of Way Cert; Utility Cert; NEPA CE 0 wks Mon 9/22/25Mon 9/22/2546,35,63 66 Prepare RFA Package (CON) 1 wk Tue 9/23/25Mon 9/29/2565 67 Caltrans Review and Authorization 4 wks Tue 9/30/25Mon 10/27/2566 68 Caltrans Approval; E-76 0 days Mon 10/27/25Mon 10/27/2567 69 Advertise 4 wks Tue 12/23/25Mon 1/19/2668FS+2 mons
70 Open Bids 0 days Mon 1/19/26Mon 1/19/2669
71 Contract Award 2 wks Tue 1/20/26Mon 2/2/2670
72 Begin Construction 0 days Mon 3/16/26Mon 3/16/2671FS+6 wks 8/28
9/4
5/13
4/14
4/14
7/28
9/22
10/28
1/6
6/23
3/17
6/9
9/15
9/22
10/27
1/19
3/16
Qtr 3 Qtr 4 Qtr 1 Qtr 2 Qtr 3 Qtr 4 Qtr 1 Qtr 2 Qtr 3 Qtr 4 Qtr 1 Qtr 2 2024 2025 2026
Mark Thomas City of Turlock
Geer Road (GSB to Taylor) Federal Funding
Mon 12/16/24 Page 1
City Council Staff Report
January 28, 2025
From: Christopher Fisher, Municipal Services Director
Prepared by: Fred Pezeshk, P.E., Roads Program Manager
Agendized by: Reagan M. Wilson, City Manager
1. ACTION RECOMMENDED:
Resolution: Approving Amendment No. 7 for Task Order No. 2B under the terms of the Master Agreement (City Contract No. 2024-111) with NV5, Inc. (Fresno, California office) for Construction Management and Inspection Services for the City of Turlock’s Roads Initiative Program in the amount of $46,515.85 to be funded by Fund 115 “Measure A – Roads” for City Project No. 23-033 as “NV5 CM Task Order No. 2B for City Project No. 23- 033”
2. DISCUSSION OF ISSUE:
On February 27, 2024, the City Council approved Task Order No. 2 as Amendment No. 2 under the terms of the Master Agreement with NV5, Inc. to provide Construction Management and Inspection Services for City Project No. 23-033. The following streets are included in this bid package:
City Project No. 23-033 “Siegfried Task Order No. 1 for Roads Program CIP Projects”
Street Name From To District
Columbia Ave. Lander Ave. West Ave. South 2
Lane St. High St. Castor St. 2
S. Beech St. W. Main St. South End 2
S. Laurel St. Columbia St. Vermont Ave. 2
Farr St. W. Main St. Castor St. 2
Scope of services for construction management and inspection is described in three (3) activity components: Pre-Construction, Construction Management and Inspection, and Post-Construction. However, since the design was still ongoing at the time, each Task Order only included the scope and fee for “Pre- Construction” activities.
With the completion of the design, critical items, such as the final scope of construction work, the engineer’s estimate of probable construction costs, sequencing of construction, and the number of working days, were determined and a detailed scope of services for the remaining activities was developed. Subsequently, on May 14, 2024, the City Council approved Amendment No. 4 for Task Order No. 2A to provide for the scope of services and fee associated with “Construction Management and Inspection” and “Post-Construction Services” activities.
As construction progressed, the need has been identified for additional effort as required to:
Agenda Staff Report
1/28/2025
• Support the construction schedule resulting in overtime hours for construction inspection and materials testing staff
• Address the contractor’s potential claims
• Provide for construction management and inspection services for reconstruction of S. Laurel Street once the water main replacement project is completed under City Project No. 23-040 (City Project 23-033 has been suspended in the meantime)
Overtime hours for construction inspection and materials testing, the effort required to resolve construction claims, and the additional scope of services due to suspension of construction activities on S. Laurel Street were not included in Task Order 2A as they were unforeseen when Amendment No. 4 was approved.
Task Order 2B provides for the costs associated with construction inspection and materials testing staff overtime hours, the claims resolution efforts, and construction management and inspection services for S. Laurel Street.
3. BASIS OF RECOMMENDATION:
A. The proposed Amendments are essential to ensuring that adequate resources are available for advancing the construction of Roads Program CIP projects.
B. This action is consistent with Council’s stated goal of utilizing Measure A revenues to expedite road repair projects.
4. FISCAL IMPACT / BUDGET AMENDMENT:
The fiscal impact of the proposed action will be $46,515.85 which will be funded from Fund 115 “Measure A – Roads”, account number 115-10-115.43327 “Construction Management.” The cumulative fiscal impact, including previous Amendments is estimated to be $579,787.25.
Amendment No. 2 for Task Order No. 2 $ 53,528.35
Amendment No. 4 for Task Order No. 2A $479,743.05
Amendment No. 7 for Task Order No. 2B (Proposed) $ 46,515.85 Total Estimated Fiscal Impact $579,787.25
Appropriate funds have been allocated during Fiscal Year 2024-25 budget process to cover this Amendment.
5. STAFF RECOMMENDATION:
Recommend approval.
6. CITY MANAGER COMMENTS:
Recommend approval.
7. ENVIRONMENTAL DETERMINATION:
Approving the amendments to the task orders described above will not have a direct or
Agenda Staff Report
1/28/2025
reasonably foreseeable indirect physical change in the environment. Therefore, the proposed action is not subject to the provisions of the California Environmental Quality Act (CEQA) in accordance with Section 15378 (Project) because it consists of “organizational or administrative activities of governments that will not result in direct or indirect physical changes in the environment” and therefore is not considered a project.
8. ALTERNATIVES:
A. Council could choose not to approve Amendment No. 7 to the Master Agreement with NV5, Inc. Staff does not recommend this alternative as it is essential to ensure that adequate resources are made available for management and inspection of construction activities and to avoid delaying the construction.
B. Provide staff with direction on how to proceed.
9. ATTACHMENTS:
1. Draft Resolution
2. Amendment No. 7 for Task Order No. 2B under the terms of the Master Agreement (City Contract No. 2024-111) with NV5, Inc.
BEFORE THE CITY COUNCIL OF THE CITY OF TURLOCK
IN THE MATTER OF APPROVING AMENDMENT } RESOLUTION NO. 2025- NO. 7 FOR TASK ORDER NO. 2B UNDER THE }
TERMS OF THE MASTER AGREEMENT (CITY }
CONTRACT NO. 2024-111) WITH NV5, INC. }
(FRESNO, CALIFORNIA OFFICE) FOR }
CONSTRUCTION MANAGEMENT AND }
INSPECTION SERVICES FOR THE CITY OF }
TURLOCK’S ROADS INITIATIVE PROGRAM IN }
THE AMOUNT OF $46,515.85 TO BE FUNDED }
BY FUND 115 “MEASURE A – ROADS” FOR }
CITY PROJECT NO. 23-033 AS “NV5 CM }
TASK ORDER NO. 2B FOR CITY PROJECT }
NO. 23-033” }
}
WHEREAS, under a separate resolution on February 27, 2024, the City Council approved a Master Agreement (City Contract No. 2024-111) for Construction Management and Inspection Services for Roads Program CIP Projects (“Agreement”) between the City of Turlock (“City”) and NV5, Inc. (“Professional”); and WHEREAS, Construction Management and Inspection Services comprise three (3) components: Pre-Construction, Construction Management and Inspection, and Post- Construction; and
WHEREAS, Agreement stipulates that the scope of services and fees associated with specific projects will be agreed upon through task orders approved under the terms of Agreement by a written amendment to the Agreement; and WHEREAS, Amendment No. 2 provided for the scope of services and fees for “Pre-Construction” services for City Project No. 23-033 as “NV5 CM Task Order No. 2 for City Project No. 23-033;” and
WHEREAS, Amendment No. 4 provided for the scope of services and fees for “Construction Management and Inspection” and “Post-Construction” services for said City Project as “NV5 CM Task Order No. 2A for City Project No. 23-033;” and WHEREAS, additional effort is required to support the construction schedule, to resolve contractor’s potential claims, and to provide construction management and inspection services for reconstruction of S. Laurel Street once the water main replacement project is completed under City Project No. 23-040 (City Project 23-033 has been suspended in the meantime), the costs of which were not included in Amendment No. 4, as they were unforeseen at the time; and
WHEREAS, City desires that Professional provide said additional scope of services as “NV5 CM Task Order No. 2B for City Project No. 23-033;” and
Resolution No. 2025-
WHEREAS, Amendment No. 7 for Task Order No. 2B provides for the additional scope of services and associated fees; and
WHEREAS, the cost of said services for is estimated to be $46,515.85; and WHEREAS, funding is available from Fund 115 “Measure A – Roads” account number 115-10-115.43327 “Construction Management” for costs associated with said City Project; and
WHEREAS, this action is not subject to the provisions of the California Environmental Quality Act (CEQA) in accordance with Section 15378 (Project) of the CEQA guidelines because it consists of “organizational or administrative activities of governments that will not result in direct or indirect physical changes in the environment”.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Turlock does hereby approve Amendment No. 7 for Task Order No. 2B under the terms of the Master Agreement (City Contract No. 2024-111) with NV5, Inc. (Fresno, California office) for Construction Management and Inspection Services for the City of Turlock’s Roads Initiative Program in the amount of $46,515.85 to be funded by Fund 115 “Measure A – Roads” for City Project No. 23-033 as “NV5 CM Task Order No. 2B for City Project No. 23-033.”
PASSED AND ADOPTED at a regular meeting of the City Council of the City of Turlock this 28th day of January, 2025, by the following vote:
AYES:
NOES:
NOT PARTICIPATING:
ABSENT:
ATTEST:
__________________________
Nichole Fiez, City Clerk,
City of Turlock, County of Stanislaus,
State of California
CITY CONTRACT NO. 2024-111, Amendment No. 7 for Task Order No. 2B
AMENDMENT NO. 7 FOR TASK ORDER NO. 2B
Under the Terms of the
MASTER AGREEMENT BETWEEN THE CITY OF TURLOCK
and
NV5, INC.
for
CONSTRUCTION MANAGEMENT AND INSPECTION SERVICES
City Contract No. 2024-111
City Project No. 23-033
THIS AMENDMENT NO. 7 for Task Order No. 2B under th e terms of City Contract No. 2024-111 is entered into by and between the CITY OF TURLOCK, a California municipal corporation (“City”), and NV5, INC., a California c orporation (“Professional”), on this ______ day of ___________ 2025 (the “Effective Date of Task Order No. 2B”). City and Professional may be collectively referred to herein as the “Parties” or individually as “Party.” There are no other parties to this Amendment No. 7.
WHEREAS, the Parties hereto previously entered into a Master Agreement (City Contract No. 2024-111) dated February 27, 2024, for Construc tion Management and Inspection Services for Roads Program Capital Improvement Program (CIP) Projects (“Agreement”); and
WHEREAS, Construction Management and Inspection Services co mprise three (3) components: Pre-Construction, Construction Manageme nt and Inspection, and Post- Construction; and
WHEREAS, Agreement stipulates that the scope of services an d fees associated with specific projects will be agreed upon through task orders approved under the terms of Agreement by a written amendment to the Agreement; and
WHEREAS, Amendment No. 2 provided for the scope of services and fees for “Pre- Construction” services for City Project No. 23-033 as “NV5 CM Task Order No. 2 for City Project No. 23-033;” and
WHEREAS, Amendment No. 4 provided for the scope of services and fees for “Construction Management and Inspection” and “Post-Construction” services for said City Project as “NV5 CM Task Order No. 2A for City Project No. 23-033;” and
WHEREAS, additional effort is required to support the const ruction schedule, to resolve contractor’s potential claims, and to provide const ruction management and inspection services
CITY CONTRACT NO. 2024-111, Amendment No. 7 for Task Order No. 2B
for reconstruction of S. Laurel Street once the water main replacement project is completed under City Project No. 23-040 (City Project 23-033 has been suspended in the meantime), the costs of which were not included in Amendment No. 4, as they were unforeseen at the time; and
WHEREAS, City desires that Professional provide said additi onal scope of services as “NV5 CM Task Order No. 2B for City Project No. 23-033;” and
WHEREAS , Amendment No. 7 for Task Order No. 2B provides for the additional scope of services and associated fees for said City Project.
NOW, THEREFORE, the Parties hereto mutually agree to amend the Agr eement as follows:
1. Exhibit H, attached hereto and incorporated herein by reference, is hereby added to the Agreement.
2. Recital B of the Agreement is amended to read as follows:
B. Professional has made a proposal to City to provi de such professional services. A description of the services Professiona l proposes to provide is included in the Scope of Services in Exhibits A through H attached hereto and incorporated herein by reference (“Services”). City desires to r etain Professional to perform the Services, subject to the terms and conditions set forth in this Agreement.
4. Recital C of the Agreement is amended to read as follows:
C. The Parties anticipate that one or more projects fo r Services shall be determined through creation of a Task Order as a Ci ty-requested modification of services under Section 5.2 of this Agreement which shall be approved by written amendment to this Agreement. The Parties shall outline the schedule or timeline for providing the Services agreed upon under each Task Order (“Completion Schedule”), which shall be included in one or more written amendments to this Agreement. Such Completion Schedule is included in Exhibit H.
5. Recital D of the Agreement is amended to read as follows:
D. The Parties shall outline the rates and method of payment to Professional for its performance of the Services under this Agre ement as determined under each Task Order (“Compensation Schedule”), which shall b e included in one or more written amendments to this Agreement. Such Compensation Schedule is included in Exhibit H.
6. Section 5 of the Agreement is amended to read as follows:
5.1. Services . Subject to the terms and conditions set forth in this Agreement, Professional shall provide City the Services described in Exhibits A through H. Any request for Services not included in Exhibits A through H will be considered a request for additional or modified Services (“Modif ication” or “Modifications”).
Professional shall not receive additional compensat ion for any Modification of the Services unless the Parties agree otherwise in a writing executed by both Parties.
CITY CONTRACT NO. 2024-111, Amendment No. 7 for Task Order No. 2B
5.2. City Requested Modification of Services. City may, by written order, authorize Modifications to the Services described i n Exhibits A through H . If such Modifications cause an increase in the cost or time required for performance of Professional’s Services, the Parties shall enter in to a written amendment to this Agreement to adjust the Services and the compensati on to be paid to Professional and, if necessary, amend the Completion Schedule or Compensation Schedule. The Services, Completion Schedule, or Compensation Sche dule shall not be revised unless City and Professional mutually agree to a wr itten amendment to this Agreement reflecting such revisions, additional com pensation, time for performance or such other terms or conditions mutually agreed upon by the Parties.
7. Section 6 of the Agreement is amended to read as follows:
6.1. Amount, Time and Manner of Payment for Profess ional Services. City shall pay Professional according to the rates and timing set forth in the Compensation Schedule for each Task Order within each Amendment to the Agreement. Each Compensation Schedule shall include an exhibit base d on Exhibit 10-H of Caltrans Local Assistance Procedures Manual (LAPM). Professional will be allowed to include an amount for the anticipated salary increases as calculated per Exhibit 10-H. City’s total compensation to Professional shall not exceed the cumulative amount resulting from each Task Order with each approved Amendment t o the Agreement. The compensation for Amendment No. 7 shall not exceed F orty-Six Thousand Five- Hundred-Fifteen Dollars and Eighty-Five Cents ($46, 515.85), and Five-Hundred- Seventy-Nine Thousand Seven-Hundred-Eighty-Seven Do llars and Twenty-Five Cents ($579,787.25) for City Project No. 23-033 (“M aximum Payment”), unless the Parties mutually agree in writing otherwise.
Amendment 2 for Task Order No. 2 $ 53,528.35
Amendment 4 for Task Order No. 2A $479,743.05
Amendment 7 for Task Order No. 2B $ 46,515.85__
Project 23-033 Not-to-Exceed Amount $579,787.25
7. Execution and Counterparts. This Amendment may be executed simultaneously, and in several counterparts, each o f which shall be deemed an original, but which together shall constitute one a nd the same instrument. The Parties agree that this Amendment and any other doc uments to be delivered in connection herewith may be electronically signed ut ilizing services such as DocuSign and Nitro Sign, or by transmitting signatures in pdf or similar format, and that any electronic signatures appearing on this Ag reement or such other documents are the same as handwritten signatures fo r the purposes of validity, enforceability, and admissibility
8. All other terms and conditions of the Agreement shall remain in full force and effect for the Term of the Agreement.
[Signatures on Following Page ]
CITY CONTRACT NO. 2024-111, Amendment No. 7 for Task Order No. 2B
IN WITNESS WHEREOF, the Parties have caused this Amendment No. 7 to be executed by and through their respective officers thereunto duly authorized.
PROFESSIONAL
NV5, INC., a California
corporation
By:
Lori Goodwin, Vice President
Date
CITY
City of Turlock, a California
municipal corporation
By:
Reagan M. Wilson, City Manager
Date:
APPROVED AS TO SUFFICIENCY:
By:
Christopher Fisher,
Municipal Services Director
APPROVED AS TO FORM:
By:
George A. Petrulakis, City Attorney
ATTEST:
By:
Nichole Fiez, City Clerk
01/09/2025
2109 W. Bullard Ave., Suite 145 | Fresno, CA 93711 | www.nv5.com | office: 559.661.5220 | fax: 559.492.3457
January 7, 2025
Fred Pezeshk, PE
Roads Program Manager
City of Turlock
156 S Broadway, Turlock, CA 95380
via email to [email protected]
SUBJECT: City of Turlock Contract No. 2024-111 T.O. #2B (Project No. 23-033)
Re: Task Order #2B – Additional Services for Task Order #2
Dear Mr. Pezeshk,
Please find attached NV5’s revised 10-H1 Cost Proposal dated 01/07/2025 to perform the additional construction management services requested for Turlock Roads Program CIP Contract No. 23-033. As previously discussed with you, unforeseen contract scope changes have occurred during the project that have exceeded our ability to complete the construction and post-construction scope of services within the original budget.
Brief summaries of these additional services are listed below:
1. Project Suspension
Per Note 5 in the submitted cost proposal for Task Order #2A, our cost estimate was based on the construction phase of the project being completed within 95 working days, and time extensions may result in additional construction management services and fees. On 10/23/24, a critical delay to the project completion date started due to the City's waterline replacement project preventing the contractor from proceeding with the roadway reconstruction work on S Laurel St. Per the City’s direction, the Project 23-033 has been suspended until Spring 2025. At this time, it is anticipated the waterline replacement project will be completed, and the contractor will return to complete the roadway reconstruction. The contractor estimates they will need an additional 20 working days to complete the remaining work. These additional 20 working days were not included in the cost proposal for Task Order #2A.
Name Classification/Title WDs Hours
per
Day
Total
Hours
Billing
Rate
Amount
Kramer Walker, PE Resident Engineer 20 4 80 $295.19 $23,615.20 Kolton Walker, EIT Assistant R.E. 20 4 80 $157.44 $12,595.20 John Galli Inspector 20 8 160 $203.32 $32,531.20
TOTAL $68,741.60
2109 W. Bullard Ave., Suite 145 | Fresno, CA 93711 | www.nv5.com | office: 559.661.5220 | fax: 559.492.3457
During the performance of the contract, NV5 experienced efficiencies that reduced the overall cost of the construction management services provided. As a result of these efficiencies, a total of -($60,993.60) shall be credited to the City.
Name Classification/Title Total Hours Billing Rate Amount Kramer Walker, PE Resident Engineer -120 $295.19 -$35,422.80 Kolton Walker, EIT Assistant R.E. -80 $157.44 -$12,595.20 John Galli Inspector -60 $203.32 -$12,199.20
TOTAL -$60,217.20
A net amount of $8,524.40 is requested for the extended project completion.
2. Inspector Overtime
Per Note 2 and Note 5 in the Task #2A cost proposal, our cost estimate did not include overtime, weekend, or holiday work. Due to extended working shifts and Saturday work performed by the Contractor, specifically during paving operations, our inspector has worked 60 hours of overtime on the project. These additional 60 hours were not included in the original cost proposal.
Name Classification/Title Total Hours Billing Rate Amount John Galli Inspector 60 $203.32 $12,199.20
TOTAL $12,199.20
3. Claims Resolution
Per Task 2.24 of the submitted Scope of Work for Task #2A, claims resolution work handled in the post- construction period was not included in our cost estimate because the amount of work cannot be determined ahead of time. To date the Contractor has submitted one (1) Potential Claim Record.
Additional efforts will be required by the Resident Engineer during the post-construction period to assist the City with the claims resolution. Based on what is known at this time, and assuming all claims will be resolved by the end of February 2025, the estimated additional costs are summarized below. If the complexity of resolving these claims changes, additional efforts may be required.
Name Classification/Title Total Hours Billing Rate Amount Kramer Walker, PE Resident Engineer 40 $295.19 $11,807.60 Neil Novotny, EIT Project Engineer 20 $118.85 $2,377.00 TOTAL $14,184.60
4. BSK (Materials Testing) Overtime
Similar to Item #2 above, the Contractor’s extended work shifts, specifically during paving operations, required the BSK material testers to incur overtime hours. The testers have worked 53 hours of overtime on the project. These additional 53 hours were not included in the Task #1A proposal.
Classification/Title Total Hours OT Billing Rate Amount Engineering Technician 53 $219.00 $11,607.00
TOTAL $11,607.00
2109 W. Bullard Ave., Suite 145 | Fresno, CA 93711 | www.nv5.com | office: 559.661.5220 | fax: 559.492.3457
SUMMARY
Based on the contract scope changes described above, NV5 requests a contract amendment of $46,515.85 to complete the Task Order #2 services for the project, summarized as follows:
Item # Description Amount
#1 Project Suspension $8,524.40
#2 Inspector Overtime $12,199.20
#3 Claims Resolution $14,184.60
#4 BSK (Materials Testing) Overtime $11,607.00
Exhibit 10-H1 Rounding $1.05
TOTAL $46,515.85
NV5 has been and will continue to manage staff hours to help with budget efficiency while providing the required level of services through the remaining construction and post-construction activities.
We appreciate your attention and consideration to this matter. If you have any questions or need additional information, please feel free to call me at (559) 240-5494.
Sincerely,
NV5, Inc.
Kramer Walker, P.E.
Resident Engineer
Local Assistance Procedures Manual Exhibit 10-H1
Cost Proposal
Note: Mark-ups are Not Allowed
Consultant
Project No. 23-033 Contract No. 2024-111 Task Order #2B Date 1/7/2025
DIRECT LABOR
Hours Actual Hourly Rate Total
0 $127.41 $0.00
0 $113.43 $0.00
0 $60.50 $0.00
160 $78.13 $12,500.80
0 $94.50 $0.00
0 $79.68 $0.00
20 $45.67 $913.40
0 $0.00
180
LABOR COSTS
a) Subtotal Direct Labor Costs $13,414.20
b) Anticipated Salary Increases (see page 2 for calculation) $0.00 c) TOTAL DIRECT LABOR COSTS [(a) + (b)] $13,414.20
FRINGE BENEFITS
d) Fringe Benefits (Rate: 0.00% ) e) Total Fringe Benefits [(c) x (d)] $0.00
INDIRECT COSTS
f) Overhead (Rate: 136.58%
) g) Overhead [(c) x (f)] $18,321.11
h) General and Administrative (Rate: 0.00% ) i) Gen & Admin [(c) x (h)] $0.00
j) Total Indirect Costs [(e) + (g) + (i)] $18,321.11
FIXED FEE (Profit)
q) (Rate: 10.00% )
k) TOTAL FIXED PROFIT [(c) + (j)] x (q)] $3,173.53
l) CONSULTANT'S OTHER DIRECT COSTS (ODC) - ITEMIZE (Add additional pages if necessary) Quantity Unit Unit Cost Total
TBD TBD Actual $0.00
l) TOTAL OTHER DIRECT COSTS $0.00
m) SUBCONSULTANT'S COSTS (Add additional pages if necessary) Subconsultant 1: BSK (Material Testing) $11,607.00
Subconsultant 2: UNICO (Survey QA) $0.00
m) TOTAL SUBCONSULTANTS $11,607.00
n) TOTAL OTHER DIRECT COSTS INCLUDING SUBCONSULTANTS [(l)+(m)] $11,607.00 TOTAL COST [(c) +(j) + (k) + (n)] $46,515.85
NOTES:
1. Key personnel must be marked with an asterisk (*) and employees that are subject to prevailing wage requirements must be marked with two asterisks (**). All costs must comply with the Federal cost principles. Subconsultants will provide their own cost proposals.
2. The cost proposal format shall not be amended. Indirect cost rates shall be updated on an annual basis in accordance with the consultant's annual accounting period and established by a cognizant agency or accepted by Caltrans.
3. Anticipated salary increases calculation (page 2) must accompany.
Description of Item
Field Supplies
Inspector Jason Frank**
Alt Inspector Kolton Walker, EIT*
Project Engineer Neil Novotny, EIT
Project Manager Brad Riel, PE*
Resident Engineer Kramer Walker, PE*
Inspector John Galli**
Office Engineer Kolton Walker, EIT*
EXHIBIT 10-H1 COST PROPOSAL
ACTUAL COST-PLUS-FIXED FEE OR LUMP SUM (FIRM FIXED PRICE) CONTRACTS (DESIGN, ENGINEERING AND ENVIRONMENTAL STUDIES)
NV5, Inc.
