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HomeMy WebLinkAbout2023-10-19 Council Agenda PacketThursday, October 19, 2023 9:00 AM City of Fresno 2600 Fresno Street Fresno, CA 93721 www.fresno.gov Council Chambers (In Person and/or Electronic) City Council President - Tyler Maxwell Vice President - Annalisa Perea Councilmembers: Mike Karbassi, Miguel Angel Arias, Luis Chavez, Garry Bredefeld, Nelson Esparza City Manager - Georgeanne A. White City Attorney - Andrew Janz City Clerk - Todd Stermer, CMC Meeting Agenda - Final Regular Meeting October 19, 2023City Council Meeting Agenda - Final THE FRESNO CITY COUNCIL WELCOMES YOU TO CITY COUNCIL CHAMBER, LOCATED IN CITY HALL, 2ND FLOOR, 2600 FRESNO STREET, FRESNO, CALIFORNIA 93721. PUBLIC PARTICIPATION – Public participation during Fresno City Council meetings is always encouraged and can occur in one of the two following ways: 1) Participate In Person: Council Chambers, City Hall, 2nd Floor, 2600 Fresno Street, Fresno, CA 93721 a) To speak during a City Council meeting in person: fill out a speaker card (available in the Council Chamber) and place it in the speaker card collection basket at the front of the Council Chamber. You may also approach the speaker podium upon the Council President’s call for public comment. 2) Participate Remotely via Zoom: https://fresno-gov.zoom.us/webinar/register/WN_WRuQin86S-eKGQ9w8Jy3zw a) The above link will allow you to register in advance for remote participation in the meeting via the Zoom platform. After registering, you will receive a confirmation email containing additional details about joining the meeting. b) To speak during a City Council meeting while attending remotely: while in the Zoom application, click on the icon labeled “Participants” at the bottom of the screen. Then select “RaiseHand” at the bottom of the Participants window. Your digital hand will now be raised. You will be asked to “unmute” when your name is called to speak. You will not be visible via video and there will be no opportunity to share your screen. All public speakers will have up to 3 minutes to address Council pursuant to Rule No. 10 of the Rules of Procedure for the City Council of the City of Fresno (available in the City Clerk’s Office). SUBMIT DOCUMENTS / WRITTEN COMMENTS - Pursuant to Rule 11 (c) of the Rules of Procedure, no documents shall be accepted for Council review unless submitted to the City Clerk at least 24 hours prior to the Council Agenda item be heard. Documents / written comments related to an agenda item can be submitted by one of the following methods: 1) eComment – eComment allows the public to submit agenda related comments through a website prior to the meeting. Submitted comments are limited to 1440 characters and will be a part of the official record. Page 2 City of Fresno October 19, 2023City Council Meeting Agenda - Final a) Submit an e-Comment by visiting https://fresno.legistar.com/Calendar.aspx and selecting the “eComment” link. b) e-Comment is available for use upon publication of the agenda and closes 24 hours prior to the meeting start time [pursuant to Rule 11(c)]. c) e-Comment is not permitted for Land use or CEQA items d) The e-Comment Electronic User Agreement can be viewed at: https://www.fresno.gov/cityclerk/ 2) E-mail – Agenda related documents and comments can be e-mailed to the Office of the City Clerk at least 24 hours prior to the agenda item being heard, pursuant to Rule 11(c). a) E-mail the Clerk’s Office at clerk@fresno.gov b) E-mails should include the agenda date, and the related agenda item number. VIEWING CITY COUNCIL MEETINGS (non-participatory) - For your convenience, there are several ways to view Fresno City Council meetings live: 1) City of Fresno website: https://fresno.legistar.com/Calendar.aspx (click “In Progress” to view the live meeting). 2) Community Media Access Collaborative website: https://cmac.tv/ 3) YouTube - City of Fresno Council, Boards and Commissions Channel: https://www.youtube.com/channel/UC3ld83D8QGn1YBDw6aD5dZA/videos 4) Facebook: https://www.facebook.com/FresnoCA/videos 5) Cable Television: Comcast Channel 96 and AT&T Channel 99 Should any of the five viewing methods listed above experience technical difficulties, the Council meeting will continue uninterrupted. Council meetings will only be paused to address verifiable technical difficulties for all users participating via Zoom or in the Council Chamber. The City of Fresno’s goal is to comply with the Americans with Disabilities Act (ADA). Anyone requiring reasonable ADA accommodations, including sign language interpreters, or other reasonable accommodations such as language translation, should contact the office of the City Clerk at (559) 621-7650 or clerk@fresno.gov. To help ensure availability of these services, you are advised to make your request a minimum of three business days prior to the scheduled meeting. Page 3 City of Fresno October 19, 2023City Council Meeting Agenda - Final 9:10 A.M. ROLL CALL Invocation by Reverend Jessica Harmon, who is the Cathedral Curate at St. James Episcopal Cathedral Pledge of Allegiance to the Flag APPROVE AGENDA CEREMONIAL PRESENTATIONS Proclamation for “National Latino/a Physician Day”ID 23-1458 Sponsors:Council President Perea Fresno Animal Center presents “Pet of the Month”ID 23-1501 Sponsors:Office of Mayor & City Manager COUNCILMEMBER REPORTS AND COMMENTS MAYOR/MANAGER REPORTS AND COMMENTS CITY CLERK AND CITY ATTORNEY REPORTS AND COMMENTS UNSCHEDULED COMMUNICATION PLEASE NOTE: UNSCHEDULED COMMUNICATION IS NOT SCHEDULED FOR A SPECIFIC TIME AND MAY BE HEARD ANY TIME DURING THE MEETING 1. CONSENT CALENDAR Approval of Minutes for September 28, 2023, Regular Meeting, October 5, 2023, Regular Meeting, and October 5, 2023, Special Meeting. ID 23-15071.-A. Sponsors:Office of the City Clerk Approve the appointment of Chenier Derrick to the Disability Advisory Commission for a term ending June 30, 2024. Approve the appointment of Kurt Madden to the Fresno Regional Workforce Development Board for a term ending November 1, 2025. Approve the reappointments of Edgar Blunt, Scott Miller, and Terry Metters Jr. to the Fresno Regional Workforce Development Board for terms ending ID 23-15111.-B. Page 4 City of Fresno October 19, 2023City Council Meeting Agenda - Final November 1, 2025. Sponsors:Office of Mayor & City Manager Approve first amendment to the consultant services agreement with RS&H California, Inc., to provide professional airport planning and environmental consulting services to prepare and implement an Air Traffic Control Tower Replacement Work Plan for Fresno Yosemite International Airport in the amount of $329,179 (Council District 4). ID 23-14241.-C. Sponsors:Airports Department Actions pertaining to the rebudget of American Rescue Plan Act (ARPA) grant funding within various Departments: 1.***RESOLUTION - Adopting the 18th Amendment to the Annual Appropriation Resolution (AAR) No. 2023-185 to reclassify $14,915,600 and appropriate $419,200 in various department budgets within the ARPA fund (citywide) (Requires 5 Affirmative Votes) (Subject to Mayor’s Veto). ID 23-13791.-D. Sponsors:Finance Department Actions pertaining to American Rescue Plan Act (ARPA) funding to the Valley Dream Center (VDC): 1.Adopt a finding of Categorical Exemption pursuant to CEQA Guidelines Section 15301/Class 1 for proposed project pursuant to the California Environmental Quality Act (CEQA). 2.Approve an agreement with VDC allocating $200,000 in ARPA funding for capital improvements to the Valley Dream Center’s gymnasium located at 1835 N Winery Avenue. ID 23-15001.-E. Sponsors:Finance Department Actions pertaining to the Fresno Fire Department’s Firefighting Turnouts: 1.Award a three (3) year sole source contract, not to exceed $2,700,000 to LN Curtis (Curtis Tools for Heroes) for the purchase of Globe firefighting turnouts as a sole-source provider based on unique features only available with Globe turnouts. 2.*** RESOLUTION - Adopt Resolution authorizing the Fire Department Chief or designee to enter into a three (3) year contract with Curtis Tools for Heroes without advertised ID 23-14841.-F. Page 5 City of Fresno October 19, 2023City Council Meeting Agenda - Final competitive bidding. (Subject to Mayor’s Veto) Sponsors:Fire Department ***RESOLUTION - Adopting the 20th Amendment to the Annual Appropriation Resolution (AAR) 2023-185 appropriating $236,600 for the 2021 Assistance to Firefighters Grant for Firefighters Annual Physicals (Requires 5 Affirmative Votes) (Subject to Mayor’s Veto). ID 23-14981.-G. Sponsors:Fire Department Actions pertaining to the award of a construction contract for the City Hall North and South Parking Lot Security Camera project adding a total of 40 security cameras to the North and South parking lots (Bid File 12302202) (District 3): 1.Adopt finding of a Categorical Exemption pursuant to Section 15301(f) Existing Facilities of the California Environmental Quality Act (CEQA) Guidelines. 2.Award a construction contract to Alpha Omega Data Solutions of Los Banos, California, for $440,625 for the construction of the City Hall North and South Parking Lot Security Camera project. 3.Authorize the Director of General Services or designee to execute all related documents. ID 23-14821.-H. Sponsors:General Services Department Approve the award of a cooperative purchase agreement to Altec Industries, Inc. of Birmingham, Alabama, for the purchase of five Altec bucket trucks in the amount of $1,027,905 procured by means of a cooperative purchase agreement with Sourcewell, for the Department of Public Works and Department of Public Utilities. ID 23-15091.-I. Sponsors:General Services Department Approve the purchase of laptops, docking stations, and desktops from Dell Technologies (Dell) in an amount not to exceed $2,525,100, utilizing NASPO Contract MNWNC-108/7-15-70-34-003 for year two of the Citywide Computer Replacement Plan (Plan). ID 23-13391.-J. Sponsors:Information Services Department Approve Amendment 4 to the Software as a Service Agreement with Tyler Technologies, Inc. reallocating funds ID 23-15031.-K. Page 6 City of Fresno October 19, 2023City Council Meeting Agenda - Final within the project from unspent Software as a Service (SaaS) fees. No additional funding is requested. Sponsors:Information Services Department Actions pertaining to the FY24 Position Authorization Resolution No. 2023-184: 1: ***RESOLUTION - Adopt the 5th Amendment to Position Authorization Resolution (PAR) No. 2023-184, adding three (3) full-time positions in the Public Works Department (Subject to Mayor’s Veto). ID 23-14661.-L. Sponsors:Personnel Services Department and Office of Mayor & City Manager ***RESOLUTION: Adopt the Fifth Amendment to Fiscal Year 2024 Salary Resolution No. 2023-183, amending Exhibit 3, Unit 3, Non-Supervisory White Collar (FCEA) by adding the new classification and providing a monthly salary step plan range for Animal Care Specialist I, Animal Care Specialist II, Senior Animal Care Specialist and Animal Services Representative I, Animal Services Representative II, Senior Animal Services Representative; and amending Exhibit 13-1, Unit 13, Exempt Supervisory and Professional (CFPEA) by adding the new classification and providing a salary step plan range for Animal Center Supervisor, effective October 23, 2023 (Subject to Mayor’s Veto) ID 23-15251.-M. Sponsors:Personnel Services Department Actions pertaining to the demolition of a city owned building located at 735-741 H Street, Fresno CA 93721- Parcel Number 467-040-23 (District 3). 1.***RESOLUTION - Approve an Interfund Loan Agreement between the General Fund and the Brownfields Revolving Loan Fund. (Requires 5 Affirmative votes) (Subject to Mayor’s veto) 2.***RESOLUTION - Declaring an Urgent Necessity for the Preservation of Life, Health, Property; and Authorizing the Planning & Development Director or Designee to Enter Into and Administer Contracts for the Demolition of Dangerous Structures, and Removal of Hazardous Materials Without Advertised Competitive Bidding; and Approve the Following Contracts: David Knott Incorporated tor Demolition Services In An Amount Not To Exceed $589,972 And Centec ID 23-13691.-N. Page 7 City of Fresno October 19, 2023City Council Meeting Agenda - Final Construction For The Removal Of Hazardous Materials in an Amount Not To Exceed $99,360; and Authorize the Planning & Development Director to Sign Such Contracts (Requires 5 Affirmative Votes) (Subject to Mayor’s Veto) 3.**RESOLUTION - Adopt the 25TH Amendment to the Annual Appropriation Resolution (AAR) No. 2023-185 to appropriate $540,000.00 in the General Fund for demolition of a city owned building located at 735-741 H Street, Fresno, CA 93721 (Requires 5 Affirmative Votes) (Subject to Mayor’s Veto) 4.Approve an agreement with JSA Environmental Consulting in the amount of $50,160.00 for remediation of any hazardous materials. Sponsors:Planning and Development Department Action pertaining to homeless youth services agreement provided under the Homeless Housing, Assistance, and Prevention (HHAP) program (Bid File 12400090): 1.Approve an Agreement for one-year with one optional one-year extension with Fresno County Economic Opportunities Commission to provide homeless youth bridge housing services in the annual amount of $139,429.00. ID 23-14851.-O. Sponsors:Planning and Development Department Actions pertaining to a proposed permanent affordable housing project at 6507 North Polk Avenue, known as the Welcome Home Project (District 2): 1.***RESOLUTION - Authorizing acceptance of Project Homekey 3 Funding from the State of California Department of Housing and Community Development for the Welcome Home Project in the amount of $21,983,607 and authorizing the City Manager or designee to enter into and execute a standard agreement to secure the Homekey 3 funds and participate in the Homekey 3 Program (Subject to Mayor’s Veto) 2.***RESOLUTION - Adopting the 24th amendment to the Annual Appropriation Resolution (AAR) No. 2023-185 appropriating $21,983,700 to the Homekey Program fund for Fiscal Year 2023-2024. (Requires 5 Affirmative Votes) (Subject to Mayor’s Veto) 3.Approve a State and Local Fiscal Recovery Funds (part of ID 23-15231.-P. Page 8 City of Fresno October 19, 2023City Council Meeting Agenda - Final the American Rescue Plan Act) Agreement with Valley Teen Ranch for development of the Welcome Home Project, in an amount not to exceed $2,800,000. 4.Approve a Memorandum of Understanding with Valley Teen Ranch related to the Welcome Home Project and the State of California Homekey 3 Program. Sponsors:Planning and Development Department Actions pertaining to Woodward Tot Lot and ADA Accessibility Improvements (Council District 6): 1.Reject the bid received and direct staff to re-bid the project (Bid File 12400255). 2.Approve the First Amendment to the Consultant Services Agreement with Quad Knopf, Inc, dba QK, in the amount not to exceed $7,500, for a total increased contract amount not to exceed $57,200, for professional support services to re-bid the project. ID 23-14431.-Q. Sponsors:Capital Projects Department, Parks, After School and Recreation and Community Services Department Award a construction contract for the Base Bid plus all eight (8) Add Alternates in the total amount of $8,646,293 to Avison Construction, Inc of Madera, CA, as the lowest responsive and responsible bidder for the Transformative Climate Communities (TCC) Park at MLK Magnet Core Project (Bid File No. 12302905) (Council District 3). ID 23-14831.-R. Sponsors:Capital Projects Department, Parks, After School, Recreation and Community Services Department and Public Works Department Page 9 City of Fresno October 19, 2023City Council Meeting Agenda - Final Actions pertaining to the Friant Road Southbound Right Turn Lane Extension at Audubon Drive (Bid File 12303030) (Council District 6): 1.Adopt a finding of Categorical Exemption per staff’s determination pursuant to Section 15301/Class 1 of the California Environmental Quality Act (CEQA) Guidelines. 2.Award a construction contract in the amount of $697,625 to Avison Construction, Inc., Madera, California. ID 23-14691.-S. Sponsors:Capital Projects Department and Public Works Department Actions pertaining to the Tulare Complete Streets Project from 6th Street to Cedar Avenue (Bid File No. 12300027) (Council Districts 5 and 7): 1.Adopt a finding of Categorical Exemption pursuant to Sections 15301/Class 1 (Existing Facilities), 15303/Class 3 (New Construction or Conversion of Small Structures), and 15304/Class 4 (Minor Alterations to Land) of the California Environmental Quality Act (CEQA) Guidelines 2.Award a construction contract in the amount of $2,339,250 to Agee Construction Corporation of Clovis, California ID 23-14731.-T. Sponsors:Capital Projects Department and Public Works Department Approve an agreement for Professional Engineering Services with BKF Engineers, from Oakland, California in the amount of $149,773, with a $10,000 contingency, for the design and construction support services for the Shaw Avenue Roadway Improvements Project between Fruit Avenue and Palm Avenue (Council District 1 and 2). ID 23-14741.-U. Sponsors:Capital Projects Department and Public Works Department Actions pertaining to the Audubon Drive and Del Mar Avenue Traffic Signal Installation (Bid File No. 12302647) (Council District 2): 1.RESOLUTION - adopting findings pursuant to California Environmental Quality Act (CEQA) guidelines sections 15091 and 15093 as required by CEQA guidelines section 15096 for the River West Eaton Trail Extension Project. 2.Award a construction contract in the amount of $1,016,680 to American Paving Company, of Fresno, California. ID 23-15161.-V. Page 10 City of Fresno October 19, 2023City Council Meeting Agenda - Final Sponsors:Capital Projects Department and Public Works Department Award a requirements contract to ScrubCan Inc., a California corporation, to provide janitorial services at Department of Public Utilities facilities for an amount not to exceed $499,824 per year for one year with an optional one-year extension, plus annual Consumer Price Index adjustments (Bid File 12301773) (Council Districts 3, 4, 6, and 7). ID 23-14901.-W. Sponsors:Department of Public Utilities Approve the Fourth Amendment to the consultant services agreement with Water Systems Consulting, Inc., to extend the term of the contract to December 31, 2026, for the development of the Metropolitan Water Resources Management Plan, Programmatic Environmental Impact Report and 2020 Urban Water Management Plan (Citywide). ID 23-14911.-X. Sponsors:Department of Public Utilities Approve the Third Amendment to the consultant services agreement with CDM Smith, Inc., to expand the scope of services, extend the agreement to June 30, 2025, and increase the contract amount by $644,753 for a total amount of $1,390,403 for Groundwater and Landfill Remediation Services at the City of Fresno Sanitary Landfill (Council District 3). ID 23-14961.-Y. Sponsors:Department of Public Utilities Approve the First Amendment to the consultant services agreement with NBS Government Finance Group, to extend the term of the agreement to December 27, 2024, for the previously approved contract in the amount of $139,689 for the Study for Various Utility Connection and Capacity Fees. (Citywide) ID 23-14971.-Z. Sponsors:Department of Public Utilities RESOLUTION - Dedicating a portion of City-owned property for public street purposes to accommodate the construction of a public driveway approach to the new South Peach Park on the easterly side of Peach Avenue (Council District 5). ID 23-13661. -AA. Sponsors:Public Works Department, Parks, After School and Recreation and Community Services Department Page 11 City of Fresno October 19, 2023City Council Meeting Agenda - Final RESOLUTION - Of Intention to Annex Final Tract Map Number 6269 as Annexation Number 147 to the City of Fresno Community Facilities District Number 11 and to Authorize the Levy of Special Taxes; and setting the public hearing for Thursday, December 7, 2023, at 10:00 am (located on the southwest corner of North Willow Avenue and North Alicante Drive) (Council District 6). ID 23-14491. -BB. Sponsors:Public Works Department Actions related to the award of a Maintenance Agreement with DILAX Systems US Inc., in the amount of $228,855.00: 1.Affirm the City Manager's determination that DILAX Systems, Inc., is uniquely qualified to perform maintenance services for the Department of Transportation, FAX Division, on the Automatic Passenger Counter system (APC). 2.Affirm the City Manager’s determination that DILAX Systems, Inc., is uniquely capable as defined by the Federal Transit Administration for sole source non-competitive procurements, to perform software maintenance services for the Department of Transportation. 3.Award a three (3) year contract with two (2) 1-year optional extensions for an Annual Hardware and Software Maintenance Agreement as part of the Automatic Passenger Counters (APC) Project to DILAX Systems US Inc., in the amount of $228,855.00. 4.Authorize the Director of Transportation or designee to execute all related documents. ID 23-14511. -CC. Sponsors:Department of Transportation Approve the award of Product Requirements Contract 12400064 for Fresno Area Express Fare Media for two years with four optional one-year extensions to EDM Technology, Inc. (Bid File 12400064). Purchases made by the City of Fresno Department of Transportation shall not exceed $338,528.74 during the initial two-year contract period. ID 23-14551. -DD. Sponsors:Department of Transportation Approve the reappointment of James S. Kitch and Myra N. Coble to the Tower District Specific Plan Implementation Committee for a term which serves at the pleasure of the Councilmember. ID 23-15241. -EE. Page 12 City of Fresno October 19, 2023City Council Meeting Agenda - Final Sponsors:Councilmember Arias CONTESTED CONSENT CALENDAR 2. SCHEDULED COUNCIL HEARINGS AND MATTERS 10:00 A.M. Actions pertaining to the acquisition of a permanent street easement and right of way to benefit the Tract 6162 Development Project for the widening of West Ashlan Avenue between North Polk Avenue and North Hayes Avenue (Council District 1): 1.HEARING to consider a resolution of public use and necessity for acquisition of a permanent street easement and right of way for public street purposes over, under, through and across a portion of Assessor’s Parcel Number (APN) 511-040-06, owned by Elvia Gonzalez, for the construction of the widening of West Ashlan Avenue between North Polk Avenue and North Hayes Avenue. 2.***RESOLUTION - Determining that public interest and necessity require acquisition of a permanent easement and rights of way for public street purposes over, under, through and across portions of APN 511-040-06, owned by Elvia Gonzalez, a married woman as her sole and separate property for the construction of the widening of West Ashlan Avenue between North Polk Avenue and North Hayes Avenue and authorizing eminent domain proceedings for public use and purpose (Requires 5 Affirmative Votes) (Subject to Mayor’s Veto). ID 23-1460 Sponsors:Capital Projects Department and Public Works Department Page 13 City of Fresno October 19, 2023City Council Meeting Agenda - Final 10:05 A.M. HEARING to consider Conditional Use Permit Application P22-03146 and related Environmental Assessment P22-03146 pertaining to ±1.38 acres of property located on the south side of West Bullard Avenue, between North Van Ness Boulevard and North Forkner Avenue (Council District 2) - Planning & Development Department. 1.DENY the appeal and ADOPT Environmental Assessment P22-03146, dated May 24, 2023, a determination of Categorical Exemption, Section 15332/Class 32 of the California Environmental Quality Act (CEQA) Guidelines; and, 2.DENY the appeals and UPHOLD the action of the Planning Commission and Planning and Development Department Director to approve Conditional Use Permit Application P22-03146, authorizing the adaptive reuse of an existing residence to be used as a new residential respiratory care facility (congregate living health facility), subject to compliance with the Conditions of Approval dated September 6, 2023. ID 23-1470 Sponsors:Planning and Development Department 10:10 A.M. Appearance by Jamie Quezaza Jr. to discuss Fresno Police Department and their responsibilities (Resident District 1) ID 23-1519 Sponsors:Office of the City Clerk 3. GENERAL ADMINISTRATION 4. CITY COUNCIL 5. CLOSED SESSION CONFERENCE WITH LEGAL COUNSEL-EXISTING LITIGATION Government Code Section 54956.9, subdivision (d)(1) Veronica A. Flores v. City of Fresno, et al.; Fresno Superior Court Case No.: 20CECG01711 ID 23-14165.-A. Sponsors:City Attorney's Office Page 14 City of Fresno October 19, 2023City Council Meeting Agenda - Final CONFERENCE WITH LEGAL COUNSEL-EXISTING LITIGATION Government Code Section 54956.9, subdivision (d)(1) Case name: 1 Community Compact v. City of Fresno, Fresno Superior Court Case No. 23CECG02740 ID 23-15295.