Classification/Title Name
Local Assistance Procedures Manual Exhibit 10-H1
Consultant Contract No. 2024-111 Task Order #2B Date 1/7/2025
1. Calculate Average Hourly Rate for 1st year of the contract (Direct Labor Subtotal divided by total hours) Avg Hourly 5 Year Contract
Rate Duration
$13,414.20 = $74.52 Year 1 Avg Hourly Rate
Avg Hourly Rate
Year 1 $74.52 + = $78.25 Year 2 Avg Hourly Rate
Year 2 $78.25 + = $82.16 Year 3 Avg Hourly Rate
Year 3 $82.16 + = $86.27 Year 4 Avg Hourly Rate
Year 4 $86.27 + = $90.58 Year 5 Avg Hourly Rate
Year 5 $90.58 + = $95.11 Year 5 Avg Hourly Rate
Total Hours
per Year
Year 1 100.00% * = 180.0 Estimated Hours Year 1
Year 2 0.00% * = 0.0 Estimated Hours Year 2
Year 3 0.00% * = 0.0 Estimated Hours Year 3
Year 4 0.00% * = 0.0 Estimated Hours Year 4
Year 5 0.00% * = 0.0 Estimated Hours Year 5
Total 100% = 180.0
Year 1 $74.52 * = $13,414.20 Estimated Hours Year 1
Year 2 $78.25 * = $0.00 Estimated Hours Year 2
Year 3 $82.16 * = $0.00 Estimated Hours Year 3
Year 4 $86.27 * = $0.00 Estimated Hours Year 4
Year 5 $90.58 * = $0.00 Estimated Hours Year 5
= $13,414.20
= $13,414.20
= $0.00 Transfer to Page 1
NOTES:
1 This is not the only way to estimate salary increases. Other methods will be accepted if they clearly indicate the % increase, the # of years of the contract, and a breakdown of the labor to be performed each year. 2 An estimation that is based on direct labor multiplied by salary increase % multiplied by the # of years is not acceptable. (i.e. $250,000 x 2% x 5 yrs = $25,000 is not an acceptable methodology) 3 This assumes that the year one rates expire 03/31/25 and salary increases due to escalation are effective 04/01/25. 4 Calculations for anticipated salary escalation must be provided.
Direct Labor Subtotal before Escalation
Estimated total of Direct Labor Salary Increase
180
0 0
0 0
Total Direct Labor Cost with Escalation
4. Calculate Total Costs including Escalation (Multiply Average Hourly Rate by the number of hours) Avg Hourly Rate Estimated hours Cost per Year(calculated above) (calculated above) Total
3. Calculate estimated hours per year (Multiply estimate % each year by total hours) Estimated % Total Hours
Completed Each Year per Cost Proposal
180.0
180.0
180.0
180.0
180.0
5%
per Cost Proposal per Cost Proposal
180
2. Calculate hourly rate for all years (Increase the Average Hourly Rate for a year by proposed escalation %) Proposed Escalation
5%
5%
5%
5%
ACTUAL COST-PLUS-FIXED FEE OR LUMP SUM (FIRM FIXED PRICE) CONTRACTS (CALCULATIONS FOR ANTICIPATED SALARY INCREASES)
NV5, Inc.
Direct Labor Subtotal
Total Hours
EXHIBIT 10-H1 COST PROPOSAL Page 2 of 3
Local Assistance Procedures Manual Exhibit 10-H
Cost Proposal
Certification of Direct Costs:
I, the undersigned, certify to the best of my knowledge and belief that all direct costs identified on the cost proposal(s) in this contract are actual, reasonable, allowable, and allocable to the contract in accordance with the contract terms and the following requirements:
1. Generally Accepted Accounting Principles (GAAP)
2. Terms and conditions of the contract
3. Title 23 United States Code Section 112 - Letting of Contracts
4. 48 Code of Federal Regulations Part 31 - Contract Cost Principles and Procedures
5. 23 Code of Federal Regulations Part 172 - Procurement, Management, and Administration of Engineering and Design Related Service
6. 48 Code of Federal Regulations Part 9904 - Cost Accounting Standards Board (when applicable) Prime Consultant or Subconsultant Certifying:
Name: Lori Goodwin Title *: Vice President
Signature : Date of Certification (mm/dd/yyyy): 1/8/2025 Email: [email protected] Phone Number: 559-661-5228
Address: 2109 West Bullard Avenue, Suite 145, Fresno, CA 93711 * An individual executive or financial officer of the consultant’s or subconsultant’s organization at a level no lower than a Vice President or a Chief Financial Officer, or equivalent, who has authority to represent the financial information utilized to establish the cost proposal for the contract.
List services the consultant is providing under the proposed contract:
Construction Management Services
EXHIBIT 10-H1 COST PROPOSAL Page 3 of 3
All costs must be applied consistently and fairly to all contracts. All documentation of compliance must be retained in the project files and be in compliance with applicable federal and state requirements.
Costs that are noncom pliant with the federal and state requirements are not eligible for reimbursement.
Local governments are responsible for applying only cognizant agency approved or Caltrans accepted Indirect Cost Rate{s).
LPP 15-01
January 2018
City Council Staff Report
January 28, 2025
From: Jason Hedden, Police Chief
Prepared by: Amanda Fortado, Support Operations Manager Agendized by: Reagan M. Wilson, City Manager
1. ACTION RECOMMENDED:
Authorizing an agreement, in a form approved by the City Attorney, between the City of Turlock and Flock Safety, with a contract amount of one million one hundred thirty-three thousand five hundred fifty dollars ($1,133,550) over five (5) years for automated license plate recognition and appropriating a one-time transfer from expense account number 117- 10-190.48001_351 “Transfers Out To F240 for LPR’s” Fund 117 “Cannabis” unassigned reserve in an amount of five hundred sixty-six thousand seven hundred seventy-five dollars ($566,775) and a one-time transfer from expense account number 118-20-210.48001_351 “Transfers Out To F240 for LPR’s” Fund 118 “Measure A” unassigned reserve in an amount of five hundred sixty-six thousand seven hundred seventy-five dollars ($566,775) and a one-time transfer to revenue account number 240-00-000-213.38001_351 “Transfers In From F117 & F118 for LPR’s” and appropriate two hundred fifty-one thousand one hundred fifty dollars ($251,150) to expense account number 240-00-000-213.51034 “Cameras for License Plate Reader Program” for the first year payment
2. DISCUSSION OF ISSUE:
For the last eighteen months, the City of Turlock Police Department has used an Automated License Plate Recognition system at five key intersections in the City of Turlock. The ALPR system consists of cameras mounted to traffic signal poles that automatically takes photographs of vehicle license plates that are then translated into letters and numbers. The resulting data is compared to law enforcement databases to see if the vehicle has been reported stolen, used in a crime, or is displaying a lost or stolen license plate. If the license number is found to be flagged, the system alerts the Department when the vehicle is detected. Prior to any enforcement activity being initiated, officers are required to verify the alert with dispatch or directly via the California Law Enforcement Telecommunications System (CLETS). The ALPR data is only accessible by law enforcement personnel for official investigative purposes and all access is logged by an authorized user.
With the initial installation of the ALPR system in Turlock in 2023, Turlock Police Department joined a countywide network of ALPR cameras manufactured by EpicIO, formally Intellisite. As a member of this network, Turlock Police Department has access to data from other EpicIO ALPR cameras throughout the County. This sharing of data allows participating law enforcement agencies to enter suspect vehicles so that any participating agency may be alerted to the presence of a wanted vehicle, regardless of which jurisdiction entered the vehicle. This has proven to be very helpful in solving several cases originating in the City of Turlock.
Due to the success of our current ALPR system, the Turlock Police Department seeks to expand the ALPR system with cameras manufactured by Flock Safety. Flock Safety ALPR
Agenda Staff Report
1/28/2025
cameras offer additional features and data that EpicIO currently does not offer. Features such as the ability to capture images of vehicles which do not have a license plate attached or have a license plate cover and the ability to search for vehicles with unique features such as bumper stickers, decals, and roof racks, are offered features of the Flock Safety ALPR cameras. Similar to EpicIO, a Flock Safety subscription will allow Turlock Police Officers access to data obtained from other Flock Safety subscribers including Merced County Sheriff’s Office, Atwater Police Department, Livingston Police Department, California Highway Patrol, Gustine Police Department, and Manteca Police Department.
The current agreement is a five year initial term and two year renewal options thereafter.
The Turlock Police Department has identified an additional thirteen intersections for installation of ALPR cameras. These thirteen intersections, along with our current six intersections monitored by EpicIO ALPR cameras will provide more robust coverage of most major roads leading into and out of the City of Turlock. Staff have also identified four intersections within the interior of the City of Turlock which they believe will be most beneficial for deterring crime and assisting with the apprehension of suspects.
With approval of this item, and the recent allocation of funds to purchase a subscription to the Vigilant ALPR database, along with our current vendor EpicIO, Turlock Police Department will have access to the three most common ALPR databases in the surrounding area. Having the ability to enter vehicles into these three systems that are of interest to Turlock Police officers, and the ability to search all three databases will decrease our dependence on allied agencies to enter and search for vehicles on our behalf as well as allow for an immediate response to inquiries, allowing officers to react in a more timely manner.
3. BASIS OF RECOMMENDATION:
City Council authorization is required to execute agreements.
4. FISCAL IMPACT / BUDGET AMENDMENT:
Appropriating a one-time transfer from expense account number 117-10-190.48001_351 “Transfers Out To F240 for LPR’s” Fund 117 “Cannabis” unassigned reserve in an amount of five hundred sixty-six thousand seven hundred seventy-five dollars ($566,775) and a one-time transfer from expense account number 118-20-210.48001_351 “Transfers Out To F240 for LPR’s” Fund 118 “Measure A” unassigned reserve in an amount of five hundred sixty-six thousand seven hundred seventy-five dollars ($566,775) and a one-time transfer to revenue account number 240-00-000-213.38001_351 “Transfers In From F117 & F118 for LPR’s” and appropriate two hundred fifty-one thousand one hundred fifty dollars ($251,150) to expense account number 240-00-000-213.51034 “Cameras for License Plate Reader Program” for the first year payment.
5. STAFF RECOMMENDATION:
Recommend approval.
6. CITY MANAGER COMMENTS:
Recommend approval.
7. ENVIRONMENTAL DETERMINATION:
Agenda Staff Report
1/28/2025
N/A
8. ALTERNATIVES:
Council may reject the service agreement. However, this is not recommended because by entering into an agreement with this vendor, Staff is able to utilize multiple ALPR vendors as well as expand the number of intersections utilizing license plate readers, broadening the scope of available data.
9. ATTACHMENTS:
1. Draft Resolution
2. Master Service Agreement
3. Exhibit to Master Service Agreement
BEFORE THE CITY COUNCIL OF THE CITY OF TURLOCK
IN THE MATTER OF AUTHORIZING AN } RESOLUTION NO. 2025-
AGREEMENT, IN A FORM APPROVED BY THE }
CITY ATTORNEY, BETWEEN THE CITY OF }
TURLOCK AND FLOCK SAFETY, WITH A }
CONTRACT AMOUNT OF ONE MILLION ONE }
HUNDRED THIRTY-THREE THOUSAND FIVE }
HUNDRED FIFTY DOLLARS ($1,133,550) OVER }
(5) FIVE YEARS FOR AUTOMATED LICENSE }
PLATE RECOGNITION AND APPROPRIATING A }
ONE- TIME TRANSFER FROM EXPENSE }
ACCOUNT NUMBER 117-10-190.48001_351 }
“TRANSFERS OUT TO F240 FOR LPR’S” }
FUND 117 “CANNABIS” UNASSIGNED }
RESERVE IN AN AMOUNT OF FIVE HUNDRED }
SIXTY-SIX THOUSAND SEVEN HUNDRED }
SEVENTY-FIVE DOLLARS ($566,775) AND A }
ONE-TIME TRANSFER FROM EXPENSE }
ACCOUNT NUMBER 118-20-210.48001_351 }
“TRANSFERS OUT TO F240 FOR LPR’S” FUND }
118 “MEASURE A” UNASSIGNED RESERVE IN }
AN AMOUNT OF FIVE HUNDRED SIXTY-SIX }
THOUSAND SEVEN HUNDRED SEVENTY-FIVE }
DOLLARS ($566,775) AND A ONE-TIME }
TRANSFER TO REVENUE ACCOUNT NUMBER }
240-00-000-213.38001_351 “TRANSFERS IN }
FROM F117 & F118 FOR LPR’S” AND }
APPROPRIATE TWO HUNDRED FIFTY-ONE }
THOUSAND ONE HUNDRED FIFTY DOLLARS }
($251,150) TO EXPENSE ACCOUNT NUMBER }
240-00-000-213.51034 “CAMERAS FOR }
LICENSE PLATE READER PROGRAM” FOR }
THE FIRST YEAR PAYMENT }
}
WHEREAS, for the last eighteen months, the City of Turlock Police Department has used an Automated License Plate Recognition system at five key intersections in the City of Turlock; and
WHEREAS, with the initial installation of the ALPR system in Turlock in 2023, Turlock Police Department joined a countywide network of ALPR cameras manufactured by EpicIO and now has access to data from other EpicIO ALPR cameras throughout the County, allowing participating law enforcement agencies to enter suspect vehicles so that any participating agency may be alerted to the presence of a wanted vehicle, regardless of which jurisdiction entered the vehicle; and
WHEREAS, due to the success of our current ALPR system, the Turlock Police Department seeks to expand the ALPR system with cameras manufactured by Flock
Resolution No. 2025-
Safety, cameras that offer additional features and data that EpicIO currently does not offer and providing access to a Flock Safety subscription allowing Turlock Police Officers access to data obtained from other Flock Safety subscribers including Merced County Sheriff’s Office, Atwater Police Department, Livingston Police Department, California Highway Patrol, Gustine Police Department, and Manteca Police Department; and WHEREAS, the Turlock Police Department has identified an additional thirteen intersections for installation of ALPR cameras. These along with our current six intersections monitored by EpicIO ALPR cameras will provide more robust coverage of most major roads leading into and out of the City of Turlock; and WHEREAS, with approval of this item, and the recent allocation of funds to purchase a subscription to the Vigilant ALPR database, along with our current vendor EpicIO, Turlock Police Department will have access to the three most common ALPR databases in the surrounding area.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Turlock does hereby authorize an agreement between the City of Turlock and Flock Safety, with a contract amount of one million one hundred thirty-three thousand five hundred fifty dollars ($1,133,550) over five (5) years for automated license plate recognition and appropriating a one-time transfer from expense account number 117- 10-190.48001_351 “Transfers Out To F240 for LPR’s” Fund 117 “Cannabis” unassigned reserve in an amount of five hundred sixty-six thousand seven hundred seventy-five dollars ($566,775) and a one-time transfer from expense account number 118-20-210.48001_351 “Transfers Out To F240 for LPR’s” Fund 118 “Measure A” unassigned reserve in an amount of five hundred sixty-six thousand seven hundred seventy-five dollars ($566,775) and a one-time transfer to revenue account number 240-00-000-213.38001_351 “Transfers In From F117 & F118 for LPR’s” and appropriate two hundred fifty-one thousand one hundred fifty dollars ($251,150) to expense account number 240-00-000-213.51034 “Cameras for License Plate Reader Program” for the first year payment.
PASSED AND ADOPTED at a regular meeting of the City Council of the City of Turlock this 28th day of January, 2025, by the following vote:
AYES:
NOES:
NOT PARTICIPATING:
ABSENT:
ATTEST:
__________________________
_
Nichole Fiez, City Clerk,
City of Turlock, County of Stanislaus,
State of California
1 Master Services Agreement
This Master Services Agreement (this “Agreement”) is entered into by and between Flock Group Inc. with a place of business at 1170 Howell Mill Road NW Suite 210, Atlanta, GA 30318 (“Flock”) and the entity identified in the signature block (“Customer”) (each a “Party,” and together, the “Parties”). This Agreement is effective on the date of mutual execution (“Effective Date”). Parties will sign an Order Form (“Order Form”) which will describe the Flock Services to be performed and the period for performance, attached hereto as Exhibit A.
RECITALS
WHEREAS, Flock offers a software and hardware situational awareness solution through Flock’s technology platform that upon detection is capable of capturing audio, video, image, and recording data and provide notifications to Customer (“Notifications”); WHEREAS, Customer desires access to the Flock Services (defined below) on existing devices, provided by Customer, or Flock provided Flock Hardware (as defined below) in order to create, view, search and archive Footage and receive Notifications, via the Flock Services; and NOW THEREFORE, in consideration of the mutual promises and covenants set forth herein, the Parties agree as follows:
WHEREAS, Flock desires to provide Customer the Flock Services and any access thereto, subject to the terms and conditions of this Agreement, solely for the awareness, prevention, and prosecution of crime, bona fide investigations and evidence gathering for law enforcement purposes, (“Permitted Purpose”).
1. DEFINITIONS
2 Certain capitalized terms, not otherwise defined herein, have the meanings set forth or cross- referenced in this Section 1.
1.1 “Agreement” means the order form (to be provided as Exhibit A, “Order Form”), these terms and conditions, and any document therein incorporated by reference in section 11.4.
1.2 “Anonymized Data” means Customer Data permanently stripped of identifying details and any potential personally identifiable information, by commercially available standards which irreversibly alters data in such a way that a data subject (i.e., individual person or entity) can no longer be identified directly or indirectly.
1.3 “Authorized End User(s)” means any individual employees, agents, or contractors of Customer accessing or using the Services, under the rights granted to Customer pursuant to this Agreement.
1.4 “Customer Data” means the data, media, and content provided by Customer through the Services. For the avoidance of doubt, the Customer Data will include the Footage.
1.5. “Customer Hardware” means the third-party camera owned or provided by Customer and any other physical elements that interact with the Embedded Software and the Web Interface to provide the Services.
1.6 “Effective Date” means the date this Agreement is mutually executed (valid and enforceable) by both Parties.
1.7 “Embedded Software” means the Flock proprietary software and/or firmware integrated with or installed on the Flock Hardware or Customer Hardware.
1.8 “Flock Hardware” means the Flock device(s), which may include the pole, clamps, solar panel, installation components, and any other physical elements that interact with the Embedded Software and the Web Interface, to provide the Flock Services as specifically set forth in the applicable Order Form.
1.9 “Flock IP” means the Services, the Embedded Software, and any intellectual property or proprietary information therein or otherwise provided to Customer and/or its Authorized End Users. Flock IP does not include Footage (as defined below).
1.10 “Flock Services” means the provision of Flock’s software and hardware situational awareness solution, via the Web Interface, for automatic license plate detection, alerts, audio detection, searching image records, video and sharing Footage.
3 1.11 “Footage” means still images, video, audio, and other data captured by the Flock Hardware or Customer Hardware in the course of and provided via the Flock Services.
1.12 “Integration Data” means any distribution of data from a Customer requested third party integration.
1.13“Installation Services” means the services provided by Flock for installation of Flock Services.
1.14 “Permitted Purpose” means for legitimate public safety and/or business purpose, including but not limited to the awareness, prevention, and prosecution of crime; investigations; and prevention of commercial harm, to the extent permitted by law.
1.15 “Retention Period” means the time period that the Customer Data is stored within the cloud storage, as specified in the applicable Order Form. Flock deletes all Footage on a rolling thirty (30) day basis, except as otherwise stated on the Order Form. Customer shall be responsible for extracting, downloading and archiving Footage from the Flock Services on its own storage devices.
1.16 “Term” means the date, unless otherwise stated in the Order Form, upon which the cameras are validated by both Parties as operational.
1.17 “Web Interface” means the website(s) or application(s) through which Customer and its Authorized End Users can access the Services.
2. SERVICES AND SUPPORT
2.1 Provision of Access. Flock hereby grants to Customer a non-exclusive, non-transferable right to access the features and functions of the Flock Services via the Web Interface during the Term, solely for the Authorized End Users. The Footage will be available for Authorized End Users to access and download via the Web Interface for the Retention Period. Authorized End Users will be required to sign up for an account and select a password and username (“User ID”). Customer shall be responsible for all acts and omissions of Authorized End Users.
Customer shall undertake reasonable efforts to make all Authorized End Users aware of all applicable provisions of this Agreement and shall cause Authorized End Users to comply with such provisions. Flock may use the services of one or more third parties to deliver any part of the
4 Flock Services, (such as using a third party to host the Web Interface for cloud storage or a cell phone provider for wireless cellular coverage).
2.2 Embedded Software License. Flock grants Customer a limited, non-exclusive, non- transferable, non-sublicensable (except to the Authorized End Users), revocable right to use the Embedded Software as it pertains to Flock Services, solely as necessary for Customer to use the Flock Services.
2.3 Support Services. Flock shall monitor the Flock Services, and any applicable device health, in order to improve performance and functionality. Flock will use commercially reasonable efforts to respond to requests for support within seventy-two (72) hours. Flock will provide Customer with reasonable technical and on-site support and maintenance services in-person, via phone or by email at [email protected] (such services collectively referred to as “Support Services”).
2.4 Updates to Platform. Flock may make any updates to system or platform that it deems necessary or useful to (i) maintain or enhance the quality or delivery of Flock’s products or services to its agencies, the competitive strength of, or market for, Flock’s products or services, such platform or system’s cost efficiency or performance, or (ii) to comply with applicable law.
Parties understand that such updates are necessary from time to time and will not diminish the quality of the services or materially change any terms or conditions within this Agreement.
2.5 Service Interruption. Services may be interrupted in the event that: (a) Flock’s provision of the Services to Customer or any Authorized End User is prohibited by applicable law; (b) any third-party services required for Services are interrupted; (c) if Services are being used for malicious, unlawful, or otherwise unauthorized use; (d) there is a threat or attack on any of the Flock IP by a third party; or (e) scheduled or emergency maintenance (“Service Interruption”).
Flock will make commercially reasonable efforts to provide written notice of any Service Interruption to Customer, to provide updates, and to resume providing access to Flock Services as soon as reasonably possible after the event giving rise to the Service Interruption is cured.
Flock will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized End User may incur as a result of a Service Interruption. To the extent that the Service Interruption is not caused by Customer’s direct actions or by the actions of parties associated with the Customer, the time will be tolled by the duration of the Service Interruption (for any continuous suspension lasting at
5 least one full day). For example, in the event of a Service Interruption lasting five (5) continuous days, Customer will receive a credit for five (5) free days at the end of the Term.
2.6 Service Suspension. Flock may temporarily suspend Customer’s and any Authorized End User’s access to any portion or all of the Flock IP or Flock Service if (a) there is a threat or attack on any of the Flock IP by Customer; (b) Customer’s or any Authorized End User’s use of the Flock IP disrupts or poses a security risk to the Flock IP or any other customer or vendor of Flock; (c) Customer or any Authorized End User is/are using the Flock IP for fraudulent or illegal activities; (d) Customer has violated any term of this provision, including, but not limited to, utilizing Flock Services for anything other than the Permitted Purpose; or (e) any unauthorized access to Flock Services through Customer’s account (“Service Suspension”).
Customer shall not be entitled to any remedy for the Service Suspension period, including any reimbursement, tolling, or credit. If the Service Suspension was not caused by Customer, the Term will be tolled by the duration of the Service Suspension.
2.7 Hazardous Conditions. Flock Services do not contemplate hazardous materials, or other hazardous conditions, including, without limit, asbestos, lead, or toxic or flammable substances.
In the event any such hazardous materials are discovered in the designated locations in which Flock is to perform services under this Agreement, Flock shall have the right to cease work immediately.
3. CUSTOMER OBLIGATIONS
3.1 Customer Obligations. Flock will assist Customer Authorized End Users in the creation of a User ID. Authorized End Users agree to provide Flock with accurate, complete, and updated registration information. Authorized End Users may not select as their User ID, a name that they do not have the right to use, or any other name with the intent of impersonation. Customer and Authorized End Users may not transfer their account to anyone else without prior written permission of Flock. Authorized End Users shall not share their account username or password information and must protect the security of the username and password. Unless otherwise stated and defined in this Agreement, Customer shall not designate Authorized End Users for persons who are not officers, employees, or agents of Customer. Authorized End Users shall only use Customer-issued email addresses for the creation of their User ID. Customer is responsible for any Authorized End User activity associated with its account. Customer shall ensure that
6 Customer provides Flock with up-to-date contact information at all times during the Term of this Agreement. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Flock Services (e.g., laptops, internet connection, mobile devices, etc.). Customer shall (at its own expense) provide Flock with reasonable access and use of Customer facilities and Customer personnel in order to enable Flock to perform Services (such obligations of Customer are collectively defined as “Customer Obligations”).
3.2 Customer Representations and Warranties. Customer represents, covenants, and warrants that Customer shall use Flock Services only in compliance with this Agreement and all applicable laws and regulations, including but not limited to any laws relating to the recording or sharing of data, video, photo, or audio content.
4. DATA USE AND LICENSING
4.1 Customer Data. As between Flock and Customer, all right, title and interest in the Customer Data, belong to and are retained solely by Customer. Customer hereby grants to Flock a limited, non-exclusive, royalty-free, irrevocable, worldwide license to use the Customer Data and perform all acts as may be necessary for Flock to provide the Flock Services to Customer. Flock does not own and shall not sell Customer Data.
4.2 Customer Generated Data. Flock may provide Customer with the opportunity to post, upload, display, publish, distribute, transmit, broadcast, or otherwise make available, messages, text, illustrations, files, images, graphics, photos, comments, sounds, music, videos, information, content, ratings, reviews, data, questions, suggestions, or other information or materials produced by Customer (“Customer Generated Data”). Customer shall retain whatever legally cognizable right, title, and interest in Customer Generated Data. Customer understands and acknowledges that Flock has no obligation to monitor or enforce Customer’s intellectual property rights of Customer Generated Data. Customer grants Flock a non-exclusive, irrevocable, worldwide, royalty-free, license to use the Customer Generated Data for the purpose of providing Flock Services. Flock does not own and shall not sell Customer Generated Data.
4.3 Anonymized Data. Flock shall have the right to collect, analyze, and anonymize Customer Data and Customer Generated Data to the extent such anonymization renders the data non- identifiable to create Anonymized Data to use and perform the Services and related systems and
7 technologies, including the training of machine learning algorithms. Customer hereby grants Flock a non-exclusive, worldwide, perpetual, royalty-free right to use and distribute such Anonymized Data to improve and enhance the Services and for other development, diagnostic and corrective purposes, and other Flock offerings. Parties understand that the aforementioned license is required for continuity of Services. Flock does not own and shall not sell Anonymized Data.
4.4 Data Distribution. Customer may, upon request, choose to integrate Flock Services with a third party to either distribute Integration Data or Customer Data (such third party, “Recipient”).
Upon such request, Customer hereby grants to Flock a non-exclusive, non-transferable, royalty- free, perpetual license to access, share, view, record, duplicate, store, save, reproduce, modify, display, and distribute Customer Data and/or Integration Data, as required by the requested distribution. Customer acknowledges that such data may be viewed, recorded, duplicated, stored, saved, reproduced, modified, displayed, distributed, and retained by Recipient for a period longer than Flock’s standard retention period and hereby provides consent to such retention period. Unless expressly listed in the Order Form, the provision, access, or use of any Application Programming Interfaces ("APIs") is not included under this Agreement. Any rights, licenses, or obligations related to APIs shall be governed solely by the terms set forth in the Order Form or a separate agreement between the parties.
5. CONFIDENTIALITY; DISCLOSURES
5.1 Confidentiality. To the extent required by any applicable public records requests, each Party (the “Receiving Party”) understands that the other Party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party).
Proprietary Information of Flock includes non-public information provided by the Disclosing Party to the Receiving Party regarding features, functionality and performance of this Agreement. Proprietary Information of Customer includes non-public data provided by Customer to Flock or collected by Flock via Flock Services, which includes but is not limited to geolocation information and environmental data collected by sensors. The Receiving Party agrees: (i) to take the same security precautions to protect against disclosure or unauthorized use of such Proprietary Information that the Party takes with its own proprietary information, but in
8 no event less than commercially reasonable precautions, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public; or (b) was in its possession or known by it prior to receipt from the Disclosing Party; or (c) was rightfully disclosed to it without restriction by a third party; or (d) was independently developed without use of any Proprietary Information of the Disclosing Party.
Nothing in this Agreement will prevent the Receiving Party from disclosing the Proprietary Information pursuant to any judicial or governmental order, provided that the Receiving Party gives the Disclosing Party reasonable prior notice of such disclosure to contest such order. At the termination of this Agreement, all Proprietary Information will be returned to the Disclosing Party, destroyed or erased (if recorded on an erasable storage medium), together with any copies thereof, when no longer needed for the purposes above, or upon request from the Disclosing Party, and in any case upon termination of the Agreement. Notwithstanding any termination, all confidentiality obligations of Proprietary Information that is trade secret shall continue in perpetuity or until such information is no longer trade secret.
5.2 Usage Restrictions on Flock IP. Flock and its licensors retain all right, title and interest in and to the Flock IP and its components, and Customer acknowledges that it neither owns nor acquires any additional rights in and to the foregoing not expressly granted by this Agreement.
Customer further acknowledges that Flock retains the right to use the foregoing for any purpose in Flock’s sole discretion. Customer and Authorized End Users shall not: (i) directly or indirectly, reverse engineer, decompile, disassemble, or otherwise attempt to discover, or recreate the source code, object code or underlying structure, ideas or algorithm of the Flock Services or any software provided hereunder; modify, translate, or create derivative works based on the Flock Services or any software provided hereunder, (ii) attempt to modify, alter, tamper with or repair any of the Flock IP, or attempt to create any derivative product from any of the foregoing; (iii) interfere or attempt to interfere in any manner with the functionality or proper working of any of the Flock IP; (iv) remove, obscure, or alter any notice of any intellectual property or proprietary right appearing on or contained within the Flock Services or Flock IP; (v) use the Flock Services for anything other than the Permitted Purpose; or (vi) assign, sublicense,
9 sell, resell, lease, rent, or otherwise transfer, convey, pledge as security, or otherwise encumber, Customer’s rights. There are no implied rights.
5.3 Disclosure of Footage. Subject to and during the Retention Period, Flock may access, use, preserve and/or disclose the Footage to law enforcement authorities, government officials, and/or third parties, if legally required to do so or if Flock has a good faith belief that such access, use, preservation or disclosure is reasonably necessary to comply with a legal process, enforce this Agreement, or detect, prevent or otherwise address security, privacy, fraud or technical issues, or emergency situations.
6. PAYMENT OF FEES
6.1 Billing and Payment of Fees. Customer shall pay the fees set forth in the applicable Order Form based on the billing structure and payment terms as indicated in the Order Form. To the extent the Order Form is silent, Customer shall pay all invoices net thirty (30) days from the date of receipt. If Customer believes that Flock has billed Customer incorrectly, Customer must contact Flock no later than thirty (30) days after the closing date on the first invoice in which the error or problem appeared to receive an adjustment or credit. Customer acknowledges and agrees that a failure to contact Flock within this period will serve as a waiver of any claim. If any undisputed fee is more than thirty (30) days overdue, Flock may, without limiting its other rights and remedies, suspend delivery of its service until such undisputed invoice is paid in full. Flock shall provide at least thirty (30) days’ prior written notice to Customer of the payment delinquency before exercising any suspension right.
6.2 Notice of Changes to Fees. In the event of any changes to fees, Flock shall provide Customer with sixty (60) days notice (email sufficient) prior to the end of the Initial Term or Renewal Term (as applicable). Any such changes to fees shall only impact subsequent Renewal Terms.
6.3 Taxes. To the extent Customer is not a tax exempt entity, Customer is responsible for all taxes, levies, or duties, excluding only taxes based on Flock’s net income, imposed by taxing authorities associated with the order. If Flock has the legal obligation to pay or collect taxes, including amount subsequently assessed by a taxing authority, for which Customer is responsible, the appropriate amount shall be invoice to and paid by Customer unless Customer provides Flock a legally sufficient tax exemption certificate and Flock shall not charge Customer
10 any taxes from which it is exempt. If any deduction or withholding is required by law, Customer shall notify Flock and shall pay Flock any additional amounts necessary to ensure that the net amount that Flock receives, after any deduction and withholding, equals the amount Flock would have received if no deduction or withholding had been required.
7. TERM AND TERMINATION
7.1 Term. The initial term of this Agreement shall be for the period of time set forth on the Order Form (the “Term”). Unless otherwise indicated on the Order Form, the Term shall commence upon first installation of Flock Hardware, as applicable. Following the Term, unless otherwise indicated on the Order Form, this Agreement will automatically renew for successive renewal terms of the greater of one year or the length set forth on the Order Form (each, a “Renewal Term”) unless either Party gives the other Party notice of non-renewal at least thirty (30) days prior to the end of the then-current term.
7.2 Termination. Upon termination or expiration of this Agreement, Flock will remove any applicable Flock Hardware at a commercially reasonable time period. In the event of any material breach of this Agreement, the non-breaching Party may terminate this Agreement prior to the end of the Term by giving thirty (30) days prior written notice to the breaching Party; provided, however, that this Agreement will not terminate if the breaching Party has cured the breach prior to the expiration of such thirty (30) day period (“Cure Period”). Either Party may terminate this Agreement (i) upon the institution by or against the other Party of insolvency, receivership or bankruptcy proceedings, (ii) upon the other Party's making an assignment for the benefit of creditors, or (iii) upon the other Party's dissolution or ceasing to do business. In the event of a material breach by Flock, and Flock is unable to cure within the Cure Period, Flock will refund Customer a pro-rata portion of the pre-paid fees for Services not received due to such termination.
7.3 Survival. The following Sections will survive termination: 1, 3, 5, 6, 7, 8.3, 8.4, 9, 10.1 and
11.6. 8. REMEDY FOR DEFECT; WARRANTY AND DISCLAIMER
8.1 Manufacturer Defect. Upon a malfunction or failure of Flock Hardware or Embedded Software (a “Defect”), Customer must notify Flock’s technical support team. In the event of a
11 Defect, Flock shall make a commercially reasonable attempt to repair or replace the defective Flock Hardware at no additional cost to the Customer. Flock reserves the right, in its sole discretion, to repair or replace such Defect, provided that Flock shall conduct inspection or testing within a commercially reasonable time, but no longer than seven (7) business days after Customer gives notice to Flock.
8.2 Replacements. In the event that Flock Hardware is lost, stolen, or damaged, Customer may request a replacement of Flock Hardware at a fee according to the reinstall fee schedule (https://www.flocksafety.com/reinstall-fee-schedule). In the event that Customer chooses not to replace lost, damaged, or stolen Flock Hardware, Customer understands and agrees that Flock is not liable for any resulting impact to Flock Service, nor shall Customer receive a refund for the lost, damaged, or stolen Flock Hardware.
8.3 Warranty. Flock shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Installation Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Flock or by third-party providers, or because of other causes beyond Flock’s reasonable control, but Flock shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption.
8.4 Disclaimer. THE REMEDY DESCRIBED IN SECTION 8.1 ABOVE IS CUSTOMER’S SOLE REMEDY, AND FLOCK’S SOLE LIABILITY, WITH RESPECT TO DEFECTS.
FLOCK IS NOT LIABLE FOR ANY DAMAGES OR ISSUES ARISING FROM THIRD- PARTY DISTRIBUTIONS REQUESTED BY CUSTOMER. AFOREMENTIONED DISTRIBUTION IS AT CUSTOMER’S OWN RISK. FLOCK DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE
ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES ARE PROVIDED “AS IS” AND FLOCK DISCLAIMS ALL WARRANTIES,
EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THIS
DISCLAIMER ONLY APPLIES TO THE EXTENT ALLOWED BY THE GOVERNING LAW OF THE STATE MENTIONED IN SECTION 11.6.
12 8.5 Insurance. Flock will maintain commercial general liability policies to be provided as Exhibit B.
8.6 Force Majeure. Parties are not responsible or liable for any delays or failures in performance from any cause beyond their control, including, but not limited to acts of God, changes to law or regulations, embargoes, war, terrorist acts, pandemics (including the spread of variants), issues of national security, acts or omissions of third-party technology providers, riots, fires, earthquakes, floods, power blackouts, strikes, supply chain shortages of equipment or supplies, financial institution crisis, weather conditions or acts of hackers, internet service providers or any other third party acts or omissions.
9. INDEMNITY
9.1 9.1 Responsibility. Each Party to this Agreement shall assume the responsibility and liability for the acts and omissions of its own employees, officers, or agents, in connection with the negligent performance of their official duties under this Agreement.
9.2 Flock Indemnity. Flock shall indemnify and hold harmless Customer, its agents and employees, from liability of any kind, including claims, costs (including defense) and expenses, on account of: (i) any copyrighted material, patented or unpatented invention, articles, device or appliance manufactured or used in the performance of this Agreement; or (ii) any damage or injury to property or person directly caused by Flock’s installation of Flock Hardware, except for where such damage or injury was caused solely by the negligence of the Customer or its agents, officers or employees. This indemnification will survive termination or expiration of this Agreement.
10. INSTALLATION SERVICES AND OBLIGATIONS
10.1 Ownership of Hardware. Flock Hardware is owned and shall remain the exclusive property of Flock. Title to any Flock Hardware shall not pass to Customer upon execution of this Agreement, except as otherwise specifically set forth in this Agreement. Except as otherwise expressly stated in this Agreement, Customer is not permitted to remove, reposition, re-install, tamper with, alter, adjust or otherwise take possession or control of Flock Hardware. Customer agrees and understands that in the event Customer is found to engage in any of the foregoing
13 restricted actions, all warranties herein shall be null and void, and this Agreement shall be subject to immediate termination for material breach by Customer. Customer shall not perform any acts which would interfere with the retention of title of the Flock Hardware by Flock. Should Customer default on any payment of the Flock Services, Flock may remove Flock Hardware at Flock’s discretion. Such removal, if made by Flock, shall not be deemed a waiver of Flock’s rights to any damages Flock may sustain as a result of Customer’s default and Flock shall have the right to enforce any other legal remedy or right.
10.2 Deployment Plan. Flock shall advise Customer on the location and positioning of the Flock Hardware for optimal product functionality, as conditions and locations allow. Flock will collaborate with Customer to design the strategic geographic mapping of the location(s) and implementation of Flock Hardware to create a deployment plan (“Deployment Plan”). In the event that Flock determines that Flock Hardware will not achieve optimal functionality at a designated location, Flock shall have final discretion to veto a specific location, and will provide alternative options to Customer.
10.3 Changes to Deployment Plan. After installation of Flock Hardware, any subsequent requested changes to the Deployment Plan, including, but not limited to, relocating, re- positioning, adjusting of the mounting, removing foliage, replacement, changes to heights of poles will incur a fee according to the reinstall fee schedule located at (https://www.flocksafety.com/reinstall-fee-schedule). Customer will receive prior notice and confirm approval of any such fees.
10.4 Customer Installation Obligations. Customer is responsible for any applicable supplementary cost as described in the Customer Implementation Guide, attached hereto as Exhibit C. Customer represents and warrants that it has, or shall lawfully obtain, all necessary right title and authority and hereby authorizes Flock to install the Flock Hardware at the designated locations and to make any necessary inspections or maintenance in connection with such installation.
10.5 Flock’s Obligations. Installation of any Flock Hardware shall be installed in a professional manner within a commercially reasonable time from the Effective Date of this Agreement. Upon removal of Flock Hardware, Flock shall restore the location to its original condition, ordinary wear and tear excepted. Flock will continue to monitor the performance of Flock Hardware for the length of the Term. Flock may use a subcontractor or third party to perform certain
14 obligations under this Agreement, provided that Flock’s use of such subcontractor or third party shall not release Flock from any duty or liability to fulfill Flock’s obligations under this Agreement.
11. MISCELLANEOUS
11.1 Compliance with Laws. Parties shall comply with all applicable local, state and federal laws, regulations, policies and ordinances and their associated record retention schedules, including responding to any subpoena request(s).
11.2 Severability. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect.
11.3 Assignment. This Agreement is not assignable, transferable or sublicensable by either Party, without prior consent. Notwithstanding the foregoing, either Party may assign this Agreement, without the other Party's consent, (i) to any parent, subsidiary, or affiliate entity, or (ii) to any purchaser of all or substantially all of such Party's assets or to any successor by way of merger, consolidation or similar transaction.
11.4 Entire Agreement. This Agreement, together with the Order Form(s), the reinstall fee schedule (https://www.flocksafety.com/reinstall-fee-schedule), and any attached exhibits are the complete and exclusive statement of the mutual understanding of the Parties and supersedes and cancels all previous or contemporaneous negotiations, discussions or agreements, whether written and oral, communications and other understandings relating to the subject matter of this Agreement. All waivers and modifications must be in a writing signed by both Parties, except as otherwise provided herein. None of Customer’s purchase orders, authorizations or similar documents will alter the terms of this Agreement, and any such conflicting terms are expressly rejected. Any mutually agreed upon future purchase order is subject to these legal terms and does not alter the rights and obligations under this Agreement, except that future purchase orders may outline additional products, services, quantities and billing terms to be mutually accepted by Parties. In the event of any conflict of terms found in this Agreement or any other terms and conditions, the terms of this Agreement shall prevail. Customer agrees that Customer’s purchase is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written comments made by Flock with respect to future functionality or feature.
15 11.5 Relationship. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Parties do not have any authority of any kind to bind each other in any respect whatsoever. Flock shall at all times be and act as an independent contractor to Customer.
11.6 Governing Law; Venue. This Agreement shall be governed by the laws of the state in which the Customer is located. The Parties hereto agree that venue would be proper in the chosen courts of the State of which the Customer is located. The Parties agree that the United Nations Convention for the International Sale of Goods is excluded in its entirety from this Agreement.
11.7 Special Terms. Flock may offer certain special terms which are indicated in the Order Form and will become part of this Agreement, upon Customer’s prior written consent and the mutual execution by authorized representatives (“Special Terms”). To the extent that any terms of this Agreement are inconsistent or conflict with the Special Terms, the Special Terms shall control.
11.8 Publicity. Upon prior written consent, Flock has the right to reference and use Customer’s name and disclose the nature of the Services in business and development and marketing efforts.
Nothing contained in this Agreement shall be construed as conferring on any Party, any right to use the other Party’s name as an endorsement of product/service.
11.9 Feedback. If Customer or Authorized End User provides any suggestions, ideas, enhancement requests, feedback, recommendations or other information relating to the subject matter hereunder, Customer or Authorized End User hereby assigns to Flock all right, title and interest (including intellectual property rights) with respect to or resulting from any of the foregoing.
11.10 Export. Customer may not remove or export from the United States or allow the export or re-export of the Flock IP or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign Customer or authority. As defined in Federal Acquisition Regulation (“FAR”), section
2.101, the Services, the Flock Hardware and Documentation are “commercial items” and according to the Department of Defense Federal Acquisition Regulation (“DFAR”) section 252.2277014(a)(1) and are deemed to be “commercial computer software” and “commercial computer software documentation.” Flock is compliant with FAR Section 889 and does not
16 contract or do business with, use any equipment, system, or service that uses the enumerated banned Chinese telecommunication companies, equipment or services as a substantial or essential component of any system, or as critical technology as part of any Flock system.
Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
11.11 Headings. The headings are merely for organization and should not be construed as adding meaning to the Agreement or interpreting the associated sections.
11.12 Authority. Each of the below signers of this Agreement represent that they understand this Agreement and have the authority to sign on behalf of and bind the Parties they are representing upon the Effective Date.
11.13 Conflict. In the event there is a conflict between this Agreement and any applicable statement of work, or Customer purchase order, this Agreement controls unless explicitly stated otherwise.
11.14 Notices. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt to the address listed on the Order Form (or, if different, below), if sent by certified or registered mail, return receipt requested. All notices will be provided to the email or mailing address listed in the Order Form.
11.15 Non-Appropriation. Notwithstanding any other provision of this Agreement, all obligations of the Customer under this Agreement which require the expenditure of public funds are conditioned on the availability of said funds appropriated for that purpose. To the extent applicable, Customer shall have the right to terminate this Agreement for non-appropriation with thirty (30) days written notice without penalty or other cost. .
17 FLOCK NOTICES ADDRESS:
1170 HOWELL MILL ROAD, NW SUITE 210
ATLANTA, GA 30318
ATTN: LEGAL DEPARTMENT
EMAIL: [email protected]
Customer NOTICES ADDRESS:
ADDRESS:
ATTN:
EMAIL:
18 IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by and through their respective officers thereunto duly authorized.
CITY OF TURLOCK, a California
municipal corporation
By:
Reagan M. Wilson, City Manager
Date:
APPROVED AS TO SUFFICIENCY:
By:
Jason Hedden, Chief of Police
APPROVED AS TO FORM:
By:
George A. Petrulakis, City Attorney
ATTEST:
By:
Nichole Fiez, City Clerk
SERVICE PROVIDER
____________________,
a ___________________
By:
Print Name:
Title:
Date
19 EXHIBIT B
INSURANCE
Required Coverage. Flock shall procure and maintain for the duration of this Agreement insurance against claims for injuries to persons or damages to property that may arise from or in connection with the performance of the services under this Agreement and the results of that work by Flock or its agents, representatives, employees or subcontractors. Insurance shall be placed with insurers with a current A. M. Best rating of no less than “A” and “VII”. Flock shall obtain and, during the term of this Agreement, shall maintain policies of cyber liability, professional liability (errors and omissions), automobile liability, and commercial general liability insurance for insurable amounts of not less than the limits listed herein. The insurance policies shall provide that the policies shall remain in full force during the life of the Agreement.
Flock shall procure and shall maintain during the life of this Agreement Worker's Compensation insurance as required by applicable State law for all Flock employees. For the avoidance of doubt, (i) all required insurance limits by Customer can be met through a combination of primary and follow form excess/umbrella coverage, (ii) Flock’s Cyber and Professional Liability/Errors and Omissions insurance has a shared limit of Five Million Dollars (5,000,000) per incident and in the aggregate however, the limits available under this Agreement shall not be less than all amount(s) required to satisfy all claims related to and applicable under this Agreement, (iii) the commercial general liability and automobile liability shall name the Customer and be endorsed as additional insured, (iv) all policies shall and be endorsed primary and non-contributory (Customer’s insurance/self-insurance shall not contribute), and (v) the commercial general liability, automobile liability and workers’ compensation policies shall include and be endorsed with a waiver of subrogation.
Types and Amounts Required. Flock shall maintain, at minimum, the following insurance coverage for the duration of this Agreement:
(i) Commercial General Liability insurance written on an occurrence basis with minimum limits of One Million Dollars ($1,000,000) per occurrence, Two Million Dollars ($2,000,000) in the aggregate, and Two Million Dollars ($2,000,000) products and completed operations aggregate for bodily injury, death, and property damage, including personal injury, contractual
20 liability, independent contractors, broad-form property damage, and product and completed operations coverage;
(ii) Workers Compensation insurance in accordance with statutory limits, and Emplolyer’s Liability with limits of not less than $1,000,000 each accident, $1,000,000 by disease-policy limit, and $1,000,000 by disease-each employee;
(iii) Professional Liability/Errors and Omissions insurance with minimum limits of Five Million Dollars ($5,000,000) per occurrence and Five Million Dollars ($5,000,000) in the aggregate;
(iv) Commercial Automobile Liability insurance with a minimum combined single limit of One Million Dollars ($1,000,000) per occurrence for bodily injury, death, and property coverage, including owned and non-owned and hired automobile coverage; and (v) Cyber Liability insurance written on an occurrence basis with minimum limits of Five Million Dollars ($5,000,000).
Flock Safety + CA - Turlock PD
______________
Flock Group Inc.
1170 Howell Mill Rd, Suite 210
Atlanta, GA 30318
______________
MAIN CONTACT:
Tariq Bright
[email protected]
4088968551
EXHIBIT A
ORDER FORM
Customer: CA - Turlock PD Initial Term: 60 Months
Legal Entity Name: CA - Turlock PD Renewal Term: 24 Months Accounts Payable Email: [email protected] Payment Terms: Net 30 Address: 244 N Broadway Ave Turlock, California 95380 Billing Frequency: Annual Plan - Invoiced at First Camera Validation.
Retention Period: 90 Days
Hardware and Software Products
Annual recurring amounts over subscription term
Item Cost Quantity Total
Flock Safety Platform $220,600.00
Flock Safety Flock OS
FlockOS ™ - Essentials Included 1 Included
Enhanced LPR Upgrade Included 1 Included
Flock Safety LPR Products
Flock Safety Falcon ® Included 52 Included
Flock Safety Video Products
Flock Safety Condor ™ PTZ w/ LTE Service Included 13 Included Flock Safety Platform Add Ons
Extended data retention (Up to 1 Year)
Included 52 Included
Professional Services and One Time Purchases
Item Cost Quantity Total
One Time Fees
Flock Safety Professional Services
Professional Services - Electrical Implementation
Fee $1,250.00 13 $16,250.00
Professional Services - Standard Implementation Fee $650.00 13 $8,450.00 Professional Services - Existing Infrastructure
Implementation Fee $150.00 39 $5,850.00
Subtotal Year 1: $251,150.00
Annual Recurring Subtotal: $220,600.00
Estimated Tax: $0.00
Contract Total: $1,133,550.00
The Term for Flock Hardware shall commence upon first installation and validation, except that the Term for any Flock Hardware that requires self- installation shall commence upon execution of the Agreement. In the event a Customer purchases more than one type of Flock Hardware, the earliest Term start date shall control. In the event a Customer purchases software only, the Term shall commence upon execution of the Agreement.
Taxes shown above are provided as an estimate. Actual taxes are the responsibility of the Customer. This Agreement will automatically renew for successive renewal terms of the greater of one year or the length set forth on the Order Form (each, a “Renewal Term”) unless either Party gives the other Party notice of non-renewal at least thirty (30) days prior to the end of the then-current term.
Special Terms:
• Custom Recurring Subscription: Fusus API Integration
Item Cost Quantity Total
Flock Safety Platform $220,600.00
Flock Safety Falcon ® $3,000.00 52 $156,000.00
Flock Safety Condor ™ PTZ w/ LTE Service $3,000.00 13 $39,000.00 Enhanced LPR Upgrade $10,000.00 1 $10,000.00
FlockOS ™ Essentials Included 1 Included
Extended Data Retention (Up to 1 Year) $300.00 52 $15,600.00 One Time Fees Cost Qty Total
Professional Services - Standard Implementation Fee $650.00 13 $8,450.00 Professional Services – Electrical Implementation Fee $1,250.00 13 $16,250.00 Professional Services - Existing Infrastructure Implementation Fee $150.00 39 $5,850.00
Annual Billing
Schedule
Year 1 $251,150.00
Year 2 $220,600.00
Year 3 $220,600.00
Year 4 $220,600.00
Year 5 $220,600.00
Contract Total: $1,133,550.00
Billing Schedule
Billing Schedule Amount (USD)
Year 1
At First Camera Validation $251,150.00
Annual Recurring after Year 1 $220,600.00
Contract Total $1,133,550.00
*Tax not included
Product and Services Description
Flock Safety Platform Items Product Description
FlockOS ™ - Essentials
An integrated public safety platform that detects, centralizes and decodes actionable evidence to increase safety, improve efficiency, and connect the community.
Enhanced LPR Upgrade
The Enhanced LPR Package is a software add-on for any of the FlockOS® tiers designed to help detectives and patrol officers conduct more efficient, informed, and collaborative investigations. Its advanced License Plate Recognition (LPR) features streamline investigations, providing officers with immediate access to essential information and improving communication within and across departments.
Flock Safety Condor ™ PTZ w/
LTE Service
Law enforcement grade live streamed PTZ camera with 30 days of edge storage. VMS included and server free. Installed and maintained by Flock Safety, turn key-no additional software or integrations required.