-B. Sponsors:City Attorney's Office ADJOURNMENT UPCOMING SCHEDULED COUNCIL HEARINGS AND MATTERS UPCOMING EMPLOYEE CEREMONIES EMPLOYEE SERVICE AWARDS - 10:00 A.M. • November 15, 2023 (Wednesday) - Employee Service Awards 2023 CITY COUNCIL MEETING SCHEDULE November 2, 2023 - 9:00 A.M. November 16, 2023 - 9:00 A.M. December 7, 2023 - 9:00 A.M. December 14, 2023 - 9:00 A.M. Page 15 City of Fresno City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID 23-1458 Agenda Date:10/19/2023 Agenda #: CEREMONIAL PRESENTATION Proclamation for “National Latino/a Physician Day” City of Fresno Printed on 10/20/2023Page 1 of 1 powered by Legistar™ CITY OF FRESNO Office of Council Vice President Annalisa Perea Is hereby presented to: Clinica Sierra Vista WHEREAS, the City of Fresno is home to a proud and vibrant Latino/a community that has bolstered the city in the realms of art and music, law, education, business, healthcare, science and many more; and WHEREAS, National Latino Physician Day, observed on October 1st, is a day designated to honor and celebrate the accomplishments, dedication, and tireless commitment of Latino/a physicians to the field of medicine; and WHEREAS, less than 7% Latino/a physicians are not enough for the diverse populations of the United States, with only 2% of Latino physicians in the United States being Latina and 52% of California is projected to be Latino by the year 2050; and WHEREAS, Latino/a physicians have played an instrumental role in addressing healthcare disparities, providing culturally competent care, assisting where there are language barriers, and advancing medical research and education, contributing immensely to the betterment of our city; and WHEREAS, the wide array of healthcare services provided by professional Latino/a physicians continues to be an increasingly important component of Fresno’s healthcare delivery system; and WHEREAS, Clinica Sierra Vista is a comprehensive healthcare organization serving the primary medical, dental, and behavioral health needs of about 200,000 people in Kern and Fresno, offering care and support to the inner city, the rural and isolated, those of low, moderate, and fixed incomes, and families from an array of cultural backgrounds who speak several languages. NOW, THEREFORE BE IT RESOLVED, that we, Council Vice President Annalisa Perea, Mayor Jerry P. Dyer, and the Fresno City Councilmembers, do hereby recognize October 1st, 2023, to be: “National Latino/a Physician Day” in the City of Fresno. IN WITNESS WHEREOF, we have hereunto set our hands and affixed the seal of the City of Fresno, California, on this 1st day of October 2023. __________________________________________ JERRY P. DYER, Honorable Mayor __________________________________________ TYLER MAXWELL, Council President District 4 __________________________________________ GARRY BREDEFELD, Councilmember District 6 __________________________________________ NELSON ESPARZA, Councilmember District 7 __________________________________________ ANNALISA PEREA, Council Vice President District 1 __________________________________________ MIKE KARBASSI, Councilmember District 2 __________________________________________ MIGUEL ARIAS, Councilmember District 3 __________________________________________ LUIS CHAVEZ, Councilmember District 5 City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID 23-1501 Agenda Date:10/19/2023 Agenda #: CEREMONIAL PRESENTATION Fresno Animal Center presents “Pet of the Month” City of Fresno Printed on 10/20/2023Page 1 of 1 powered by Legistar™ City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID 23-1507 Agenda Date:10/19/2023 Agenda #: 1.-A. REPORT TO THE CITY COUNCIL FROM:TODD STERMER, City Clerk Office of the City Clerk SUBJECT Approval of Minutes for September 28, 2023, Regular Meeting, October 5, 2023, Regular Meeting, and October 5, 2023, Special Meeting. Attachment: Draft Minutes for September 28, 2023, Regular Meeting Draft Minutes for October 5, 2023, Regular Meeting Draft Minutes for October 5, 2023, Special Meeting City of Fresno Printed on 10/30/2023Page 1 of 1 powered by Legistar™ 2600 Fresno Street Fresno, CA 93721 www.fresno.gov City of Fresno Meeting Minutes City Council President - Tyler Maxwell Vice President - Annalisa Perea Councilmembers: Mike Karbassi, Miguel Angel Arias, Luis Chavez, Garry Bredefeld, Nelson Esparza City Manager - Georgeanne A. White City Attorney - Andrew Janz City Clerk - Todd Stermer, CMC 9:00 AM Council Chambers (In Person and/or Electronic) Thursday, October 5, 2023 Regular Meeting The City Council met in regular session in the Council Chamber, City Hall, on the date and time above written. 9:09 A.M. ROLL CALL Councilmember Nelson Esparza Council President Tyler Maxwell Vice President Annalisa Perea Councilmember Mike Karbassi Councilmember Miguel Angel Arias Councilmember Luis Chavez Councilmember Garry Bredefeld Present:7 - Invocation by Dr. El Sayed Ramadan Imam of Masjid Fresno Islamic Center Dr. El Sayed Ramadan Imam gave the invocation. Pledge of Allegiance to the Flag Councilmember Bredefeld led the Pledge of Allegiance. APPROVE AGENDA City Clerk Stermer announced the following changes to the agenda: A special meeting had been separately noticed for 9:00 a.m. to discuss: City of Fresno ***Subject to Mayoral Veto Page 1 October 5, 2023City Council Meeting Minutes Item ID 23-1480 - regarding resolution clarifying the applicability of Community Facilities District 18. Consent Calendar item 1-A (ID 23-1430) regarding approval of Minutes for September 28, 2023, Regular Meeting - was removed from the agenda by staff and tabled to October 19, 2023. Scheduled Hearing and Matters item 3:00 p.m. (ID 23-1436) regarding actions pertaining to proposed Harmony Communities’ proposed closure of La Hacienda Mobile Estates - was removed from the agenda by the City Attorney’s Office and the item will be re-noticed and rescheduled for November 16, 2023, at 3:00 p.m. Closed Session item 5-B (ID 23-1406) regarding Conference with Legal Counsel - Anticipated Litigation Government Code Section 54956.9, subdivision (d)(4): 1 potential case – was removed from the agenda by staff with no return date. ITEMS MOVED TO CONTESTED CONSENT FOR FURTHER DISCUSSION: 1-D (ID 23-1417) regarding the California Department of Toxic Control Substances Equitable Community Revitalization Grant, Round 2 - was moved to Contested Consent by Councilmember Arias. 1-E (ID 23- 1418) regarding the first amendment to the agreement with Poverello House for Village of Hope Emergency Shelter services for increasing funding for tiny home pre-development costs - was moved to Contested Consent by Councilmember Arias. 1-N (ID 23-1461) regarding resolution directing the City Attorney to draft the Workforce Housing Affordability Act - was moved to Contested Consent by Councilmember Karbassi. 1-P (ID 23-1475) regarding resolution directing the Administration to prepare an Annual Appropriation Resolution amendment relating to the Payment of Fees Associated with the Initiation of a Plan Amendment and City of Fresno ***Subject to Mayoral Veto Page 2 October 5, 2023City Council Meeting Minutes Rezone within District 4 - was moved to Contested Consent by Council President Maxwell. On motion of Councilmember Arias, seconded by Councilmember Karbassi, the agenda was APPROVED AS AMENDED. The motion carried by the following vote: Aye:Esparza, Maxwell, Perea, Karbassi, Arias, Chavez and Bredefeld 7 - CEREMONIAL PRESENTATIONS ID 23-1071 Proclamation for “Domestic Violence Awareness Month” PRESENTED ID 23-1295 Proclamation for “Code Enforcement Officer Appreciation Week” PRESENTED ID 23-1400 Proclamation for “Frank Ramos Day” PRESENTED ID 23-1394 Proclamation for “Phil Roman Day” PRESENTED ID 23-1401 Proclamation for “Indigenous Peoples' Day” PRESENTED ID 23-1384 “Celebrating Health Literacy Awareness Month” PRESENTED COUNCILMEMBER REPORTS AND COMMENTS Councilmember Karbassi Reports and Comments: Mentioned a recent violent incident where a clerk at a local store was stabbed by a member of the unhoused community. He acknowledged the efforts of the police officers who responded to the incident and expressed his hope for the victim's recovery. Announced the Fresno Fair had recently started and acknowledged Vice President Perea's involvement in the fair board. Discussed partnering with Councilmember Chavez to secure funding for more detectives to address elder abuse, which is often underreported. To City of Fresno ***Subject to Mayoral Veto Page 3 October 5, 2023City Council Meeting Minutes report elder abuse, call 559-600-3383. Gave gratitude to various staff members for attending community meetings and site visits in District 2, particularly related to Public Works and parks. Acknowledged an upcoming agenda item regarding housing and mobile home housing and mentioned his commitment to making an impartial decision based on the facts. Attended and thanked the organizers of the Gibson Elementary School carnival, expressing his enjoyment of attending the event. Councilmember Arias Reports and Comments: Announced a partnership with Vice President Perea's office to repaint the artwork on the crosswalk on Olive and Wishon, scheduled for October 14, 2023. Announced there will be a free bike and helmet giveaway to celebrate the completion of new protected bike lanes. Announced the upcoming ribbon-cutting event at Roeding Park for a new dog park. Announced the interest list for Hotel Fresno is now open for individuals to complete an application to live in the Historic Hotel Fresno. Invited the Council to join the South of Shaw patio ribbon cutting, Thursday, October 5, 2023. Addressed complaints from employees about receiving parking tickets in the South lot behind City Hall and expressed the need for warning before parking tickets are enforced. Councilmember Chavez Reports and Comments: Announced the kickoff of the Fresno Fair and acknowledged the efforts of Public Works in preparing the area for the fair. Discussed the issue of elder abuse, emphasizing the importance of addressing it and acknowledged the collaboration with staff and nonprofits in raising awareness and working to address the problem. Announced the Mega Texas Barbecue moving from District 7 to District 5 and opening a sit-down brick-and-mortar restaurant located on the corner of Butler and Orange. Councilmember Bredefeld Reports and Comments: Announced the upcoming community meeting for Wednesday, October 18, 2023, from 6:00 p.m. to 7:30 p.m. located at McCardle Elementary School to give residents an opportunity to discuss various community related topics and concerns. Vice President Perea Reports and Comments: Requested the meeting be adjourned in memory of Kimberly Mayhew, who fought on behalf of the Tower District community in the Tower District issue. Announced October is City of Fresno ***Subject to Mayoral Veto Page 4 October 5, 2023City Council Meeting Minutes Breast Cancer Awareness Month and stressed the importance of early detection. Announced the upcoming crosswalk painting event at the intersection of Olive and Wishon, on October 7, 2023, at 8:00 a.m. Acknowledged the previous crosswalk painting event at the corner of Weldon and Van Ness. Held a community meeting in the Fresno High School area and canvassing a portion of their district, west of the 99 and north of Clinton, to connect with constituents and offer them services. MAYOR/MANAGER REPORTS AND COMMENTS Mayor Dyer Reports and Comments: Announced that the Department of Housing and Urban Development (HUD) had awarded $20 million for the senior center project. City Manager White Reports and Comments: Responded to concerns about city employees parking in a private lot at Community Hospital, and emphasized the importance of responsibility, noted that private parking enforcement is done on request, encouraged city employees to be mindful of their parking locations, and offered to discuss concerns directly. CITY CLERK AND CITY ATTORNEY REPORTS AND COMMENTS City Clerk Stermer Reports and Comments: Announced the opportunity for individuals to serve on a City of Fresno board or commission, encouraged interested individuals to review vacancies on the city clerk's website and reminded those who will be 18 years of age or older by election day to register to vote for the presidential primary scheduled for March 5, 2024, with the registration deadline on February 20, 2024. City Attorney Janz Reports and Comments: Announced a Waste Tire Amnesty Day event to be held on Saturday, October 7, 2023. UNSCHEDULED COMMUNICATION Patience Milrod (Special Meeting); Fernando Elizando; Steve Diddy; Patricia Shawn (3:00 P.M.); Kim (3:00 P.M.); David Willis (3:00 P.M.); Mariah Thompson (3:00 P.M.); Traci Robinson; Brandi Nuse-Villegas (3:00 P.M.); Lisa Flores, and Robert McCloskey (3:00P.M.). 1. CONSENT CALENDAR City of Fresno ***Subject to Mayoral Veto Page 5 October 5, 2023City Council Meeting Minutes APPROVAL OF THE CONSENT CALENDAR On motion of Councilmember Karbassi, seconded by Vice President Perea, the CONSENT CALENDAR was hereby adopted by the following vote: Aye:Esparza, Maxwell, Perea, Karbassi, Arias, Chavez and Bredefeld 7 - 1.-A.ID 23-1430 Approval of Minutes for September 28, 2023, Regular Meeting The above item was removed from the agenda by staff and tabled to October 19, 2023. TABLED 1.-B.ID 23-1444 Actions pertaining to the California For All Animals Shelter Assistance Program Off-Cycle Grant 1.Authorize the City Manager to accept $350,400 in grant funding for the Animal Center from the Regents of the University of California on behalf of its Davis Campus School of Veterinary Medicine on behalf of its Koret Shelter Medicine Program in connection with the California for All Animals statewide animal shelter assistance program. 2.Authorize the City Manager or his designee to execute the Shelter Services Agreement and any related documents, for the California For All Animals Shelter Assistance Program Off-Cycle Grant. 3.***RESOLUTION - Adopt the 22nd Amendment to the Annual Appropriation Resolution (AAR) No. 2023-185 appropriating $350,400 for the Animal Center from the California for All Animals Shelter Assistant Program Off-Cycle Grant (requires five affirmative votes) (subject to Mayor’s veto). RESOLUTION 2023-267 ADOPTED APPROVED ON CONSENT CALENDAR 1.-C.ID 23-1402 Approve the award of a citywide requirements contract to Knight ’s Site Services, Inc. of Fresno, California for two years with three optional one-year extensions for the rental, delivery, regular maintenance, and removal of portable toilets, handwashing stations, and 250-gallon waste tanks in an amount not to exceed $250,000 per year plus annual CPI increases (Bid File 9670) APPROVED ON CONSENT CALENDAR City of Fresno ***Subject to Mayoral Veto Page 6 October 5, 2023City Council Meeting Minutes 1.-F.ID 23-1459 ***RESOLUTION: Adopt the Fourth Amendment to Fiscal Year 2024 Salary Resolution No. 2023-183, amending Exhibit 13-1, Unit 13, Exempt Supervisory and Professional (CFPEA) by adding the new classifications of Registered Veterinary Technician and Animal Programs Coordinator, and providing a salary step plan range for the respective classifications; effective October 9, 2023 (Subject to Mayor’s Veto). RESOLUTION 2023-269 ADOPTED APPROVED ON CONSENT CALENDAR 1.-G.ID 23-1454 Approve the First Amendment to the consultant services agreement with Carollo Engineers Inc., to expand the scope of services and increase the contract amount by $2,300,406, for a total amount of $3,111,279, for the Downtown Area Water and Wastewater Infrastructure Improvements Study (Council District 3) APPROVED ON CONSENT CALENDAR 1.-H.ID 23-1365 Award a requirements contract to ACCO Engineered Systems, Inc. for one year with four optional one-year extensions in the amount up to $165,900.00 per year to provide annual backflow assembly testing and certification for various facilities and parks (Bid File 12301639) (City Wide) APPROVED ON CONSENT CALENDAR 1.-I.ID 23-1442 RESOLUTION- Authorizing the submission of grant applications to United States Department of Transportation (DOT) Strengthening Mobility and Revolutionizing Transportation (SMART) Grants Program for Smart City or Community Technologies and Systems Projects totaling up to $2 million in requests of grant application funding and authorizing the execution of grant application and grant agreement documents by the Public Works Director or Designee(s). RESOLUTION 2023-270 ADOPTED APPROVED ON CONSENT CALENDAR 1.-J.ID 23-1388 Actions pertaining to the Butler Avenue and 8th Street and Orange Avenue and Lowe Avenue Signalization Project - Bid File 12301153 (Councils District 5) 1.Adopt a finding of Categorical Exemption per staff ’s determination pursuant to Section 15301/Class 1 and 15302/Class 2 of the California Environmental Quality Act (CEQA) Guidelines 2.Award a construction contract in the amount of $1,774,274 to American Paving Company, Fresno, California City of Fresno ***Subject to Mayoral Veto Page 7 October 5, 2023City Council Meeting Minutes APPROVED ON CONSENT CALENDAR 1.-K.ID 23-1407 Award a construction contract in the amount of $4,809,694 to Agee Construction Corporation of Clovis, California for the Peach Avenue Widening Project from Butler Avenue to Florence Avenue (Phase 1) - Bid File No. 12301971 (Council District 5). APPROVED ON CONSENT CALENDAR 1.-L.ID 23-1356 Actions related to the California State of Good Repair (SGR) Program for funding to conduct FAX maintenance facility improvements: 1.Adopt a finding of Class 1 Categorical Exemption for Existing Facilities pursuant to the California Environmental Quality Act (CEQA) Guidelines Section 15301. 2.***RESOLUTION - Authorizing submission of a project description for and acceptance of funding from the California State of Good Repair (SGR) program, approving the associated FY 2023-24 project list, and authorizing execution of grant documents. (Subject to Mayor’s veto) RESOLUTION 2023-271 ADOPTED APPROVED ON CONSENT CALENDAR 1.-M.ID 23-1448 ***BILL B-33 (Intro’d September 28, 2023) (For Adoption) Adding Section 9-110 to Chapter 9 of the Fresno Municipal Code, Adding the Infectious Disease Lab Accountability and Transparency Ordinance. (Subject to Mayor’s Veto) BILL B-33 INTRODUCED/ORDINANCE ADOPTED AS 2023-032 APPROVED ON CONSENT CALENDAR 1.-O.ID 23-1465 ***RESOLUTION - Affirming Solidarity with the North American Sikh Community in the Face of International Threats (Subject to Mayor’s Veto) RESOLUTION 2023-272 ADOPTED APPROVED ON CONSENT CALENDAR CONTESTED CONSENT CALENDAR 1.-D.ID 23-1417 Actions pertaining to the California Department of Toxic Control Substances Equitable Community Revitalization Grant, Round 2 (Council District 3): 1.***RESOLUTION - Authorizing and directing submission of a grant application to the California Department of Toxic Control City of Fresno ***Subject to Mayoral Veto Page 8 October 5, 2023City Council Meeting Minutes Substances Equitable Community Revitalization Grant, Round 2, for up to $10,000,000 in a funding request for the remediation of 1457 H Street; and authorizing the City Manager, or designee, to sign all required applying documents. (Subject to Mayor’s Veto) 2.Approve the Standard Voluntary Agreement between the City of Fresno and the California Department of Toxic Control Substances in the amount of $143,750 for voluntary oversight of the remediation of 1457 H Street. Councilmember Arias moved the above item to Contested Consent to discuss the California Department of Toxic Control Substances Equitable Community Revitalization Grant and the status of the demolition of the H Street Warehouse. RESOLUTION 2023-268 ADOPTED On motion of Councilmember Arias, seconded by Vice President Perea, that the above Action Item be ADOPTED. The motion carried by the following vote: Aye:Esparza, Maxwell, Perea, Karbassi, Arias, Chavez and Bredefeld 7 - 1.-E.ID 23-1418 Approve the first amendment to the agreement with Poverello House for Village of Hope Emergency Shelter services increasing funding for tiny home pre-development costs by $75,578.60 for a total amount of $4,738,133.39. Councilmember Arias moved the above item to Contested Consent, upon call, there was no staff presentation and no council discussion. APPROVED On motion of Councilmember Arias, seconded by Councilmember Esparza, that the above Action Item be APPROVED. The motion carried by the following vote: Aye:Esparza, Maxwell, Perea, Karbassi, Arias, Chavez and Bredefeld 7 - 1.-N.ID 23-1461 RESOLUTION - Directing the City Attorney to Draft the Workforce Housing Affordability Act, an Ordinance to Dissolve Community Facilities District No. 18 (Public Safety Services) Councilmember Karbassi moved the above item to Contested Consent, City of Fresno ***Subject to Mayoral Veto Page 9 October 5, 2023City Council Meeting Minutes upon call, there was no staff presentation and no council discussion. Councilmember Karbassi expressed a desire to postpone this item. TABLED On motion of Councilmember Karbassi, seconded by Councilmember Esparza, that the above Action Item be TABLED. The motion carried by the following vote: Aye:Esparza, Maxwell, Perea, Karbassi, Arias, Chavez and Bredefeld 7 - 1.-P.ID 23-1475 ***RESOLUTION - Directing the Administration to Prepare an Annual Appropriations Resolution Amendment Relating to the Payment of Fees Associated with the Initiation of a Plan Amendment and Rezone within District 4 (Subject to Mayor’s Veto) Council President Maxwell moved the above item to Contested Consent to discuss the process involved to initiate a plan amendment and rezone within District 4. Council discussion on this item included: the process for a plan amendment and rezone; the timeline for completing the initial study; the potential environmental impacts that need to be addressed; the cost estimates for the initial study, EIR, and associated fees; the Vehicle Miles Traveled (VMT) standard differ between commercial and industrial projects; the type of vehicles used in industrial projects be factored into VMT calculations; when council receive an update on the initial study's findings and potential environmental impacts, and who is responsible for funding the costs associated with the EIR and other expenses related to this project. Council President Maxwell motioned to continue the above item with no specified return date. CONTINUED On motion of Council President Maxwell, seconded by Councilmember Karbassi, that the above Action Item be CONTINUED WITH NO RETURN DATE. The motion carried by the following vote: Aye:Esparza, Maxwell, Perea, Karbassi, Arias, Chavez and Bredefeld 7 - City of Fresno ***Subject to Mayoral Veto Page 10 October 5, 2023City Council Meeting Minutes 2. SCHEDULED COUNCIL HEARINGS AND MATTERS 10:25 A.M. ID 23-1463 Consideration of an appeal filed regarding Vesting Tentative Tract Map No. 6366, Planned Development Permit Application No. P22-04877, and related Environmental Assessment No. T-6366/P22-04877 for approximately 7.94 acres of property located on the west side of North Bliss Avenue between East Shields and East Princeton Avenues (Council District 7). 1.ADOPT Environmental Assessment No. T-6366/P22-04877 dated July 12, 2023, an Addendum to Environmental Assessment No. P22 -01202, in accordance with Section 15164 of the California Environmental Quality Act (CEQA) Guidelines. 2.DENY the appeal and UPHOLD the action of the Planning Commission in the approval of Vesting Tentative Tract Map No . 6366 proposing to subdivide approximately 7.94 acres of the subject property into a 71-lot single-family residential development subject to the following: a.Development shall take place in accordance with the Conditions of Approval for Vesting Tentative Tract Map No . 6366 dated August 2, 2023. 3.DENY the appeal and UPHOLD the action of the Planning Commission in the approval of Planned Development Permit Application No. P22-04877 proposing to modify the RS -5 (Single-Family Residential, Medium Density) zone district development standards to allow for a reduction in the garage setback, rear yard setback, garage to fa çade setback, minimum lot size, minimum lot depth, an increase in maximum lot coverage, and gated private streets subject to the following: a.Development shall take place in accordance with the Conditions of Approval for Planned Development Permit Application No. P22-04877 dated August 2, 2023. The above item was called to order at 2:24 p.m. Upon call, there was no public comment, no staff presentation, and no council discussion. APPROVED CONSISTENT WITH RESOLUTION 2023-273. On motion of Councilmember Esparza, seconded by Councilmember Chavez, that the above Action Item be APPROVED. The motion carried by the following vote: City of Fresno ***Subject to Mayoral Veto Page 11 October 5, 2023City Council Meeting Minutes Aye:Esparza, Maxwell, Perea, Karbassi, Arias, Chavez and Bredefeld 7 - 3:00 P.M. ID 23-1436 Actions pertaining to proposed Harmony Communities’ proposed closure of La Hacienda Mobile Estates: 1.HEARING on sufficiency of Conversion Impact Report and Relocation Plan (the Report). 2.ADOPT findings required by Government Code Section 65863.7. 3.Take one of the following actions: i.APPROVE the Report OR ii.APPROVE the Report subject to conditions of approval OR iii.DENY the Report The above item was removed from the agenda by City Attorney's Office and will be re-noticed and rescheduled for November 16, 2023, at 3:00 p.m. TABLED 3. GENERAL ADMINISTRATION 3.-A.ID 23-1435 Progress of Code Enforcement, including ASET Quarterly report. The above item was removed from the agenda by staff with no return date. TABLED 4. CITY COUNCIL 5. CLOSED SESSION During open session, City Attorney Janz announced the items that would be discussed in closed session. Council withdrew to closed session at 2:30 p.m. 5.-A.ID 23-1426 CONFERENCE WITH LEGAL COUNSEL-EXISTING LITIGATION Government Code Section 54956.9, subdivision (d)(1) Sharon Jackson v. City of Fresno; Fresno Superior Court Case No .: 20CECG03206 City of Fresno ***Subject to Mayoral Veto Page 12 October 5, 2023City Council Meeting Minutes The above item was discussed in closed session. There were no open session announcements regarding this item. DISCUSSED 5.-B.ID 23-1406 CONFERENCE WITH LEGAL COUNSEL - ANTICIPATED LITIGATION Government Code Section 54956.9, subdivision (d)(4): 1 potential case The above item was removed from the agenda by staff with no return date. TABLED 5.-C.ID 23-1453 CONFERENCE WITH LEGAL COUNSEL - ANTICIPATED LITIGATION Government Code Section 54956.9, subdivision (d)(4): 1 potential case The above item was discussed in closed session. There were no open session announcements regarding this item. DISCUSSED 5.-D.ID 23-1457 CONFERENCE WITH LEGAL COUNSEL - ANTICIPATED LITIGATION Government Code Section 54956.9, subdivision (d)(4): 1 potential case. The above item was discussed in closed session. There were no open session announcements regarding this item. DISCUSSED 5.