Flock Safety Falcon ®
Law enforcement grade infrastructure-free (solar power + LTE) license plate recognition camera with Vehicle Fingerprint ™ technology (proprietary machine learning software) and real-time alerts for unlimited users.
Professional Services - Standard
Implementation Fee
One-time Professional Services engagement. Includes site and safety assessment, camera setup and testing, and shipping and handling in accordance with the Flock Safety Standard Implementation Service Brief.
Professional Services - Existing
Infrastructure Implementation Fee
One-time Professional Services engagement. Includes site and safety assessment of existing vertical infrastructure location, camera setup and testing, and shipping and handling in accordance with the Flock Safety Standard Implementation Service Brief.
Professional Services - Electrical
Implementation Fee Electrical connection and maintenance services for AC powered devices by Flock qualified electrical workers.
Extended data retention (Up to 1
Year) Extended data retention for up to 1 year for 1 Law Enforcement grade Falcon camera.
FlockOS Features & Description
FlockOS Features Description
Community Network Access
The ability to request direct access to feeds from privately owned Flock Safety Falcon® LPR cameras located in neighborhoods, schools, and businesses in your community, significantly increasing actionable evidence that clears cases.
Unlimited Users Unlimited users for FlockOS
State Network (License Plate Lookup Only) Allows agencies to look up license plates on all cameras opted into the Flock Safety network within your state.
Nationwide Network (License Plate Lookup Only)
With the vast Flock Safety sharing network, law enforcement agencies no longer have to rely on just their devices alone. Agencies can leverage a nationwide system boasting 10 billion additional plate reads per month to amplify the potential to collect vital evidence in otherwise dead-end investigations.
Law Enforcement Network Access The ability to request direct access to evidence detection devices from Law Enforcement agencies outside of your jurisdiction.
Time & Location Based Search Search full, partial, and temporary plates by time at particular device locations License Plate Lookup Look up specific license plate location history captured on Flock devices Vehicle Fingerprint Search Search footage using Vehicle Fingerprint™ technology. Access vehicle type, make, color, license plate state, missing / covered plates, and other unique features like bumper stickers, decals, and roof racks.
Insights & Analytics Reporting tool to help administrators manage their LPR program with device performance data, user and network audits, plate read reports, hot list alert reports, event logs, and outcome reports.
ESRI Based Map Interface Map-based interface that consolidates all data streams and the locations of each connected asset, enabling greater situational awareness and a common operating picture.
Real-Time NCIC Alerts on Flock ALPR Cameras
Receive automated alerts when vehicles entered into established databases for missing and wanted persons are detected, including the FBI’s National Crime Information Center (NCIC) and National Center for Missing & Exploited Children (NCMEC) databases.
Unlimited Custom Hot Lists Ability to add a suspect’s license plate to a custom list and get alerted when it passes by a Flock camera Convoy Search Unearth hidden connections by detecting suspect vehicles that frequently travel together. This tool is invaluable for investigating organized or serial crimes and identifying accomplices.
Visual Search
Transforms any digital photo into a potent investigative lead, enhancing evidence collection. Upload the image of a vehicle into FlockOS® to initiate a reverse image search that will help you identify crucial suspect vehicle information and unlock dead-end investigations.
Multi Geo Search Connects the dots between multiple crimes and crime scenes. Link a suspect vehicle to multiple incidents based on location, without needing a vehicle description or plate number.
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By executing this Order Form, Customer represents and warrants that it has read and agrees to all of the terms and conditions contained in the Master Services Agreement attached.
The Parties have executed this Agreement as of the dates set forth below.
FLOCK GROUP, INC. Customer: CA - Turlock PD
By:
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By:
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Name:
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Name:
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Title:
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Title:
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Date:
\FSDateSigned2\
Date:
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PO Number:
City Council Staff Report
January 28, 2025
From: Adrienne Werner, Development Services Director
Prepared by: Adrienne Werner, Development Services Director Agendized by: Reagan M. Wilson, City Manager
1. ACTION RECOMMENDED:
Ordinance: Adopting an Ordinance and approving a Development Agreement between the City of Turlock and Turlock Marketplace LLC, located at 1885 Countryside Drive, 2712 W.
Tuolumne Road, and 2630 W. Tuolumne Road, Turlock, California, Stanislaus County Assessor’s Parcel Numbers 088-016-001, 088-010-02, and 088-018-052.
2. DISCUSSION OF ISSUE:
The developer proposes to develop the properties at 1885 Countryside Drive, 2712 W. Tuolumne Road, and 2630 W. Tuolumne Road as a commercial shopping center with various commercial and retail uses. For the project's viability, the developer requires an access point from West Tuolumne Road, southward into the project, at the location indicated in Exhibit 1. This access point would allow right-in, right-out, and left-in movements into the shopping center.
The Turlock General Plan includes a future flyover over State Route 99, which would extend the existing segment of West Tuolumne Road west of the state route and connect to the existing western segment of West Tuolumne Road. The developer is concerned that the planned flyover could jeopardize the access point on West Tuolumne Road into the shopping center.
Agenda Staff Report
1/28/2025
The Development Agreement will guarantee that the Developer can maintain the access point from West Tuolumne Road in the proposed location and configuration.
At their December 5, 2024 meeting, by a vote of 5-0, with two Commissioners absent, the Planning Commission recommended the City Council adopt an Ordinance approving the Development Agreement. Negotiations on the Development Agreement continued between the Applicant and City staff after the Planning Commission meeting. Attached is a version of the agreement showing the revisions between the Planning Commission meeting and the City Council hearing.
3. BASIS OF RECOMMENDATION:
1. Development Agreements are legislative acts that may only be entered into if approved by the City Council. At the December 5, 2024 Planning Commission meeting, the Planning Commission voted 6-0 with one member absent, to
Agenda Staff Report
1/28/2025
recommend the City Council approve the Development Agreement.
4. FISCAL IMPACT / BUDGET AMENDMENT:
All costs associated with processing the application for the Development Agreement have been paid for by the applicant. The adoption of the Ordinance and approval of the Development Agreement ensures future access from W. Tuolumne Road into the future commercial shopping center. Future costs to develop the commercial shopping center are the responsibility of the developer.
5. STAFF RECOMMENDATION:
Recommend approval.
6. CITY MANAGER COMMENTS:
Recommend approval.
7. ENVIRONMENTAL DETERMINATION:
This request is not subject to the provisions of the California Environmental Quality Act (CEQA) in accordance with Section 15378(b)(5) [Project] of the CEQA guidelines.
8. ALTERNATIVES:
1. Council may decide not to adopt the proposed Ordinance and Development Agreement. However, this option is not recommended, as the development agreement guarantees future access from W. Tuolumne Road to the future commercial shopping center.
2. Council could choose to change or add to the terms in the Development Agreement.
9. ATTACHMENTS:
1. Ordinance
2. DA Compare Version PC draft v CC final Turlock Marketplace
3. DA City - Turlock Marketplace with Exhibits FINAL
BEFORE THE CITY COUNCIL OF THE CITY OF TURLOCK
IN THE MATTER OF ADOPTING AN ORDINANCE } ORDINANCE NO. -CS APPROVING A DEVELOPMENT AGREEMENT }
BETWEEN THE CITY OF TURLOCK AND }
TURLOCK MARKETPLACE LLC, RELATING TO A }
PROPOSED NEW SHOPPING CENTER LOCATED }
AT 1885 COUNTRYSIDE DRIVE, 2712 W. TUOLUMNE }
ROAD AND 2630 W. TUOLUMNE ROAD, TURLOCK, }
CALIFORNIA, STANISLAUS COUNTY ASSESSOR’S }
PARCEL NUMBERS 088-016-001, 088-010-024, }
AND 088-018-052 }
}
WHEREAS, on November 20, 2024 Turlock Marketplace LLC submitted an application proposing to enter into a Development Agreement with the City of Turlock to facilitate the development of a shopping center; and
WHEREAS, the Turlock General Plan identifies a future flyover (overpass) over State Route 99; which would extend the existing segment of West Tuolumne Road west of the state route and connect to the existing western segment of West Tuolumne Road; and WHEREAS, the properties affected by this resolution are identified 1885 Countryside Drive, 2712 W. Tuolumne Road and 2630 W. Tuolumne Road, Stanislaus County APNs 088- 016-001, 088-010-024, and 088-010-052; and
WHEREAS, the properties are located in the Northwest Triangle Specific Plan and are zoned Planned Development 166 (PD 166) and Community Commercial (CC), respectively, with an underlying General Plan Designation of Community Commercial (CC), which allows for the development of a commercial shopping center; and
WHEREAS, the developer is concerned that the planned flyover could jeopardize the access point on West Tuolumne Road into the future commercial shopping center; and WHEREAS, the Development Agreement will guarantee that the Developer can maintain the access point from West Tuolumne Road in the proposed location and configuration; and
WHEREAS, on December 5, 2024, the City of Turlock Planning Commission (“Planning Commission”) held a duly noticed public hearing to consider the Development Agreement and by a vote of 5-0, with two Commissioners absent recommended the Turlock City Council approve the Development Agreement; and
WHEREAS, the Turlock City Council finds that this request is not subject to the provisions of the California Environmental Quality Act (CEQA) in accordance with Section 15378(b)(5) [Project] of the CEQA guidelines.
Ordinance No. -CS
WHEREAS, the Turlock City Council, based on its independent review and analysis of the Planning Commission’s recommendation, oral and written testimony, and the record as a whole, finds after due study, deliberation, and public hearing, and based on its independent judgement, that the following circumstances exist:
1. The Development Agreement is consistent with the goals, policies, and standards of the City’s General Plan and all other applicable standards and ordinances of the City.
2. In accordance with the Development Agreement Statute, the City Council finds that the Development Agreement:
a) Is consistent with the objectives, policies, general land uses, and programs specified in the General Plan and any applicable specific plan; b) Is compatible with the uses authorized in, and the regulations prescribed for, the land use district in which the real property is located; c) Is in conformity with the public convenience and general welfare and good land use practices;
d) Will not be detrimental to the health, safety, and general welfare; e) Will not adversely affect the orderly development of property or the preservation of property values; and
f) Will provide sufficient benefit to the City to justify entering into the agreement.
WHEREAS, the Turlock City Council finds that the Development Agreement conforms to the Development Agreement Statute.
NOW, THEREFORE, BE IT RESOLVED, that the Turlock City Council adopts the Ordinance approving the Development Agreement between the City of Turlock and Turlock Marketplace LLC.
BE IT ORDAINED by the City Council of the City of Turlock as follows:
SECTION 1. The City Council approves a Development Agreement by and between Turlock Marketplace LLC for access from W. Tuolumne Road, south into the future commercial shopping center located at 1885 Countryside Drive, 2712 W. Tuolumne Road and 2630 W. Tuolumne Road, Stanislaus County APNs 088-016-001, 088-010-024, and 088-010- 052 and instructs the City Manager to execute the Development Agreement subject to final approval by the City Attorney.
SECTION 2. Upon passage of this Ordinance, the City Manager is authorized to execute the Development Agreement on behalf of the City. Within ten (10) days of the execution, but no earlier than thirty (30) days, after passage of this Ordinance, the City Clerk shall cause the Development Agreement to be recorded in the office of the Stanislaus County Recorder as provided by Government Code Section 65868.5. The Development Agreement shall not take effect for thirty (30) days following passage and adoption of this Ordinance.
SECTION 3. VALIDITY: If any section, subsection, sentence, clause, word, or phrase of this ordinance is held to be unconstitutional or otherwise invalid for any reason, such decision
Ordinance No. -CS
shall not affect the validity of the remainder of this ordinance. The Turlock City Council hereby declares that they would have passed this ordinance, and each section, subsection, sentence, clause, word, or phrase thereof, irrespective of the fact that one or more section, subsection, sentence, clause, word, or phrase be declared invalid or unconstitutional.
PASSED AND ADOPTED at a regular meeting of the City Council of the City of Turlock this 14th day of January, 2025, by the following vote:
AYES:
NOES:
NOT PARTICIPATING:
ABSENT:
Signed and approved this ___ day of _____________, 2025.
SIGNED:
__________________________
Amy Bublak, Mayor
ATTEST:
_____________________________
Nichole Fiez, City Clerk
City of Turlock, County of Stanislaus,
State of California
APPROVED AS TO FORM:
______________________________
George Petrulakis, City Attorney
7798.012-8474657.2
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
City of Turlock
156 S. Broadway
Turlock, California 95380
Attention: City Clerk
APN 088-016-001-000 Space Above This Line Reserved for Recorder’s Use.
APN 088-010-024-000 Exempt from Recording Fees. (Government Code sections APN 088-010-052-000 6103 and 27383).
DRAFT VERSION 11/25/2024
DEVELOPMENT AGREEMENT
TURLOCK MARKETPLACE PROJECT
BY AND BETWEEN
The City of Turlock
AND
Turlock Marketplace, LLC, a California
limited liability company
Adopted by City Council Ordinance No. _______,
on _________________, 202_2025
This DEVELOPMENT AGREEMENT (“Agreement”) is made and entered into by and between TURLOCK MARKETPLACE, LLC, a California limited liability company (“Developer”) and the CITY OF TURLOCK, a California municipal corporation (“City”), as of ______________________, 202_ (the “Effective Date”). City and Developer may be referred to herein individually as a “Party” or collectively as the “Parties.” There are no other parties to this Agreement.
RECITALS
A. The Development Agreement is entered into pursuant to the “Development Agreement Statute” (Government Code section 65864 et seq.) and the Development Agreement Law of the City of Turlock (Article 9 of Chapter 9-5 of Title 9 of the Turlock Municipal Code), which authorize City to enter into a development agreement with any person having a legal or equitable interest in real property for the development of that property.
B. Developer owns or controls those parcels of real property more specifically described in ExhibitsExhibit A-1 and A-2 (the “Property” or “Properties”)””) and commonly known as 1885 Countryside Drive, 2712 West Tuolumne Road, and 2630 West Tuolumne Road and identified for convenience as Assessor’s Parcel Numbers 088-016- 001-000, 088-010-024-000, and 088-010-052-000. The Properties constitute approximately 29.42 acres and are located within the boundaries of the City’s Northwest Triangle Specific Plan. The Properties are depicted in Exhibit B.
C. The Properties are located within an infill area of the City generally bounded by __________ identified conceptually as shown in Exhibit B (the “Turlock Marketplace Area”) located within the Northwest Triangle Specific Plan boundaries. The Turlock Marketplace Area is generally bounded by Countryside Drive to the east, the West Tuolumne Road and the alignment for the extension of same to the north, State Route 99 to the west, and commercial development to the south.
D.C. Developer has proposed to develop the Properties as a commercial shopping center including a big box retail center and various other commercial and retail uses (the “Turlock Marketplace Project”).” or “Project”)). For viability of the Project, Developer requires access from West Tuolumne Road south into the Project area at a location shown in Exhibit CB which will allow right-in, right-out and left-in movements into the Project but not left-out movements (the “West Tuolumne Road Access Point”). City in its General Plan has planned for a future flyover over State Route 99 extending the existing eastern segment of West Tuolumne Road west over the state route and connecting to the existing western segment of West Tuolumne Road. Developer has concerns that the future flyover would jeopardize the West Tuolumne Road Access Point.
City has confirmed that should the flyover be implemented, the West Tuolumne Road Access Point can be maintained by Developer in its proposed location and configuration as agreed to by the Parties.
E.D. The major purpose of this Agreement is to maintain the viability of the Turlock Marketplace Project by ensuring access to the Project at the West Tuolumne Road Access Point as provided in this Agreement should the City implement the flyover over State Route 99 along the West Tuolumne Road alignment (the “West Tuolumne Road Access Vesting”). As used herein, the West Tuolumne Road Access Vesting shall mean that (i) the right in, right out, and left in driveway access into the Turlock Marketplace Project from Tuolumne Road shall be preserved, and (ii) the location and dimensions of such driveway shall be preserved in such a way to not materially and adversely impact access. The additional purpose of this Agreement is for the Parties to enter into an Agreement that meets the necessary requirements of the Development Agreement Statute and the Development Agreement Law of the City of Turlock while providing the Parties the necessary flexibility to implement subsequent aspects of the Turlock Marketplace Project.
F.E. City has determined that this Agreement is consistent with the General Plan and the Northwest Triangle Specific Plan and meets all requirements under the Development Agreement Statute and the Development Agreement Law of the City of Turlock. City further has determined that all necessary proceedings related to this Agreement have been conducted in accordance with City and state rules and regulations.
City has further determined that development of the Turlock Marketplace Project will result in significant public benefits in furthering the City’s economic development goals.
NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, and other good and valuable consideration, the receipt and legal sufficiency of which are hereby acknowledged, the Parties do hereby agree as follows:
AGREEMENT
ARTICLE 1
GENERAL PROVISIONS
Section 1.1. Recitals. The Recitals above are true and correct and are hereby incorporated into and made a part of the Agreement. In the event of any inconsistency between the Recitals and the provisions of the Agreement, the provisions of the Agreement shall prevail.
Section 1.2. Exhibits. The following “Exhibits” are attached hereto and incorporated into and made part of this Agreement:
Designation Description
Exhibit A-1 List of Developer Properties
Exhibit A-2 Legal Description of Developer Properties
Exhibit B Turlock Marketplace Area
Section 1.3. Project is a Private Undertaking. The Parties agree that the Turlock Marketplace Project is a private development and that City has no interest therein except as authorized in the exercise of its governmental functions. Nothing in this Agreement shall preclude Developer, without City review and approval, from forming a private investment entity, entering into a joint venture or selling, leasing, or otherwise entering into agreements with respect to any portion, parcel, or development phase to or with another party for the purpose of developing, managing, or completing any portion of the Turlock Marketplace Project.
Section 1.4. Effective Date of Agreement and Operative Date of Agreement. The Agreement shall become effective on the “Effective Date” of the Agreement which shall occur when the ordinance approving this Agreement becomes effective. The Agreement shall be binding on each Party on the date of each Party’s execution of the Agreement.
Section 1.5. Recordation of Development Agreement. The City Clerk shall cause a copy of the Development Agreement to be recorded against the title to all Properties subject to this Agreement within ten (10) days of the Effective Date.
Section 1.6. Term of Agreement. The “Term” of this Agreement shall be fifty (50) years from the Effective Date, unless extended or terminated earlier as provided for in this Agreement. Notwithstanding the foregoing, the Current Standards Vesting shall expire after fifteen (15) years from the Effective Dave and the West Tuolumne Road Access Vesting shall be effective for the entire Term. Any modification or extensions to the Term shall be subject to the mutual agreement of the Parties. The City Manager shall have the sole discretion to approve any modification or extension to the Term on behalf of City, with any such modification or extension constituting a minor amendment to this Agreement. Following expiration of the Term, this Agreement shall be deemed terminated and of no further force and effect. In the event of expiration of the Term, Developer shall be required to enter into a new Development Agreement with City if Developer so requests.
Section 1.7. Covenant Running with the Land. Developer represents that it has a legal or equitable interest in the Property, as identified by Assessor’s Parcel Number (“APN”) in Exhibit A-1 and as legally described in Exhibit A-2. This Agreement shall constitute a covenant running with the land, and the burdens and benefits of this Agreement shall bind and inure to all successors-in-interest to Developers, until such time that the Agreement terminates.
Exhibit CB Depiction of Properties and West Tuolumne Road Access Point
Exhibit C Form of Assignment and Assumption Agreement
Exhibit D Form of Partial Assignment and Assumption Agreement Exhibit E Form of Notice of Termination
Exhibit F Revised Standards and Specifications
ARTICLE 2
SUBSEQUENT CITY APPROVALS; PERMIT PROCESSING
Section 2.1. Subsequent City Approvals. Implementation of the Turlock Marketplace Project may require Developer to obtain additional approvals and permits from City (“Subsequent City Approvals”). Subsequent City Approvals may include, without limitation, tentative parcel maps, final maps, staff-level approvals, subdivision improvement plans and agreements, architectural and site plan reviews, encroachment permits, building permits, landscaping plans, grading plans and permits, lot line adjustments, use permits, and occupancy certificates. City shall comply with the California Environmental Quality Act (“CEQA”), the Subdivision Map Act (California Government Code Section 66410 et seq.) (the “Map Act”), and other applicable laws in processing the Subsequent City Approvals. In the course of taking action on these applications, City will exercise discretion in imposing conditions of approval and adopting mitigation measures in accordance with the Map Act, CEQA and other applicable state and local law. City’s exercise of discretion is not prohibited by this Agreement, but the exercise of that discretion must be reasonable and consistent with this Agreement.
Development of the Properties shall be subject to all conditions of approval and mitigation measures adopted in conjunction with any Subsequent City Approvals so long as they do not conflict with the Current Standards Vesting or West Tuolumne Road Access Vesting provided herein.
Section 2.2. Life of Subdivision Maps. [Intentionally Omitted.]
Section 2.3. Further Discretionary Actions. The exercise of City's authority and independent judgment is recognized under this Agreement, and nothing in this Agreement shall be interpreted as limiting City’s discretion to approve, disapprove or impose conditions on any Subsequent City Approvals, to require additional information or studies from Developers, or to hold legally required public hearings. Except as otherwise set forth hereinin this Agreement, such discretion and action taken by the City shall, however, be consistent with the terms of this Agreement and shall not prevent, hinder, or compromise development or use of the Property as contemplated by the Parties in this Agreement and shall not conflict with the Current Standards Vesting or West Tuolumne Road Access Vesting provided herein.
.
Section 2.4. Cooperation Between City and Developer. City shall cooperate in the implementation of this Agreement.
ARTICLE 3
VESTED RIGHTS;
DEVELOPMENT OF TURLOCK MARKETPLACE PROJECT
Section 3.1. Vested Rights. As provided in Section 1.6 of this Agreement, Developer shall have the vested right to develop the Properties in accordance with: (i) the Current Standards as defined in Section 3.2 (“Current Standards Vesting”); and (ii) the West
Tuolumne Road Access Vesting. Developer is assured, and City agrees, that the Current Standards Vesting and West Tuolumne Road Access Vesting is fully vested in Developer and may not be modified or terminated by City, except with Developer’s express written consent, which may be given or not given in Developer’s sole and absolute discretion.
Section 3.2. Permitted Uses and Development Standards. The permitted uses, the densities and intensities of use, the maximum height and size of proposed buildings, and provisions for reservation, and dedication of land are those in the General Plan, the Northwest Triangle Specific Plan, the Turlock Municipal Code, and other City enactments as of the Effective Date (the “Current Standards”). The Current Standards are limited to those matters listed above (i.e., permitted uses, the densities and intensities of use, the maximum height and size of proposed buildings, and provisions for reservation and dedication of land) and do not include any other matters, including, without limitation, fees, charges, assessments and any other cost or exaction; or design, improvement and construction standards and specifications.
In addition, notwithstanding the Current Standards and the Current Standards Vesting, Developer shall make all land dedications and improvements deemed necessary by the City related to access and traffic issues.
Except to the extent there is any conflict with the West Tuolumne Road Access Vesting, Developer understands and agrees that the City is revising its current 2016 standards and specifications, and its projectthe undeveloped portions of the Project shall be subject to thosethese revised requirementsstandards and specifications upon adoption by the City. Such revised standards and specifications may be attached hereto as Exhibit F after their adoption by the City or may be independently incorporated by this reference to them.
Section 3.3. Conditions of Approval. [Intentionally Omitted.]
Section 3.4. Mitigation Monitoring and Reporting Program. [Intentionally Omitted.]
Section 3.5. Eminent Domain. [Intentionally Omitted.]
Section 3.6. Timing of Development. [Intentionally Omitted.]
Section 3.7. Phasing. [Intentionally Omitted.]
Section 3.8. No Conflicting Enactments. [Intentionally Omitted.]
Section 3.9. Limitations on Developer’s Vested Rights. City and Developer agree that the vested rights conferred by this Agreement are subordinate to the following:
(a) Referenda. The Parties acknowledge that City’s approval of this Agreement is a legislative action subject to referendum. In the event of any such referendum that reduces the development rights conferred by this Agreement, City shall
cooperate with Developer and undertake such reasonable actions as may be appropriate to ensure that Developers may develop the Turlock Marketplace Project in accordance with this Agreement and the major Subsequent City Approvals.
(b) Regulation by Other Public Agencies. The Parties acknowledge that other public agencies, outside of the control and authority of City, regulate or have authority over City and the public infrastructure required to serve the Turlock Marketplace Project, and that the exercise of such public agency authority could negatively affect development of the Turlock Marketplace Project. Nothing in this Agreement limits the authority of such public agencies. City shall not be found to be in breach of this Agreement due to any action taken by another public agency that negatively impacts this Agreement or development of the Turlock Marketplace Project.
(c) Changes in California Building Standards Codes. Development of the Turlock Marketplace Project shall be subject to changes occurring from time to time to the California Building Standards Codes, however, City shall not impose any optional local standards that conflict with this Agreement.
(d) Changes Mandated by Federal or State Law. The Turlock Marketplace Project shall be subject to subsequently enacted federal or state laws or regulations that may conflict with this Agreement or the Subsequent City Approvals, that mandate adoption of local regulations, or that preempt the Municipal Code and Policies.
As provided in section 65869.5 of the Development Agreement Statute, in the event that state or federal laws or regulations enacted after the Effective Date prevent or preclude compliance with one or more provisions of this Agreement, such provisions shall be modified or suspended as may be necessary to comply with such state or federal laws or regulations. Upon discovery of a subsequently enacted federal or state law that conflicts with this Agreement or otherwise affects the Turlock Marketplace Project, City or Developer shall provide the other Party with written notice of the federal or state law or regulation and a written statement of the conflicts raised by such law or regulation.