-E.ID 23-1445 PUBLIC EMPLOYEE PERFORMANCE EVALUATION 1.Government Code Section 54957(b): consider the appointment, employment, evaluation of performance, discipline, or dismissal of a public employee. Title: City Attorney 2.Government Code Section 54957.6: conference with labor negotiator . City Negotiator: Council President Tyler Maxwell. Unrepresented Employee: City Attorney The above item was discussed in closed session. There were no open session announcements regarding this item. City of Fresno ***Subject to Mayoral Veto Page 13 October 5, 2023City Council Meeting Minutes DISCUSSED ADJOURNMENT City Council adjourned in regular session at 3:30 P.M. in memory of Kimberly Mayhew. City of Fresno ***Subject to Mayoral Veto Page 14 2600 Fresno Street Fresno, CA 93721 www.fresno.gov City of Fresno Meeting Minutes City Council President - Tyler Maxwell Vice President - Annalisa Perea Councilmembers: Mike Karbassi, Miguel Angel Arias, Luis Chavez, Garry Bredefeld, Nelson Esparza City Manager - Georgeanne A. White City Attorney - Andrew Janz City Clerk - Todd Stermer, CMC 9:00 AM Council Chambers (In Person and/or Electronic) Thursday, October 5, 2023 Special Meeting The City Council met in special session in the Council Chamber, City Hall, on the date and time above written. 1:06 P.M. ROLL CALL Councilmember Nelson Esparza Council President Tyler Maxwell Vice President Annalisa Perea Councilmember Mike Karbassi Councilmember Miguel Angel Arias Councilmember Luis Chavez Councilmember Garry Bredefeld Present:7 - APPROVE AGENDA On motion of Councilmember Arias, seconded by Councilmember Karbassi, the above agenda was APPROVED. The motion carried by the following vote: Aye:Esparza, Maxwell, Perea, Karbassi, Arias, Chavez and Bredefeld 7 - ID 23-1481 Notice of Special Meeting - Signed City of Fresno ***Subject to Mayoral Veto Page 1 October 5, 2023City Council Meeting Minutes OPEN SESSION ID 23-1480 ***RESOLUTION - Clarifying the Applicability of Community Facilities District 18 (Subject to Mayor’s Veto) The above item was introduced to Council by Councilmember Esparza and City Manager White. Upon call, there was no public comment. Councilmember Bredefeld, Councilmember Arias, and Vice President Perea spoke in opposition of the above item. Council discussion on this item included: the application of CFD-18, concerns about administrative decisions, cost estimation, and the importance of negotiating a fair tax-sharing agreement with the county; they sought transparency and data for informed decision-making. Conversation revolved around funds, taxes, and resources distribution, especially related to housing, property development, and public safety services in Fresno; Council also requested more data for policy decisions. RESOLUTION 2023-273 ADOPTED On motion of Councilmember Esparza, seconded by Councilmember Karbassi, that the above Action Item be ADOPTED. The motion carried by the following vote: Aye:Esparza, Maxwell, Karbassi and Chavez4 - No:Perea, Arias and Bredefeld3 - ADJOURNMENT The special meeting adjourned at 2:31 P.M. City of Fresno ***Subject to Mayoral Veto Page 2 2600 Fresno Street Fresno, CA 93721 www.fresno.gov City of Fresno Meeting Minutes City Council President - Tyler Maxwell Vice President - Annalisa Perea Councilmembers: Mike Karbassi, Miguel Angel Arias, Luis Chavez, Garry Bredefeld, Nelson Esparza City Manager - Georgeanne A. White City Attorney - Andrew Janz City Clerk - Todd Stermer, CMC 9:00 AM Council Chambers (In Person and/or Electronic) Thursday, September 28, 2023 Regular Meeting The City Council met in regular session in the Council Chamber, City Hall, on the date and time above written. 9:07 A.M. ROLL CALL Councilmember Nelson Esparza Council President Tyler Maxwell Vice President Annalisa Perea Councilmember Mike Karbassi Councilmember Miguel Angel Arias Councilmember Luis Chavez Councilmember Garry Bredefeld Present:7 - Invocation by Chaplain Kevin Llanos with the Police Chaplaincy Kevin Llanos gave the invocation. Pledge of Allegiance to the Flag Councilmember Bredefeld led the Pledge of Allegiance. APPROVE AGENDA Assistant City Clerk Parra announced the following changes to the agenda: Consent Calendar item 1-V (ID 23-1367) regarding actions pertaining to the City of Fresno ***Subject to Mayoral Veto Page 1 September 28, 2023City Council Meeting Minutes Fresno Police Department Student Resource Officer Program – There was a correction to the 13th Annual Appropriation Resolution: The amount on the staff report and title of the agenda is $190,800, however, the amount is incorrect and should be in the amount of $192,400 and not $190,800. Consent Calendar item 1-II (ID 23-1395) regarding ordinance amending Sections 3-616, 7-1510, 9-234 and 9-915 of the Fresno Municipal Code, relating to human rights, including protections against discrimination based on an individuals' caste and indigeneity - second paragraph of the ordinance on Page 3 - "Bhagat Ravidas" was changed to "Guru Ravidas." THE FOLLOWING ITEMS WERE MOVED TO CONTESTED CONSENT FOR FURTHER DISCUSSION: 1-F (ID 23-1331) regarding the award of three Requirements Contracts for the purchase of radios, related equipment, and repairs with radio equipment manufacturers L3Harris Technologies, Inc. – was moved to Contested Consent by Councilmember Arias. 1-J (ID 23-1405) regarding the award of a cooperative purchase contract to Haaker Equipment Company Inc. of La Verne, California - was moved to Contested Consent by Councilmember Arias. 1-K (ID 23-1354) regarding the award of a purchase contract to Lenco Armored Vehicles of Pittsfield, Massachusetts - was moved to Contested Consent by Councilmember Arias. 1-L (ID 23-1353) regarding the Second Amendment to the Agreement between the City of Fresno and Community Media Access Collaborative (CMAC) - was moved to Contested Consent by Councilmember Arias. 1-M (ID 23-1349) regarding the award of three requirement contracts for on-call technology support services and hardware - was moved to Contested Consent by Councilmember Arias. 1-O (ID 23-1377) regarding a resolution authorizing Submission of Application to the California Public Utilities Commission - was moved to City of Fresno ***Subject to Mayoral Veto Page 2 September 28, 2023City Council Meeting Minutes Contested Consent by Councilmember Arias. 1-S (ID 23-1386) regarding homeless street outreach, assessment and mobile shower operations agreements provided under the Homeless Housing, Assistance, and Prevention (HHAP) program - was moved to Contested Consent by Councilmember Bredefeld. 1-T (ID 23-1392) regarding the Infill Infrastructure Grant - Catalytic Qualifying Infill Area (IIGC) Program - was moved to Contested Consent by Councilmember Arias. 1-U (ID 23-1359) regarding the 2024 Selective Traffic Enforcement Program (STEP) grant - was moved to Contested Consent by Councilmember Arias. 1-X (ID 23-1381) regarding the FY 24 Positions Authorization Resolution – was moved to Contested Consent by Council President Maxwell. 1-BB (ID 23-1399) regarding the Third Amendment to the Consultant Services Agreement with UltraSystems Environmental Inc. - was moved to Contested Consent by Councilmember Arias. 1-EE (ID 23-1345) regarding the First Amendment to the Consultant Services Agreement with RossDrulisCusenbery Architecture, Inc. - was moved to Contested Consent by Councilmember Bredefeld. 1-FF (ID 23-1346) regarding the award of a construction contract to MAG Engineering, Inc for the demolition of existing building and parking lot at 4343 Blackstone Avenue project – was moved to Contested Consent by Council President Maxwell. 1-JJ (ID 23-1390) regarding bill for introduction adding Section 9-110 to Chapter 9 of the Fresno Municipal code, adding the Infectious Disease Lab Accountability and Transparency Ordinance - was moved to Contested Consent by Councilmember Bredefeld. On motion of Councilmember Karbassi, seconded by Councilmember Arias, the Agenda was APPROVED AS AMENDED. The motion carried by the following vote: City of Fresno ***Subject to Mayoral Veto Page 3 September 28, 2023City Council Meeting Minutes Aye:Esparza, Maxwell, Perea, Karbassi, Arias, Chavez and Bredefeld 7 - CEREMONIAL PRESENTATIONS ID 23-1355 Proclamation for “Roosevelt Strong Day” PRESENTED ID 23-1344 “Honoring Historically Black Colleges and Universities. PRESENTED ID 23-1316 ASE Blue Seal of Excellence Recognition to the Maintenance Division of the Department of Transportation PRESENTED ID 23-1303 Fresno Animal Center presents “Pet of the Month” PRESENTED COUNCILMEMBER REPORTS AND COMMENTS Councilmember Karbassi Reports and Comments: Expressed concerns about the ongoing conflict in Armenia and Artsakh, highlighting the importance of providing humanitarian aid and support. Councilmember Arias Reports and Comments: Acknowledged everyone who joined Downtown Fresno for the Fiestas Patrias parade and festival and thanked the organizations for their partnership. Acknowledged the Fresno Fire Department for helping with the final inspections for Hotel Fresno and the 80 units are complete and ready to be moved in. Announced the JSK Park playground is now re-opened. Acknowledged the residents of South Tower for their patience regarding the infrastructure projects that are currently underway within the area. Discussed the Muir Elementary Safe Routes to School Project started on Dennet Avenue and is expected to be completed in February 2025. New streets, curbs, gutters, and sidewalks will be coming to the area. Acknowledged the Indigene and Punjabi Community for joining the meeting in support of the historic agenda item to amend to protect against caste and indigeneity discrimination. City of Fresno ***Subject to Mayoral Veto Page 4 September 28, 2023City Council Meeting Minutes Councilmember Chavez Reports and Comments: Attended the Beautify Fresno events in the 11th and Vroom area and Jackson neighborhood. Invited residents to join the Saint Anthony Harvest Festival. Announced the upcoming Big Fresno Fair and acknowledged the staff for their efforts in beautifying and repairing the fairgrounds. Discussed and recognized the individuals at the Fair for their engagement and efforts in obtaining grants to improve the Fresno Fairgrounds and mentioned the upcoming inaugural kickoff horse race on Friday, October 6, 2023. Councilmember Bredefeld Reports and Comments: Acknowledged staff for attending the community meeting at Rotary Park to discuss the pickleball courts. Councilmember Esparza Reports and Comments: Congratulated the Central California Food Bank for opening the First Fruits Market at the City Center Campus. Acknowledged and thanked city staff on the open house at Manchester Park's splash pad project and the Neighbors' Night Out event at Manchester Park. Attended a meeting on parking districts with planning and parking directors. Announced the upcoming State of the College event at City College with President Pimentel on Friday, September 29, 2023. Invited the community to join a neighborhood cleanup event with Beautify Fresno in the Radio Park neighborhood on Saturday. If anyone is interested, meet in the parking lot of Sam’s Deli. Vice President Perea Reports and Comments: Acknowledged the City's graffiti team for their prompt cleanup of graffiti. Congratulated Robin McGehee on becoming the City's first LGBTQ liaison. Recognized the District One Business of the Month, "Re-Loved Vintage." Thanked the Mexican consulate for their partnership in a flag-raising event for Mexican Independence Day. Announced the repainting of crosswalks coinciding with the Fresno High Community block party. Invited the community to participate in the crosswalk repainting event. Announced the Manhattan Short Film Festival presented by Creative Fresno. Mentioned the Big Fresno Fair opening day and gave appreciation for the city's efforts to make it welcoming and beautiful. President Maxwell Reports and Comments: Recognized and gave City of Fresno ***Subject to Mayoral Veto Page 5 September 28, 2023City Council Meeting Minutes appreciation to the Crime Scene Investigation unit during Crime Scene Investigation Appreciation Week. Announced the city received $24 million in funding to combat retail vehicle theft, vehicle theft, and catalytic converter theft, leading to the ability to hire 25 new police officers. Discussed the recent community meeting with the announcement of building the city's first pickle ball and Futsal courts. Announced the concrete repairs near Baird Middle School. Reminded businesses in the airport district area to apply for the Small Business Facade Improvement Grant. Acknowledged Mayor Dyer's involvement in the press conference and collaboration with Chief Balderrama on catalytic converter theft reduction legislation. MAYOR/MANAGER REPORTS AND COMMENTS Mayor Dyer Reports and Comments: Announced the city received a $24 million retail grant to combat theft and fund 25 police officers. Discussed the establishment of a task force with other law enforcement agencies and collaboration for combined prosecution of theft cases. Acknowledged the American Planning Association of California Conference held in Fresno and its positive impact on the local economy. Gave appreciation to staff members for their work in organizing the conference. Participated in the Chinatown Open for Business program and optimism among Chinatown business owner. Gave a shout out to a popular local business, Tamale Mama's, in Chinatown. Attended the Centenarian Day and presenting certificates to nine centenarians, including a World War II veteran. Acknowledged the positive contributions and experiences shared by the centenarians. City Manager White Reports and Comments: Attended the Central California Women's Conference with Brooke Shields as the keynote speaker. CITY CLERK AND CITY ATTORNEY REPORTS AND COMMENTS There were no Reports and Comments made by City Clerk and City Attorney's Office. UNSCHEDULED COMMUNICATION Upon call, the following members of the public addressed Council: Shar Thompson; Anna McClenden; Patricia Granillo; Vicky Donnell; Nanaki Kaur; Fernando Elizando; Amar Daroch (1-II); Naindeep Singh (1-II); Sarit City of Fresno ***Subject to Mayoral Veto Page 6 September 28, 2023City Council Meeting Minutes Martinez (1-II); Patricia Shawn; Antionette Thompson; Kim Sanos; David Willis; Jaskeet Kaur (1-II); Judith Martinez (1-II); Margarita Vasquez (1-II); Brandi Nuse-Villegas; Traci Robertson; Laura Gromis; Gaurang Desai (1-II); Lisa Flores; Dez Martinez, and Janice B. 1. CONSENT CALENDAR APPROVAL OF THE CONSENT CALENDAR On motion of Vice President Perea, seconded by Councilmember Esparza, the CONSENT CALENDAR was hereby adopted by the following vote: Aye:Esparza, Maxwell, Perea, Arias, Chavez and Bredefeld6 - Absent:Karbassi1 - 1.-A.ID 23-1391 Approval of Minutes for September 14, 2023, Regular Meeting. APPROVED ON CONSENT CALENDAR 1.-B.ID 23-1375 Actions related to the Food & Beverage Concession Agreement with SSP America, Inc. dba SSP America FAT, LLC, at Fresno Yosemite International Airport (FAT). (Council District 4) 1.Adopt a finding of Categorical Exemption pursuant to Section 15301 (Existing Facilities) of the California Environmental Quality Act Guidelines; and 2.Approve a Food & Beverage Concessions Agreement (Agreement) with SSP America, Inc., dba SSP America FAT, LLC., for Food & Beverage Concessions at Fresno Yosemite International Airport for the term of fifteen (15) years. The amount of potential revenue generated by this Agreement is $816,436 annually, this includes $450,586 from percentage sales and $365,850 from space rent. Total anticipated revenue during the full term of the Agreement is approximately $12,246,540 plus annual CPI adjustments for space rent. APPROVED ON CONSENT CALENDAR 1.-C.ID 23-1376 Actions related to the News & Convenience Concession Agreement with HG Fresno Concessionaires JV, at Fresno Yosemite International Airport (FAT). (Council District 4) 1.Adopt a finding of Categorical Exemption pursuant to Section 15301 (Existing Facilities) of the California Environmental Quality Act Guidelines; and 2.Approve a News & Convenience Concessions Agreement (Agreement) with HG Fresno Concessionaires JV, for News & City of Fresno ***Subject to Mayoral Veto Page 7 September 28, 2023City Council Meeting Minutes Convenience Concessions at Fresno Yosemite International Airport for the term of fifteen (15) years. The amount of potential revenue generated by this Agreement is $623,437 annually, this includes $461,617 from percentage sales and $161,820 from space rent. Total anticipated revenue during the full term of the Agreement is approximately $9,351,555 plus annual CPI adjustments for space rent. APPROVED ON CONSENT CALENDAR 1.-D.ID 23-1308 Actions pertaining to American Rescue Plan Act (ARPA) funding to Armenian Cultural Foundation (ACF) 1.Adopt a finding of Categorical Exemption pursuant to CEQA Guidelines Section 15301/Class 1 for proposed project pursuant to the California Environmental Quality Act (CEQA) 2.Approve an agreement with ACF allocating $150,000 in ARPA funding for capital improvement of the Garo and Alice Gurechian Armenian Cultural Center. APPROVED ON CONSENT CALENDAR 1.-E.ID 23-1389 Actions pertaining to an agreement with Price Paige & Company, Certified Public Accountants, LLP for professional consulting services to support completion of monthly bank reconciliations for the 2022/23 fiscal year: 1.Affirm the City Manager’s determination that Price Paige & Company, Certified Public Acountants, LLP is uniquely qualified to provide services to assist with monthly bank reconciliations. 2.Approve an agreement with Price Paige & Company, Certified Public Accountants, LLP in an amount not to exceed $120,000 to provide assistance and consulting services to complete bank reconciliations for the 2022/23 fiscal year. APPROVED ON CONSENT CALENDAR 1.-G.ID 23-1333 Approve the award of a cooperative purchase agreement to PB Loader of Fresno, California, for the purchase of one Freightliner asphalt patch truck in the amount of $188,933 for the Department of Public Utilities APPROVED ON CONSENT CALENDAR 1.-H.ID 23-1352 Approve the award of a purchase contract to Pape Kenworth of Fresno, CA, for the purchase of three Kenworth T 880 water trucks in the amount of $764,940 for the Department of Public Utilities and the Department of Public Works APPROVED ON CONSENT CALENDAR City of Fresno ***Subject to Mayoral Veto Page 8 September 28, 2023City Council Meeting Minutes 1.-I.ID 23-1404 Actions pertaining to the award of multiple general building and HVAC Job Order Contracting construction contracts for one year plus two one-year optional extensions not to exceed an annual aggregate total of $2,000,000 each (Bid File 12303112) (Citywide): 1.Adopt finding of a Categorical Exemption pursuant to Section 15301(d) Existing Facilities of the California Environmental Quality Act (CEQA) Guidelines. 2.Award Job Order Contracting contracts with Quincon, Inc ., Exbon Development, Inc., Better Enterprises, Inc., Durham Construction Company, Inc., Puma Construction Company, Inc ., Heritage General, Newton Construction & Management, Inc ., Strategic Mechanical, Inc. and ACCO Engineered Systems, Inc. 3.Authorize the General Services Director or designee to sign all related documents. APPROVED ON CONSENT CALENDAR 1.-N.ID 23-1350 Approve the award of three requirement contracts for on -call technology support services, hardware and software configuration, for three years with three optional one -year extensions in a total aggregate amount not to exceed $500,000 per year to (RFP# 12301308): 1.AMS.NET Inc., of Livermore, California 2.ConvergeOne Inc., of San Francisco, California 3.22nd Century Technologies Inc., of Los Angeles, California APPROVED ON CONSENT CALENDAR 1.-P.ID 23-1378 Actions Pertaining to a Requirements Contract for Logging Services for Camp Fresno and Camp Fresno Junior: 1.Adopt a finding of Categorical Exemption per staff determination pursuant to Section 15301/Class 1 and 15304/Class 4 of the California Environmental Quality Act (CEQA) Guidelines. 2.Approve the Award of a Requirements Contract to Arbor Pros LLC., for One-Year with Two Optional One-Year Extensions (Proposal No 12301339). 3.Authorize spending authority for logging services in an amount not to exceed $180,000 per year for a total of $540,000, with no minimum spending guarantee expressed or implied under any respective requirements contract. 4.Authorize the City Manager or designee to sign all related documents on behalf of the City. APPROVED ON CONSENT CALENDAR 1.-Q.ID 23-1228 Actions pertaining to homeless services provided by Poverello House under the Homeless Housing, Assistance and Prevention (HHAP) Program City of Fresno ***Subject to Mayoral Veto Page 9 September 28, 2023City Council Meeting Minutes and the Encampment Resolution Funding Round 2 (ERF-2R) Program: 1.Approve an agreement with Poverello House through June 30, 2025 to provide Encampment Resolution Fund homeless services in the total amount of $9,780,325.71. 2.Approve the first amendment to the agreement with Poverello House for Clarion Triage Center Emergency Shelter services reducing funding by $1,039,909.29 for a total amount of $1,760,088.19. APPROVED ON CONSENT CALENDAR 1.-R.ID 23-1343 Actions related to the acquisition of Travelodge Motel, located at 3876 North Blackstone Avenue (436-260-22) to facilitate the development of permanent affordable housing (District 4): 1.Adopt a finding of Categorical Exemption pursuant to Sections 15301/Class 1 and 15332/Class 32 of the California Environmental Quality Act (CEQA) Guidelines. 2.***RESOLUTION - Authorizing use of Encampment Resolution Funds for the acquisition of Travelodge Motel in an amount not to exceed $4,401,709.00 (Subject to Mayor’s veto). 3.Approve a month-to-month lease agreement for up to 12 months with Shiv Investments, Inc., for the Travelodge located at 3876 North Blackstone Avenue (436-260-22) for $1,000 per month effective upon execution and authorize the City Manager or designee to execute all contract related documents on behalf of the City. RESOLUTION 2023-255 ADOPTED APPROVED ON CONSENT CALENDAR 1.-V.ID 23-1367 Actions pertaining to the Fresno Police Department Student Resource Officer (SRO) program. 1.Authorize the Chief of Police to enter into an agreement with Fresno County Superintendent of Schools (FCSS) to provide one Police Officer (Student Resource Officer) at .95 FTE, one sergeant at .15 FTE, one patrol vehicle lease cost, and administrative fees totaling $213,609 for one year, the officer will be housed at Violet Heintz Educational Academy. 2.***RESOLUTION - Adopt the 13th Amendment to the Annual Appropriation Resolution (AAR) No. 2023-185 appropriating $190,800 to fund one (1) FTE Police Officer (Student Resource Officer) for the FCSS contract, one patrol vehicle lease cost, and administrative fees. (Requires 5 Affirmative Votes) (Subject to Mayor’s Veto) 3.***RESOLUTION - Adopt the 3rd Amendment to Position Authorization Resolution (PAR) No. 2023-184, adding one FTE City of Fresno ***Subject to Mayoral Veto Page 10 September 28, 2023City Council Meeting Minutes Police Officer position to the Fresno Police Department, assigned to the Violet Heintz Educational Academy . (Subject to Mayor's Veto) There was a correction to the 13th AAR: The amount on the staff report and title of the agenda is $190,800, however, the amount is incorrect and should be in the amount of $192,400 and not $190,800. RESOLUTION 2023-259 ADOPTED RESOLUTION 2023-260 ADOPTED APPROVED ON CONSENT CALENDAR 1.-W.ID 23-1385 Approve an agreement with the County of Fresno for the purpose of processing Fresno Police Department Arrestees at the Fresno County Jail at a rate of $33.55 per prisoner. APPROVED ON CONSENT CALENDAR 1.-Y.ID 23-1397 Actions pertaining to Hiring Incentives and Referral Incentives for Qualified Police Officer Recruits, Lateral Police Officers, and Lateral Emergency Services Dispatcher II/IIIs: 1. ***Approve a Side Letter of Agreement with the Fresno Police Officers Association (FPOA), for Unit 4 - Non-Management Police, regarding Police Officer Lateral Hire and Referral Incentives and Police Officer Recruit Hire Incentives (Subject to Mayor’s Veto). 2. ***Approve a Side Letter of Agreement with the Fresno City Employees Association (FCEA), for Unit 3 - Non-Supervisory White Collar, regarding Emergency Services Dispatcher Lateral Hire and Referral Incentives (Subject to Mayor’s Veto). APPROVED ON CONSENT CALENDAR 1.-Z.ID 23-1380 RESOLUTION - Approving the Final Map of Tract No. 6283, and accepting dedicated public uses offered therein except for dedications offered subject to City acceptance of developer installed required improvements - located at the southeast corner of Fowler Avenue and Dakota Avenue (Council District 4) RESOLUTION 2023-262 ADOPTED APPROVED ON CONSENT CALENDAR 1.-AA.ID 23-1342 Actions pertaining to the Shaw Avenue Lighting Project (Bid File No. 12302722) (Council District 4): 1.Adopt a finding of Categorical Exemption per consultant determination, pursuant to Section 15302 of the California City of Fresno ***Subject to Mayoral Veto Page 11 September 28, 2023City Council Meeting Minutes Environmental Quality Act (CEQA) Guidelines 2.Award a construction contract in the amount of $649,865 to Power Design Electric of Kingsburg, California APPROVED ON CONSENT CALENDAR 1.-CC.ID 23-1301 RESOLUTION - Adopt a resolution for dedicating a portion of City -owned property for the purpose of a Constructing Public Street Improvements for Veterans Boulevard Grade Separation Project In and Around the Veterans Overpass and Through the New Golden State Boulevard Realignment (Council District 2) RESOLUTION 2023-263 ADOPTED APPROVED ON CONSENT CALENDAR 1.-DD.ID 23-1329 Actions pertaining to the Jensen Avenue Overlay Project between State Route 41 and Martin Luther King Jr. Boulevard (Bid File No. 12301728) (Council District 3): 1.Adopt a finding of Categorical Exemption per staff determination, pursuant to Sections 15301/Class 1, 15302/Class 2, 15303/Class 3, and 15304/Class 4 of the California Environmental Quality Act (CEQA) Guidelines 2.Award a construction contract in the amount of $2,219,535.45 to Granite Construction Company, of Fresno, California APPROVED ON CONSENT CALENDAR 1.-GG.ID 23-1249 Actions related to the award of an annual software and hardware service contract with Trapeze Software Group, Inc., dba Vontas, of Cedar Rapids, Iowa, in the amount of $2,168,965: 1.Affirm the City Manager’s determination that Trapeze Software Group, Inc. dba Vontas, is uniquely qualified to perform software and hardware maintenance services for the Department of Transportation’s Computer Aided Dispatch /Automated Vehicle Locator (CAD/AVL) system. 2.Affirm the City Manager’s determination that Trapeze Software Group, Inc. dba Vontas is uniquely capable as defined by the Federal Transit Administration for sole source non -competitive procurements, to perform software and hardware maintenance services for the Department of Transportation’s CAD/AVL system. 3.Award a three-year, with two 1-year optional extensions, software and hardware maintenance service agreement to Trapeze Software Group, Inc., dba Vontas, of Cedar Rapids, Iowa, in the amount of $2,168,965. 4.Authorize the Director of Transportation or designee to execute all related documents. City of Fresno ***Subject to Mayoral Veto Page 12 September 28, 2023City Council Meeting Minutes APPROVED ON CONSENT CALENDAR 1.-HH.ID 23-1361 Award a requirements contract to Tolar Manufacturing Company, Inc. of Corona, California for two years with three options one -year extensions not-to-exceed $7,050,877, plus annual CPI adjustments, over a five -year maximum contract duration for transit shelters and associated passenger amenities (Bid File No. 12302459) APPROVED ON CONSENT CALENDAR 1.-II.ID 23-1395 ***Bill B-27 (Intro’d August 10, 2023) (For adoption) - Amending Sections 3-616, 7-1510, 9-234 and 9-915 of the Fresno Municipal Code, relating to human rights, including protections against discrimination based on an individual’s caste and indigeneity (Subject to Mayor’s Veto) On the second paragraph on page 3, "Bhagat Ravidas" is changed to "Guru Ravidas". ORDINANCE 2023-031 ADOPTED APPROVED ON CONSENT CALENDAR 1.-KK.ID 23-1428 RESOLUTION - Initiating an Amendment to the Fresno General Plan, any Applicable Specific Plan, and to the Official Zoning Map for Real Property Located at the Northwest Corner of East McKinley Avenue and North Fine Avenue, APNs 494-29-105 and 494-29-110, Pursuant to Fresno Municipal Code Sections 15-5803-B and 15-5803-C. RESOLUTION 2023-264 ADOPTED APPROVED ON CONSENT CALENDAR 1.-LL.ID 23-1434 Approve the First Amendment to an agreement with the Fresno Area Hispanic Foundation for the Small Business Façade Program (Districts 1 and 4). APPROVED ON CONSENT CALENDAR CONTESTED CONSENT CALENDAR 1.-F.ID 23-1331 Actions pertaining to the award of three Requirements Contracts for the purchase of radios, related equipment, and repairs with radio equipment manufacturers L3Harris Technologies, Inc., JVC Kenwood USA Corporation, and BK Technologies, Inc., for three years with two optional one-year extensions not-to-exceed the total aggregate amount of City of Fresno ***Subject to Mayoral Veto Page 13 September 28, 2023City Council Meeting Minutes $1,500,000 per year plus annual CPI increases (Bid File 9675) Councilmember Arias moved this item to Contested Consent to discuss the allocation of $1.5 million for radios. Council discussion on this item included: if the $1.5 million for radios going toward permanent radio infrastructure or just for individual radios; will the radios purchased with the $1.5 million work when the permanent radio infrastructure system is in place, or will they need to be upgraded; is there a potential that the $1.5 million spent on radios may become obsolete when upgrading the permanent radio infrastructure; how long until the radios purchased for new officers will need to be replaced with new technology, and is the city accounting for the potential obsolescence of the radios purchased with the $1.5 million in emerging technology. APPROVED On motion of Councilmember Arias, seconded by Vice President Perea, that the above Action Item be APPROVED. The motion carried by the following vote: Aye:Esparza, Maxwell, Perea, Karbassi, Arias and Bredefeld6 - Absent:Chavez1 - 1.-J.ID 23-1405 Approve the award of a cooperative purchase contract to Haaker Equipment Company Inc. of La Verne, California for the purchase of two Elgin CNG Broom Bear street sweepers in the amount of $1,173,353 for Public Works Street Maintenance Division. Councilmember Arias moved this item to Contested Consent to discuss the acquisition of a CNG truck and the purchase of street sweepers designed for bike lane maintenance in the city. APPROVED On motion of Councilmember Arias, seconded by Councilmember Bredefeld, that the above Action Item be APPROVED. The motion carried by the following vote: Aye:Esparza, Maxwell, Perea, Karbassi, Arias and Bredefeld6 - Absent:Chavez1 - City of Fresno ***Subject to Mayoral Veto Page 14 September 28, 2023City Council Meeting Minutes 1.-K.ID 23-1354 Approve the award of a purchase contract to Lenco Armored Vehicles of Pittsfield, Massachusetts, for the purchase of one Lenco BearCat armored tactical vehicle in the amount of $398,765 for the Police Department Councilmember Arias moved this item to Contested Consent to discuss the use of military-style equipment. Council discussion on this item included: The appropriateness of using military-style equipment, specifically the vehicle, for non-police business purposes like community events; whether there is a focus on limiting the usage of such equipment for police-related tasks only; concerns about the unease of using military equipment in community events, especially where children are present; a request to avoid using the equipment for community events with children present, and the acknowledgment of support for the item (the use of military-style equipment) as long as it is needed by the police department. APPROVED On motion of Councilmember Arias, seconded by Councilmember Karbassi, that the above Action Item be APPROVED. The motion carried by the following vote: Aye:Esparza, Maxwell, Perea, Karbassi, Arias, Chavez and Bredefeld 7 - 1.-L.ID 23-1353 Approve the Second Amendment to the Agreement between the City of Fresno and Community Media Access Collaborative (CMAC) to increase the per person per hour production rate to $85.00 per hour. Councilmember Arias moved this item to Contested Consent to discuss whether the budget already incorporates a specific increase and the status of conversations regarding additional space in the existing city building. APPROVED On motion of Councilmember Arias, seconded by Councilmember Bredefeld, that the above Action Item be APPROVED. The motion carried by the following vote: Aye:Esparza, Maxwell, Perea, Karbassi, Arias and Bredefeld6 - Absent:Chavez1 - City of Fresno ***Subject to Mayoral Veto Page 15 September 28, 2023City Council Meeting Minutes 1.-M.ID 23-1349 Approve the award of three requirement contracts for on -call technology support services and hardware, for three years with three optional one -year extensions in a total aggregate amount not to exceed $250,000 per year to (RFP# 12301307): 1.Alpha Omega, of Los Banos, California 2.AMS.NET Inc., of Livermore, California 3.Cook's Communications Corp., of Fresno, California Councilmember Arias moved this item to Contested Consent to discuss clarifications about the services provided for on-call technology and whether hiring additional IT staff has been considered, along with concerns about the quality of IT services and the impact on workflow. APPROVED On motion of Councilmember Arias, seconded by Vice President Perea, that the above Action Item be APPROVED. The motion carried by the following vote: Aye:Esparza, Maxwell, Perea, Karbassi, Arias and Bredefeld6 - Absent:Chavez1 - 1.-O.ID 23-1377 RESOLUTION - Authorizing Submission of Application to the California Public Utilities Commission for Federal Funding Account last mile broadband deployment in total amount of approximately $11,800,000 and authorize the City Manager or designee, to apply for grant funds and execute all related documents. Councilmember Arias moved this item to Contested Consent to get clarification on the proposed areas for the grant application, the timeline for connectivity, the flexibility to adjust locations, verification of unserved areas, and a request for a list of unserved locations in the councilman's district. RESOLUTION 2023-254 ADOPTED On motion of Councilmember Arias, seconded by Councilmember Karbassi, that the above Action Item be ADOPTED. The motion carried by the following vote: Aye:Esparza, Maxwell, Perea, Karbassi, Arias and Bredefeld6 - Absent:Chavez1 - 1.-S.ID 23-1386 Actions pertaining to homeless street outreach, assessment and mobile shower operations agreements provided under the Homeless Housing, City of Fresno ***Subject to Mayoral Veto Page 16 September 28, 2023City Council Meeting Minutes Assistance, and Prevention (HHAP) program (Bid File 12302683): 1.Approve an Agreement for one -year with one optional one-year extension with Poverello House to conduct homeless street outreach and assessment in the annual amount of $379,738.00. 2.Approve an Agreement for one -year with one optional one-year extension with Gracebound to operate two mobile shower trailers in the annual amount of $300,000.00. Councilmember Bredefeld moved this item to Contested Consent to discuss whether the Grace Bound mobile shower trailers aim to get people off the streets and into programming and treatment. APPROVED On motion of Councilmember Bredefeld, seconded by Councilmember Arias, that the above Action Item be APPROVED. The motion carried by the following vote: Aye:Esparza, Maxwell, Perea, Karbassi, Arias and Bredefeld6 - Absent:Chavez1 - 1.-T.ID 23-1392 Actions pertaining to the Infill Infrastructure Grant - Catalytic Qualifying Infill Area (IIGC) Program 1.***RESOLUTION - Authorizing the City Manager to accept $43,733,136 in IIGC program award funds to the City of Fresno from the California Department of Housing and Community Development (HCD); and authorizing the City Manager, or designee, to sign all required implementing documents. (Subject to Mayor’s Veto) 2.***RESOLUTION - Adopting the 21st amendment to the Annual Appropriation Resolution (AAR) No. 2023-185 appropriating $43,733,136 from the IIGC Program awarded by HCD for capital improvement projects. (Requires 5 Affirmative Votes) (Subject to Mayor’s Veto) Councilmember Arias moved this item to Contested Consent to clarify the purpose and geographic scope of the recently awarded grant for capital infrastructure improvements in downtown Fresno and inquired about the deadline to initiate the awarded work. RESOLUTION 2023-256 ADOPTED RESOLUTION 2023-257 ADOPTED On motion of Councilmember Arias, seconded by Vice President Perea, that the above Action Item be ADOPTED. The motion carried by City of Fresno ***Subject to Mayoral Veto Page 17 September 28, 2023City Council Meeting Minutes the following vote: Aye:Esparza, Maxwell, Perea, Karbassi, Arias and Bredefeld6 - Absent:Chavez1 - 1.-U.ID 23-1359 Actions pertaining to the 2024 Selective Traffic Enforcement Program (STEP) grant 1.Authorize the Chief of Police to accept $600,000 in grant funding for the 2024 STEP grant awarded to the Fresno Police Department from the National Highway Traffic Safety Administration (NHTSA) through the California Office of Traffic Safety (OTS) 2.Authorize the Chief of Police or his designee to execute the agreement, extensions and all related documentation applicable to the 2024 STEP grant 3.***RESOLUTION - Adopt the 16th Amendment to the Annual Appropriation Resolution (AAR) No. 2023-185 appropriating $450,000 for the Police Department’s STEP grant (Requires 5 Affirmative Votes) (Subject to Mayor’s Veto). Councilmember Arias moved this item to Contested Consent to discuss DUI checkpoints and their effectiveness. Council discussion on this item included: concerns about the locations where DUI checkpoints are being conducted and the trend of using the same locations over the years; there was a suggestion to explore conducting DUI checkpoints intentionally at locations with large events and alcohol consumption, such as concerts, nightclubs, and festivals; questions were raised about the criteria used by the Police Department to determine DUI checkpoint locations and the factors considered, including data on DUI accidents and traffic flow; the need to ensure that DUI checkpoints do not create more traffic problems; the rotation of DUI checkpoints throughout the city to address the issue citywide; there was a request for the council to receive data snapshots showing where DUI collisions are occurring and exploring potential correlations with locations of high incidents, and the importance of informing the public about the presence of DUI checkpoints was emphasized and the relevance of data in decision-making, especially in light of recent grants and investments. RESOLUTION 2023-258 ADOPTED On motion of Councilmember Arias, seconded by Vice President Perea, that the above Action Item be APPROVED. The motion carried City of Fresno ***Subject to Mayoral Veto Page 18 September 28, 2023City Council Meeting Minutes by the following vote: Aye:Esparza, Maxwell, Perea, Karbassi, Arias, Chavez and Bredefeld 7 - 1.-X.ID 23-1381 Actions pertaining to the FY 24 Position Authorization Resolution No . 2023-184: 1: ***RESOLUTION - Adopt the 4th Amendment to Position Authorization Resolution (PAR) No. 2023-184, adding two (2) full-time positions in the Finance Department, two (2) full-time positions in the General Services Department, three (3) full-time positions in the Public Works Department, and three (3) full-time positions in the Transportation Department. (Subject to Mayor’s Veto). Council President Maxwell moved this item to Contested Consent to discuss additional positions in the Public Works department, specifically Concrete Finishers. Council discussion on this item included: clarification about the role of concrete finishers and their cost; discussion about the need for additional staff to address small one-off concrete repair projects, and concerns about project timelines and the capacity to meet expectations with current staffing. Council President Maxwell motioned to approve the item with a request to carry over the Public Works portion for further discussion and potential amendments. RESOLUTION 2023-261 ADOPTED AS AMENDED On motion of Council President Maxwell, seconded by Councilmember Arias, that the above Action Item be ADOPTED AS AMENDED. The motion carried by the following vote: Aye:Esparza, Maxwell, Perea, Karbassi, Arias and Bredefeld6 - Absent:Chavez1 - 1.-BB.ID 23-1399 Approve the Third Amendment to the Consultant Services Agreement with UltraSystems Environmental Inc. of Irvine, California extending the consultant’s performance period by one year to September 30, 2024, to continue professional environmental services and preparation of technical memos for the McKinley Avenue Widening Project between Marks Avenue and Hughes Avenue (Council District 3) Councilmember Arias moved this item to Contested Consent to discuss the City of Fresno ***Subject to Mayoral Veto Page 19 September 28, 2023City Council Meeting Minutes construction project and its impact on the construction timeline. Council discussion on this item included: an amendment related to environmental work for a construction project; concerns about the impact of the amendment on the construction timeline; clarification on the cause of the environmental delay; the anticipated completion date of the project, and the federal funding source and its deadlines. APPROVED On motion of Councilmember Arias, seconded by Vice President Perea, that the above Action Item be APPROVED. The motion carried by the following vote: Aye:Esparza, Maxwell, Perea, Karbassi, Arias and Bredefeld6 - Absent:Chavez1 - 1.-EE.ID 23-1345 Approve the First Amendment to the Consultant Services Agreement with RossDrulisCusenbery Architecture, Inc ., of Sonoma, California in the amount of $2,951,601, for a total increased contract amount of $3,875,201 with a remaining contingency of $25,000 for professional architectural services for the design of plans and general construction contract documents for the Fresno Fire Department Regional Training Center (County of Fresno) Councilmember Bredefeld moved this item to Contested Consent to discuss architectural services for a regional fire training center, the cost of the project, and the shift in site location for the project. APPROVED On motion of Councilmember Bredefeld, seconded by Vice President Perea, that the above Action Item be APPROVED. The motion carried by the following vote: Aye:Esparza, Maxwell, Perea, Karbassi and Bredefeld5 - Absent:Arias and Chavez2 - 1.-FF.ID 23-1346 Award a construction contract in the amount of $249,800 to MAG Engineering, Inc of Fresno, CA, as the lowest responsive and responsible bidder for the Demolition of Existing Building and Parking Lot at 4343 Blackstone Avenue project (Bid File No. 12302820) (Council District 4) City of Fresno ***Subject to Mayoral Veto Page 20 September 28, 2023City Council Meeting Minutes Council President Maxwell moved this item to Contested Consent to discuss the demolition of a building at 4343 Blackstone Avenue, the bidding process, and the allocation of Community Development Block Grant (CDBG) funds for the project. APPROVED On motion of Council President Maxwell, seconded by Vice President Perea, that the above Action Item be APPROVED. The motion carried by the following vote: Aye:Esparza, Maxwell, Perea, Karbassi, Arias and Bredefeld6 - Absent:Chavez1 - 1.-JJ.ID 23-1390 BILL - (for introduction) Adding Section 9-110 to Chapter 9 of the Fresno Municipal Code, Adding the Infectious Disease Lab Accountability and Transparency Ordinance. Councilmember Bredefeld moved this item to Contested Consent to discuss the proposed ordinance aimed at preventing the operation of illegal labs in Fresno and acknowledged staff and organizations for their contributions to refining the ordinance. BILL B-33 APPROVED, INTRODUCED AND LAID OVER On motion of Councilmember Bredefeld, seconded by Councilmember Arias, that the above Action Item be APPROVED. The motion carried by the following vote: Aye:Esparza, Maxwell, Perea, Karbassi, Arias and Bredefeld6 - Absent:Chavez1 - 2. SCHEDULED COUNCIL HEARINGS AND MATTERS 10:00 A.M. ID 23-1318 Hearing to consider adoption of resolutions related to the designation of properties to the Local Register of Historic Resources and Adoption of findings necessary to support recommendation pursuant to FMC 12-1609 1.***RESOLUTION - A Resolution of the City Council of the City of Fresno, California, designating the site of the Inaugural National Farm Workers Association meeting located at 1405 E California Avenue, Fresno, California to the Local Register of Historic Resources (Council District 3) (Subject to Mayor’s veto) City of Fresno ***Subject to Mayoral Veto Page 21 September 28, 2023City Council Meeting Minutes The above hearing was called to order at 11:16 A.M. and was introduced to Council by Director Clark, Dr. Garcia, and Eddie Varela. Upon call, there was no public comment and the public comment period closed at 11:25 A.M. Council discussion on this item included: the historical significance; future celebration, and community engagement. RESOLUTION 2023-265 ADOPTED On motion of Councilmember Arias, seconded by Vice President Perea, that the above Action Item be ADOPTED. The motion carried by the following vote: Aye:Esparza, Maxwell, Perea, Karbassi, Arias, Chavez and Bredefeld 7 - 10:05 A.M. ID 23-1323 Actions pertaining to the acquisition of fee interest and a permanent street easement and right of way for the construction of a storm drain pipeline along the McKinley Avenue alignment between Armstrong Avenue and Laverne Avenue (Council District 7) 1.HEARING to consider a resolution of public use and necessity for acquisition of fee interest and a permanent street easement and rights of way for public street purposes over, under, through and across portions of Assessor ’s Parcel Number (APN) 574-130-05, owned by Sukhwinder Singh, for the construction of a storm drain pipeline between Armstrong Avenue and Laverne Avenue (Project) 2.***RESOLUTION - Determining that public interest and necessity require acquisition of fee interest and permanent easement and rights of way for public street purposes over, under, through and across portions of APN 574-130-05, owned by Sukhwinder Singh, a married man as his sole and separate property, for the construction of a storm drain pipeline between Armstrong Avenue and Laverne Avenue and authorizing eminent domain proceedings for public use and purpose (Requires 5 Affirmative Votes) (Subject to Mayor ’s Veto) The above hearing was called to order at 11:33 A.M. and was introduced to Council by Assistant Director Benelli. Upon call, the following members of the public addressed Council: Dennis Gabe and Lisa Flores. The public comment period closed at 11:36 A.M. There was no council discussion. City of Fresno ***Subject to Mayoral Veto Page 22 September 28, 2023City Council Meeting Minutes RESOLUTION 2023-266 ADOPTED On motion of Councilmember Esparza, seconded by Councilmember Karbassi, that the above Action Item be ADOPTED. The motion carried by the following vote: Aye:Esparza, Maxwell, Perea, Karbassi, Chavez and Bredefeld6 - Absent:Arias1 - 10:10 A.M. (REMOVED FROM THE AGENDA) ID 23-1330 Hearing to consider Text Amendment Application No. P23-02443 and related Environmental Finding pertaining to acceptance of subdivision Improvements (all Council Districts): 1. ADOPTION of a Finding that the project is exempt pursuant to Section 15061(b)(3), No Possibility of Significant Adverse Effect, pursuant to the California Environmental Quality Act (CEQA) Guidelines as prepared for Environmental Assessment No. P23-02443 dated August 2, 2023. 2. RECOMMEND APPROVAL of Text Amendment Application No. P23-02443 Adding Subsection U to Section 3804 of Chapter 15 of the Fresno Municipal Code relating to the deferral of certain sidewalk construction, driveway approaches and street trees in subdivisions until prior to occupancy of single-family homes. The above item was removed from the agenda by staff with no return date. 10:15 A.M. ID 23-1398 Appearance by Paul Haros to discuss Significance of Parade to the Central Valley and it’s contribution to the downtown Fresno area (Resident District 1) Appearance by Paul Haros to discuss the Central Valley Parade. APPEARED 10:25 A.M. ID 23-1357 Consideration of an appeal filed regarding Vesting Tentative Tract Map No. 6366, Planned Development Permit Application No. P22-04877, and related Environmental Assessment No. T-6366/P22-04877 for approximately 7.94 acres of property located on the west side of North Bliss Avenue between East Shields and East Princeton Avenues (Council District 7). City of Fresno ***Subject to Mayoral Veto Page 23 September 28, 2023City Council Meeting Minutes 1.ADOPT Environmental Assessment No. T-6366/P22-04877 dated July 12, 2023, an Addendum to Environmental Assessment No. P22 -01202, in accordance with Section 15164 of the California Environmental Quality Act (CEQA) Guidelines. 2.DENY the appeal and UPHOLD the action of the Planning Commission in the approval of Vesting Tentative Tract Map No . 6366 proposing to subdivide approximately 7.94 acres of the subject property into a 71-lot single-family residential development subject to the following: a.Development shall take place in accordance with the Conditions of Approval for Vesting Tentative Tract Map No . 6366 dated August 2, 2023. 3.DENY the appeal and UPHOLD the action of the Planning Commission in the approval of Planned Development Permit Application No. P22-04877 proposing to modify the RS -5 (Single-Family Residential, Medium Density) zone district development standards to allow for a reduction in the garage setback, rear yard setback, garage to fa çade setback, minimum lot size, minimum lot depth, an increase in maximum lot coverage, and gated private streets subject to the following: a.Development shall take place in accordance with the Conditions of Approval for Planned Development Permit Application No. P22-04877 dated August 2, 2023. The above hearing was called to order at 11:09 A.M. Upon call, the following member of the public addressed Council: Jeff Reid. The hearing closed at 11:40 A.M. The above item was presented to Council by Director Mozier, Appellant Representative Drew Phelps and Darius Assemi. Council discussion on this item included: CFD creation date and effective date; the accuracy of historical data related to the CFD; annual increase in the rate; CFD boundaries and if it applies to lands annexed since 2002; how the rest of the revenue is being used to provide other services outside of development; how many projects have been annexed into the CFD since its inception; the agreement to annex the Park West development; If the CFD applies to all lands annexed since 2002 or just future annexations; request for analysis breakdown of the costs incurred by the city related to fire and police services; exemption for rental property and concerns of disparities in costs between different areas of the city; development subsidies; the need for sufficient revenue to support community services; the tax sharing City of Fresno ***Subject to Mayoral Veto Page 24 September 28, 2023City Council Meeting Minutes agreement with the County; what services will it pay for; if CFD only applies to new development; the existence of other districts for purposes like medium island maintenance, streets, and lights, and how they relate to the discussed development and the CFD; alternative funding sources if the higher fee is not applied regarding the general fund and its allocation to police and fire services; request of a final assessment of the true cost of providing services, both from city staff and the applicant to better understand the financial implications; intentions for the rental properties and whether there are plans to make them affordable or if they will be sold to investment firms; request of a confidential memo from the city attorney on the defensibility of the different paths discussed during the hearing and the potential liability or exposure for the city; request for a legally defensible dissolution to dissolve the CFD 18; request for the City Attorney’s office to draft a new ordinance; whether the project in question is an infill project and seeks an explanation of what that means; request for a memo from the city explaining if CFD 18 will provide enhanced services and additional patrol; request for a memo on the implications of dissolving the CFD 18, including the impact on outstanding developments, financial implications, and funding sources. CONTINUED On motion of Councilmember Esparza, seconded by Councilmember Arias, that the above Action Item be CONTINUED TO OCTOBER 5, 2023. The motion carried by the following vote: Aye:Esparza, Maxwell, Perea, Karbassi, Arias, Chavez and Bredefeld 7 - 3. GENERAL ADMINISTRATION 4. CITY COUNCIL 5. CLOSED SESSION During open session, City Attorney Janz announced the items that would be discussed in closed session. Council withdrew to closed session at 3:07 P.M. 5.