Promptly thereafter, City and Developer shall meet and confer in good faith to modify this Agreement, as necessary, to comply with such law or regulation. In such discussions to resolve the conflict, City and Developer shall attempt to preserve the terms of this Agreement to the maximum extent feasible.
(e) Health and Safety Emergencies. In the event that any future public health and safety emergencies arise during development of the Turlock Marketplace Project, City agrees that it shall attempt to address such emergency in a way that does not have a material adverse impact on the Turlock Marketplace Project.
Section 3.10. Agreed Changes. [Intentionally Omitted.]
ARTICLE 4
FEES AND REIMBURSEMENT
Section 4.1. City Fees. This Agreement does not address any City fees, charges, assessments or other exactions or costs applicable to the Turlock Marketplace Project of any type whether they be, without limitation, developer fees, capital facility fees, capacity charges, application, processing and inspection fees (the “Fees and Costs”). Developer shall pay the then applicable Fees and Costs as required by the City. No such Fees and Costs are vested by this Agreement.
Section 4.2. Fees Charged by Other Public Agencies. This Agreement does not preclude City from collecting fees, charges, assessments or similar costs from Developers that are lawfully imposed on the Turlock Marketplace Project by other public agencies and which City is required, or has agreed, to collect (the “Other Fees and Costs”). Developer acknowledges that the Turlock Marketplace Project is subject to fees charged by other agencies, including but not limited to, Stanislaus County and the Turlock Unified School District. Developer shall pay such fees prior to issuance of building permit, unless the public agency requires or allows otherwise. No such Other Fees and Costs are vested by this Agreement.
ARTICLE 5
IMPROVEMENTS AND INFRASTRUCTURE
[Intentionally omitted.]
ARTICLE 6
FINANCING OF PUBLIC IMPROVEMENTS;
COMMUNITY FACILITIES DISTRICTS
[Intentionally omitted.]
ARTICLE 7
INSURANCE; INDEMNITY
Section 7.1. Insurance. Developer shall provide City the insurance as may be required by the City’s then effective insurance requirements for any Subsequent City Approval.
Section 7.2. Other Insurance Requirements. [Intentionally Omitted.]
Section 7.3. Third Party Legal Challenge.
(a) In the event any legal action, claim, action, or proceeding is commenced by any third party challenging this Agreement, the CEQA compliance related to the Turlock Marketplace Project, or any Subsequent City Approval, Developers shall defend, indemnify, and hold harmless City and its agents, elected and appointed officials, officers, employees, consultants, and volunteers (collectively, “City’s Agents”). This obligation
includes payment of all City costs and expenses incurred in the defense of such lawsuit, including but not limited to, reasonable costs of City’s counsel, damages, attorneys’ fees, and expenses of litigation awarded to the prevailing party or parties in such litigation. City and Developer shall cooperate in good faith in the control of the litigation, the attendance of proceedings of any kind, and the making of litigation decisions, including, but not limited to, selecting counsel to defend City and settlement or other disposition of the matter.
Developer shall not settle any lawsuit without the consent of City if such settlement would involve monetary damages or admissions of liability by City. City shall act in good faith and shall not unreasonably withhold consent to settle. As an alternative to defending any such action, Developer may request that City rescind any approval.
(b) In the event of any such legal action, Developers shall pay all reasonably incurred litigation fees to City within thirty (30) days of receiving a written request and accounting of such fees and expenses from City. Notwithstanding the foregoing, City may request, and Developers will provide to City within seven (7) days of any such request, a deposit to cover City’s reasonably anticipated litigation fees and costs related to this Agreement in an amount not exceeding a deposit or retainer amount typically requested by representative law firms in Stanislaus County or in the county where the law firm chosen by the City is domiciled.
(c) The City shall provide Developer of written notice specifying the nature and scope of the requested indemnity, defense, and/or hold harmless obligation demanded of Developer.
Section 7.4. Indemnity and Hold Harmless. Developers agree to defend, indemnify, and hold harmless City and City’s Agents from all liability for personal injury, including death, as well as property damage, which may arise from activities conducted by or omissions of Developer or Developer’s contractors, subcontractors, agents, or employees relating to development of the Turlock Marketplace Project. The foregoing indemnity obligation of Developers shall not apply to any liability for damages or claims for damages relating to use of any improvements after completion and acceptance by City.
Developer’s indemnification requirements will not apply where the claim, action, or proceeding is as a direct result of City or City’s Agents’ gross negligence or willful misconduct. The City shall provide Developer of written notice specifying the nature and scope of the requested indemnity, defense, and/or hold harmless obligation demanded of Developer.
Section 7.5. Prevailing Wages. [Intentionally Omitted.] Section 7.6. Failure to Indemnify; Waiver. Failure to indemnify City, when required by this Agreement, shall constitute a material breach of this Agreement and of any applicable Subsequent City Approvals which shall entitle City to all remedies available under law, including, but not limited to, specific performance and damages.
Section 7.7. Waiver of Damages Against City. Notwithstanding anything in this Agreement to the contrary, the Parties acknowledge that City would not have entered into this Agreement had it been exposed to liability for damages from Developer and,
therefore, Developer hereby waives all claims for damages against City for breach of this Agreement. Developer’s remedies under this Agreement shall be limited to specific performance.
ARTICLE 8
MORTGAGEE PROTECTION
Section 8.1. Mortgagee Protection. No breach of this Agreement shall defeat, render invalid, diminish or impair the lien of any mortgage or deed of trust with respect to the Properties. All of the terms and conditions contained in this Agreement shall be binding upon and effective against and shall run to the benefit of any person or entity, including any deed of trust beneficiary or mortgagee (“Mortgagee”), who acquires title or possession to the Property, or any portion thereof, by foreclosure, trustee’s sale, deed in lieu of foreclosure or otherwise.
Section 8.2. Notice of Default to Mortgagee and Right to Cure. If City receives notice from a Mortgagee requesting a copy of any notice of default given to Developer, then City shall deliver to such Mortgagee, concurrently with service thereon to Developer, any notice given to Developer with respect to any claim by City that Developer has committed an event of default. Each Mortgagee shall have the right during the same period available to Developer to cure, or to commence to cure, the event of default set forth in City's notice.
ARTICLE 9
ANNUAL REVIEW; DEFAULT
Section 9.1. Annual Review. The City Manager or his or her appointee shall, at least every twelve (12) months during the Term of this Agreement, review the extent of substantial, good faith compliance of Developer and City with the terms of this Agreement, pursuant to Government Code Section 65865.1. At the time of such annual review, Developers shall provide such information as may be reasonably requested by the City Manager to ascertain compliance with this Agreement. Developers shall provide such information within thirty (30) days of receiving City Manager’s request for information. A finding by the City Manager of good faith compliance with this Agreement shall conclusively determine such good faith compliance only up to the date of such review.
Where the City Manager, on the basis of substantial evidence, finds that Developer has not complied with the terms of this Agreement, Developer may appeal such determination to the City Council within ten (10) days of receiving the City Manager’s determination.
The failure of City to conduct the annual review shall not affect the validity of this Agreement.
Section 9.2. Estoppel Certificates. Upon Developer’s request, City shall, with at least thirty (30) days advance written notice, execute, acknowledge and deliver to Developer, Developer’s lender, potential investors or assignees, and other necessary parties an “Estoppel Certificate” in writing which certifies that this Agreement is in full force and effect
and that there are no breaches or defaults under the Agreement. The City Manager shall be authorized to execute such Estoppel Certificate.
Section 9.3. Default. Failure or unreasonable delay by either Party to perform any term or condition of this Agreement shall constitute default. In the event of default, the Party alleging such default or breach shall give the other Party not less than thirty (30) days’ notice in writing specifying the nature of the alleged default and the manner in which said default may be satisfactorily cured. During any such 30-day period, the Party charged shall not be considered in default for purposes of termination of this Agreement or institution of legal proceedings. After notice and expiration of the 30-day period, if such default has not been cured or cure is not being diligently pursued in the manner set forth in the notice, the charging Party may at its option: (i) terminate this Agreement, in which event neither Party shall have any further rights against or liability to the other with respect to this Agreement, or (ii) institute legal or equitable action to cure or remedy any default, including but not limited to, an action for specific performance of the terms of this Agreement.
Section 9.4. Withholding of Permits. If Developer has defaulted after all applicable notice and cure periods have expired, City may, in its sole discretion, refuse to issue or withhold any permit or entitlement for any structure or improvement relating to the Turlock Marketplace Project, including without limitation, a notice of completion, building permit, sign permit, grading permit, or occupancy certificate.
Section 9.5. Default by City. If City defaults under the terms of this Agreement, City agrees that Developer shall not be obligated to proceed with or complete the Turlock Marketplace Project or any phase thereof, nor shall resulting failures or delays in Developer’s performance constitute grounds for termination of this Agreement.
Section 9.6. Enforced Delay, Extension of Times of Performance. Delays in performance, by either Party, shall not be deemed a default if such delays or defaults are due to war, insurrection, terrorism, strikes, walkouts, riots, floods, earthquakes, fires, casualties, pandemics, epidemics, acts of God, governmental restrictions imposed where mandated by governmental entities other than City, enactment of conflicting state or federal laws or regulations, new or supplementary environmental regulations enacted by the state or federal government, litigation, economic collapse, or other force majeure events. An extension of time for such cause shall be in effect for the period of forced delay or longer, as may be mutually agreed upon by the Parties.
ARTICLE 10
ADMINISTRATION OF AGREEMENT
Section 10.1. Administration of Agreement. The City Manager or his or her designee is responsible for the interpretation and administration of the provisions of this Agreement.
Should a disagreement arise between the Parties with respect to the interpretation or administration of any provision of this Agreement, Developer and the City Manager (or
his or her designee) shall meet and confer in good faith to discuss resolution of such disagreement within thirty (30) days after notice from either party. If the Parties are unable to reach a mutually-agreeable resolution, the City Manager’s decision may thereafter be appealed to the City Council within fifteen (15) days of the City Manager's decision.
Section 10.2. Amendment of Agreement. This Agreement shall be amended only by mutual consent of the Parties and any amendment must be in writing, as provided below:
(a) Major Amendment. The City Council shall approve any major amendment to the Agreement. An amendment shall be deemed a “major amendment” if it constitutes a material change to City’s financial obligations (with City Manager having the sole discretion to determine what constitutes a “material change”). Any major amendment shall comply with the procedures of the Development Agreement Statute.
(b) Minor Amendment. The Parties acknowledge that development of the Turlock Marketplace Project and the details of performance by the Parties require administrative flexibility. The City Manager shall have the authority to approve minor amendments to this Agreement. An amendment shall be deemed a “minor amendment” if it is not a major amendment and does not incur any financial obligation that exceeds the City Manager’s authority. If City and Developer mutually agree that a minor amendment is appropriate, they shall effectuate the minor amendment through an operating memorandum approved by the Parties with the City Manager acting on behalf of City. An executed operating memorandum shall become effective immediately. Each operating memorandum shall be attached to this Agreement as an addendum and become a part of this Agreement. Unless otherwise required by law, a minor amendment shall not require any notice or hearing.
Section 10.3. Streamlined Implementation. [Intentionally Omitted.] Section 10.4. Assignment and Assumption.
(a) Developer shall have the right to sell, assign, or transfer all or any part of its rights, title and interests in all or a portion of the Property to any person, firm, or corporation during the Term of this Agreement. Any sale, assignment, or transfer of all orof this Agreement must be done in writing and in a form substantially similar to the “Assignment and Assumption Agreement” attached hereto as Exhibit C. Any sale, assignment, or transfer of only a part of this Agreement must be done in writing and in a form substantially similar to the “Partial Assignment and Assumption Agreement” attached hereto as Exhibit D. In any such sale, assignment, or transfer, the successor to the transferred Property shall expressly assume all applicable obligations under this Agreement. Any assignee of Developer shall be subject to all the benefits and burdens of this Agreement.
In the event of any partial assignment of this Agreement: (i) the assignee under such partial assignment shall be liable only for the obligations under this Agreement that pertain
to the portion of the Property transferred to such assignee; (ii) neither assignor, assignee, nor other Developer party to the Agreement shall have joint and several liability for the obligations or liabilities of the other under this Agreement; and (iii) no breach or default by such party of its respective obligations under the Agreement shall be deemed, interpreted or construed to be a breach or default by the other party.
(b) Developer shall provide City with written notice of sale, assignment, or transfer of all or a portion of the Property at least thirty (30) days in advance of such action, subject to approval by the City Manager, whose consent shall not be unreasonably withheld. Upon execution of an Assignment and Assumption Agreement or Partial Assignment and Assumption Agreement, Developer shall be relieved of any obligations under this Agreement relating to the transferred Property. After execution of an Assignment and Assumption Agreement or Partial Assignment and Assumption Agreement, Developer shall send a copy of the Assumption Agreementsuch agreement to the City Clerk.
Section 10.5. Notices. Any notice or communication required hereunder among the Parties must be in writing, and may be given either personally, by registered or certified mail (return receipt requested), or by Federal Express, UPS or other similar couriers providing overnight delivery. If personally delivered, a notice shall be deemed to have been given when delivered to the Party to whom it is addressed. If given by registered or certified mail, such notice or communication shall be deemed to have been given and received on the first to occur of (i) actual receipt by any of the addressees designated below as the Party to whom notices are to be sent, or (ii) five (5) days after a registered or certified letter containing such notice, properly addressed, with postage prepaid, is deposited in the United States mail. If given by Federal Express or similar courier, a notice or communication shall be deemed to have been given and received on the date delivered as shown on a receipt issued by the courier. Such notices or communications shall be given to the Parties at the addresses set forth below. Any Party may at any time, by giving ten (10) days written notice to the other Party, designate any other address in substitution of the address listed below to which such notice or communication shall be given.
If to City: City of Turlock
156 S. Broadway
Turlock, California 95380
Attn: City Manager & Development Services
Director
Email: [email protected] &
[email protected]
with copy to: City of Turlock
Attn: City Attorney
156. S. Broadway
Turlock, California 95350
Email: [email protected]
If to Developer: Turlock Marketplace, LLC
Attn: Mark Enes and Joshua Stark
7919 Folsom Blvd., Suite 120
Sacramento, CA 95826
Email: [email protected]
with copy to: _______________
_______________
_______________
_______________
Email: _______________
Email: [email protected];
[email protected]
ARTICLE 11
TERMINATION
Section 11.1. Termination Upon Completion of Development. This Agreement shall terminate upon the earlier of (i) upon expiration of the Term, or (ii) upon Developer’s notification to the City of its desire to terminate the Agreement so long as City determines that all material obligations of Developer under the Agreement have been fulfilled or satisfied. Upon termination of this Agreement, City shall record a notice of such termination in a form substantially similar to the “Notice of Termination” attached hereto as Exhibit E. Termination of this Agreement shall eliminate any further obligation of the Parties to comply with the terms of this Agreement. Termination of this Agreement shall not, however, eliminate the rights of any Party to seek any applicable and available remedies or damages based upon acts or omissions occurring prior to said termination.
Section 11.2. Other Termination. City is entering into this Agreement with Developer based upon Developer’s representations and the public benefits City has determined exist for its economic development goals. based upon these representations.
If Developer chooses to Turlock Marketplace, LLC does not developbecome the fee owner of the Property, this Agreement shall not be assigned to landowner and by December 31, 2025then City shall have the right to terminate thethis Agreement.
ARTICLE 12
STANDARD TERMS AND CONDITIONS
Section 12.1. Standard Terms and Conditions.
(a) Venue; Governing Law. Venue for all legal proceedings shall be in the Superior Court for the County of Stanislaus. The validity, interpretation and performance of this Agreement shall be controlled by and construed pursuant to the laws of the State of California.
(b) Waiver. No Party shall be deemed to have made any waiver of any breach of any term, condition or covenant unless said waiver is in writing and signed by the Party so waiving. Such waiver by any Party shall not be deemed to be a waiver of any subsequent breach of the same term, covenant or condition.
(c) Integration. This Agreement, together with its specific references, attachments, and Exhibits, constitutes all of the agreements, understandings, representations, conditions, warranties and covenants made by and between the Parties hereto. Unless set forth herein, neither Party shall be liable for any representations made, express or implied, which are not specifically set forth herein.
(d) Supersedes Prior Agreement. It is the intention of the Parties hereto that this Agreement shall supersede any prior agreements, discussions, commitments, representations or agreements, written, electronic or oral, between the Parties hereto with respect to the Turlock Marketplace Project and the Properties.
(e) Captions. The captions of this Agreement are for convenience and reference only and the words contained therein shall in no way be held to explain, modify, amplify or aid in the interpretation, construction or meaning of the provisions of this Agreement.
(f) Severability. If any portion of this Agreement is declared by a court of competent jurisdiction to be invalid or unenforceable, such portion shall be deemed severed from this Agreement and the remaining parts shall remain in full effect as though such invalid or unenforceable provision had not been a part of this Agreement.
(g) Mandatory and Permissive. “Shall” and “will” and “agrees” are mandatory. “May” or “can” are permissive.
(h) Term Includes Extensions. All references to the Term of this Agreement shall include any extensions of such Term.
(j) Constructive Notice and Acceptance. Every person who after the Effective Date and recording of this Agreement owns or acquires any right, title or interest to any portion of the Property shall be conclusively deemed to have consented and agreed to every provision contained herein, whether or not any reference to this Agreement is contained in the instrument by which such person acquired an interest in the Property, and all rights and interests of such person in the Property shall be subject to the terms, requirements and provisions of this Agreement.
(j) Counterparts. This Agreement may be executed simultaneously or in two or more counterparts, each of which shall be deemed an original, but which together shall constitute one and the same instrument.
(k) Further Acts; Other Documents. The Parties agree that they shall cooperate in good faith to accomplish the objectives of this Agreement and to that end, agree to execute and deliver such other instruments or documents and to perform any further acts, as may be necessary and convenient to fulfill the purposes and objectives of this Agreement.
(l) Time is of the Essence. Time is of the essence in this Agreement in each covenant and term and condition herein.
(m) Authority. Any developer party executing this Agreement certifies, in his/her/their individual or corporate capacity that (i) they have legal or equitable title to the applicable parcels subject to this Agreement; (ii) they are authorized to enter into this Agreement, and (iii) they have complied with all requirements under state or federal law for such person or entity to execute this Agreement.
(n) Joint Preparation. All Parties to this Agreement have negotiated it at length and have had the opportunity to consult with and be represented by their own competent counsel. Each provision of this Agreement shall be construed as though all Parties participated equally in the drafting of the same. Consequently, the Parties acknowledge and agree that any rule of construction that a document is to be construed against the drafting party shall not be applicable to this Agreement.
(o) Attorney’s Fees and Costs. In the event one of the Parties commences litigation for specific performance or damages for breach of this Agreement, the prevailing Party shall be entitled to reasonable attorney's fees and costs incurred, in addition to any other relief to which such Party may be entitled.
[Signatures on following pages]
IN WITNESS WHEREOF, this Agreement has been entered into by and between Developer and City as set forth in Article 1.
above.
CITY:
CITY OF TURLOCK,
a California municipal corporation
By: ________
Reagan M. Wilson, City Manager
Date:
ATTEST:
By: ________
_________,Nichole Fiez, City Clerk
Date:
APPROVED AS TO FORM:
By: ________
George A. Petrulakis, City Attorney
Date:
DEVELOPERSDEVELOPER:
TURLOCK MARKETPLACE, LLC,
a California limited liability company
By: ________
Mark Enes
Its: ________
SCHEDULE OF EXHIBITS
Designation Description
Exhibit A-1 ListLegal Description of Developer Properties Exhibit A-2B Legal DescriptionDepiction of Developer Properties and West Tuolumne Road Access Point
Exhibit BC Turlock Marketplace AreaForm of Assignment and Assumption Agreement
Exhibit CD Depiction of West Tuolumne Road Access PointForm of Partial Assignment and Assumption Agreement
Exhibit DE Form of Assumption AgreementNotice of Termination Exhibit EF Form of Notice of TerminationRevised Standards and Specifications
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
City of Turlock
156 S. Broadway
Turlock, California 95380
Attention: City Clerk
APN 088-016-001-000 Space Above This Line Reserved for Recorder’s Use.
APN 088-010-024-000 Exempt from Recording Fees. (Government Code sections APN 088-010-052-000 6103 and 27383).
DEVELOPMENT AGREEMENT
TURLOCK MARKETPLACE PROJECT
BY AND BETWEEN
The City of Turlock
AND
Turlock Marketplace, LLC, a California
limited liability company
Adopted by City Council Ordinance No. _______,
on _________________, 2025
DEVELOPMENT AGREEMENT (COMMERCIAL)
City of Turlock – Turlock Marketplace, LLC
This DEVELOPMENT AGREEMENT (“Agreement”) is made and entered into by and between TURLOCK MARKETPLACE, LLC, a California limited liability company (“Developer”) and the CITY OF TURLOCK, a California municipal corporation (“City”), as of ______________________, 202_ (the “Effective Date”). City and Developer may be referred to herein individually as a “ Party” or collectively as the “ Parties.” There are no other parties to this Agreement.
RECITALS
A. The Development Agreement is entered into pursuant to the “Development Agreement Statute” (Governm ent Code section 65864 et seq .) and the Development Agreement Law of the City of Turlock (Article 9 of Chapter 9- 5 of Title 9 of the Turlock Municipal Code), which authorize City to enter into a development agreement with any person having a legal or equitable interest in real property for the development of th at property.
B. Developer owns or controls those parcels of real property more specifically described in Exhibit A (the “Property” or “Properties ””) and commonly known as 1885 Countryside Drive, 2712 West Tuolumne Road, and 2630 West Tuolumne Road and identified for convenience as Assessor’s Parcel Numbers 088-016-001-000, 088- 010- 024-000, and 088-010-052-000. The Properties constitute approximately 29.42 acres and are located within the boundaries of the City’s Northwest Triangle Specific Plan. The Properties are depicted in Exhibit B.
C. Developer has proposed to develop the Properties as a commercial shopping center including a big box retail center and various other commercial and retail uses (the “ Turlock Marketplace Project ” or “Project”)) . For viability of the Project, Developer requires access from West Tuolumne Road south into the Project area at a location shown in Exhibit B which will allow right-in, right-out and left-in movements into the Project but not left-out movements (the “West Tuolumne Road Access Point”). City in its General Plan has planned for a future flyover over State Route 99 extending the existing eastern segment of West Tuolumne Road west over the state route and connecting to the existing western segment of West Tuolumne Road. Developer has concerns that the future flyover would jeopardize the West Tuolumne Road Access Point.
City has confirm ed that should the flyover be implemented, the West Tuolumne Road Access Point can be maintained by Developer in its proposed location and configuration as agreed to by the Parties.
D. The major purpose of this Agreement is to maintain the viability of the Turlock Marketplace Project by ensuring access to the Project at the West Tuolumne Road Access Point as provided in this Agreement should the City implement the flyover over State Route 99 along the West Tuolumne Road alignment (the “West Tuolumne Road Access Vesting”). As used herein, the West Tuolumne Road Access Vesting shall mean that (i) the right in, right out, and left in driveway access into the Turlock Marketplace Project from Tuolumne Road shall be preserved, and (ii) the location and dimensions o f such driveway shall be preserved in such a way to not materially and adversely impact
DEVELOPMENT AGREEMENT (COMMERCIAL)
City of Turlock – Turlock Marketplace, LLC
access. The additional purpose of this Agreement is for the Parties to enter into an Agreement that meets the necessary requirements of the Development Agreement Statute and the Development Agreement Law of the City of Turlock while providing the Parties the necessary flexibility to implement subsequent aspects of the Turlock Marketplace Project.
E. City has determined that this Agreement is consistent with the General Plan and the Northwest Triangle Specific Plan and meets all requirements under the Development Agreement Statute and the Development Agreement Law of the City of Turlock. City further has determined that all necessary proceedings related to this Agreement have been conducted in accordance with City and state rules and regulations.
City has further determined that development of the Turlock Marketplace Project will result in significant public benefits in furthering the City’s economic development goals.
NOW, THEREFORE , in consideration of the mutual covenants and agreements contained herein, and other good and valuable consideration, the receipt and legal sufficiency of which are hereby acknowledged, the Parties do hereby agree as follows:
AGREEMENT
ARTICLE 1
GENERAL PROVISIONS
Section 1.1. Recitals. The Recitals above are true and correct and are hereby incorporated into and made a part of the Agreement. In the event of any inconsistency between the Recitals and the provisions of the Agreement, th e provisions of the Agreement shall prevail.
Section 1.2. Exhibits. The following “Exhibits” are attached hereto and incorporated into and made part of this Agreement:
Section 1.3. Project is a Private Undertaking. The Parties agree that the Turlock Marketplace Project is a private development and that City has no interest therein except as authorized in the exercise of its governmental functions. Nothing in this Agreement Designation Description
Exhibit A Legal Description of Properties
Exhibit B Depiction of Properties and West Tuolumne Road Access Point
Exhibit C Form of Assignment and Assumption Agreement
Exhibit D Form of Partial Assignment and Assumption Agreement Exhibit E Form of Notice of Termination
Exhibit F Revised Standards and Specifications
DEVELOPMENT AGREEMENT (COMMERCIAL)
City of Turlock – Turlock Marketplace, LLC
shall preclude Developer, without City review and approval, from forming a private investment entity, entering into a joint venture or selling, leasing, or otherwise entering into agreements with respect to any portion, parcel, or development phase to or with another party for the purpose of developing, managing, or completing any portion of the Turlock Marketplace Project.
Section 1.4. Effective Date of Agreement and Operative Date of Agreement . The Agreement shall become effective on the “Effective Date” of the Agreement which shall occur when the ordinance approving this Agreement becomes effective. The Agreement shall be binding on each Party on the date of each Party’s execution of the Agreement.