-A.ID 23-1413 CONFERENCE WITH LEGAL COUNSEL-ANTICIPATED LITIGATION City of Fresno ***Subject to Mayoral Veto Page 25 September 28, 2023City Council Meeting Minutes Initiation of litigation pursuant to paragraph (4) of subdivision (d) of Section 54956.9: 1 potential case The above item was discussed in closed session. There were no open session announcements regarding this item. DISCUSSED ADJOURNMENT City Council adjourned from open session at 4:20 P.M. City of Fresno ***Subject to Mayoral Veto Page 26 City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID 23-1511 Agenda Date:10/19/2023 Agenda #: 1.-B. REPORT TO THE CITY COUNCIL FROM:JERRY P. DYER, Mayor Office of Mayor & City Manager BY:CHRIS MONTELONGO, Deputy Chief of Staff Office of Mayor & City Manager SUBJECT Approve the appointment of Chenier Derrick to the Disability Advisory Commission for a term ending June 30, 2024. Approve the appointment of Kurt Madden to the Fresno Regional Workforce Development Board for a term ending November 1, 2025. Approve the reappointments of Edgar Blunt, Scott Miller, and Terry Metters Jr. to the Fresno Regional Workforce Development Board for terms ending November 1, 2025. RECOMMENDATION Staff recommends approval. EXECUTIVE SUMMARY The Disability Advisory Commission has seven members appointed by the Mayor. One vacancy currently exists. The Mayor’s Office is providing the appointment of Chenier Derrick (Resident of District 4) for consideration. The Fresno Regional Workforce Development Board has seven private sector members appointed by the Mayor. One vacancy currently exists. Several current members are seeking reappointments. The Mayor’s Office is providing the appointment of Kurt Madden (Business located in District 3) and the reappointments of Edgar Blunt (Business located in District 3), Scott Miller (Resident of District 3), and Terry Metters Jr. (Resident of District 7) for consideration. Attachments:Derrick Appointment Package Madden Appointment Package Blunt Reappointment Package Miller Reappointment Package Metters Jr. Reappointment Package City of Fresno Printed on 10/20/2023Page 1 of 1 powered by Legistar™ City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID 23-1424 Agenda Date:10/19/2023 Agenda #: 1.-C. REPORT TO THE CITY COUNCIL FROM:HENRY THOMPSON, Director of Aviation Airports Department SUBJECT Approve first amendment to the consultant services agreement with RS&H California,Inc.,to provide professional airport planning and environmental consulting services to prepare and implement an Air Traffic Control Tower Replacement Work Plan for Fresno Yosemite International Airport in the amount of $329,179 (Council District 4). RECOMMENDATION Approve first amendment to the consultant services agreement with RS&H California,Inc.,to provide professional airport planning and environmental consulting services to prepare and implement an Air Traffic Control Tower Replacement Work Plan for Fresno Yosemite International Airport in the amount of $329,179 (Council District 4). EXECUTIVE SUMMARY The existing ATCT at FAT is more than 61-years-old,well beyond its useful life and must be replaced to meet current Federal Aviation Administration (FAA)requirements.RS&H is providing consulting services to develop and implement an ATCT replacement work plan that will facilitate completion of the planning and environmental tasks necessary to successfully achieve FAA approval and funding for the design and construction of a new ATCT.This amendment authorizes additional work to perform a siting study and prepare a siting report for submission to the FAA that serves to expedite FAA review of the project and position the Airport to receive grant funding for design and construction of a new ATCT. BACKGROUND The FAT ATCT was commissioned in 1962 when the "new"Terminal was constructed on the south side of the airfield.The tower is owned by the City,leased to the FAA and staffed with FAA Air Traffic Controllers.Over the years the facility has begun to show its age.It is experiencing overall deterioration with undersized and obsolete electrical infrastructure,inadequate HVAC systems,an unreliable elevator,and sub-standard Information Technology infrastructure.The Tower does not meet current Building Codes,ADA requirements,environmental sustainability measures or FAA Standards.Due to the age,nature of deficiencies and importance of remaining fully operational it will City of Fresno Printed on 10/30/2023Page 1 of 3 powered by Legistar™ File #:ID 23-1424 Agenda Date:10/19/2023 Agenda #: 1.-C. Standards.Due to the age,nature of deficiencies and importance of remaining fully operational it will be necessary to construct a new ATCT while the existing Tower remains in service.Over the past 20 years,the Airports Department (Department)has made several attempts to replace the ATCT.But due to lack of funding and coordination requirements with the FAA,the project has not been able to move forward. The Department,with FAA Air Traffic Organization support,is actively pursuing funding opportunities for replacement of the ATCT but must complete a myriad of FAA required tasks to be eligible to receive funds.The Department is working to complete this project in an expedited manner,meeting the requirements necessary to position the project to qualify and compete for consideration of available Bipartisan Infrastructure Law (BIL)funding.This current effort to acquire federal funding for a new tower must happen now because the availability of BIL funding ends in Federal fiscal year 2026.An accelerated process is the only feasible way to meet FAA’s requirements and apply for the grants before funding expires. The intent of the previously awarded contract was to facilitate an FAA siting study,prepare a Phase 1 Environmental Site Assessment,update the Airport Layout Plan,develop a conceptual Tower design and site plan,prepare necessary NEPA/CEQA environmental documentation,develop rough order of magnitude cost estimates for design and construction,create a project schedule,identify funding opportunities and assist with preparing and submitting grant applications. During project development it was determined that the Airport along with RS&H could complete many elements of the siting study in advance of submission to the FAA and reduce the time and cost for the FAA to complete the siting study.This amendment will provide for the additional consulting services necessary to perform 3-D modeling,preliminary siting study,prepare and submit a siting report to the FAA.Upon completion of this phase of the Project the Department will be prepared to receive grant funding and select a design consultant or advertise a request for qualifications to choose a design- build team. On February 9,2023,Council approved the consultant agreement in the amount of $362,585 to provide planning and environmental services for preparation and implementation of a Fresno Yosemite International Airport (FAT)Air Traffic Control Tower (ATCT)Replacement Work Plan.With this amendment the total amount of the consultant agreement will be $691,764. The City Attorney has reviewed and approved this Amendment to the consultant agreement with RS&H as to form. ENVIRONMENTAL FINDINGS This is not a "project" for the purpose of CEQA pursuant to CEQA Guidelines Section 15378. LOCAL PREFERENCE Local preference is not applicable to this project pursuant to Fresno Municipal Code 4-109(b). FISCAL IMPACT The Project is part of Airports ongoing commitment to ensure FAT is operationally efficient and is City of Fresno Printed on 10/30/2023Page 2 of 3 powered by Legistar™ File #:ID 23-1424 Agenda Date:10/19/2023 Agenda #: 1.-C. The Project is part of Airports ongoing commitment to ensure FAT is operationally efficient and is properly positioned for local and regional growth.The Project is included in the City's FY 2023 budget. There is no impact to the General Fund from this action. Attachments: Consultant Services Agreement- First Amendment RS&H Agreement - FAT ATCT Replacement Planning and Implementation Study (Executed) City of Fresno Printed on 10/30/2023Page 3 of 3 powered by Legistar™ FIRST AMENDMENT TO AGREEMENT THIS FIRST AMENDMENT TO AGREEMENT (Amendment) made and entered into as of this ____ day of October, 2023, amends the Agreement heretofore entered into between the CITY OF FRESNO, a municipal corporation (City), and RS&H CALIFORNIA, a California Corporation (Consultant). RECITALS WHEREAS, the City and the Consultant entered into an Agreement, dated February 15, 2023, for professional Planning and Environmental services for FAT Air Traffic Control Tower Replacement and Implementation Study, (Agreement); and WHEREAS, it is necessary for the City to amend the agreement to include additional consulting services to complete the Fresno Yosemite International Airport Traffic control Tower replacement and implementation study by providing 3D modeling, siting study and report, as required by the Federal Aviation Administration; and WHEREAS, the City and the Consultant now desire to modify the scope of work, therein, to include these additional services. AGREEMENT NOW, THEREFORE, the parties agree that the Agreement be amended as follows: 1.The Consultant shall provide additional services as described in Exhibit A, attached hereto and incorporated herein by reference. 2.The Consultant's sole compensation for satisfactory performance of all services required or rendered pursuant to this Amendment shall be a total fee of $. 3.In the event of any conflict between the body of this Amendment and any exhibit or attachment hereto, the terms and conditions of the body of this Amendment shall control and take precedence over the terms and conditions expressed within the exhibit or attachment. Furthermore, any terms or conditions contained within any exhibit or Attachment hereto which purport to modify the allocation of risk between the parties, provided for within the body of this Amendment, shall be null and void. 4.Except as otherwise provided herein, the Agreement entered into by City and Consultant, dated February 15, 2023, remains in full force and effect. (Signatures follow on the next page.)        IN WITNESS WHEREOF, the parties have executed this First Amendment at Fresno, California, the day and year first above written. CITY OF FRESNO, a California municipal corporation By: Henry Thompson, A.A.E., C.A.E., IAP Director of Aviation Airports Department APPROVED AS TO FORM: Andrew Janz City Attorney By: Brandon M. Collet Senior Deputy City Attorney ATTEST: Todd Stermer, CMC City Clerk By: Deputy REVIEWED BY: Richard L. Madrigal, Airport Projects Supervisor Airports Department Addresses: CITY: City of Fresno Attention: Richard L. Madrigal, Airport Projects Supervisor 4995 East Clinton Way Fresno, CA 93727 Phone: (559) 621-4528 RS&H California, Inc., a California Corporation By: Name: Title: (If corporation or LLC., Board Chair, Pres. or Vice Pres.) By: Name: Title: (If corporation or LLC., CFO, Treasurer, Secretary or Assistant Secretary) Any Applicable Professional License: Number: Name: Date of Issuance: CONSULTANT: RS&H California, Inc. Attention: Joseph P. Jackson, President 369 Pine St. Suite 610 San Francisco, CA 94104 Phone: (630) 300-8511 E-mail: Joe.Jackson@RSandH.com Attachment: Exhibit A – Additional Scope of Service Joseph P. Jackson President Evan Pfahler Vice President / Treasure N/A            Fresno Yosemite International Airport Aircraft Traffic Control Tower Replacement and Implementation Study Amendment No. 1 Version 4.0 Fresno Yosemite International Airport Fresno, CA City of Fresno RS&H Project No.: 10264982888 Prepared by RS&H Infrastructure at the direction of the City of Fresno Exhibit A - Additional Scope of Services Amendment No. 1 - Page 1 of 21        I PROJECT DESCRIPTION The purpose of Amendment No. 1 is to provide additional consulting services necessary to complete the Fresno Yosemite International Airport Traffic Control Tower replacement and implementation study. Work for Amendment No. 1 includes services to evaluate four (4) potential new ATCT sites at the Fresno-Yosemite International Airport. These services include: x ATCT Siting Study and 3D Model Vista Study x CEQA Environmental Impact Report x Project management II PROFESSIONAL SERVICES FEE RS&H will provide the above referenced services for a total fee shown below: RS&H POND (CTBX) Total Total Lump Sum Fee for CEQA EIR $118,676 $0 $118,676 Total Lump Sum Fee for Vista Study $20,157 $190,346 $210,503 Total $138,833 $190,346 $329,179 III ATTACHMENTS The following attachments provide the project cost and individual scope of services from the subconsultant providing services for this amendment. Attachment A1- Project Cost Attachment A2- CTBX + Pond Scope of Services Attachment A3- CEQA Environmental Impact Report Amendment No. 1 - Page 2 of 21          $WWDFKPHQW$3URMHFW&RVW  Amendment No. 1 - Page 3 of 21        /DERU&RVW 6WDII--DFNVRQ %*RYHU ')XOO .%RXOHU $+VX %3HWWLH 1$1$ /DERU&DWHJRU\3URMHFW2IILFHU 3URMHFW0DQDJHU (QY&RQVXOWDQW9 (QY&RQVXOWDQW,9 (QY&RQVXOWDQW,$Y3ODQQHU,7RWDO 5HLPEXUVDEOH+RXUO\5DWH56 + 321' &7%; 7RWDO 7DVN(19,5210(17$/'2&80(17$7,21&21&(378$/'(6,*1$1'35(/,0,1$5<&2676 7DVN3UHSDUH&(4$(,5          7RWDO7DVN3UHSDUH&(4$(,5            2WKHU'LUHFW1RQ/DERU&RVWV 'LUHFW([SHQVHVDQG7UDYHO 5HSURGXFWLRQ  FRSLHV#HDFK  3RVWDJHDQG'HOLYHU\  SDFNDJHV#HDFK  'UDIW(,55HSURGXFWLRQVDQG%RDUGV  $LUIDUH /RGJLQJ &DU5HQWDO 3HU'LHP 7UDYHO 3HRSOH 'D\V 1LJKWV 7RWDO 0HHWLQJ         6XEFRQVXOWDQWV 1RQH 7RWDO2WKHU'LUHFW1RQ/DERU&RVWV   7RWDO/XPS6XP)HHIRU&(4$(,5     --DFNVRQ %*RYHU ')XOO .%RXOHU $+VX %3HWWLH 1$1$7RWDO 7DVN3URMHFW0DQDJHPHQW 3URMHFW0DQDJHPHQW          7RWDO7DVN3URMHFW0DQDJHPHQW           2WKHU'LUHFW1RQ/DERU&RVWV 'LUHFW([SHQVHVDQG7UDYHO 5HSURGXFWLRQ  FRSLHV#HDFK  $LUIDUH /RGJLQJ &DU5HQWDO 3HU'LHP 7UDYHO 3HRSOH 'D\V 1LJKWV 7RWDO 0HHWLQJ         7UDYHO  7RWDO'LUHFW([SHQVHVDQG7UDYHO    6XEFRQVXOWDQWV 3RQG &7%; 9LVWD6WXG\  7RWDO6XEFRQVXOWDQWV   7RWDO2WKHU'LUHFW1RQ/DERU&RVWV 7RWDO/XPS6XP)HHIRU9LVWD6WXG\    7RWDO/XPS6XP)HHIRU&(4$(,5DQG9LVWD6WXG\    6XPPDU\%\)LUP )UHVQR<RVHPLWH,QWHUQDWLRQDO$LUSRUW$LUFUDIW7UDIILF&RQWURO7RZHU5HSODFHPHQWDQG,PSOHPHQWDWLRQ6WXG\$PHQGPHQW1R $WWDFKPHQW$3URMHFW&RVW &LW\RI)UHVQR)UHVQR<RVHPLWH,QWHUQDWLRQDO$LUSRUW /XPS6XP)HH Amendment No. 1 - Page 4 of 21         $WWDFKPHQW$&7%;3RQG6FRSHRI6HUYLFHV   Amendment No. 1 - Page 5 of 21        3500 Parkway Lane, Suite 500 T: 678.336.7740 Peachtree Corners, GA 30092 www.pondco.com June 16, 2023 Joseph P. Jackson, President RS&H California, Inc. 369 Pine Street, Suite 610 San Francisco, CA 94104 RE: AIR TRAFFIC CONTROL TOWER (ATCT) CONTROL TOWER SITING STUDY & 3D MODEL FRESNO YOSEMITE INTERNATIONAL AIRPORT (FAT) CTBX / A Pond Brand (CTBX + Pond) is pleased to submit this proposal to RS&H for providing a Siting Study for a new Air Traffic Control Tower (ATCT) at the Fresno Yosemite International Airport (FAT). PURPOSE: The purpose of the Control Tower Siting Study at FAT is to acquire Federal Aviation Authority (FAA) signature approvals of a recommended / approved site for a new ATCT to replace the existing tower. The Control Tower Siting Study will be conducted in accordance with the FAA Siting Process of an FAA Airport Traffic Control Tower (ATCT), ref. Order 6480.4C and the FAA Virtual Immersive Siting Tower Assessment (VISTA). It is understood that an environmental phase 1 study is being undertaken by RS&H. SCOPE OF SERVICES: 1.0 SITING REPORT Task 1.1 – Kick-off Meeting, Survey and Data Collection CTBX + Pond will meet with Airport officials, local air traffic controllers, the FAA VISTA National Coordinator and other FAA and FAT stakeholders to discuss site observations for three (3) preferred sites as selected by FAT and RS&H for further study. RS&H will coordinate with a field surveyor to verify latitude/longitude/elevation of key airfield points and preferred sites, as well as data on existing buildings and airfield features to be incorporated into a 3D computer simulation enhanced with virtual reality (VR). CTBX + Pond will create the 3D/VR model and, with the assistance of RS&H, gather other pertinent data about the airport and aircraft operations necessary to conduct the siting study. Amendment No. 1 - Page 6 of 21        Page 2 Task 1.2 – Draft Siting Report CTBX + Pond will prepare and provide a Draft Siting Report for review and comment to FAT officials, local air traffic controllers, the FAA National Coordinator and RS&H for review and comment. The proposed controller eye heights will be determined for each preferred site and tested with the FAA Visibility Tool. CTBX + Pond will coordinate the eye heights and related data about each preferred site with the FAA VISTA Group. The 3D/VR Model will be created in accordance with FAA VISTA criteria. The Model will include the airfield and proposed control towers/cabs to be evaluated in real time. CTBX + Pond will provide its analysis of impacts to airspace and NAVAIDs and evaluate lines-of-sight to validate the three (3) preferred sites. The report will address the characteristics of each with detailed narratives and graphics as well as addressing the FAA siting requirements and potential hazards. A Site Comparison Chart will be presented for quick reference of siting criteria results. Advanced Siting Report Task 1.3 – Review Meeting A review meeting will be held with FAT officials, local air traffic controllers, and RS&H in order to discuss review comments and necessary updates to the report. At that time, a preliminary assessment of potential hazards for each site will be reviewed, all to be reevaluated at the FAA Safety Panel. Data for preliminary airspace assessments from FAA Flight Standards and Technical Operations will also be submitted to the FAA National Coordinator for the three (3) preferred sites. In the meantime, CTBX + Pond will have conducted its own, more detailed, analyses of TERPS and NAVAIDs impacts. Task 1.4 – Submitted Siting Report CTBX + Pond will incorporate all applicable review comments from the Task 1.3 review meeting. Additional supporting narratives and appendices will be added to document the three (3) preferred sites. CTBX + Pond will provide guidance to RS&H for their utilities inventory and conceptual site layouts including access, fencing, and parking. In addition, CTBX + Pond, together with RS&H, will provide a rough order of magnitude (ROM) opinion of probable construction cost for each site. The updated Siting Report will be submitted to FAT officials, local air traffic controllers, the FAA National Coordinator and RS&H. The FAA VISTA Team will apply report data for use in their Siting Panel and Safety Assessment. 2.0 FUNCTIONAL HAZARD ASSESSMENT (FHA) & SAFETY ASSESSMENT (SA) Task 2.1 – Function Hazard Assessment The Preliminary Hazard List (PHL) issued in the FAA Order 6480.4C will be applied to each preferred site to identify the potential for risk. Mitigation procedures will be explored for each risk. These will be recorded for further consideration by FAT officials, RS&H, local air traffic controllers, and FAA subject matter experts during Task 2.2. Task 2.2 – FAA Safety Panel Session The Safety Risk Management Panel (SRMP) Session will be a one-day meeting conducted virtually via ZOOM with Airport personnel, local air traffic controllers, the FAA National Coordinator, RS&H, and subject matter experts from several FAA lines of business. That session will be prefaced a few weeks Amendment No. 1 - Page 7 of 21        Page 3 earlier with a practice run with a local air traffic controller and again at the Validation session conducted with the FAA VISTA Team to determine readiness. CTBX + Pond will support both efforts with its 3D Model in Virtual Reality. A Recommended Site will be arrived at by the Safety Panel, including the airport sponsor. Afterwards, CTBX + Pond will update to the Siting Report, as required, and work with the FAA to produce a Safety Assessment document for the Recommended Site. Task 2.3 – Safety Assessment The Safety Assessment (SA) follows a specific FAA format which presents the progression of the analysis of how the hazards of each site were evaluated together with any mitigation procedures that were recommended by the Safety Panel and who is responsible for implementing each. This document will be prepared by the National Coordinator’s team. CTBX + Pond will provide input, review, and comment to FAA. The SA and supporting notes and graphics will be included as an appendix to the Siting Report. 3.0 FINAL SITING REPORT Task 3.1 – Siting Report for Approvals CTBX + Pond will provide final documentation of the completed Siting Report for FAT officials to submit as the FAA approval signature document. RS&H will provide the Access & Utilities element and the Phase 1 Environmental Study, for each preferred site, to be included as appendices. The Siting Report will then be transmitted by the FAA National Coordinator to the FAA ATO Planning Manager for appropriate circulation to obtain FAA approval signatures authorizing the Recommended Site. 4.0 ENVIRONMENTAL STUDY Task 4.1 – Proposed Development CTBX + Pond will provide assistance with project description of the sites. Task 4.2 – Review and Coordination Meetings CTBX + Pond will attend as needed to relate this study and the contents of the Siting Report. KEY PROJECT MILESTONES AND DATES: Executed Contract and Notice to Proceed (NTP) July 5, 2023 Siting Process Briefing Telecon by FAA VISTA Team August 2023 Submission of Draft Siting Report October 2023 3D Model Validation for FAA VISTA Team Evaluation November 2023 FAA Siting Assessment Panel; Confirmation of Recommended Site December 2023 Final Siting Report for FAA Approval Signatures January 2024 Note: Dates for milestone events with FAA involvement are subject to their concurrence and availability. Amendment No. 1 - Page 8 of 21        Page 4 PROFESSIONAL FEES: CTBX + Pond proposes to accomplish the above work under a lump sum contract for the amount of $190,346.00 as illustrated in the enclosed fee proposal breakdown. We look forward to working with RS&H and the Fresno Yosemite International Airport on this project. Thank you again for the opportunity to present this proposal. Should you have any questions related to this proposal, please do not hesitate to contact me. Respectfully, Pond & Company, Inc. R. Chris Jenkins, P.E., S.E., LEED® AP BD+C Principal | Program Manager – Aviation cc: Barton Gover – RS&H Brian Lally – CTBX Hugh Weaver – Pond Amendment No. 1 - Page 9 of 21        PART I - GENERAL 2. PROJECT No. RS&H 3. NAME OF CONSULTANT: CTBX / a Pond Brand 6/16/2023 5. ADDRESS OF CONSULTANT: Georgia & Florida PART II - COST SUMMARY 6. DIRECT LABOR (Specify labor categories)HOURS HOURLY RATE ESTIMATED COST TOTALS 0 0 $0.00 $0.00 Senior Airport Planner/ Engineer 454 $110.00 $49,940.00 Project Director 40 $120.00 $4,800.00 3D Modeller 183 $60.00 $10,980.00 FAT Site Visit or Virtual Mtg 0 $0.00 $0.00 Submittal 0 $0.00 $0.00 Pavement/ Geotechnical Engineer 0 $0.00 $0.00 Structural Engineer 0 $0.00 $0.00 Fire Protection/Code Engineer 0 $0.00 $0.00 Systems Engineer 0 $0.00 $0.00 0 $0.00 $0.00 Traffic Engineer 0 $0.00 $0.00 Planner 0 $0.00 $0.00 Environmental Specialist/ Planner 0 $0.00 $0.00 Surveyor 0 $0.00 $0.00 Project Engineer/ Architect 0 $0.00 $0.00 Drafter (CADD/BIM) 0 $0.00 $0.00 Drafter (GIS) 0 $0.00 $0.00 Total Hours 677 DIRECT LABOR SUBTOTAL:$65,720.00 7. INDIRECT COSTS (Specify)RATE X DIRECT LABOR TOTAL =ESTIMATED OVERHEAD AND PAYROLL BURDEN 100.00% $65,720.00 $65,720.00 INDIRECT COSTS SUBTOTAL $65,720.00 8. TOTAL OF DIRECT LABOR & INDIRECT COSTS (Combined Sum of Items 6&7) $131,440.00 9. PROFIT (15% of Item 8)$19,716.00 10. TOTAL PROFESSIONAL LUMP SUM FEE (Combined Sum of Items 8 + 9) $151,156.00 11. OTHER EXPENSE COSTS ESTIMATED COST a. Expenses (See Reimbursable Expense Summary) $5,550.00 REIMBURSABLE EXPENSES SUB-TOTAL $5,550.00 b. EQUIPMENT, MATERIALS, SUPPLIES (Specify) QTY. COST ESTIMATED COST $0.00 $0.00 $0.00 $0.00 EQUIPMENT SUBTOTAL $0.00 c. SUBCONSULTANT(S) / DIRECT EXPENSES ESTIMATED COST Spohnheimer Consulting - Analysis of Impacts to NAVAIDs - Three (3) Sites $6,500.00 John Mogul Consulting - Computer Runs and Narratives for TERPS Analysis (Airspace) - Three (3) Sites $6,500.00 Virtual Reality capability added to 3D Model - POND $20,640.00 N.I.C. - By RS&H: conceptual Site Engineering, Access & Utilities Investigations N.I.C. - By RS&H: Survey of existing buildings elevations & airfield key points N.I.C - TBD in Design Phase: Soils Investigation for foundation considerations N.I.C - By RS&H: Phase 1 Environmental Study N.I.C - By RS&H: Access & Infrastructure Inventory and preliminary site plans with ROM CCE DIRECT LUMP SUM EXPENSES SUBCONSULTANT(S) - SUBTOTAL $33,640.00 d. OTHER (Specify)ESTIMATED COST $0.00 OTHER SUBTOTAL $0.00 $39,190.00 12. TOTAL PRICE (Combined Sum of Items 10 & 11e)$190,346.00 1. PROJECT TITLE: Site Selection of an ATCT at FAT REIMBURSABLE AND DIRECT EXPENSES e. OTHER EXPENSE COSTS TOTAL: (Combined Sum of Items a,b,c & d) FEE SUMMARY Amendment No. 1 - Page 10 of 21        0 FAT ATCT SITE SELECTION (VISTA) Senior Airport Planner/ Engineer Project Director 3D Modeller FAT Site Visit or Virtual Mtg Submittal TOTAL Hourly Rate $110.00 $120.00 $60.00 6/16/2023 Phase I Study Services Scoping (includes scoping meeting)0 Field Investigation (See Tasks Below)0 Assemble Records and Review 0 Perform the following Study Related Tasks: Task 1.0 - Siting Report 1.1 Kick-off Meeting & Reconnaissance (1st Mtg/Visit) 24 24 √48 1.1 Coordination with FAA National Coordinator 8 8 1.1 Guide Surveyor field work and Meet w/ FAT Staff (1st Visit) 8 2 √10 1.1 Develop Schedule and Collect Airport & Siting Data 8 2 10 1.1 FAA Contract Tower Program Office & ADO Correspondence 4 4 1.2 Apply FAA documents and standards 16 16 1.2 Explore Candidate Sites; Data to FAA National Coordinator & Staff 12 4 16 1.2 Coordinate with Subconsultants (NAVAIDs & TERPS) 18 18 1.2 Siting Analysis and Draft Siting Report 80 16 √96 1.2 Create 3D Model - SketchUp software 16 135 151 1.3 Review Mtg of Draft Report (2nd Mtg)24 4 √28 1.3 Address Review Comments & ROM costs and Advanced Siting Report 32 4 36 1.3 Distribute for Final Review Comments of Advanced Siting Report (No Visit)84√√12 1.4 QC & Submit Advanced Siting Report for the Safety Panel 16 4 √20 Task 2.0 - Functional Hazard Assessment & Safety Assessment 2.1 Functional Hazard Assessment (FHA)16 16 2.2 FAA Validation Session of the 3D Model/VR (3rd Mtg) - VIRTUAL 88√16 2.3 FAA Safety Panel Session (4th Mtg) - VIRTUAL 24 8 √32 2.4 Assist FAA with the Safety Assessment (SA) documentation 8 √8 2.5 Update Siting Report per SA & Compile with SA to create SRMD 88 Task 3.0 - Final Siting Report 3.1 Edit Documentation prior to Final Submittal for FAA Approvals 12 12 3.1 Final Coordination w/ FAA Natl. Coordinator; Submit Final SRMD 4 √4 Task 4.0 - Environmental Assessment Participation 4.1 Description of Proposed Development 8 8 4.2 Attend Review and Coordination Meetings 12 12 ADMIN - Overall Project Management & Coordination A.1 Provide Updates, Advise Client, Agency Coordination 80 8 88 SUB-TOTAL PHASE I PROJECT HOURS 454 40 183 0 0 677 TOTAL PROJECT HOURS 454 40 183 0 0 677 These job titles are linked to Fee and Phase Summary Amendment No. 1 - Page 11 of 21        Total Travel & Equipment Expenses x @ Airfare 1 trips x 2 persons @ $1,500.00 / RndTrip $3,000.00 Hotel 1 trips x 4 room nights @ $250.00 / Night $1,000.00 Rental Car 1 trips x 3 days @ $150.00 / Day $450.00 Meals 1 trips x 6 persondays @ $100.00 / Day $600.00 Sub-Total $5,050.00 Printing & Shipping Expenses Draft Siting Report Printing & Shipping Sets x 150 Sheets @ $0.40 / Page Half Size Drawings Sets x Dwgs @ $0.35 / Sheet Binding & Dividers Sets x 1 Each @ $8.00 /Each Miscellaneous - Covers, folding, etc LS x Each @ $200.00 /Each Sub-Total Final Draft Siting Report Printing & Shipping Sets x 150 Sheets @ $0.40 / Page Half Size Drawings Sets x Dwgs @ $0.35 / Sheet Binding & Dividers Sets x 1 Each @ $5.00 /Each Miscellaneous - Covers, folding, etc LS x Each @ $200.00 /Each Sub-Total VR Equipment to/from FAT Package & Shipping 1 Time x 1 Package @ $500.00 / Each $500.00 Half Size Drawings Sets x Dwgs @ $0.35 / Sheet Binding & Dividers Sets x 1 Each @ $5.00 /Each Miscellaneous - Covers, folding, etc LS x Each @ $200.00 /Each Sub-Total $500.00 Printing & Shipping Sets x 320 Sheets @ $0.40 / Page Half Size Drawings Sets x Dwgs @ $0.35 / Sheet Binding & Dividers Sets x 1 Each @ $5.00 /Each Miscellaneous - Covers, folding, etc LS x Each @ $200.00 /Each Sub-Total Final SRMD to BDN & FAA Printing & Shipping Sets x 380 Sheets @ $0.40 / Page Half Size Drawings Sets x Dwgs @ $0.35 / Sheet Binding & Dividers Sets x 1 Each @ $5.00 /Each Miscellaneous - Covers, folding, etc LS x Each @ $200.00 /Each Sub-Total Sets x Sheets @ $0.40 / Page Full Size Drawings Sets x Dwgs @ $0.72 / Sheet Half Size Drawings Sets x Dwgs @ $0.35 / Sheet Full Size Mylars Sets x Dwgs @ $0.35 / Sheet Binding Sets x Each @ $5.00 /Each Miscellaneous - Covers, folding, etc LS x Each @ $200.00 /Each Sub-Total TOTAL OUT-OF-POCKET EXPENSES $5,550.00 Phase Description REIMBURSABLE EXPENSES 6/13/2023 Amendment No. 1 - Page 12 of 21         $WWDFKPHQW$&(4$(QYLURQPHQWDO,PSDFW5HSRUW  Amendment No. 1 - Page 13 of 21        Fresno Yosemite International Airport Aircraft Traffic Control Tower Replacement and Implementation Study (CEQA Environmental Impact Report) DRAFT Version 1.0 October 11, 2023 Fresno Yosemite International Airport Fresno, CA City of Fresno RS&H Project No.: 10264982888 Prepared by RS&H Infrastructure at the direction of the City of Fresno Amendment No. 1 - Page 14 of 21        SCOPE OF WORK FAT ATCT Relocation, CEQA EIR - (Version 1.0) 1 I PROJECT DESCRIPTION The City of Fresno owns and operates the Fresno Yosemite International Airport (FAT). The City’s Department of Aviation (City) has contracted with RS&H to prepare an Airport Traffic Control Tower (ATCT) replacement and implementation study. Due to recent historical evaluation of the ATCT, the ATCT has been determined to be eligible for inclusion on the National Register of Historic Places (NRHP). As such, the demolition of the ATCT would be considered a “significant impact” under the California Environmental Quality Act (CEQA) and an environmental impact report (EIR) would be required. This CEQA documentation is in addition to the previously scoped National Environmental Policy Act (NEPA) environmental assessment (EA). Certification of the CEQA document is required prior to the start of NEPA documentation per the Federal Aviation Administration (FAA). TASK 2 ENVIRONMENTAL DOCUMENTATION, CONCEPTUAL DESIGN, AND PRELIMINARY COSTS Under CEQA, the City of Fresno would act as the lead agency and be responsible for reviewing and certifying the EIR. Components of the EIR that have already been included in the scope for NEPA documentation include the Purpose and Need (Task 1.3) and the preparation of an Environmental Assessment (EA) in compliance with the National Environmental Policy Act (NEPA) (Task 2.2). Task 2.4 Prepare Environmental Assessment and CEQA documentation Task 2.4.1 Prepare Notice of Preparation (NOP) Using the City’s standard format for an NOP, the Consultant will prepare a draft NOP for City review and comment. Upon receipt of City comments on the draft NOP, the Consultant will prepare a final NOP for publication. The following environmental resource categories will be dismissed as part of the NOP: » Agricultural and Forestry Resources » Biological Resources » Energy » Geology and Soils » Greenhouse Gas Emissions » Hydrology and Water Quality » Land Use and Planning » Mineral Resources » Noise » Population / Housing » Public Facilities » Recreation » Transportation » Utilities and Service Systems » Wildfire Once the NOP has been posted to the State Clearinghouse website, CEQA Submit, a 30-day scoping period begins. It is assumed that a public scoping meeting will not be required. Amendment No. 1 - Page 15 of 21        SCOPE OF WORK FAT ATCT Relocation, CEQA EIR - (Version 1.0) 2 Task 2.4.1 deliverables include: » Draft and Final NOP: The Consultant will provide one electronic version of the draft NOP in Word format to the City for review. The Consultant will provide one electronic version of the final NOP in Word format to the City for approval. The Consultant will prepare a Notice of Completion (NOC) and work with the City to post the NOP on the State Clearinghouse website, CEQA Submit. Task 2.4.2 Prepare Existing Conditions, Environmental Impacts, and Mitigation The Consultant will document the existing conditions for the proposed project site. The Consultant will develop two study areas that will be used throughout the EIR. The boundaries of the first study area will be the same as the boundaries of the project site. This study area, which will be called the “project study area”, will be used for all environmental impact categories that do not result in impacts that could affect areas outside the project site. An additional study area will be based on impacts to areas outside the proposed project site and are associated with aesthetics, noise, air pollutant emissions, or surface traffic. This study area will be called the “general study area.” These study areas will be presented on base maps using geographic information system (GIS) and will be provided to the City for review and comment. The Consultant will rely primarily on the data contained in previous studies and other materials already prepared by the City, where applicable, and will supplement and update that data as appropriate. Task 2.4.2.1 Aesthetics The Consultant will evaluate and describe the extent to which the Proposed Project would have a substantial adverse effect on a scenic vista or create a new source of substantial light or glare which would adversely affect day or nighttime views in the area. Task 2.4.2.2 Air Quality The Consultant will evaluate and describe if the Proposed Project would conflict with or obstruct implementation of the applicable air quality plan, result in a cumulatively considerable net increase of any criteria pollutant for which the project region is in non-attainment, expose sensitive receptors to substantial pollutant concentrations, or result in other emissions adversely affecting a substantial number of people. Task 2.4.2.3 Cultural and Tribal Cultural Resources The Consultant will prepare a draft letter for the City to initiate Assembly Bill (AB) 52 consultation with Native American tribes who have indicated that they would like to be notified of projects within Fresno County. The Consultant will utilize the historic property evaluation report (prepared previously under Task 2.2) to describe the effect of the Proposed Project on the existing ATCT, which has been Amendment No. 1 - Page 16 of 21        SCOPE OF WORK FAT ATCT Relocation, CEQA EIR - (Version 1.0) 3 determined to be eligible for inclusion on the NRHP. The Consultant will also evaluate and describe the likelihood of encountering and/or disturbing archaeological and tribal resources during construction of the Proposed Project. A summary of the outcome of AB 52 consultation will be included. Task 2.4.2.4 Hazards and Hazardous Materials The Consultant will utilize the Phase I Environmental Site Assessment (ESA) (prepared previously under Task 1.3) to describe if the Proposed Project would create a significant hazard to the public or the environment through the routine transport, use, or disposal of hazardous materials; create a significant hazard to the public or the environment through reasonably foreseeable upset and accident conditions involving the release of hazardous materials into the environment; emit hazardous emissions or handle hazardous or acutely hazardous materials, substances, or waste within one-quarter mile of an existing or proposed school; be located on a site which is included on a list of hazardous materials sites compiled pursuant to Government Code Section 65962.5 and, as a result, would it create a significant hazard to the public or the Environment; or result in a safety hazard for people residing or working in the project area; impair implementation of or physically interfere with an adopted emergency response plan or emergency evacuation plan. Task 2.4.2.5 Mandatory Findings of Significance On the basis of the analysis contained prepared for Tasks 2.4.2.1 through 2.4.2.4, the Consultant will prepare the mandatory findings of significance. Task 2.4.2.6 Alternatives On the basis of the analysis contained prepared for Tasks 2.4.2.1 through 2.4.2.5, the Consultant will identify the significant impacts that will occur with the implementation of the Proposed Project. The Consultant will use this list of impacts to develop a list of potential alternatives that will eliminate or minimize the magnitude of the identified impacts. Task 2.4.2 deliverables include: » AB 52 consultation letter Task 2.4.3 Prepare Administrative Draft EIR The Consultant will prepare and submit to the City an Administrative Draft EIR. The Consultant will conduct an internal QA/QC process prior to submittal. City staff will have 15 calendar days to review the Administrative Draft EIR. Task 2.4.3 deliverables include: » Administrative Draft EIR to City: Consultant to prepare and submit Administrative Draft EIR to the City for review and comment. Amendment No. 1 - Page 17 of 21        SCOPE OF WORK FAT ATCT Relocation, CEQA EIR - (Version 1.0) 4 Task 2.4.4 Prepare Screencheck Draft EIR The Consultant will prepare a Screencheck Draft EIR that incorporates all revisions identified during the review of the Administrative Draft EIR. The Screencheck Draft EIR will be the final document review by the City before publication of the Draft EIR. The Screencheck Draft EIR will be reviewed over the course of one day at City offices. Task 2.4.4 deliverables include: » Prepare Screencheck Draft EIR: Consultant to prepare and submit Screencheck Draft EIR to the City for in-person review. Task 2.4.4 Publish Draft EIR Task 2.4.4.1 Print and Distribute Draft EIR The Consultant will produce five paper copies and five electronic / jump drive / disc copies of the Draft EIR for distribution. The Consultant will provide an electronic copy of the Draft EIR to the City to place on their website. The electronic Draft EIR will comply with the requirements of Section 508 of the Americans with Disabilities Act for electronic documents. In addition, one hard copy of the Draft EIR will be placed at up to two local libraries, one hard copy at the City offices, and one hard copy at the Airport administrative offices. Task 2.4.4.2 Public Notice of Availability and Notice of Completion The Consultant will prepare a Notice of Availability of the Draft EIR for City review and comment. The Consultant will publish this Notice of Availability in up to two local newspapers of general circulation and provide a copy to the City to place on their website. The Consultant will prepare the Notice of Completion and assist the City with submittal to the State Clearinghouse. If translation services are required for any public notices, the City will be responsible for obtaining the services. Task 2.4.4 deliverables include: » Prepare and Publish Public Draft EIR: Consultant to prepare and publish Draft EIR for 30- day public comment period. Five paper copies and five electronic copies will be produced. » Prepare and submit Notice of Availability of Draft EIR: Submit to City for review and approval. Notice of Availability will be published in p to two local newspapers and on the City website. Amendment No. 1 - Page 18 of 21        SCOPE OF WORK FAT ATCT Relocation, CEQA EIR - (Version 1.0) 5 » Prepare and submit Notice of Completion: Submit to City for review and approval. The Notice of Completion will submitted to the State Clearinghouse. Task 2.4.5 Final EIR Task 2.4.5.1 Review Comments on Draft EIR and Prepare Administrative Final EIR Following a 30-day comment period in which the public workshop will occur, the Consultant will collect, review, summarize, and respond to all agency and public comments. An Administrative Final EIR will be produced by the Consultant for review and comment by the City. The format of the Administrative Draft EIR will include the full reproduction of the revised Draft EIR, a section on changes to the Draft EIR (the Addenda), and a chapter on comments and responses to comments. The number and type of comments received during the 30-day comment period will be summarized by the Consultant. The Consultant will submit an electronic version of the Administrative Final EIR to the City for review and comment. This will include a chapter (or an appendix) containing each comment letter and an appropriate response to that comment. Task 2.4.5.2 Publish Final EIR The Consultant will produce 5 paper copies and 5 electronic / jump drive / disc copies of the Final EIR for distribution. The Consultant will provide an electronic copy of the Final EIR to the City to place on their website. In addition, one hard copy of the Final EIR will be placed in up to two local libraries, one hard copy at the City offices, and one hard copy at the Airport administrative offices. An electronic copy will be submitted to the State Clearinghouse and submitted to the Fresno County Clerk. Task 2.4.5 deliverables include: » Prepare Administrative Final EIR: Consultant to prepare and submit Administrative Final EIR to the City for review and comment. » Prepare and Publish Final EIR: Consultant to prepare and publish Final EIR. Five paper copies and five electronic copies will be produced. Task 2.4.6 CEQA Findings Task 2.4.6.1 Prepare CEQA Findings The Consultant will prepare a draft of the CEQA Findings. One round of revisions by the Consultant based on comments from the City is assumed. This document will be submitted to the City in electronic format for final editing and use by the City Council in consideration of certifying the Final EIR. Amendment No. 1 - Page 19 of 21        SCOPE OF WORK FAT ATCT Relocation, CEQA EIR - (Version 1.0) 6 Task 2.4.6.2 Prepare Statement of Overriding Considerations Based on the assumption that demolition of the existing ATCT would constitute a significant and unavoidable impact, the Consultant will prepare a draft Statement of Overriding Considerations. This document will be submitted to the City in electronic format for final editing and use by the City Council in consideration of certifying the Final EIR. Task 2.4.6.3 Prepare Mitigation Monitoring and Reporting Program (MMRP) Public Resources Code Section 21081.6 (a) (1) requires that a Mitigation Monitoring and Reporting Program (MMRP) be adopted at the time that the City determines to carry out a project for which an EIR has been prepared to ensure that mitigation measures identified in the Final EIR are fully implemented. The Consultant will prepare a draft of the MMRP. This document will be submitted to the City in electronic format for final editing and use by the City Council in consideration of certifying the Final EIR. Task 2.4.6.4 Prepare Notice of Determination In the event that the City Council certifies the Final EIR, the Consultant will prepare a Notice of Determination (NOD) for the City to review and for the Consultant to submit to the State Clearinghouse. The City will file the NOD at the Fresno County Clerk’s Office. Task 2.4.6 deliverables include: » Prepare and submit CEQA Findings: Consultant to prepare and submit the CEQA Findings to the City. » Prepare and submit Statement of Overriding Considerations: Consultant to prepare and submit the Statement of Overriding Considerations to the City. » Prepare and submit MMRP: Consultant to prepare and submit the MMRP to the City. » Prepare and submit Notice of Determination: Consultant to prepare and submit the Notice of Determination to the City and State Clearinghouse. Task 2.4.7 Public Meeting on the Draft EIR One public meeting will be held in an open house format during the public review period of the Draft EIR. In an open house format, the public will arrive at any time during the specified event hours. At their own pace, the public will be able to view informational displays explaining the EIR process, learn about the issues associated with the Proposed Project, ask questions of City/Airport staff and the Consultant, and provide written comments at the meeting. The Consultant will facilitate these meetings. The location will be secured by the City. If translation services are required, the City will obtain these services. Up to four members of the Consultant team will be present at the meeting. Amendment No. 1 - Page 20 of 21        SCOPE OF WORK FAT ATCT Relocation, CEQA EIR - (Version 1.0) 7 Task 2.4.7 deliverables include: » Public Meeting Materials: Consultant to prepare the boards for display at the public meeting, the sign-in sheet, comment forms, and a project fact sheet. II PROFESSIONAL SERVICES FEE RS&H will provide the above referenced for CEQA EIR services for a total fee of $118,676. (See page 4 of 21 for Amendment 1 total.) Amendment No. 1 - Page 21 of 21        FYI-S Fed Fund Eng. Serv. CSA, Short Form, Total Fee (11-2022) CAO/BMC 12/2022-RS&H -1- AGREEMENT CITY OF FRESNO, CALIFORNIA CONSULTANT SERVICES THIS AGREEMENT (Agreement) is made and entered into, effective __________________________, by and between the CITY OF FRESNO, a California municipal corporation (City), and RS&H CALIFORNIA, INC., a California corporation (Consultant). RECITALS WHEREAS, the City desires to obtain professional Planning and Environmental services for FAT Air Traffic Control Tower Replacement and Implementation Study (Project); and WHEREAS, the Consultant is engaged in the business of furnishing services as a Airport Planning and Environmental consultant and hereby represents that it desires to and is professionally and legally capable of performing the services called for by this Agreement; and WHEREAS, this Agreement sets forth the terms and conditions under which the Consultant shall provide professional services, to be paid with Airport funds and reimbursed with pledged Federal Aviation Administration Entitlement Funds as they are made available; and WHEREAS, the Consultant acknowledges that this Agreement is subject to the requirements of Fresno Municipal Code Section 4-107 and Administrative Order No. 6-19; and WHEREAS, this Agreement will be administered for City by its Director of Aviation (Director) or designee. AGREEMENT NOW, THEREFORE, in consideration of the foregoing and of the covenants, conditions, and promises hereinafter contained to be kept and performed by the respective parties, it is mutually agreed as follows: 1. Scope of Services. The Consultant shall perform to the satisfaction of the City the services described in Exhibit A, including all work incidental to, or necessary to perform, such services even though not specifically described in Exhibit A. 2. Term of Agreement and Time for Performance. This Agreement shall be effective from the date first set forth above and shall continue in full force and effect through the earlier of complete rendition of the services hereunder or December 31, 2026, subject to any earlier termination in accordance with this Agreement. The services of the Consultant as described in Exhibit A are to commence upon the City’s issuance of a written “Notice to Proceed.” Work shall be undertaken and completed in a sequence assuring expeditious completion, but in any event, all such services shall be completed within one thousand ninety-five consecutive February 15, 2023         FYI-S Fed Fund Eng. Serv. CSA, Short Form, Total Fee (11-2022) CAO/BMC 12/2022-RS&H -2- calendar days from such authorization to proceed. 3. Compensation. (a) The Consultant’s sole compensation for satisfactory performance of all services required or rendered pursuant to this Agreement shall be a total fee of $362,585. Such fee includes all expenses incurred by the Consultant in performance of the services. (b) Detailed statements shall be rendered monthly and will be payable in the normal course of City business. (c) The parties may modify this Agreement to increase or decrease the scope of services or provide for the rendition of services not required by this Agreement, which modification shall include an adjustment to the Consultant’s compensation. Any change in the scope of services must be made by written amendment to the Agreement signed by an authorized representative for each party. The Consultant shall not be entitled to any additional compensation if services are performed prior to a signed written amendment. 4. Termination, Remedies, and Force Majeure. (a) This Agreement shall terminate without any liability of the City to the Consultant upon the earlier of: (i) the Consultant’s filing for protection under the federal bankruptcy laws, or any bankruptcy petition or petition for receiver commenced by a third party against the Consultant; (ii) seven calendar days prior written notice with or without cause by the City to the Consultant; (iii) the City’s non-appropriation of funds sufficient to meet its obligations hereunder during any City fiscal year of this Agreement, or insufficient funding for the Project; or (iv) expiration of this Agreement. (b) Immediately upon any termination or expiration of this Agreement, the Consultant shall (i) immediately stop all work hereunder; (ii) immediately cause any and all of its subcontractors to cease work; and (iii) return to the City any and all unearned payments and all properties and materials in the possession of the Consultant that are owned by the City. Subject to the terms of this Agreement, the Consultant shall be paid compensation for services satisfactorily performed prior to the effective date of termination. The Consultant shall not be paid for any work or services performed or costs incurred which reasonably could have been avoided. (c) In the event of termination due to failure of the Consultant to satisfactorily perform in accordance with the terms of this Agreement, the City may withhold an amount that would otherwise be payable as an offset to, but not in excess of, the City’s damages caused by such failure. In no event shall any payment by the City pursuant to this Agreement constitute a waiver by the City of any breach of this Agreement which may then exist on the part of the Consultant, nor shall such payment impair or prejudice any remedy available to the City with respect to the breach. (d) Upon any breach of this Agreement by the Consultant, the City may         FYI-S Fed Fund Eng. Serv. CSA, Short Form, Total Fee (11-2022) CAO/BMC 12/2022-RS&H -3- (i) exercise any right, remedy (in contract, law or equity), or privilege which may be available to it under applicable laws of the State of California or any other applicable law; (ii) proceed by appropriate court action to enforce the terms of the Agreement; and/or (iii) recover all direct damages for the breach of the Agreement. If it is determined that the City improperly terminated this Agreement for default, such termination shall be deemed a termination for convenience. (e) The Consultant shall provide the City with adequate written assurances of future performance, upon Director’s request, in the event the Consultant fails to comply with any terms or conditions of this Agreement. (f) The Consultant shall be liable for default unless nonperformance is caused by an occurrence beyond the reasonable control of the Consultant and without its fault or negligence such as, acts of God or the public enemy, acts of the City in its contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes, unusually severe weather, and delays of common carriers. The Consultant shall notify Director in writing as soon as it is reasonably possible after the commencement of any excusable delay, setting forth the full particulars in connection therewith, and shall remedy such occurrence with all reasonable dispatch, and shall promptly give written notice to Director of the cessation of such occurrence. 