Section 1.5. Recordation of Development Agreement. The City Clerk shall cause a copy of the Development Agreement to be recorded against the title to all Properties subject to this Agreement within ten (10) days of the Effective Date.
Section 1.6. Term of Agreement. The “Term” of this Agreement shall be fifty (50) years from the Effective Date, unless extended or terminated earlier as provided for in this Agreement. Notwithstanding the foregoing, the Current Standards Vesting shall expire after fifteen (15) years from the Effective Dave and the West Tuolumne Road Access Vesting shall be effective for the entire Term. Any modification or extensions to the Term shall be subject to the mutual agreement of the Parties. The City Manager shall have the sole discretion to approve any modi fication or extension to the Term on behalf of City, with any such modification or extension constituting a minor amendment to this Agreement. Following expiration of the Term, this Agreement shall be deemed terminated and of no further force and effect. In the event of expiration of the Term , Developer shall be required to enter into a new Development Agreement with City if Developer so requests.
Section 1.7. Covenant Running with the Land. Developer represents that it has a legal or equitable interest in the Property, as legally described in Exhibit A . This Agreement shall constitute a covenant running with the land, and the burdens and benefits of this Agreement shall bind and inure to all successors-in-interest to Developers, until such time that the Agreement terminates.
ARTICLE 2
SUBSEQUENT CITY APPROVALS; PERMIT PROCESSING
Section 2.1. Subsequent City Approvals. Implementation of the Turlock Marketplace Project may require Developer to obtain additional approvals and permits from City (“Subsequent City Approvals ”). Subsequent City Approvals may include, without limitation, tentative parcel maps, final maps, staff-level approvals, subdivision improvement plans and agreements, architectural and site plan reviews, encroachment permits, buil ding permits, landscaping plans, grading plans and permits, lot line adjustments, use permits, and occupancy certificates. City shall comply with the California Environmental Quality Act (“ CEQA”), the Subdivision Map Act (California
DEVELOPMENT AGREEMENT (COMMERCIAL)
City of Turlock – Turlock Marketplace, LLC
Government Code Section 66410 et seq.) (the “ Map Act”), and other applicable laws in processing the Subsequent City Approvals. In the course of taking action on these applications, City will exercise discretion in imposing conditions of approval and adopting mitigation measures in accordance with the Map Act, CEQA and other applicable state and local law. City’s exercise of discretion is not prohibited by thi s Agreement, but the exercise of that discretion must be reasonable and consistent with this Agreement.
Development of the Properties shall be subject to all conditions of approval and mitigation measures adopted in conjunction with any Subsequent City Approvals so long as they do not conflict with the Current Standards Vesting or West Tuolumne Road Access Vesting provided herein.
Section 2.2. Life of Subdivision Maps. [Intentionally Omitted.]
Section 2.3. Further Discretionary Actions. The exercise of City's authority and independent judgment is recognized under this Agreement, and nothing in this Agreement shall be interpreted as limiting City’s discretion to approve, disapprove or impose conditions on any Subsequent City Approvals, to require additional information or studies from Developers, or to hold legally required public hearings. Except as otherwise set forth in this Agreement , such discretion and action taken by the City shall, however, be consistent with the terms of this Agreement and shall not prevent, hinder, or compromise development or use of the Property as contemplated by the Parties in this Agreement and shall not conflict with the Current Standards Vesting or West Tuolumne Road Access Vesting provided herein.
.
Section 2.4. Cooperation Between City and Developer. City shall cooperate in the implementation of this Agreement.
ARTICLE 3
VESTED RIGHTS;
DEVELOPMENT OF TURLOCK MARKETPLACE PROJECT
Section 3.1. Vested Rights. As provided in Section 1.6 of this Agreement, Developer shall have the vested right to develop the Properties in accordance with: (i) the Current Standards as defined in Sect ion 3.2 (“Current Standards Vesting ”); and (ii) the West Tuolumne Road Access Vesting. Developer is assured, and City agrees, that the Current Standards Vesting and West Tuolumne Road Access Vesting is fully vested in Developer and may not be modified or terminated by City, except with Developer’s express written consent, which may be given or not given in Developer’s sole and absolute discretion.
Section 3.2. Permitted Uses and Development Standards. The permitted uses, the densities and intensities of use, the maximum height and size of proposed buildings, and provisions for reservation, and dedication of land are those in the General Plan, the Northwest Triangle Specific Plan, the Turlock Municipal Code, and other City enactments as of the Effective Date ( the “Current Standards”). The Current Standards are limited to those matters listed above (i.e., permitted uses, the densities and intensities of use, the
DEVELOPMENT AGREEMENT (COMMERCIAL)
City of Turlock – Turlock Marketplace, LLC
maximum height and size of proposed buildings, and provisions for reservation and dedication of land) and do not include any other matters, including, without limitation, fees, charges, assessments and any other cost or exaction; or design, improvement and construction standards and specifications.
In addition, notwithstanding the Current Standards and the Current Standards Vesting, Developer shall make all land dedications and improvements deemed necessary by the City related to access and traffic issues.
Except to the extent there is any conflict with the West Tuolumne Road Access Vesting, Developer understands and agrees that the City is revising its current 2016 standards and specifications, and the undeveloped portions of the Project shall be subject to these revised standards and specifications upon adoption by the City. Such revised standards and specifications may be attached hereto as Exhibit F after their adoption by the City or may be independently incorporated by this reference to them.
Section 3.3. Conditions of Approval. [Intentionally Omitted.]
Section 3.4. Mitigation Monitoring and Reporting Program. [Intentionally Omitted.]
Section 3.5. Eminent Domain. [Intentionally Omitted.]
Section 3.6. Timing of Development. [Intentionally Omitted.]
Section 3.7. Phasing. [Intentionally Omitted.]
Section 3.8. No Conflicting Enactments. [Intentionally Omitted.]
Section 3.9. Limitations on Developer’s Vested Rights. City and Developer agree that the vested rights conferred by this Agreement are subordinate to the following:
(a) Referenda. The Parties acknowledge that City’s approval of this Agreement is a legislative action subject to referendum. In the event of any such referendum that reduces the development rights conferred by this Agreement, City shall cooperate with Developer and undertake such reasonable actions as may be appropriate to ensure that Developers may develop the Turlock Marketplace Project in accordance with this Agreement and the major Subsequent City Approvals.
(b) Regulation by Other Public Agencies. The Parties acknowledge that other public agencies, outside of the control and authority of City, regulate or have authority over City and the public infrastructure required to serve the Turlock Marketplace Project, and that the exercise of such public agency authority could negatively affect development of the Turlock Marketplace Project. Nothing in this Agreement limits the authority of such public agencies. City shall not be found to be in breach of this Agreement due to any action taken by another public agency that negatively impacts this Agreement or development of the Turlock Marketplace Project.
DEVELOPMENT AGREEMENT (COMMERCIAL)
City of Turlock – Turlock Marketplace, LLC
(c) Changes in California Building Stan dards Codes. Development of the Turlock Marketplace Project shall be subject to changes occurring from time to time to the California Building Standards Codes , however, City shall not impose any optional local standards that conflict with this Agreement.
(d) Changes Mandated by Federal or State Law . The Turlock Marketplace Project shall be subject to subsequently enacted federal or state laws or regulations that may conflict with this Agreement or the Subsequent City Approvals, that mandate adoption of local regulations, or that preempt the Municipal Code and Policies.
As provided in section 65869.5 of the Development Agreement Statute, in the event that state or federal laws or regulations enacted after the Effective Date prevent or preclude compliance with one or more provisions of this Agreement, such provisions shall be modified or suspended as may be necessary to comply with such state or federal laws or regulations. Upon discovery of a subsequently enacted federal or state law that conflicts with this A greement or otherwise affects the Turlock Marketplace Project, City or Developer shall provide the other Party with written notice of the federal or state law or regulation and a written statement of the conflicts raised by such law or regulation.
Promptly thereafter, City and Developer shall meet and confer in good faith to modify this Agreement, as necessary, to comply with such law or regulation. In such discussions to resolve the conflict, City and Developer shall attempt to preserve the terms of this Agreement to the maximum extent feasible.
(e) Health and Safety Emergencies. In the event that any future public health and safety emergencies arise during development of the Turlock Marketplace Project, City agrees that it shall attempt to address such em ergency in a way that does not have a material adverse impact on the Turlock Marketplace Project.
Section 3.10. Agreed Changes. [Intentionally Omitted.]
ARTICLE 4
FEES AND REIMBURSEMENT
Section 4.1. City Fees. This Agreement does not address any City fees, charges, assessments or other exactions or costs applicable to the Turlock Marketplace Project of any type whether they be, without limitation, developer fees, capital facility fees, capacity charges, application, processing and inspection fees (the “ Fees and Costs”). Developer shall pay the then applicable Fees and Costs as required by the City. No such Fees and Costs are vested by this Agreement.
Section 4.2. Fees Charged by Other Public Agencies. This Agreemen t does not preclude City from collecting fees , charges, assessments or similar costs from Developers that are lawfully imposed on the Turlock Marketplace Project by other public agencies and which City is required, or has agreed, to collect (the “ Other Fees and Costs”). Developer acknowledges that the Turlock Marketplace Project is subject to fees
DEVELOPMENT AGREEMENT (COMMERCIAL)
City of Turlock – Turlock Marketplace, LLC
charged by other agencies, including but not limited to, Stanislaus County and the Turlock Unified School District. Developer shall pay such fees prior to issuance of building permit, unless the public agency requires or allows otherwise. No such Other Fees and Costs are vested by this Agreement.
ARTICLE 5
IMPROVEMENTS AND INFRASTRUCTURE
[Intentionally omitted.]
ARTICLE 6
FINANCING OF PUBLIC IMPROVEMENTS;
COMMUNITY FACILITIES DISTRICTS
[Intentionally omitted.]
ARTICLE 7
INSURANCE; INDEMNITY
Section 7.1. Insurance. Developer shall provide City the insurance as may be required by the City’s then effective insurance requirements for any Subsequent City Approval.
Section 7.2. Other Insurance Requirements. [Intentionally Omitted.]
Section 7.3. Third Party Legal Challenge.
(a) In the event any legal action, claim, action, or proceeding is commenced by any third party challenging this Agreement, the CEQA compliance related to the Turlock Marketplace Project, or any Subsequent City Approval, Developers shall defend, indemnify, and hold harmless City and its agents, elected and appointed officials, officers, employees, consultants, and volunteers (collectively, “ City’s Agents ”). This obligation includes payment of all City costs and expenses incurred in the defense of such lawsuit, including but not limited to, reasonable costs of City’s counsel, damages, attorneys’ fees, and expenses of litigation awarded to the prevailing party or parties in such litigation. City and Developer shall cooperate in good faith in the control of the litigation, the attendance of proceedings of any kind, and the making of litigation decisions, including, but not limited to, selecting counsel to defend City and settlement or other disposition of the matter.
Developer shall not settle any lawsuit without the consent of City if such settlement would involve monetary damages or admissions of liability by City . City shall act in good faith and shall not unreasonably withhold consent to settle. As an alternative to defending any such action, Developer may request that City rescind any approval.
(b) In the event of any such legal action, Developers shall pay all reasonably incurred litigation fees to City within thirty (30) days of receiving a written request and accounting of such fees and expenses from City. Notwithstanding the foregoing, City may request, and Developers will provide to City within seven (7) days of any such
DEVELOPMENT AGREEMENT (COMMERCIAL)
City of Turlock – Turlock Marketplace, LLC
request, a deposit to cover City’s reasonably anticipated litigation fees and costs related to this Agreement in an amount not exceeding a deposit or retainer amount typically requested by representative law firms in Stanislaus County or in the county where the law firm chosen by the City is domiciled.
(c) The City shall provide Developer of written notice specifying the nature and scope of the requested indemnity, defense, and/or hold harmless obligation demanded of Developer.
Section 7.4. Indemnity and Hold Harmless. Developers agree to defend, indemnify, and hold harmless City and City’s Agents from all liability for personal injury, including death, as well as property damage, which may arise from activities conducted by or omissions of Developer or Developer’s contractors, subcontractors, agents, or employees relating to development of the Turlock Marketplace Project. The foregoing indemnity obligation of Developers shall not apply to any liability for damages or claims for damages relating to use of any improvements after completion and acceptance by City.
Developer’s indemnification requirements will not apply where the claim, action, or proceeding is as a direct result of C ity or City’s Agents’ gross negligence or willful misconduct. The City shall provide Developer of written notice specifying the nature and scope of the requested indemnity, defense, and/or hold harmless obligation demanded of Developer.
Section 7.5. Prevailing Wages. [Intentionally Omitted.] Section 7.6. Failure to Indemnify; Waiver. Failure to indemnify City, when required by this Agreement, shall constitute a material breach of this Agreement and of any applicable Subsequent City Approvals which shall entitle City to all remedies available under law, including, but not limited to, specific performance and damages.
Section 7.7. Waiver of Damages Against City. Notwithstanding anything in this Agreement to the contrary, the Parties acknowledge that City would not have entered into this Agreement had it been exposed to liability for damages from Developer and, therefore, Developer hereby waives all claims for damages against City for breach of this Agreement. Developer’s remedies under this A greement shall be limited to specific performance.
ARTICLE 8
MORTGAGEE PROTECTION
Section 8.1. Mortgagee Protection. No breach of this Agreement shall defeat, render invalid, diminish or impair the lien of any mortgage or deed of trust with respect to t he Properties. All of the terms and conditions contained in this Agreement shall be binding upon and effective against and shall run to the benefit of any person or entity, including any deed of trust beneficiary or mortgagee (“ Mortgagee”), who acquires t itle or possession to the Property, or any portion thereof, by foreclosure, trustee’s sale, deed in lieu of foreclosure or otherwise.
DEVELOPMENT AGREEMENT (COMMERCIAL)
City of Turlock – Turlock Marketplace, LLC
Section 8.2. Notice of Default to Mortgagee and Right to Cure. If City receives notice from a Mortgagee requesting a copy of any notice of default given to Developer, then City shall deliver to such Mortgagee, concurrently with service thereon to Developer, any notice given to Developer with respect to any claim by City that Developer has committed an event of default. Each Mortgagee shall have the right during the same period available to Developer to cure, or to commence to cure, the event of default set forth in City's notice.
ARTICLE 9
ANNUAL REVIEW; DEFAULT
Section 9.1. Annual Review. The City Manager or his or her appointee shall, at least every twelve (12) months during the Term of this Agreement, review the extent of substantial, good faith compliance of Developer and City with the terms of this Agreement, pursuant to Government Code Section 65865.1. At the time of such annual review, Developers shall provide such information as may be reasonably requested by the City Manager to ascertain compliance with this Agreement. Developers shall provide such information within thirty (30) days of receiving City Manager’s request for information. A finding by the City Manager of good faith compliance with this Agreement shall conclusively determine such good faith compliance only up to the date of such review.
Where the City Manager, on the basis of substantial evidence, finds that Developer has not complied with the terms of this Agreement, Developer may appeal such determination to the City Council within ten (10) days of receiving the City Manager’s determination.
The failure of City to c onduct the annual review shall not affect the validity of this Agreement.
Section 9.2. Estoppel Certificates. Upon Developer’s request, City shall, with at least thirty (30) days advance written notice, execute, acknowledge and deliver to Developer, Developer’s lender, potential investors or assignees, and other necessary parties an “Estoppel Certificate” in writing which certifies that this Agreement is in full force and effect and that there are no breaches or defaults under the Agreement. The City Manager shall be authorized to execute such Estoppel Certificate.
Section 9.3. Default. Failure or unreasonable delay by either Party to perform any term or condition of this Agreement shall constitute default. In the event of default, the Party alleging such default or breach shall give the other Party not less than thirty (30) days ’ notice in writing specifying the nature of the alleged default and the manner in which said default may be satisfactorily cured. During any such 30- day period, the Party c harged shall not be considered in default for purposes of termination of this Agreement or institution of legal proceedings. After notice and expiration of the 30- day period, if such default has not been cured or cure is not being diligently pursued in the manner set forth in the notice, the charging Party may at its option: (i) terminate this Agreement, in which event neither Party shall have any further rights against or liability to the other with respect to this Agreement, or (ii) institute legal or equitable action to cure or remedy any default,
DEVELOPMENT AGREEMENT (COMMERCIAL)
City of Turlock – Turlock Marketplace, LLC
including but not limited to, an action for specific performance of the terms of this Agreement.
Section 9.4. Withholding of Permits. If Developer has defaulted after all applicable notice and cure periods have expired, City may, in its sole discretion, refuse to issue or withhold any permit or entitlement for any structure or improvement relating to the Turlock Marketplace Project, including without limitation, a notice of completion, building permit, sign permit, grading permit, or occupancy certificate.
Section 9.5. Default by City. If City defaults under the terms of this Agreement, City agrees that Developer shall not be obligated to proceed with or complete the Turlock Marketplace Project or any phase thereof, nor shall resulting failures or delays in Developer’s performance constitute grounds for termination of this Agreement.
Section 9.6. Enforced Delay, Extension of Times of Performance. Delays in performance, by either Party, shall not be deemed a default if such delays or defaults are due to war, insurrection, terrorism, strikes, walkouts, riots, floods, earthquakes, fires, casualties, pandemics, epidemics, acts of God, governmental restrictions imposed where mandated by governmental entities other than City, enactment of conflicting state or federal laws or regulations, new or supplementary environmental regulations enacted by the state or federal government, litigation, economic collapse, or other force majeure events. An extension of time for such cause shall be in effect for the period of forced delay or longer, as may be mutually agreed upon by the Parties.
ARTICLE 10
ADMINISTRATION OF AGREEMENT
Section 10.1. Administration of Agreement. The City Manager or his or her designee is responsible for the interpretation and administration of the provisions of this Agreement.
Should a disagreement arise between the Parties with respect to the interpretation or administration of any provision of this Agreement, Developer and the City Manager (or his or her designee) shall meet and confer in good faith to discuss resolution of such disagreement within thirty (30) days after notice from either party. If the Parties are unable to reach a mutually-agreeable resolution, the City Manager’s decision may thereafter be appealed to the City Council within fifteen (15) days of the City Manager's decision.
Section 10.2. Amendment of Agreement. This Agreement shall be amended only by mutual consent of the Parties and any amendment must be in writing, as provided below:
(a) Major Amendment. The City Council shall approve any major amendment to the Agreement. An amendment shall be deemed a “major amendment” if it constitutes a material change to City’s financial obligations (with City Manager having the sole discretion to determine what constitutes a “material change”). Any major amendment shall comply with the procedures of the Development Agreement Statute.
DEVELOPMENT AGREEMENT (COMMERCIAL)
City of Turlock – Turlock Marketplace, LLC
(b) Minor Amendment . The Parties acknowledge that development of the Turlock Marketplace Project and the details of performance by the Parties require administrative flexibility. The City Manager shall have the authority to approve minor amendments to this Agreement. An amendment shall be deemed a “minor amendment” if it is not a major amendment and does not incur any financial obligation that exceeds the City Manager’s authority. If City and Developer mutually agree that a minor amendment is appropriate, they shall effectuate the minor amendment through an operating memorandum approved by the Parties with the City Manager acting on behalf of City. An executed operating memorandum shall become effective immediately. Each operating memorandum shall be attached to this Agreement as an addendum and become a part of this Agreement. Unless otherwise required by law, a minor amendment shall not require any notice or hearing.
Section 10.3. Streamlined Implementation. [Intentionally Omitted.] Section 10.4. Assignment and Assumption.
(a) Developer shall have the right to sell, assign, or transfer all or any part of its rights, title and interests in all or a portion of the Property to any person, firm, or corporation during the Term of this Agreement. Any sale, assignment, or transfer of all of this Agreement must be done in writing and in a form substantially similar to the “Assignment and Assumption Agreement ” attached hereto as Exhibit C. Any sale, assignment, or transfer of only a part of this Agreement must be done in writing and in a form substantially similar to the “ Partial Assignment and Assumption Agreement ” attached hereto as Exhibit D. In any such sale, assignment, or transfer, the successor to the transferred Property shall expressly as sume all applicable obligations under this Agreement. Any assignee of Developer shall be subject to all the benefits and burdens of this Agreement.
In the event of any parti al assignment of this Agreement: (i) the assignee under such partial assignment shall be liable only for the obligations under this Agreement that pertain to the portion of the Property transferred to such assignee; (ii) neither assignor, assignee, nor other Developer party to the Agreement shall have joint and several liability for t he obligations or liabilities of the other under this Agreement; and ( iii) no breach or default by such party of its respective obligations under the Agreement shall be deemed, interpreted or construed to be a breach or default by the other party.
(b) Developer shall provide City with written notice of sale, assignment, or transfer of all or a portion of the Property at least thirty (30) days in advance of such action, subject to approval by the City Manager, whose consent shall not be unreasonably withheld. Upon execution of an Assignment and Assumption Agreement or Partial Assignment and Assumption Agreement, Developer shall be relieved of any obligations under this Agreement relating to the transferred Property. After execution of an Assignment and A ssumption Agreement or Partial Assignment and Assumption Agreement, Developer shall send a copy of such agreement to the City Clerk.
DEVELOPMENT AGREEMENT (COMMERCIAL)
City of Turlock – Turlock Marketplace, LLC
Section 10.5. Notices. Any notice or communication required hereunder among the Parties must be in writing, and may be given either personally, by registered or certified mail (return receipt requested), or by Federal Express, UPS or other similar couriers providing overnight delivery. If personally delivered, a notice shall be deemed to have been given when delivered to the Party to whom it is addressed. If given by registered or certified mail, such notice or communication shall be deemed to have been given and received on th e first to occur of (i) actual receipt by any of the addressees designated below as the Party to whom notices are to be sent, or (ii) five (5) days after a registered or certified letter containing such notice, properly addressed, with postage prepaid, is deposited in the United States mail. If given by Federal Express or similar courier, a notice or communication shall be deemed to have been given and received on the date delivered as shown on a receipt issued by the courier. Such notices or communications shall be given to the Parties at the addresses set forth below. Any Party may at any time, by giving ten (10) days written notice to the other Party, designate any other address in substitution of the address listed below to which such notice or communication shall be given.
If to City: City of Turlock
156 S. Broadway
Turlock, California 95380
Attn: City Manager & Development Services
Director
Email: [email protected] &
[email protected]
with copy to: City of Turlock
Attn: City Attorney
156. S. Broadway
Turlock, California 95350
Email: [email protected]
If to Developer: Turlock Marketplace, LLC
Attn: Mark Enes and Joshua Stark
7919 Folsom Blvd., Suite 120
Sacramento, CA 95826
Email: [email protected]
;
[email protected]
ARTICLE 11
TERMINATION
Section 11.1. Termination Upon Completion of Development. This Agreement shall terminate upon the earlier of (i) upon expiration of the Term, or (ii) upon Developer’s
DEVELOPMENT AGREEMENT (COMMERCIAL)
City of Turlock – Turlock Marketplace, LLC
notification to the City of its desire to terminate the Agreement so long as City determines that all material obligations of Developer under the Agreement have been fulfilled or satisfied. Upon termination of this Agreement, City shall record a notice of such termination in a form substantially similar to the “ Notice of Termination” attached hereto as Exhibit E. Termination of this Agreement shall eliminate any further obligation of the Parties to comply with the terms of this Agreement. Termination of this Agreement shall not, however, eliminate the rights of any Party to seek any applicable and available remedies or damages based upon acts or omissions occurring prior to said termination.
Section 11.2. Other Termination. City is entering into this Agreement with Developer based upon Developer’s representations and the public benefits City has determined exist for its economic development goals based upon these representations.
If Turlock Marketplace, LLC does not become the fee owner of the Property by December 31, 2025then City shall have the right to terminate this Agreement.
ARTICLE 12
STANDARD TERMS AND CONDITIONS
Section 12.1. Standard Terms and Conditions.
(a) Venue; Governing Law . Venue for all legal proceedings shall be in the Superior Court for the County of Stanislaus. The validity, interpretation and performance of this Agreement shall be controlled by and construed pursuant to the laws of the State of California.
(b) Waiver. No Party shall be deemed to have made any waiver of any breach of any term, condition or covenant unless said waiver is in writing and signed by the Party so waiving. Such waiver by any Party shall not be deemed to be a waiver of any subsequent breach of the same term, covenant or condition.
(c) Integration. This Agreement, together with its specific references, attachments, and Exhibits, constitutes all of the agreements, understandings, representations, conditions, warranties and covenants made by and between the Parties hereto. Unless set forth herein, neither Party shall be liable for any representations made, express or implied, which are not specifically set forth herein.
(d) Supersedes Prior Agreement . It is the intention of the Parties hereto that this Agreement shall supersede any prior agreements, discussions, commitments, representations or agreements, written, electronic or oral, between the Parties hereto with respect to the Turlock Marketplace Project and the Properties.
(e) Captions. The captions of this Agreement are for convenience and reference only and the words contained therein shall in no way be held to explain, modify, amplify or aid in the interpretation, construction or meaning of the provisions of this Agreement.
DEVELOPMENT AGREEMENT (COMMERCIAL)
City of Turlock – Turlock Marketplace, LLC
(f) Severability. If any portion of this Agreem ent i s declared b y a court of competent jurisdiction to be invalid or unenforceable, s uch po rtion shall be de emed severed from this Agreement and the remaining parts shall remain in full effect as though such invalid or unenforceable provision had not been a part of this Agreement.
(g) Mandatory and Permissive. “Shall” and “will” and “agrees” are mandatory. “May” or “can” are permissive.
(h) Term Includes Extensions . All references to the Term of this Agreement shall include any extensions of such Term.
(j) Constructive Notice and Acceptance. Every person who after the Effective Date and recording of this Agreement owns or acquires any right, title or interest to any portion of the Property shall be conclusively deemed to have consented and agreed to every provision cont ained herein, whether or not any reference to this Agreement is contained in the instrument by which such person acquired an interest in the Property, and all rights and interests of such person in the Property shall be subject to the terms, requirements and provisions of this Agreement.
(j) Counterparts. This Agreement may be executed simultaneously or in two or more counterparts, each of which shall be deemed an original, but which together shall constitute one and the same instrument.
(k) Further Acts; Other Documents. The Parties agree that they shall cooperate in good faith to accomplish the objectives of this Agreement and to that end, agree to execute and deliver such other instruments or documents and to perform any further acts, as may be necessary and convenient to fulfill the purposes and objectives of this Agreement.
(l) Time is of the Essence. Time is of the essence in this Agreement in each covenant and term and condition herein.
(m) Authority. Any developer party executing this Agreement certifies, in his/her/their individual or corporate capacity that (i) they have legal or equitable title to the applicable parcels subject to this Agreement; (ii) they are authorized to enter into this Agreement, and (iii) they have complied with all requirements under state or federal law for such person or entity to execute this Agreement.
(n) Joint Preparation. All Parties to this Agreement have negotiated it at length and have had the opportunity to consult with and be represented by their own competent counsel. Each provision of this Agreement shall be construed as though all Parties participated equally in the drafting of the same. Consequently, the Parties acknowledge and agree that any rule of construction that a document is to be construed against the drafting party shall not be applicable to this Agreement.
DEVELOPMENT AGREEMENT (COMMERCIAL)
City of Turlock – Turlock Marketplace, LLC
(o) Attorney’s Fees and Costs . In the event one of the Parties commences litigation for specific performance or damages for breach of this Agreement, the prevailing Party shall be entitled to reasonable attorney's fees and costs incurred, in addition to any other relief to which such Party may be entitled.
IN WITNESS WHEREOF, this Agreement has been entered into by and between Developer and City as set forth above.
CITY:
CITY OF TURLOCK,
a California municipal corporation
By: ________
Reagan M. Wilson, City Manager
Date:
ATTEST:
By: ________
Nichole Fiez, City Clerk
Date:
APPROVED AS TO FORM:
By: ________
George A. Petrulakis, City Attorney
Date:
DEVELOPER:
TURLOCK MARKETPLACE, LLC,
a California limited liability company
By: ________
Mark Enes
Its: ________
DEVELOPMENT AGREEMENT (COMMERCIAL)
City of Turlock – Turlock Marketplace, LLC
SCHEDULE OF EXHIBITS
Designation Description
Exhibit A Legal Description of Properties
Exhibit B Depiction of Properties and West Tuolumne Road Access Point
Exhibit C Form of Assignment and Assumption Agreement
Exhibit D Form of Partial Assignment and Assumption Agreement Exhibit E Form of Notice of Termination
Exhibit F Revised Standards and Specifications
Exhibit A
Legal Description of the Properties
Exhibit B
Depiction of Property and Depiction of West Tuolumne Road Access Point
Exhibit C
Form of Assignment and Assumption Agreement
RECORDING REQUESTED BY AND WHEN
RECORDED RETURN TO:
City of Turlock
156 S Broadway
Turlock, CA 95380
Attention: City Clerk
SPACE ABOVE THIS LINE FOR RECORDER’S USE
Recording Fee Exempt per Government Code § 6103
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (the “ Agreement”) is entered into this _____ day of __________, 20___, by and between Turlock Marketplace, LLC (“Assignors”), and the ____________, _____________ (“Assignee”).
RECITALS
A. On ___________, 20__, Assignor and the City of Turlock (the “ City”) entered into that certain agreement entitled “Development Agreement by and between the City of Turlock, a California municipal corporation and Turlock Marketplace, LLC (Turlock), Inc. relating to the improvement, development, and use of real property to operate a retail commercial shopping center business (the “ Development Agreement”), originally recorded upon Stanislaus County Assessor’s Parcel Numbers 088 -016-001- 000, 088 -010-024-000, and 088 -010-052-000 the properties constitute approximately
29.42 acres as legally described on Exhibit A (the “Property”).
B. Section 10.4 of the Development Agreement prohibits the sale, assignment, or transfer by Assignor of any portion of Assignor’s interests, rights, or titles described in that section of the Development Agreement (“ Assignable Rights”) to a third party without prior written approval by the City Manager of the City of Turlock (the “ City Manager”).
C. Assignor intends to assign, and Assignee intends to assume, the Assignable Rights under the Development Agreement.
D. In accordance with the terms of the Development Agreement, Assignor has provided to the City Manager a written request for consent to assignment. The City Manager has received the information he or she deems appropriate and consulted with the City Attorney for the purpose of determining that Assignee is a qualified applicant for purposes of the foregoing terms of the Development Agreement. This Agreement is intended to meet the requirements of Section 10.4 of the Development Agreement for an Assignment and Assumption Agreement and is executed with the consent of the City Manager as contemplated in the Development Agreement.
NOW, THEREFORE, Assignor and Assignee hereby agree as follows:
1. The foregoing Recitals are true and incorporated herein by this reference
as though set forth in full.
2. Assignor hereby assigns to Assignee all of the Assignable Rights of Assignor under the Development Agreement.
3. Assignee hereby assumes all of the burdens and obligations of Assignor under the Development Agreement and agrees to observe and fully perform all of the duties and obligations of Assignor under the Development Agreement, and to be subject to all the terms and conditions thereof, with respect to the Property and Assignable Rights.
It is the express intention of Assignor and Assignee that, upon the execution of this Agreement, Assignee shall become substituted for Assignor as the “Developer” under the Development Agreement. Assignor shall thereafter be relieved of its obligations under the Development Agreement.
4. This Agreement shall take effect and be binding only upon the City Manager’s consent to and approval of the Agreement.
5. Assignee represents and warrants that it has reviewed and is familiar with the terms and conditions of the Development Agreement. Assignee acknowledges that the Assignable Rights are as set forth in Section 10.4 of the Development Agreement, and the duties of Assignor thereunder and the duties of Assignee hereunder, as between Assignee and City, shall be without reference to any underlying agreements or understandings that may exist between Assignee, Assignor, or any other party with respect to the subject matter hereof, and that City is not party to such other agreements.
6. All of the covenants, terms, and conditions set forth herein shall be binding upon and shall inure to the benefit of the parties hereto and their respective heirs, successors, and assigns.
IN WITNESS HEREOF, the parties hereto have executed this Agreement as of the day and year first above written.
[Signatures on the Following Page]
ASSIGNOR
Turlock Marketplace, LLC, a California limited
liability company.
By: _____________________________
Mark Enes,
Its: Owner
Date: ___________________________
ASSIGNEE
____________, a __________________
By:
______________,
Its: ___________
Date:
CITY:
City of Turlock,
a California municipal corporation
By: __________________________
Name:
Its: City Manager
Date: __________________________
APPROVED AS TO FORM:
By: ____________________________
_______________, City Attorney
Date: __________________________
[NOTARY ACKNOWLEDGEMENTS AND ANY EXHIBITS TO BE INSERTED]
Exhibit D
Form of Partial Assignment and Assumption Agreement
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
City of Turlock
156 S Broadway
Turlock, CA 95380
Attention: City Clerk
SPACE ABOVE THIS LINE FOR RECORDER'S USE
Recording Fee Exempt per Government Code § 6103
THIS PARTIAL ASSIGNMENT AND ASSUMPTION AGREEMENT (the
"Agreement") is entered into this ________ day of ______, 20___, by and between Turlock Marketplace, LLC ("Assignor"), and _________ ("Assignee").
RECITALS
A. On _____________ 20___, Assignor and the City of Turlock (the "City") entered into that certain agreement entitled "Development Agreement” by and between the City of Turlock, a California municipal corporation and Turlock Marketplace, LLC, a California limited liability company, relating to the improvement, development, and use of real property to operate a retail and commercial shopping center business (the "Development Agreement"), originally recorded upon Stanislaus County Assessor's Parcel Numbers 088-016-001-000, 088-010-024-000, and 088-010-052-000, and the properties constitute approximately 29.42 acres as legally described on Exhibit A (the "Property").
B. Section 10.4 of the Development Agreement prohibits the sale, assignment, or transfer by Assignor of any portion of Assignor's interests, rights, or titles described in that section of the Development Agreement ("Assignable Rights") to a third party without prior written approval (not to be unreasonably withheld) by the City Manager (the "City Manager'') of the City of Turlock (“City”).
C. On or before the date of this Agreement, Assignee has become fee owner of a portion of the Property legally described on Exhibit B (the “Assignee Property”).
D. In connection with Assignee’s ownership of the Assignee Property, Assignor intends to partially assign, and Assignee intends to assume, the Assignable Rights under the Development Agreement burdening and benefiting the Assignee Property (the “Assigned Rights”).
E. In accordance with the terms of the Development Agreement, Assignor has provided to the City Manager a written request for consent to assignment. The City Manager has received the information he or she deems appropriate and consulted with the City Attorney for the purpose of determining that Assignee is a qualified applicant for purposes of the foregoing terms of the Development Agreement. This Agreement is intended to meet the requirements of Section 10.4 of the Development Agreement for
an Assignment and Assumption Agreement and is executed with the consent of the City Manager as contemplated in the Development Agreement.
NOW, THEREFORE, Assignor and Assignee hereby agree as follows:
1. The foregoing Recitals are true and incorporated herein by this reference as though set forth in full.
2. Assignor hereby assigns to Assignee the Assigned Rights under the Development Agreement.
3. Assignee hereby assumes all of the burdens and obligations of Assignor under the Development Agreement with respect to the Assigned Rights and agrees to observe and fully perform all of the duties and obligations of Assignor as to the Assigned Rights under the Development Agreement, and to be subject to all the terms and conditions thereof. Assignor is hereby released from its obligations as it relates to the Assigned Rights.
4. Upon the execution of this Agreement: (i) the Assignee shall be liable only for the obligations under the Development Agreement that pertain to the Assigned Rights; (ii) neither Assignor, Assignee, nor other party to the Development Agreement shall have joint and several liability for the obligations or liabilities of the other under the Development Agreement; and (iii) no breach or default by such party of its respective obligations under the Development Agreement shall be deemed, interpreted or construed to be a breach or default by the other party.
5. The City Manager’s execution of this Agreement on behalf of the City shall be deemed to be the City Manager's consent to and approval of the Agreement.
6. Assignee represents and warrants that it has reviewed and is familiar with the terms and conditions of the Development Agreement. Assignee acknowledges that the Assignable Rights are as set forth in Section 10.4 of the Development Agreement, and the duties of Assignor thereunder and the duties of Assignee hereunder, as between Assignee and City, shall be without reference to any underlying agreements or understandings that may exist between Assignee, Assignor, or any other party with respect to the subject matter hereof, and that City is not party to such other agreements.
7. All of the covenants, terms, and conditions set forth herein shall be binding upon and shall inure to the benefit of the parties hereto and their respective heirs, successors, and assigns.
IN WITNESS HEREOF, the parties hereto have executed this Agreement as of the day and year first above written.
[Signatures on the Following Page]
ASSIGNOR: ASSIGNEE:
Turlock Marketplace, LLC,
a California limited liability company
By: __________________________
Mark Enes
Its:
Date: _________________________
_________________,
a ___________________
By: __________________________
Name: ________________________
Its: ___________________________
Date: _________________________
CITY:
City of Turlock,
a California municipal corporation
By: __________________________
Name:
Its: City Manager
Date: __________________________
APPROVED AS TO FORM:
By: ____________________________
_______________, City Attorney
Date: __________________________
[NOTARY ACKNOWLEDGEMENTS AND ANY EXHIBITS TO BE INSERTED]
Exhibit E
Form of Notice of Termination
Form of Notice of Termination
RECORDING REQUESTED BY
AND WHEN RECORDED RETURN
TO:
City of Turlock
156 S Broadway
Turlock, CA 95380
Attention: City Clerk
SPACE ABOVE THIS LINE FOR RECORDER’S USE
Recording Fee Exempt per Government Code § 6103
NOTICE OF TERMINATION AND RELEASE OF DEVELOPMENT AGREEMENT
DATE: _________________, 20___
PARTIES: CITY OF TURLOCK,
a California municipal corporation
156 S Broadway
Turlock, CA 95380
Attn: City Manager
TURLOCK MARKETPLACE, LLC,
a California limited liability company
Attn: Mark Enes and Joshua Stark
7919 Folsom Blvd., Suite 120
Sacramento, CA 95826
THIS NOTICE OF TERMI NATION AND RELEASE (the “ Release”) is being executed by the City of Turlock, a California municipal corporation (“City”), with reference to the following.
A. By Instrument No. _____ ________, which was recorded in the Official Records of Stanislaus County, California, on ________________, 20__, City recorded a development agreement between City and Turlock Marketplace, LLC, dated ______________, 20__ (the “ Development Agreement”), rel ating to the development and operation of a retail commercial business.
B. Pursuant to Sections 1.6 of the Development Agreement, the term of the Development Agreement expires fifty (50) years from the effective date on
___________, 20___.
C. Pursuant to Section 11.1 of the Development Agreement, once terminated, the Development Agreement has no further force or effect, unless otherwise set forth in the Development Agreement.
NOW, THEREFORE, City hereby terminates, cancels, and otherwise releases Developer and Developer’s heirs, executives, administrators, successors, and assigns from their obligations in the Development Agreement on this ____ of _____ , 20___, and relinquishes any right it m ay hereafter have to enforce any of the terms and provisions set forth in the Development Agreement, unless otherwise set forth in the Development Agreement. This termination, cancellation, and release shall be effective upon the recordation of this Releas e in the office of the County Recorder for the County of Stanislaus, State of California.
CITY OF TURLOCK,
a California municipal corporation
By:
_____________, City Manager
Exhibit F
Revised Standards and Specifications Replacing
City’s 2016 Standards and Specifications
[To be added by Parties Upon Adoption by City or Incorporated by this Reference Upon Adoption by City]
City Council Staff Report
January 28, 2025
From: Adrienne Werner, Development Services Director
Prepared by: Adrienne Werner, Development Services Director Agendized by: Reagan M. Wilson, City Manager
1. ACTION RECOMMENDED:
Motion: Determining that the submittal of the 2023-2031 Draft Housing Element (General Plan Amendment 2024-01) is exempt from the California Environmental Quality Act (CEQA) pursuant to Section 15162 (Subsequent EIRs and Negative Declarations) and/or Section 15262 (Feasibility and Planning Studies) of the CEQA Guidelines.
Resolution: Authorizing staff to submit the 2023-2031 Draft Housing Element to the California Department of Housing and Community Development (HCD) for the mandatory 90-day review period.
2. DISCUSSION OF ISSUE:
The City is required by the State of California to prepare a Housing Element as part of its General Plan. The purpose of the Housing Element is to encourage the provision of affordable and decent housing in all communities to meet State-wide housing goals. The City initiated the update to the Housing Element in In May 2021. A contract was awarded to Dyett and Bhatia Regional Planners, to prepare the update to the Housing Element and the City’s General Plan.
Pursuant to State Law, local governments must make a diligent effort to provide an opportunity for citizen participation throughout the Housing Element update process. A webpage was created on the City’s website to provide information regarding the Housing Element Update. The City hosted a series of listening sessions with stakeholders, including, property owners, community group representatives, local architects, and organizations like the BIA of the Greater Valley. Additionally, throughout the community several pop-events were conducted in 2023, including during National Night Out held at Columbia Park. These pop-events used a “go to them” strategy to raise awareness and provide the community with opportunities for input. To further gather community input, a citywide survey was conducted February 1, 2023 to March 1, 2024 and provided residents another opportunity to help identify and evaluate strategies for accommodating and encouraging new housing to serve local needs and to help the City meet the legal requirements for the Housing Element. Approximately 33,000 surveys were mailed out with over 1,500 respondents participating in the survey. The results of the survey informed the selection of sites and key strategies for accommodating the Regional Housing Needs Allocation (RHNA) of 5,802 housing units for the 2023-2031 planning period. Focus group discussions were held with affordable housing developers, market rate developers, non- profit organizations, architects, service providers catering to the needs of our older citizens and other subject matter experts to help in the formulation of the policies and programs contained in the document.
Two study sessions were held with the Planning Commission where staff presented the
Agenda Staff Report
1/28/2025
community feedback and received input from the Commission. Comments during the Planning Commission sessions included the need to better promote the programs and services offered through the Housing Program Services department and available to Turlock residents such as, the First Time Homebuyers Program and the owner-occupied rehabilitation program and a program to promote the proposed Congregational Overlay which would allow religious institutions the potential to develop housing projects should the owners wish to pursue that option. The community feedback and Planning Commission feedback were incorporated into the draft document. The Draft Housing Element was made available for 30-day public review on the City of Turlock website on October 2, 2024. The public comment period ended on November 2.The 2023-31 Housing Element Public Review Draft has been made available online CLICK HERE or a copy is available to be viewed at the City Clerk's office.
After the 30-day public review of the Draft Housing Element, the Planning Commission held a public hearing on November 7, 2024 to hear any public comments and make a formal recommendation to the City Council whether or not to submit the Draft Housing Element to HCD for the mandatory 90-day review period.
To help expedite the timeline for compliance with Housing Element Law, HCD staff is willing to collaborate with staff during the initial 90-day review period with the intent of making necessary revisions to the Draft Housing Element and providing for public review of the revisions prior to formal adoption by the City Council of the Housing Element. Related zoning amendments would be prepared parallel with the revised Draft Housing Element and come before the City Council for adoption along with the Housing Element.
OVERVIEW OF DRAFT 2023-31 HOUSING ELEMENT
The Draft 2023-31 Housing Element is an update to the current Housing Element of the General Plan, undertaken to outline a plan for accommodating Turlock's assessed share of the Regional Housing Needs Allocation (RHNA) for the planning period and to address new State laws. For the 2023-31 planning period, Turlock's assessed share of the regional housing need is 5,802 new units, including 2,208 units affordable to Low and Very Low- Income households, 1,096 units affordable to Moderate Income Households, and 2,498 affordable to Above Moderate Income households.
Chapter 3 of the Draft Element includes an analysis of the current capacity of the zoning map to accommodate new housing. As shown on Table 1 below, under current zoning there is capacity to accommodate a total 4,250 new housing units or 73 percent of the City's assess RHNA share. This accounts for projects recently approved or under construction and vacant land with residential zoning, as well as capacity Downtown and in the Morgan Ranch Master Plan Area and a projection of future development of accessory dwelling units (ADUs) based on past production trends in Turlock. Notably, there is a gap of almost 1,000 units affordable to Low and Very Low Income households. Under State law, multifamily housing at densities of 20 dwelling units per acre or more are deemed affordable to Low and Very Low income households, so the City will need to create additional capacity for high density housing to bridge the gap meet its RHNA requirements.
Table 1: Summary of RHNA Capacity
Location/Strategy Very Low Moderate Above Total
Agenda Staff Report
1/28/2025
and Low Moderate
Units Accommodated Under Current Zoning
Pipeline Projects 6 361 770 1,137
Morgan Ranch Master Plan 450 875 1,325
Downtown 329 277 606
ADUs 48 24 8 80
Vacant Residential Land 393 133 576 1,102
Subtotal (A) 1,226 518 2,506 4,250
RHNA 2,208 1,096 2,498 5,802
% RHNA 56% 47% 100% 73%
Rezoning
North Golden State 850 265 111 1,226
Geer Road 475 243 100 818
South Lander 196 86 30 312
West Main 23 32 10 65
Subtotal (B) 1,544 626 251 2,421
GRAND TOTAL (A+B) 2,770 1,144 2,757 6,671
RHNA 2,208 1,096 2,498 5,802
% RHNA 125% 104% 110% 115%
Accordingly, the Housing Element proposes the creation of a workforce housing overlay that would apply to vacant and underutilized parcels in four areas of the city. This overlay would not require property owners to build affordable house; they would retain the right to develop their properties consistent with the base zoning currently in place. However, the overlay would give them the option to build multifamily housing if they choose. The workforce housing overlay would apply to sites shown on Figure 1. A community survey that garnered over 1,500 responses from Turlock residents and property owners indicates solid support for multifamily housing in these areas and since the Public Review Draft Housing Element was released in October 2024, the City has received inquiries from more than 10 property owners interested in potentially developing multifamily housing on their lots if the overlay is adopted. As shown on Table 1, the overlay would create additional capacity for 2,421 new housing units, which is sufficient to meet RHNA obligations at all levels with a buffer.
The Draft Element also incorporates a comprehensive update to the background data and analysis in the Housing Element related to special needs groups (seniors, the disabled, female headed households, the homeless) in Turlock (see Appendix B); regulatory,
Agenda Staff Report
1/28/2025
process, environmental, and market-based constraints to housing production (see Appendix C); and an assessment of progress made toward the goals of the current 2015- 23 Housing Element (see Appendix E). Additionally, it incorporates a thorough analysis of conditions related to fair access to housing for marginalized groups consistent with new State law (see Appendix D). Based on the findings of the analysis in these appendices, the framework of implementing policies and program in Chapter 4 has been updated.
Chapter 4 of the Draft Housing Element maintains the goals from the 2015-23 Housing Element with some minor modifications. Goals 1 and 3 related to housing production have been combined into a single goal, now Goal 1 to streamline the Element, and Goal 7 has been reworded to specifically reference the requirements in State law for "affirmatively furthering fair housing" to help clarify where those requirements are being addressed.
Programs from the 2015-23 Element that staff determined to be effective have been carried forward, and new programs have been added to facilitate buildout of the inventory in Chapter 3 and to address the findings of the analysis in the appendices related to special needs groups, housing constraints, and fair housing.
3. BASIS OF RECOMMENDATION:
To comply with State Housing Law the City of Turlock must update the Housing Element every eight years.
4. FISCAL IMPACT / BUDGET AMENDMENT:
A portion of the cost of updating the Housing Element is funded through the Regional Early Action Planning (REAP) grant and from Fund 241 “Asset Replacement”, the holding account for projects necessary to update the City’s General Plan. Staff time was paid from the Planning Division budget.
5. STAFF RECOMMENDATION:
Recommend approval.
6. CITY MANAGER COMMENTS:
Recommend approval.
7. ENVIRONMENTAL DETERMINATION:
Exempt from the California Environmental Quality Act (CEQA) pursuant to Section 15162 (Subsequent EIRs and Negative Declarations) and/or Section 15262 (Feasibility and Planning Studies) of the CEQA Guidelines.
8. ALTERNATIVES:
1. The City Council may choose not to authorize the submittal of the Draft Housing Element to HCD. Staff does not recommend this alternative as the deadline to submit the City’s Housing Element was December 31, 2023. HCD has committed to continue working with staff and the consultant to expeditiously review the draft Housing Element in order for the City to comply with State Housing Element Law.
2. The City Council may choose to modify the draft document. Any changes will be
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incorporated into the draft document submitted to the State Housing and Community Development (HCD) Department.
9. ATTACHMENTS:
1. Resolution Authorizing Submittal to HCD
2. Figure 1 Citywide Sites Inventory
BEFORE THE CITY COUNCIL OF THE CITY OF TURLOCK
WHEREAS, State Housing Element law (Government Code Sections 65580 et seq.) requires every city and county in California to adopt a comprehensive General Plan that includes seven mandated elements; and
WHEREAS, the Housing Element is one of the required elements and the only element reviewed and certified by the State Housing and Community Development Department (HCD); and WHEREAS, the housing element has to be updated every eight years; and WHEREAS, the City of Turlock is in the process of updating the housing element to meet the State Housing Element law; and
WHEREAS, the 2023-2031 Draft Housing Element was provided to the City Council for review under separate cover and is available on the City website.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Turlock does hereby authorize the submittal of the 2023-2031 Draft Housing Element to the California Department of Housing and Community Development (HCD) for the mandated 90-day review period.