5. Confidential Information, Ownership of Documents, and Copyright License. (a) Any reports, information, or other data prepared or assembled by the Consultant pursuant to this Agreement shall not be made available to any individual or organization by the Consultant without the prior written approval of the City. During the term of this Agreement, and thereafter, the Consultant shall not, without the prior written consent of the City, disclose to anyone any Confidential Information. The term Confidential Information for the purposes of this Agreement shall include all proprietary and confidential information of the City, including but not limited to business plans, marketing plans, financial information, designs, drawings, specifications, materials, compilations, documents, instruments, models, source or object codes and other information disclosed or submitted, orally, in writing, or by any other medium or media. All Confidential Information shall be and remain confidential and proprietary in the City. (b) Any and all original sketches, pencil tracings of working drawings, plans, computations, specifications, computer disk files, writings and other documents prepared or provided by the Consultant pursuant to this Agreement are the property of the City at the time of preparation and shall be turned over to the City upon expiration or termination of the Agreement or default by the Consultant. The Consultant grants the City a copyright license to use such drawings and writings. The Consultant shall not permit the reproduction or use thereof by any other person except as otherwise expressly provided herein. The City may modify the design including any drawings or writings. Any use by the City of the aforesaid sketches,         FYI-S Fed Fund Eng. Serv. CSA, Short Form, Total Fee (11-2022) CAO/BMC 12/2022-RS&H -4- tracings, plans, computations, specifications, computer disk files, writings and other documents in completed form as to other projects or extensions of this Project, or in uncompleted form, without specific written verification by the Consultant will be at the City’s sole risk and without liability or legal exposure to the Consultant. The Consultant may keep a copy of all drawings and specifications for its sole and exclusive use. (c) If the Consultant should subcontract all or any portion of the services to be performed under this Agreement, the Consultant shall cause each subcontractor to also comply with the requirements of this Section 5. (d) This Section 5 shall survive expiration or termination of this Agreement. 6. Professional Skill. It is further mutually understood and agreed by and between the parties hereto that inasmuch as the Consultant represents to the City that the Consultant and its subcontractors, if any, are skilled in the profession and shall perform in accordance with the standards of said profession necessary to perform the services agreed to be done by it under this Agreement, the City relies upon the skill of the Consultant and any subcontractors to do and perform such services in a skillful manner and the Consultant agrees to thus perform the services and require the same of any subcontractors. Therefore, any acceptance of such services by the City shall not operate as a release of the Consultant or any subcontractors from said professional standards. 7. Indemnification. To the furthest extent allowed by law, including California Civil Code section 2782.8, the Consultant shall indemnify and hold harmless the City and each of its officers, officials, and employees from any and all loss, liability, fines, penalties, forfeitures, costs and damages (whether in contract, tort or strict liability, including but not limited to personal injury, death at any time and property damage), and from any and all third-party claims, demands, and actions in law or equity (including reasonable attorney's fees, and litigation expenses and cost to enforce this Agreement) to the extent caused by the negligence, recklessness or willful misconduct of the Consultant, its principals, officers, employees, agents, or volunteers in the performance of this Agreement. If the Consultant should subcontract all or any portion of the services to be performed under this Agreement, the Consultant shall require each subcontractor to indemnify and hold harmless the City and each of its officers, officials, and employees in accordance with the terms of the preceding paragraph. This section shall survive termination or expiration of this Agreement. 8. Insurance. (a) Throughout the life of this Agreement, the Consultant shall pay for and maintain in full force and effect all insurance as required in Exhibit B, which is incorporated into and part of this Agreement, with an insurance company(ies) either (i) admitted by the California Insurance Commissioner to do business in the State of California and rated no less than “A-VII” in the Best’s Insurance Rating Guide, or (ii) as may be authorized in writing by the City’s Risk Manager or designee at any time and in its sole discretion. The         FYI-S Fed Fund Eng. Serv. CSA, Short Form, Total Fee (11-2022) CAO/BMC 12/2022-RS&H -5- required policies of insurance as stated in Exhibit B shall maintain limits of liability of not less than those amounts stated therein. However, the insurance limits available to the City, its officers, officials, employees, agents, and volunteers as additional insureds, shall be the greater of the minimum limits specified therein or the full limit of any insurance proceeds to the named insured. (b) If at any time during the life of the Agreement or any extension, the Consultant or any of its subcontractors/sub-consultants fail to maintain any required insurance in full force and effect, all services and work under this Agreement shall be discontinued immediately, and all payments due or that become due to the Consultant shall be withheld until notice is received by the City that the required insurance has been restored to full force and effect and that the premiums therefore have been paid for a period satisfactory to the City. Any failure to maintain the required insurance shall be sufficient cause for the City to terminate this Agreement. No action taken by the City pursuant to this section shall in any way relieve the Consultant of its responsibilities under this Agreement. The phrase “fail to maintain any required insurance” shall include, without limitation, notification received by the City that an insurer has commenced proceedings, or has had proceedings commenced against it, indicating that the insurer is insolvent. (c) The fact that insurance is obtained by the Consultant shall not be deemed to release or diminish the liability of the Consultant, including, without limitation, liability under the indemnity provisions of this Agreement. The duty to indemnify the City shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Consultant. Approval or purchase of any insurance contracts or policies shall in no way relieve from liability nor limit the liability of the Consultant, its principals, officers, agents, employees, persons under the supervision of the Consultant, vendors, suppliers, invitees, consultants, sub-consultants, subcontractors, or anyone employed directly or indirectly by any of them. (d) If the Consultant should subcontract all or any portion of the services to be performed under this Agreement, the Consultant shall require each subcontractor/sub-consultant to provide insurance protection, as an additional insured, to the City and each of its officers, officials, employees, agents, and volunteers in accordance with the terms of this section, except that any required certificates and applicable endorsements shall be on file with the Consultant and the City prior to the commencement of any services by the subcontractor. the Consultant and any subcontractor/sub-consultant shall establish additional insured status for the City, its officers, officials, employees, agents, and volunteers by using Insurance Service Office (ISO) Form CG 20 10 04 13 or both CG 20 10 04 13 and CG 20 37 10 01 or by an executed manuscript company endorsement providing additional insured status as broad as that contained in ISO Form CG 20 10 11 85.         FYI-S Fed Fund Eng. Serv. CSA, Short Form, Total Fee (11-2022) CAO/BMC 12/2022-RS&H -6- 9. Conflict of Interest and Non-Solicitation. (a) Prior to the City’s execution of this Agreement, the Consultant shall complete a City of Fresno conflict of interest disclosure statement in the form as set forth in Exhibit C. During the term of this Agreement, the Consultant shall have the obligation and duty to immediately notify the City in writing of any change to the information provided by the Consultant in such statement. (b) The Consultant shall comply, and require its subcontractors to comply, with all applicable (i) professional canons and requirements governing avoidance of impermissible client conflicts; and (ii) federal, state, and local conflict of interest laws and regulations including, without limitation, California Government Code Section 1090 et. seq., the California Political Reform Act (California Government Code Section 87100 et. seq.), the regulations of the Fair Political Practices Commission concerning disclosure and disqualification (2 California Code of Regulations Section 18700 et. seq.) and Section 4-112 of the Fresno Municipal Code (Ineligibility to Compete). At any time, upon written request of the City, the Consultant shall provide a written opinion of its legal counsel and that of any subcontractor that, after a due diligent inquiry, the Consultant and the respective subcontractor(s) are in full compliance with all laws and regulations. The Consultant shall take, and require its subcontractors to take, reasonable steps to avoid any appearance of a conflict of interest. Upon discovery of any facts giving rise to the appearance of a conflict of interest, the Consultant shall immediately notify the City of these facts in writing. (c) In performing the work or services to be provided hereunder, the Consultant shall not employ or retain the services of any person while such person either is employed by the City or is a member of any the City council, commission, board, committee, or similar City body. This requirement may be waived in writing by the City Manager, if no actual or potential conflict is involved. (d) The Consultant represents and warrants that it has not paid or agreed to pay any compensation, contingent or otherwise, direct or indirect, to solicit, or procure this Agreement or any rights/benefits hereunder. (e) Neither the Consultant, nor any of the Consultant’s subcontractors performing any services on this Project, shall bid for, assist anyone in the preparation of a bid for, or perform any services pursuant to, any other contract in connection with this Project. the Consultant and any of its subcontractors shall have no interest, direct or indirect, in any other contract with a third party in connection with this Project unless such interest is in accordance with all applicable law and fully disclosed to and approved by the City Manager, in advance and in writing. (f) If the Consultant should subcontract all or any portion of the work to be performed or services to be provided under this Agreement, the Consultant         FYI-S Fed Fund Eng. Serv. CSA, Short Form, Total Fee (11-2022) CAO/BMC 12/2022-RS&H -7- shall include the provisions of this Section 9 in each subcontract and require its subcontractors to comply therewith. (g) This Section 9 shall survive expiration or termination of this Agreement. 10. Recycling Program. In the event the Consultant maintains an office or operates a facility(ies), or is required herein to maintain or operate same, within the incorporated limits of the City of Fresno, the Consultant at its sole cost and expense shall: (a) Immediately establish and maintain a viable and ongoing recycling program, approved by the City’s Solid Waste Management Division, for each office and facility. Literature describing the City recycling programs is available from the City’s Solid Waste Management Division and by calling City of Fresno Recycling Hotline at (559) 621-1111. (b) Immediately contact the City’s Solid Waste Management Division at (559) 621-1452 and schedule a free waste audit, and cooperate with such Division in their conduct of the audit for each office and facility. (c) Cooperate with and demonstrate to the satisfaction of the City’s Solid Waste Management Division the establishment of the recycling program in paragraph (a) above and the ongoing maintenance thereof. 11. General Terms and Federal Assurances. (a) Except as otherwise provided by law, all notices expressly required of the City within the body of this Agreement, and not otherwise specifically provided for, shall be effective only if signed by the Director or designee. (b) Records of the Consultant’s expenses pertaining to the Project shall be kept on a generally recognized accounting basis and shall be available to the City or its authorized representatives upon request during regular business hours throughout the life of this Agreement and for a period of three years after final payment or, if longer, for any period required by law. In addition, all books, documents, papers, and records of the Consultant pertaining to the Project shall be available for the purpose of making audits, examinations, excerpts, and transcriptions for the same period of time. If any litigation, claim, negotiations, audit or other action is commenced before the expiration of said time period, all records shall be retained and made available to the City until such action is resolved, or until the end of said time period whichever shall later occur. If the Consultant should subcontract all or any portion of the services to be performed under this Agreement, the Consultant shall cause each subcontractor to also comply with the requirements of this paragraph. This Section 11(b) shall survive expiration or termination of this Agreement. (c) Prior to execution of this Agreement by the City, the Consultant shall have provided evidence to the City that the Consultant is licensed to perform the services called for by this Agreement (or that no license is required). If the Consultant should subcontract all or any portion of the work or services to be performed under this Agreement, the Consultant shall require each         FYI-S Fed Fund Eng. Serv. CSA, Short Form, Total Fee (11-2022) CAO/BMC 12/2022-RS&H -8- subcontractor to provide evidence to the City that subcontractor is licensed to perform the services called for by this Agreement (or that no license is required) before beginning work. (d) The City will carry out applicable federal requirements in the administration of this Agreement. Notwithstanding Section 25 herein, the Consultant agrees to comply with all applicable federal assurances identified in Exhibit D and require that each subcontract include the same assurances by each of its subcontractors. 12. Nondiscrimination. To the extent required by controlling federal, state and local law, the Consultant shall not employ discriminatory practices in the provision of services, employment of personnel, or in any other respect on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era. Subject to the foregoing and during the performance of this Agreement, the Consultant agrees as follows: (a) the Consultant will comply with all applicable laws and regulations providing that no person shall, on the grounds of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era be excluded from participation in, be denied the benefits of, or be subject to discrimination under any program or activity made possible by or resulting from this Agreement. (b) The Consultant will not discriminate against any employee or applicant for employment because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era. The Consultant shall ensure that applicants are employed, and the employees are treated during employment, without regard to their race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era. Such requirement shall apply to the Consultant’s employment practices including, but not be limited to, the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The Consultant agrees to post in conspicuous places, available to employees and applicants for employment, notices setting forth the provision of this nondiscrimination clause. (c) the Consultant will, in all solicitations or advertisements for employees placed by or on behalf of the Consultant in pursuit hereof, state that all qualified applicants will receive consideration for employment without regard to race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age,         FYI-S Fed Fund Eng. Serv. CSA, Short Form, Total Fee (11-2022) CAO/BMC 12/2022-RS&H -9- sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era. (d) The Consultant will send to each labor union or representative of workers with which it has a collective bargaining agreement or other contract or understanding, a notice advising such labor union or workers' representatives of the Consultant’s commitment under this section and shall post copies of the notice in conspicuous places available to employees and applicants for employment. (e) If the Consultant should subcontract all or any portion of the services to be performed under this Agreement, the Consultant shall cause each subcontractor to also comply with the requirements of this Section 12. 13. Independent Contractor. (a) In the furnishing of the services provided for herein, the Consultant is acting solely as an independent contractor. Neither the Consultant, nor any of its officers, agents, or employees shall be deemed an officer, agent, employee, joint venturer, partner, or associate of the City for any purpose. The City shall have no right to control or supervise or direct the manner or method by which the Consultant shall perform its work and functions. However, the City shall retain the right to administer this Agreement so as to verify that the Consultant is performing its obligations in accordance with the terms and conditions thereof. (b) This Agreement does not evidence a partnership or joint venture between the Consultant and the City. The Consultant shall have no authority to bind the City absent the City’s express written consent. Except to the extent otherwise provided in this Agreement, the Consultant shall bear its own costs and expenses in pursuit thereof. (c) Because of its status as an independent contractor, the Consultant and its officers, agents, and employees shall have absolutely no right to employment rights and benefits available to the City employees. The Consultant shall be solely liable and responsible for all payroll and tax withholding and for providing to, or on behalf of, its employees all employee benefits including, without limitation, health, welfare and retirement benefits. In addition, together with its other obligations under this Agreement, the Consultant shall be solely responsible, indemnify, defend and save the City harmless from all matters relating to employment and tax withholding for and payment of the Consultant’s employees, including, without limitation, (i) compliance with Social Security and unemployment insurance withholding, payment of workers’ compensation benefits, and all other laws and regulations governing matters of employee withholding, taxes and payment; and (ii) any claim of right or interest in the City employment benefits, entitlements, programs and/or funds offered employees of the City whether arising by reason of any common law, de facto, leased, or co- employee rights or other theory. It is acknowledged that during the term of this Agreement, the Consultant may be providing services to others         FYI-S Fed Fund Eng. Serv. CSA, Short Form, Total Fee (11-2022) CAO/BMC 12/2022-RS&H -10- unrelated to the City or to this Agreement. 14. Notices. Any notice required or intended to be given to either party under the terms of this Agreement shall be in writing and shall be deemed to be duly given if delivered personally, transmitted by facsimile followed by telephone confirmation of receipt, or sent by United States registered or certified mail, with postage prepaid, return receipt requested, addressed to the party to which notice is to be given at the party's address set forth on the signature page of this Agreement or at such other address as the parties may from time to time designate by written notice. Notices served by United States mail in the manner above described shall be deemed sufficiently served or given at the time of the mailing thereof. 15. Binding. Subject to Section 16, below, once this Agreement is signed by all parties, it shall be binding upon, and shall inure to the benefit of, all parties, and each parties' respective heirs, successors, assigns, transferees, agents, servants, employees, and representatives. 16. Assignment. (a) This Agreement is personal to the Consultant and there shall be no assignment by the Consultant of its rights or obligations under this Agreement without the prior written approval of the City Manager or designee. Any attempted assignment by the Consultant, its successors or assigns, shall be null and void unless approved in writing by the City Manager or designee. (b) The Consultant hereby agrees not to assign the payment of any monies due the Consultant from the City under the terms of this Agreement to any other individual(s), corporation(s) or entity(ies). The City retains the right to pay any and all monies due the Consultant directly to the Consultant. 17. Compliance With Law. In providing the services required under this Agreement, the Consultant shall exercise the standard of care at all times and comply with applicable laws of the United States, the State of California and the City, and with applicable regulations promulgated by federal, state, regional, or local administrative and regulatory agencies, now in force and as they may be enacted, issued, or amended during the term of this Agreement. 18. Waiver. The waiver by either party of a breach by the other of any provision of this Agreement shall not constitute a continuing waiver or a waiver of any subsequent breach of either the same or a different provision of this Agreement. No provisions of this Agreement may be waived unless in writing and signed by all parties to this Agreement. Waiver of any one provision herein shall not be deemed to be a waiver of any other provision herein. 19. Governing Law and Venue. This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of California, excluding, however, any conflict of laws rule which would apply the law of another jurisdiction. Venue for purposes of the filing of any action regarding the enforcement or interpretation of this Agreement and any rights and duties hereunder shall be Fresno County, California.         FYI-S Fed Fund Eng. Serv. CSA, Short Form, Total Fee (11-2022) CAO/BMC 12/2022-RS&H -11- 20. Headings. The section headings in this Agreement are for convenience and reference only and shall not be construed or held in any way to explain, modify or add to the interpretation or meaning of the provisions of this Agreement. 21. Severability. The provisions of this Agreement are severable. The invalidity, or unenforceability of any one provision in this Agreement shall not affect the other provisions. 22. Interpretation. The parties acknowledge that this Agreement in its final form is the result of the combined efforts of the parties and that, should any provision of this Agreement be found to be ambiguous in any way, such ambiguity shall not be resolved by construing this Agreement in favor of or against either party, but rather by construing the terms in accordance with their generally accepted meaning. 23. Attorney's Fees. If either party is required to commence any proceeding or legal action to enforce or interpret any term, covenant or condition of this Agreement, the prevailing party in such proceeding or action shall be entitled to recover from the other party its reasonable attorney's fees and legal expenses. Prevailing party is the party who recovers greater than 67% of its total claims in the action or who is required to pay no more than 33% of the other party’s total claims in the action when considered in the totality of claims and counterclaims, if any. In claims for monetary damages, the total amount of recoverable attorney’s fees and costs shall not exceed the net monetary award of the prevailing party. 24. Exhibits. Each exhibit and attachment referenced in this Agreement is, by the reference, incorporated into and made a part of this Agreement. 25. Precedence of Documents. In the event of any conflict between the body of this Agreement and any exhibit or attachment hereto, the terms and conditions of the body of this Agreement shall control and take precedence over the terms and conditions expressed within the exhibit or attachment. Furthermore, any terms or conditions contained within any exhibit or attachment hereto which purport to modify the allocation of risk between the parties, provided for within the body of this Agreement, shall be null and void. 26. Cumulative Remedies. No remedy or election hereunder shall be deemed exclusive but shall, wherever possible, be cumulative with all other remedies at law or in equity. 27. No Third Party Beneficiaries. The rights, interests, duties and obligations defined within this Agreement are intended for the specific parties hereto as identified in the preamble of this Agreement. Notwithstanding anything stated to the contrary in this Agreement, it is not intended that any rights or interests in this Agreement benefit or flow to the interest of any third parties. 