PASSED AND ADOPTED at a regular meeting of the City Council of the City of Turlock this 28th day of January, 2025, by the following vote:
AYES: ( )
NOES: ( )
NOT PARTICIPATING: ( )
ABSENT: ( )
ATTEST:
___________________________
Nichole Fiez, City Clerk,
City of Turlock, County of Stanislaus,
State of California
}
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RESOLUTION NO. 2025-IN THE MATTER OF AUTHORIZING
THE SUBMITTAL OF THE 2023-2031
DRAFT HOUSING ELEMENT TO THE
CALIFORNIA DEPARTMENT OF
HOUSING AND COMMUNITY
DEVELOPMENT (HCD) DEPARTMENT
FOR THE MANDATORY 90-DAY
REVIEW PERIOD
N
Colorado
Ave
West Main St
SW
ashington
Rd
N Soderquist Rd
Geer Rd
Fosberg Rd
N
TullyRd
N
BerkeleyAve
N
G
oldenState Blvd
E Monte Vista Ave
E Tuolumne Rd
E Main St
Ninth St
SLanderAve
Roberts Rd
N Quincy Rd
STegnerRd
N
W
alnutRd
W Tuolumne Rd
Montana Ave
Andre Ln
1525 W Monte Vista
S Quincy Rd
E Minnesota Ave
S Golden State Blvd
Brier Rd
N Johnson Rd
W Christoffersen Pkwy
Pedras Rd
El Capitan Dr
E Hawkeye Ave
W Linwood Ave
Dels Ln
Fulkerth Rd
N
O
liveAve
S Kilroy Rd
North Ave
E Taylor Rd
East Ave
F St
W Taylor Rd
S Soderquist Rd
N
W
ashington
Rd
A St
Fullerton Dr
Hedstrom Rd
Mountain
View
Rd
Georgetown Ave
S Johnson Rd
South Ave
W Springer Dr
E Canal Dr
Marshall St
N
DenairAve
E Glenwood Ave
N
BerkeleyAve
Grant Ave
Park St
W Monte Vista Ave
Golf Rd
E Linwood Ave
W GlenwoodAve
Spengler Wy
SW
alnutRd
Countryside
Dr
Harding Rd
Simmons Rd
E Zeering Rd
STullyRd
Dianne Dr
Ruble Rd
N
TegnerRd
Fransil Ln
STANISLAUS
COUNTY
AÎ
East
T uolumne
Master Plan
Northeast T urlock
Master Plan
Westside
Industrial
Specific
Plan
Northwest
Triangle
Specific
Plan
Geer Road
West Main
North
Golden
State
Morgan Ranch
Master Plan
Downtown
South Lander
0 ½ 1¼
Miles
Source: City of T urlock, 2021; Dyett & Bhatia, 2021
City Limit
County
Freeway
Major Road
Road
Railroad
MERCED
COUNTY
J:\GISData\580_Turlock\GIS\Projects\HousingElement\Chapter 3\Map 3-8 Citywide Sites Inventory.mxd Map Date:
9/20/2024
Sites Inventory
Above Moderate Income
Moderate Income
Low/Very Low Income
Mixed Income
Residential Pipeline Projects
Opportunity Area
Specific/Master Plan Area
Figure 1
Housing Element
Citywide Sites Inventory
City Council Staff Report
January 28, 2025
From: Christopher Fisher, Municipal Services Director
Prepared by: Carlos Guerrero, Utilities Division Manager Agendized by: Reagan M. Wilson, City Manager
1. ACTION RECOMMENDED:
Resolution: Awarding Request for Proposal (RFP) 24-011 and approving an agreement (City Contract 2025-097) in a form approved by the City Attorney with NBS Government Finance Group (Temecula, California office) for a Water Rate Study and related services for a one (1) year term with the option to extend for two (2) additional one-year terms in an amount not-to-exceed $132,915 to be funded by Fund 420 (Water), account number 420- 52-550.43314 “Contract Help – Service”
2. DISCUSSION OF ISSUE:
Staff is requesting approval of an agreement with NBS Government Finance Group (NBS) to conduct a comprehensive Water Rate Study and provide recommendations for future water rates and rate structures. The last Water Rate Study was completed by Municipal Financial Services in 2017 and rates were last updated on March 1, 2018. A five-year plan was put into place in accordance with Turlock Municipal Code, 6-5-501(b)(2), with the most recent rate hike occurring on January 1, 2022.
The City of Turlock relies both on groundwater and surface water for its drinking water supply. The City’s drinking water supply faces a number of challenges, including: declining supply, increasing levels of contaminants, meters reaching their life expectancy, water main line replacement with capital improvement projects, increasingly stringent regulatory requirements, and new state regulations on groundwater sustainability.
Since 2011, the City of Turlock has been a member of the Stanislaus Regional Water Authority (SRWA). The SRWA is a Joint Powers Authority of the City of Turlock and the City of Ceres whose purpose is to develop a drinking water supply in partnership with the Turlock Irrigation District (TID). The primary goal of the SRWA was to build and operate a new water treatment facility on the Tuolumne River, which uses filters and chemical agents to treat this water, known as “surface water”, and deliver it to Turlock and Ceres to supplement the groundwater drinking water supply.
In May 2023, the City's water supply started to progressively include chlorine treatment as part of this initiative. Now that the City of Turlock is implementing this action, we have reached a stage where some planning level cost estimates will grow. To comprehend the potential effects on Turlock’s ratepayers, conducting a Water Rate Study is essential.
On September 2, 2024, City staff issued Request for Proposal (RFP) 24-011 for a Water Rate Study; in response, two vendors submitted proposals and were ranked as follows:
1. NBS Government Finance Group
Agenda Staff Report
1/28/2025
2. Utility Accounting & Rate Specialists LLC
Very recently, the City benefitted from the experts at NBS, who conducted an in-depth review of sewer rates and rate design structure to ensure that new rates collect sufficient revenues to meet all financial obligations during the five-year rate period.
The goals of this study would be similar to the recent sewer rate study:
• Ensuring equity and proportionality among customer classes by collecting rate revenue through the cost-of-service process based on both fixed monthly charges and volumetric rates.
• Maintaining adequate reserve levels to ensure continuity in operations. • Ensuring adequate funding for the City’s water system-related capital projects due to the level of capital investment planned over the next five years. • Complying with Proposition 218 (Cal. Const. Art. XIII-D, Section 6) requirements to ensure costs are properly allocated between user classifications. • Creating a rate model that responds to changing conditions and assumptions and accommodates updates of customer data and consumption patterns.
Once the Study is complete and the rate impacts of the project are fully understood, the City Council may choose to proceed with the Proposition 218 process to adopt the new rates.
3. BASIS OF RECOMMENDATION:
1. It is necessary for municipalities to conduct rate studies with regularity to ensure equity among customer classes, maintain adequate reserve levels, and ensure adequate funding for net revenue requirements and capital projects.
2. A Water Rate Study will provide the City Council with the information it needs to evaluate the impact of future funding for operating costs, maintain adequate and reasonable reserves and plan for future capital improvement projects.
3. A Water Rate Study will inform City Council on how to recover costs with the addition of treatment of our drinking water, implemented to improve water quality, and allow the City to comply with more stringent regulations for drinking water quality.
4. NBS offers extensive expertise and experience in developing water and sewer rate studies and has significant experience with the City’s water utility.
4. FISCAL IMPACT / BUDGET AMENDMENT:
The fiscal impact of the proposed action is $132,915, which, in accordance with the compensation schedule in the agreement, will be expensed to Fund 420 (Water), account number 420-52-550.43314 - Contract Help – Service.
Appropriate funds have been allocated during the Fiscal Year 2024-25 budget process to cover this Agreement and no budget amendment is required.
Agenda Staff Report
1/28/2025
5. STAFF RECOMMENDATION:
Recommend approval.
6. CITY MANAGER COMMENTS:
Recommend approval.
7. ENVIRONMENTAL DETERMINATION:
This action is not subject to the provisions of the California Environmental Quality Act (CEQA) in accordance with Section 15378(b)(5) of the CEQA guidelines. This action consists of “organizational or administrative activities of governments that will not result in direct or indirect physical changes in the environment” and therefore is not considered a project.
8. ALTERNATIVES:
A. Do not approve the Agreement. This alternative is not recommended because the study is essential to understanding the potential impact of the of future funding for operating costs, maintain adequate and reasonable reserves and plan for future capital improvement projects. Delaying this study could cause the City to persist in an unfavorable financial situation.
B. Provide staff direction on how to proceed.
9. ATTACHMENTS:
1. Draft Resolution
2. City Contract 2025-097 with NBS Government Finance Group
BEFORE THE CITY COUNCIL OF THE CITY OF TURLOCK
RESOLUTION NO. 2025-
WHEREAS, the City of Turlock’s water enterprise utility is responsible for the water distribution system and meeting net revenue requirements associated with its operations, maintenance, and associated capital projects; and
WHEREAS, numerous issues affect the City's drinking water supply, such as dwindling supply, rising contaminant levels, meters that are past their useful life cycle, replacing water main lines with capital improvement projects, stricter regulations, and new groundwater sustainability laws from the state; and
WHEREAS, it is necessary for municipalities to conduct rate studies with regularity to ensure equity among customer classes, maintain adequate reserve levels, and ensure adequate funding for net revenue requirements and capital projects; and WHEREAS, the Water Rate Study will perform a comprehensive review of the current water rate structure and develop final recommendations, and communicate the results to the City’s customers; and
WHEREAS, the study report will provide an administrative record necessary to comply with Proposition 218; which limits the ability of local governments to impose assessments or fees on property owners without their consent; and WHEREAS, this action is not subject to the provisions of the California Environmental Quality Act (CEQA) in accordance with Section 15378(b)(5) of the CEQA guidelines because it consists of “organizational or administrative activities of governments that will not result in direct or indirect physical changes in the environment” and therefore is not considered a project.
}
}
}
}
}
}
}
}
}
}
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}
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IN THE MATTER OF AWARDING REQUEST
FOR PROPOSAL (RFP) 24-011 AND
APPROVING AN AGREEMENT (CITY
CONTRACT 2025-097) IN A FORM
APPROVED BY THE CITY ATTORNEY
WITH NBS GOVERNMENT FINANCE
GROUP (TEMECULA, CALIFORNIA
OFFICE) FOR A WATER RATE STUDY
AND RELATED SERVICES FOR A ONE (1)
YEAR TERM WITH THE OPTION TO
EXTEND FOR TWO (2) ADDITIONAL ONE-
YEAR TERMS IN AN AMOUNT NOT-TO-
EXCEED $132,915 TO BE FUNDED BY
FUND 420 (WATER), ACCOUNT NUMBER
420-52-550.43314 “CONTRACT HELP –
SERVICE”
Resolution No. 2025-
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Turlock does hereby award Request for Proposal (RFP) 24-011 and approve an agreement (City Contract 2025-097) in a form approved by the City Attorney with NBS Government Finance Group (Temecula, California office) for a Water Rate Study and related services for a one (1) year term with the option to extend for two (2) additional one-year terms in an amount not-to-exceed $132,915 to be funded by Fund 420 (Water), account number 420-52-550.43314 “Contract Help – Service”.
PASSED AND ADOPTED at a regular meeting of the City Council of the City of Turlock this 28th day of January, 2025, by the following vote:
AYES:
NOES:
NOT PARTICIPATING:
ABSENT:
ATTEST:
__________________________
Nichole Fiez, City Clerk,
City of Turlock, County of Stanislaus,
State of California
CITY CONTRACT NO. 2025-097 1
{PLA2023}
10/2024
AGREEMENT BETWEEN THE CITY OF TURLOCK
and
NBS GOVERNMENT FINANCE GROUP
for
WATER RATE STUDY PROFESSIONAL SERVICES
City Contract No. 2025-097
THIS PROFESSIONAL SERVICES AGREEMENT (the “Agreement”) is entered into by and between the CITY OF TURLOCK, a California mu nicipal corporation (“City”), and NBS GOVERNMENT FINANCE GROUP, a California corporation (“Professional”), on this 28 th day of January 2025 (the “Effective Date”). City and Pr ofessional may be collectively referred to herein as the “Parties” or individually as “Party.” There are no other parties to this Agreement.
RECITALS
A. City seeks to hire an independent contractor to perform professional s ervices to assist City with the Water Rate Study and related services (the “Project”).
B. Professional has made a proposal to City to provide such professional services. A description of the services Professional proposes to provide is included in the Scope of Services in Exhibit A attached hereto and incorporated herein by reference (“Services”). City desires to retain Professional to perform the Services, subject to th e terms and conditions set forth in this Agreement.
C. The Parties have outlined the schedule or timeline for providing the Services (“Completion Schedule”), which shall be included in the Scope of Services in Exhibit A .
D. The Parties have outlined the rates and method of p ayment to Professional for its performance of the Services under this Agreement (“ Compensation Schedule”), which shall be included in the Scope of Services in Exhibit A .
NOW, THEREFORE, in consideration of the promises and covenants set forth below, the Parties agree as follows:
CITY CONTRACT NO. 2025-097 2
{PLA2023}
10/2024
AGREEMENT
1. Recitals . The recitals set forth above (“Recitals”) are tru e and correct and are hereby incorporated into and made part of this Agreement b y this reference. In the event of any inconsistency between the Recitals and Sections 1 t hrough 53 of this Agreement, Sections 1 through 53 shall prevail.
2. Term . The term of this Agreement shall be one (1) year an d will commence on the Effective Date and terminate on the 28 th day of January, 2026 (“Term”) unless the Parties mutually agree in writing to terminate the Agreement earlier or extend the Term pursuant to this Agreement.
3. Extension of Agreement . City may elect to extend this Agreement for two ( 2) additional one year (1) terms, on the same terms and condition s, upon issuing an “Election to Extend Agreement” letter executed by the City Manager and Professional thirty (30) days prior to the expiration of this Agreement.
4. Effective Date . This Agreement shall only become effective once a ll of the Parties have executed the Agreement (the “Effective Date”).
5. Work .
5.1. Services . Subject to the terms and conditions set forth in this Agreement, Professional shall provide City the Services described in Exhibit A . Any request for Services not included in Exhibit A will be considered a request for additional or mod ified Services (“Modification” or “Modifications”). Professional s hall not receive additional compensation for any Modification of the Services unless the Parties agree otherwise in a writing executed by both Parties.
5.2. City Requested Modification of Services . City may, by written order, authorize Modifications to the Services described in Exhibit A . If such Modifications cause an increase in the cost or time required for performance of Profes sional’s Services, the Parties shall enter into a written amendment to this Agreement to adjust the S ervices and the compensation to be paid to Professional and, if necessary, amend the Completio n Schedule or Compensation Schedule. The Services, Completion Schedule, or Compensation Sche dule shall not be revised unless City and Professional mutually agree to a written amendment to this Agreement reflecting such revisions, additional compensation, time for performance or such other terms or conditions mutually agreed upon by the Parties.
5.3. Professional Requested Modification in Service s . Professional shall not be compensated for work outside the Services described in this Agreement, unless, prior to the commencement of the Services:
(a)
Professional provides City with written notice that specific work requested by City or required to complete the Project is outside the agreed upon Services. Such notice shall:
(1) be supported by substantial evidence that the w ork is outside the Services; (2) set forth the Professional’s proposed course of action for comple ting the work and a specific request for City
CITY CONTRACT NO. 2025-097 3
{PLA2023}
10/2024
to approve the Modification to the Services; (3) se t forth the Professional’s proposed revisions, if any, to the Completion Schedule; and (4) set forth the Professional’s proposed revisions, if any, to the Compensation Schedule; and
(b)
City agrees that the work requires a Modification;
(c) City approves all adjustments, if any, to the Compl etion Schedule and Compensation Schedule; and
(d) The Parties execute a written amendment to this Agreement describing any Modification, together with any adjustment in the C ompletion Schedule and Compensation Schedule for Professional’s work.
6. Compensation .
6.1. Amount, Time and Manner of Payment for Profess ional Services . City shall pay Professional according to the rates and timing set forth in the Compensation Schedule. On each anniversary date of the Effective Date, Profes sional will be allowed to increase prices with thirty (30) days’ written notice to City. Increases may not exceed increases in the San Francisco- Oakland Consumer Price Index for all urban consumer s or percentage increases in Professional’s published prices, whichever is lower. In all cases, City may cancel this Agreement if a requested price increase is not acceptable. City’s total comp ensation to Professional shall not exceed One Hundred Thirty Two Thousand Nine Hundred and Fiftee n and No/100ths Dollars ($132,915) (“Maximum Payment”), unless the Parties mutually agree in writing otherwise.
6.2. Deposit . [Intentionally Omitted]
6.3. Subsequent Payments . City shall make monthly payments in the amount invoiced by Professional within thirty (30) calendar days of receiving such invoice. In the event that an amount of an invoice is in dispute, City shall info rm Professional of the amount and basis for the dispute and may withhold the amount which is in dispute until the dispute has been resolved.
6.4. Invoices . Professional shall provide City with monthly invo ices sufficiently evidencing Professional’s expenses and completion of the Services. All invoices furnished to City by Professional shall be in a form approved by City . The payments specified shall be the only payments made to Professional for performance of th e Services, including compensation for any Modification. Professional shall submit all billings for Services to City within forty-five (45) days of the performance of such Services. City shall iss ue payment according to City’s customary procedures and practices for issuing payments to independent contractors.
7. Notice to Proceed . Professional shall not commence the performance of the Services until it has been given notice by City (“Notice to Proceed”).
CITY CONTRACT NO. 2025-097 4
{PLA2023}
10/2024
8. Time of Performance . Professional warrants that it will commence perfo rmance of the Services within ten (10) calendar days of the date the agreement was executed and shall conform to the Completion Schedule. The time of performance is a material term of this Agreement relied on by City in entering into this Agreement.
9. City Assistance to Professional . [Intentionally Omitted]
10. Time and Personnel Devoted to Services . Professional shall devote such time and personnel to the performance of this Agreement, as is necessary to perform the Services in compliance with the Completion Schedule, Compensation Schedule, and this Agreement.
11. Performance by Qualified Personnel; No Subcontracti ng . Services under this Agreement shall be performed only by competent pers onnel under the supervision and direct employment of Professional. Professional will conform with City’s reasonable requests regarding assignment of personnel, but all personnel, includi ng those assigned at City’s request, shall be supervised by Professional. Professional is prohibited from subcontracting this Agreement or any part of it unless such subcontracting is expressly approved by City in writing. Neither Party shall, on the basis of this Agreement, contract on behalf of, or in the name of the other Party. An agreement made in violation of this provision shall confer no rights on any Party and shall be null and void.
12. Representations of Professional . City relies upon the following representations by Professional in entering into this Agreement:
12.1. Qualifications . Professional represents that it is qualified to p erform the Services provided in Exhibit A and that it possesses the necessary licenses and permits required to perform the Services or will obtain such licenses or permit s prior to the time such licenses or permits are required. Professional shall also ensure that all subcontractors are similarly licensed and qualified.
Professional and all subcontractors shall also obta in a business license from City before they commence performance of the Services. Professional represents and warrants to City that Professional shall, at Professional's sole cost and expense, keep in effect or obtain at all times during the Term of this Agreement, any licenses, permits, and approvals which are legally required for Professional to practice Professional's profession at the time the Services are rendered.
12.2. Professional Performance . Professional represents that all Services under t his Agreement shall be performed in a professional mann er and shall conform to the customs and standards of practice observed on similar, successf ully completed projects by specialists in the Services to be provided. Professional shall adhere to accepted professional standards as set forth by relevant professional associations and shall perform all Services required under this Agreement in a manner consistent with generally accepted professional customs, procedures and standards for such Services. All work or products completed by Pr ofessional shall be completed using the best practices available for the profession. Professional agrees that, if a Service is not so performed, in addition to all of its obligations under this Agreement and at law, Professional shall re-perform or replace unsatisfactory Service at no additional expense to City.
CITY CONTRACT NO. 2025-097 5
{PLA2023}
10/2024
12.3. No Waiver of Claims . The granting of any progress payment by City, or the receipt thereof by Professional, or any inspection, review, approval or oral statement by any representative of City, or state certification shall not, in any w ay, waive, limit, or replace any certification or approval procedures normally required or lessen the liability of Professional to re-perform or replace unsatisfactory Service, including, but not limited to, cases where the unsatisfactory character of such Service may not have been apparen t or detected at the time of such payment, inspection, review or approval.
12.4. City’s Remedies are Cumulative . Nothing in this Section shall constitute a waiver or limitation of any right or remedy, whether in eq uity or at law, which City or Professional may have under this Agreement or any applicable law. Al l rights and remedies of City, whether under this Agreement or applicable law, shall be cumulative.
12.5. No Conflict of Interest . Professional represents that no conflict of interest will be created under state or federal law by entering into or in carrying out this Agreement.
13. Conformity with Law and Safety . Professional shall observe and comply with all applicable laws, ordinances, codes and regulations of governmental agencies, including federal, state, municipal and local governing bodies having jurisdiction over any or all of the scope of Services, including all provisions of the Occupational Safety and Health Act of 1979 as amended, all California Occupational Safety and Health Regul ations, the California Building Code, the Americans with Disabilities Act, any copyright, patent, or trademark law, and all other applicable federal, state, municipal and local safety regulati ons, appropriate trade association safety standards, and appropriate equipment manufacturer i nstructions. All Services performed by Professional must be in accordance with these laws, ordinances, codes and regulations.
Professional’s failure to comply with any laws, ordinances, codes, or regulations applicable to the performance of the Services hereunder shall constit ute a breach of contract. In cases where standards conflict, the standard providing the highest degree of protection shall prevail.
If a death, serious personal injury or substantial property damage occurs in connection with the performance of this Agreement, Professional sha ll immediately notify City's risk manager by telephone. If any accident occurs in connection wit h this Agreement, Professional shall promptly submit a written report to City, in such form as Ci ty may require. This report shall include the following information: (a) name and address of the injured or deceased person(s); (b) name and address of Professional's subcontractor, if any; (c ) name and address of Professional's liability insurance carrier; and (d) a detailed description o f the accident, including whether any of City's equipment, tools or materials were involved.
If a release of a hazardous material, substance, or waste occurs in connection with the performance of this Agreement, Professional shall immediately notify City. Professional shall not store hazardous materials or hazardous waste within City limits without a proper permit from City.
14. Contact by Professional with Project Owner or Proje ct Applicant . Unless otherwise set forth in the Services, neither Professional nor Professional's subcontractors shall directly contact the owner of the property involved in the Project or any party who is the applicant for the Project (“Interested Party”), or an employee or con tractor of an Interested Party, on any matter
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relating to the Project without the prior consent o f the Contract Administrator. In no event shall Professional take any instructions or directions fr om an Interested Party on any matter pertaining to the Professional's Services to be performed for City under this Agreement.
15. Confidentiality . Professional understands and agrees that, in the performance of Services under this Agreement or in the contemplation thereo f, Professional may have access to private or confidential information that may be owned or contr olled by City and that such information may contain proprietary or confidential details, the disclosure of which to third parties may be damaging to City (“Confidential Information”).
Professional shall not, either during or after the Term, disclose to any third party any Confidential Information without the prior written consent of City. If City gives Professional written authorization to make any such disclosure, Professional shall do so only within the limits and to the extent of that authorization. Professional may be directed or advised by the City Attorney on various matters relating to the performance of t he Services on the Project or on other matters pertaining to the Project and, in such event, Professional agrees that it will treat all communications between itself, its employees and its subcontractors as being communications which are within the attorney-client privilege.
Notwithstanding the foregoing, Professional may dis close Confidential Information required to be disclosed under law, provided that, prior to disclosure, Professional shall first give notice to City and make a reasonable effort to obta in a protective order requiring that City’s Confidential Information not be disclosed. This exc eption is limited to the extent disclosure is required under law.
16. Excusable Delays; Notice to Other Party of Delay . Professional shall not be in breach of this Agreement in the event that performance of Services is temporarily interrupted or discontinued due to a “Force Majeure” event which is defined as: riots, wars, sabotage, civil disturbances, insurrections, explosion, natural disasters such as floods, earthquakes, landslides, fires, strikes, lockouts and other labor disturbances or other cata strophic events, which are beyond the reasonable control of Professional. Force Majeure d oes not include: (a) Professional’s financial inability to perform; (b) Professional’s failure to obtain any necessary permits or licenses from other governmental agencies; or (c) Professional’s failure to obtain the right to use the facilities of any public utility where such failure is due solely to the acts or omissions of the Professional.
17. Assignment Prohibited . No Party to this Agreement may assign any right or obligation pursuant to this Agreement. Any attempt or purporte d assignment of any right or obligation pursuant to this Agreement shall be void and of no effect.
18. Suspension of Services by City . City reserves the right to suspend Professional's Services under this Agreement when City determines that it is necessary to do so. When possible, City shall give Professional notice of such suspension and Pro fessional shall, upon receipt of said notice, suspend all Services except any Services, the completion of which is authorized by the notice given by City. If the Services are suspended by City for more than sixty (60) consecutive days, for reasons other than the fault of the Professional, the Professional shall be compensated for Services performed prior to notice of such suspension. When the Project is resumed, the Professional's
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compensation shall be equitably adjusted by City to provide for expenses incurred by the interruption of the Services. In this regard, Profe ssional shall furnish to City such financial information that, in the judgment of the City Manag er, is necessary to determine the reasonable value of the Services rendered by Professional during the period when Services were suspended.
If the Parties are unable to agree upon the amount of extra compensation which is due to Professional within thirty (30) days of Professiona l resuming Services, the amount of such additional compensation, if any, that is required t o appropriately compensate the Professional for its expenses incurred by the interruption of Servic es may, upon the request of either Party, be determined by arbitration conducted in accordance w ith the “Arbitration of Disputes” section of this Agreement. Such arbitration shall be commenced by the Professional no later than sixty (60) calendar days following the event which entitles the Parties to pursue arbitration unless the Parties agree in writing to an extended time period for com mencement of arbitration. Unless otherwise agreed in writing, all Parties shall carry on the S ervices and perform their duties during any arbitration proceedings, and City shall continue to make payments for the Services in progress as required by this Agreement.
19. Ownership of Work Product . Any and all final work, artwork, copy, posters, billboards, photographs, videotapes, audiotapes, systems design s, software, reports, designs, specifications, drawings, diagrams, surveys, source codes, professi onal or technical information or data, photographs, notes, letters, emails or any original works of authorship created by Professional or its subcontractors or subcontractors in connection with Services performed under this Agreement (“Products”) shall be works for hire as defined und er Title 17 of the United States Code, and all copyrights in such works are the property of City. In the event it is ever determined that any Product created by Professional or its subcontractors, or subcontractors under this Agreement, are not works for hire under U.S. law, Professional her eby assigns all copyrights to such Products to City. With the prior written approval of City's poi nt of contact for the Project, Professional may retain and use copies of such Products for referenc e and as documentation of its experience and capabilities.
All final Products shall become the property of City irrespective of where located or stored, and Professional agrees to deliver all such documents and information to City, without charge and in whatever form it exists, on the completion of the Professional's Services hereunder. Professional shall have no ownership interest in such Products.
All final work product of Professional under this A greement, including written information which City will cause to be distributed for either internal or public circulation, including both preliminary and final drafts, shall be delivered to City in both printed and electronic form, or as may be specified in
Exhibit A .
When this Agreement is terminated, Professional agr ees to return to City all documents, drawings, photographs and other written or graphic material, however produced, that it received from City, its contractors or agents, in connection with the performance of its Services under this Agreement. All materials shall be returned in the same condition as received.