28. Extent of Agreement. Each party acknowledges that they have read and fully understand the contents of this Agreement. This Agreement represents the entire and integrated agreement between the parties with respect to the subject matter hereof and supersedes all prior negotiations, representations or agreements, either written or oral. This Agreement may be modified only by written instrument duly authorized and executed by both the City and the Consultant.         FYI-S Fed Fund Eng. Serv. CSA, Short Form, Total Fee (11-2022) CAO/BMC 12/2022-RS&H -12- 29. The City Manager, or designee, is hereby authorized and directed to execute and implement this Agreement. The previous sentence is not intended to delegate any authority to the City Manager to administer the Agreement, any delegation of authority must be expressly included in the Agreement. [Signatures follow on the next page].                   FYI-S Fed Fund Eng. Serv. CSA, Short Form, Total Fee (11-2022) CAO/BMC 12/2022-RS&H -14- 4. Exhibit D - Assurances         FYI-S Fed Fund Eng. Serv. CSA, Short Form, Total Fee (11-2022) Exhibit A Page 1 of 1 EXHIBIT A SCOPE OF SERVICES Consultant Service Agreement between City of Fresno (City) and RS&H California, Inc. (Consultant) FAT Air Traffic Control Tower Replacement and Implementation Study Scope of Services to follow (8 pages).         SCOPE OF WORK Fresno Yosemite International Airport Traffic Control Tower Replacement Project - (Version 0.1)1 I PROJECT DESCRIPTION The City of Fresno owns and operates the Fresno Yosemite International Airport (FAT). The City’s Department of Aviation (City) has contracted with RS&H to prepare an Airport Traffic Control Tower (ATCT) replacement and implementation study. The purpose of this study is to identify the steps the City must take to successfully achieve FAA approval and funding for the construction of a new ATCT and demolishing the existing ATCT. This study will include a review of the recommended ATCT sites presented in 2010 ATCT Site Survey prepared by the FAA Los Angeles Terminal Engineering Center, a rough order of magnitude in cost, preliminary project schedule, and potential environmental impacts. Services are authorized under the City of Fresno contract number [tbd](Agreement). Through this Agreement, the Department is authorized to issue separate task orders to obtain services as need requires. FIGURE 1: FRESNO YOSEMITE INTERNATIONAL AIRPORT AIR TRAFIC CONTROL TOWER II GENERAL The Services provided under this Agreement will be performed in accordance with the most current version of all applicable FAA documents including Orders, guidance, Advisory Circulars         SCOPE OF WORK Fresno Yosemite International Airport Traffic Control Tower Replacement Project - (Version 0.1) 2 (AC) listed below, and others as may be required. As applied, the Services will meet all necessary requirements of the Federal Aviation Administration (FAA). FAA Order 5090.3C Field Formulation of the National Plan of Integrated Airport Systems (NPIAS) FAA Order 5100.38D Airport Improvement Program (AIP) Handbook FAA Order 6480.4B Air Traffic Control Tower Siting Process FAA Order 8260.3B United States Standard for Terminal Instrument Procedures (TERPS) FAA Order 1050.1F Policies and Procedures for Considering Environmental Impacts FAA Order 5050.4B National Environme ntal Policy Act (NEPA) Implementing Instructions for Airport Actions FAA Order 5500.1 Passenger Facility Charge AC 150/5050-4 Citizen Participation in Airport planning AC 150/5050-8 Environmental Management Systems for Airport Sponsors AC 150/5060-5 Airport Capacity and Delay AC 150/5100-14E Architectural, Engineering, and Planning Consultant Services for Airport Grant Projects AC 150/5220-18A Buildings for Storage and Maintenance of Airport Snow and Ice Control Equipment and Materials AC 150/5230-4B Aircraft Fuel Storage, Handling, Training, and Dispensing on Airports AC 150/5300-13A Airport Design (Change 1) AC 150/5300-16A General Guidance and Specifications for Aeronautical Surveys: Establishment of Geodetic Control and Submission to the National Geodetic Survey AC 150/5300-17C Standards for Using Remote Sensing Technologies in Airport Surveys AC 150/5300-18B General Guidance and Specifications for Submission of Aeronautical Surveys: Field Data Collection and Geographic Information System, (GIS) Standards AC 150/5325-4A Runway Length Requirements for Airport Design         SCOPE OF WORK Fresno Yosemite International Airport Traffic Control Tower Replacement Project - (Version 0.1) 3 AC 150/5340-1L Standards for Airport Marking AC 150/5360-13 Planning and Design Guidelines for Airport Terminal Facilities (Change 1) III SCOPE OF SERVICES The services included in this section identify the proposed work plan to successfully guide the City in relocating the ATCT to a new site on the airfield. Work consists of three primary tasks and is organized chronologically to follow the Consultants’ recommended steps in achieving FAA approval and funding for the development of a new ATCT and demolition of the existing ATCT. A description of each task is provided below. TASK 1 ATCT SITE IDENTIFICATION, REVIEW, AND COORIDINATION The purpose of Task 1 is to graphically depict and describe all sites previously examined in the FAA’s 2010 ATCT Siting Study prepared by the FAA’s Los Angeles Terminal Engineering Center. The highest ranking three sites from the siting study will be validated to maintain consistency with current planning efforts focused on future airport improvements at FAT. Task 1 also includes establishing coordination with the FAA ADO and ATO to define the overall purpose of this study and identify the proposed steps the City will take for FAA review and comment. Task 1.1 Project kick-off meeting, data collection, and FAA coordination The Consultant will coordinate and attend one kick-off meeting with the City at FAT to establish the preliminary project goals and objectives. At this meeting, the Consultant will review the City’s relevant files and collect available project related information. The Consultant will also review project requirements with the City and other appropriate stakeholders as identified in FAA Order 6480.4B. Upon approval from the City, FAA will be invited to attend the kickoff meeting for the purpose of initial feedback and comment on the proposed project tasks to be completed. This meeting will also address FAA’s willingness to enter into a reimbursable agreement with the City to fund the costs of the FAA’s ATO ATCT replacement and implementation study. Deliverables include: » Kickoff meeting: Consultant will prepare a brief presentation for the kickoff meeting which identifies the purpose of the project, anticipated tasks, and preliminary project schedule. The Consultant will take notes and document project goals and objectives identified during meeting. A meeting summary will be sent to City for review and comment. Goals and objectives will be carried forward throughout this study. » Reimbursable grant agreement coordination with FAA: Consultant will coordinate with the City, FAA ADO, and FAA ATO to establish a reimbursable grant agreement enabling the City to fund the upfront costs in preparing the FAA’s ATO ATCT siting study.         SCOPE OF WORK Fresno Yosemite International Airport Traffic Control Tower Replacement Project - (Version 0.1) 4 Task 1.2 Overview of relevant planning studies This task will include an overview of previous planning studies related to the existing ATCT. Studies include the most recent FAT Airport Master Plan and the 2010 Air Traffic Control Tower (ATCT) siting study prepared by the Los Angeles Terminal Engineering Center. All sites evaluated in the 2010 siting study will be mapped graphically and include a narrative description. FAA’s recommended highest ranking three sites will be described based on each site’s criterion for selection. Those sites dismissed by FAA for further consideration will be described based on the reasons included in the 2010 siting report. Other relevant studies or development plans impacting site access, utilities, and airspace affecting ATCT relocation will be identified in this task. » Project location map: The Consultant will prepare a graphical project location map depicting the existing location of the ATCT and its proximity to airside and landside facilities at FAT. » ATCT history and condition: This task will include a brief history of the ATCT and its current condition. Internal and external photography will be taken during the project kick off meeting to describe the condition of the ATCT. Identification of known fatal flaws associated with the existing ATCT will be documented. Task 1.3 Develop preliminary project justification and environmental purpose and need In preparation for subsequent environmental documentation, a preliminary purpose and need statement will be developed to meet the requirements in FAA Order 1050.1F, 5050.4B, and CEQA. This task will also include the preparation of a detailed project justification narrative to be used in the project purpose and need statement as well as future grant applications. The preliminary purpose statement will describe what issues or challenges FAT is trying to solve. The preliminary Need statement will describe why the FAT seeks to resolve these challenges. All language developed in this task will be written clearly and concisely for comprehension among those not familiar with aviation activities. Deliverables include: » Prepare Phase 1 Environmental Site Assessment (ESA): Consultant will develop Phase 1 ESA report identifying known existing environmental contamination liabilities located on or near each of the three FAA ATCT sites for consideration. The purpose of the report is to assess if current or historical property uses have impacted the soil or groundwater beneath the property and could pose a threat to the environment and/or human health. » Determine need for Phase 2 Environmental Site Assessment: Pending the results of the Phase 1 ESA, the Consultant will coordinate with the City and local environmental agencies to determine the need for a Phase 2 ESA report. The purpose of the Phase 2 ESA is to evaluate the presence or absence of petroleum products or hazardous substances in the subsurface of the sites considered for ATCT relocation. A Phase 2 ESA may not be required.         SCOPE OF WORK Fresno Yosemite International Airport Traffic Control Tower Replacement Project - (Version 0.1) 5 » Draft Purpose and Need statement: Consultant will create clear and concise draft purpose and need statement describing the issues or challenges impacting the relocation of the ATCT as well as the overall need for the project. This draft statement will be used for future grant application and project justification needs. Task 1.4 Update ALP with FAA recommend ATCT sites The purpose of this task is threefold. First, this task will include updating FAT’s most recent ALP to depict three of the FAA’s highest ranking ATCT sites. This ALP revision will be a “pen and ink” update (change) for the purpose of FAA’s Los Angeles Terminal Engineering Center to select a preferred ATCT site. Second, the FAA’s selection of a preferred ATCT site will be used to prepare the required environmental documentation (NEPA/CEQA) to be prepared in Task 2 (described below). Finally, the selection of a preferred ATCT site will be used in the preparation of the overall project justification and used in future grant applications. Deliverables include: » Draft ALP update: Consultant will prepare a draft ALP update identifying three FAA ATCT sites for client review/comment. ALP will be prepared following current FAA ALP SOP requirements. » Submit Draft ALP to FAA: Pending City ALP approval, Consultant will coordinate a meeting (in person or virtual) with FAA ADO and ATO to present three sites for consideration. The purpose of this meeting is to present the highest-ranking sites, their location, potential impacts (if any), and request FAA selection of preferred ATCT site. FAA ALP comments will be addressed by the Consultant before submitting final ALP for FAA approval. » Final ALP: Submit final ALP to FAA for approval. All FAA comments on the draft ALP will be addressed as part of this effort. TASK 2 ENVIRONMENTAL DOCUMENTATION, CONCEPTUAL DESIGN, AND PRELIMINARY COSTS In Task 2 the Consultant will develop a conceptual ATCT design. The level of effort for conceptual design will not exceed ten percent of the total design activities required for construction. This level of design is intended to provide the City with adequate information to prepare and issue a Request for Qualifications for complete ATCT engineering and design services and be used for project justification in grant applications. Next, the Consultant will develop the required NEPA/CEQA environmental documentation. Environmental documentation will include the development of an Environmental Assessment (EA) and California Environmental Quality Act (CEQA) documents to provide government agencies, decision-makers, and the public aware of potential environmental impacts associated with the preferred ATCT relocation site. This documentation will also identify opportunities to reduce potential impacts to the extent feasible. Finally, Task 2 will include a rough order-of-magnitude (ROM) in the costs associated         SCOPE OF WORK Fresno Yosemite International Airport Traffic Control Tower Replacement Project - (Version 0.1) 6 with constructing a new ATCT and demolishing the existing ATCT at FAT. ROM costs will be developed using readily available information from recent ATCT construction projects in the US as well as information provided by the City. A preliminary project schedule will be prepared for the City’s review and comment. Subtasks include: Task 2.1 Conceptual ATCT Design Consultant will develop preliminary ATCT concept and site plan depicting facility needs, location, height, viewshed, access, parking, utilities, and ADA requirements. Conceptual design will not exceed 10 percent of total design effort required for construction. Conceptual design will be used for project justification, grant application, and environmental documentation. Deliverables include: » Conceptual ATCT design and site plan: Consultant to develop 10 percent concept design and site plan for City review, comment, and approval. Task 2.2 Prepare Environmental Assessment and CEQA documentation Consultant will develop a draft and final EA based requirements set forth in FAA Orders 5050.4B and 1050.1F. Draft and final EA to be submitted to City for review and comment. City comments to be addressed by consultant before submitting final EA to FAA for review and approval. Consultant to repurpose final EA for CEQA documentation. Deliverables include: » State Historic Preservation Office (SHPO) Coordination: Consultant will prepare required SHPO forms identifying potential impacts (if any) to structures 50 years are older (ATCT constructed 61 years ago). » Draft EA to FAA: Submit draft EA to FAA ADO for review and comment. Consultant may request meeting with FAA to present findings in draft EA (TBD). » Prepare Final EA: Consultant to collect and incorporate FAA comments on draft EA. Submit revisions to City for review and approval. Submit final EA to FAA for approval. » Prepare and submit CEQA documentation: Submit to governing state agency for review and approval. CEQA comments to be addressed by consultant, if applicable. Task 2.3 Preliminary Costs Consultant will develop ROM costs for the construction of a new ATCT and demolition of the existing ATCT. These costs will be prepared in accordance with current estimates and provided in current values (no future escalation). Deliverables include: » ROM Cost Estimates: Consultant will develop preliminary costs using spreadsheet (Excel). Cost will include construction costs, estimate for owner’s soft costs (program management, design, construction administration, permits, commissioning, and RPR). Cost estimates prepared in this section are planning level only (preliminary) and subject to change. City to review and comment on costs. Consultant to make revisions as needed.         SCOPE OF WORK Fresno Yosemite International Airport Traffic Control Tower Replacement Project - (Version 0.1) 7 Task 2.4 Project Schedule Consultant will prepare a project schedule depicting the anticipated timing for ATCT construction activities. » ATCT Project Schedule: Consultant to develop graphical project schedule depicting key projects tasks by duration, key milestones, meetings, and stakeholder review periods. TASK 3 IDENTIFY FUNDING OPPORTUNTIES, RESTRICTIONS, AND PREPARE GRANT APPLICATION Task 3 focuses on identifying potential funding opportunities and associated risks associated with relocation of the ATCT at FAT. The Consultant will coordinate with the City to develop a funding strategy to best position FAT to complete for available Bipartisan Infrastructure Law (BIL), Airport Terminal Plan (ATP), and Airport Improvement Plan (AIP) grant funds. Task 3 includes Consultant preparation of an ATCT relocation grant application. The development of this grant application will be coordinated with the City before FAA submittal. Finally, if the FAA requires a Benefit Cost Analysis (BCA) to show the benefit cost ratio in relocating the ATCT, the Consultant will prepare a BCA which follows current FAA requirements as part of this task (TBD). Subtasks include: Task 3.1 Project Funding Opportunities and Restrictions The sources and uses of airport funds, Airport Improvement Plan (AIP), Bipartisan Infrastructure Law (BIL), and other applicable FAA program funds will be identified and evaluated for project applicability. Alternative financing instruments for all or part of the proposed project will be identified including bonds, grants, PFC, and state funds, if applicable. The Consultant will review current federal and state restrictions to determine funding eligibility for ATCT relocation. Deliverables include: » List of eligible project funding sources by type, federal/local matching, and other applicable federal requirements. » Identification of known or perceived restrictions affecting project funding and implementation. Task 3.2 Benefit Cost Analysis (TBD) Consultant will coordinate with FAA to decide if BCA is required. Task 3.3 Prepare Grant Application This task includes Consultant preparation and coordination of a FAA grant application for the relocation of the ATCT and demolition of the existing ATCT using available federal, state, and local funding. The Consultant will schedule one (1) meeting with the City to present a draft grant application, collect client feedback, and incorporate necessary revisions before supplying the final grant application to the City for FAA submittal. Deliverables include:         SCOPE OF WORK Fresno Yosemite International Airport Traffic Control Tower Replacement Project - (Version 0.1) 8 » Draft ATCT Grant Application » Final ATCT Grant Application Task 3.4 FAA Coordination and Grant Support Under the approval of the City, the Consultant will schedule a meeting with the FAA ADO to present the final ATCT grant application before official grant submittal. The purpose of this meeting is to identify the ADO’s current funding obligations and determine the timing for the City to issue an RFQ for ATCT engineering and design services. The Consultant will provide grant support to the City for FAA comments as needed for the successful completion of the grant’s submittal. Deliverables include: » ATCT grant application presentation to FAA ADO Task 3.5 Update Project Schedule Based on FAA coordination meeting identified in Task 3.4, the Consultant will update the previously prepared project schedule to reflect known timing for remaining ATCT activities, including advertising RFP for design services, construction, and commissioning. Consultant will provide an updated schedule to City for review and approval. Deliverables include: » Revised project schedule Task 3.6 ATCT Procurement Methods The Consultant will schedule a meeting with the City to discuss the benefits and disadvantages of procurement methods available for ATCT design and construction. Information to be discussed includes impacts to costs, schedules, and risk. A summary of procurement methods will be provided to the City for review prior to this meeting. Deliverables include: » Memorandum identifying potential ATCT procurement methods         FYI-S Fed Fund Eng. Serv. CSA, Short Form, Total Fee (11-2022) Exhibit B Page 1 of 4 EXHIBIT B INSURANCE REQUIREMENTS Consultant Service Agreement between City of Fresno (City) and RS&H California, Inc. (Consultant) FAT Air Traffic Control Tower Replacement and Implementation Study MINIMUM SCOPE OF INSURANCE Coverage shall be at least as broad as: 1. The most current version of Insurance Services Office (ISO) Commercial General Liability Coverage Form CG 00 01, providing liability coverage arising out of your business operations. The Commercial General Liability policy shall be written on an occurrence form and shall provide coverage for “bodily injury,” “property damage” and “personal and advertising injury” with coverage for premises and operations (including the use of owned and non- owned equipment), products and completed operations, and contractual liability (including, without limitation, indemnity obligations under the Agreement) with limits of liability not less than those set forth under “Minimum Limits of Insurance.” 2. The most current version of Commercial Auto Coverage Form CA 00 01, providing liability coverage arising out of the ownership, maintenance or use of automobiles in the course of your business operations. The Automobile Policy shall be written on an occurrence form and shall provide coverage for all owned, hired, and non-owned automobiles or other licensed vehicles (Code 1- Any Auto). 3. Workers’ Compensation insurance as required by the State of California and Employer’s Liability Insurance. 4. Professional Liability (Errors and Omissions) insurance appropriate to the Consultant’s profession. MINIMUM LIMITS OF INSURANCE The Consultant, or any party the Consultant subcontracts with, shall maintain limits of liability of not less than those set forth below. However, insurance limits available to the City, its officers, officials, employees, agents, and volunteers as additional insureds, shall be the greater of the minimum limits specified herein or the full limit of any insurance proceeds available to the named insured: 1. COMMERCIAL GENERAL LIABILITY: (i) $1,000,000 per occurrence for bodily injury and property damage; (ii) $1,000,000 per occurrence for personal and advertising injury; (iii) $2,000,000 aggregate for products and completed operations; and, (iv) $2,000,000 general aggregate applying separately to the work performed under the Agreement.         FYI-S Fed Fund Eng. Serv. CSA, Short Form, Total Fee (11-2022) Exhibit B Page 2 of 4 2. COMMERCIAL AUTOMOBILE LIABILITY: $1,000,000 per accident for bodily injury and property damage. 3. WORKERS’ COMPENSATION INSURANCE as required by the State of California with statutory limits. 4. EMPLOYER’S LIABILITY: (i) $1,000,000 each accident for bodily injury; (ii) $1,000,000 disease each employee; and, (iii) $1,000,000 disease policy limit. 5. PROFESSIONAL LIABILITY (Errors and Omissions): (i) $1,000,000 per claim/occurrence; and, (ii) $2,000,000 policy aggregate. UMBRELLA OR EXCESS INSURANCE In the event the Consultant purchases an Umbrella or Excess insurance policy(ies) to meet the “Minimum Limits of Insurance,” this insurance policy(ies) shall “follow form” and afford no less coverage than the primary insurance policy(ies). In addition, such Umbrella or Excess insurance policy(ies) shall also apply on a primary and non-contributory basis for the benefit of the City, its officers, officials, employees, agents, and volunteers. DEDUCTIBLES AND SELF-INSURED RETENTIONS The Consultant shall be responsible for payment of any deductibles contained in any insurance policy(ies) required herein and the Consultant shall also be responsible for payment of any self-insured retentions. Any deductibles or self-insured retentions must be declared on the Certificate of Insurance, and approved by, the City’s Risk Manager or designee. At the option of the City’s Risk Manager or designee, either: (i) The insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the City, its officers, officials, employees, agents, and volunteers; or (ii) The Consultant shall provide a financial guarantee, satisfactory to the City’s Risk Manager or designee, guaranteeing payment of losses and related investigations, claim administration and defense expenses. At no time shall the City be responsible for the payment of any deductibles or self-insured retentions. OTHER INSURANCE PROVISIONS The General Liability and Automobile Liability insurance policies are to contain, or be endorsed to contain, the following provisions: 1. The City, its officers, officials, employees, agents, and volunteers are to be covered as additional insureds. the Consultant shall establish additional insured status for the City and for all ongoing and completed operations by use of ISO Form CG 20 10 11 85 or both CG 20 10 10 01 and CG 20 37 10 01 or by an executed manuscript insurance company endorsement providing additional insured status as broad as that contained         FYI-S Fed Fund Eng. Serv. CSA, Short Form, Total Fee (11-2022) Exhibit B Page 3 of 4 in ISO Form CG 20 10 11 85. 2. The coverage shall contain no special limitations on the scope of protection afforded to the City, its officers, officials, employees, agents, and volunteers. Any available insurance proceeds in excess of the specified minimum limits and coverage shall be available to the Additional Insured. 3. For any claims relating to this Agreement, the Consultant’s insurance coverage shall be primary insurance with respect to the City, its officers, officials, employees, agents, and volunteers. Any insurance or self- insurance maintained by the City, its officers, officials, employees, agents, and volunteers shall be excess of the Consultant’s insurance and shall not contribute with it. The Consultant shall establish primary and non- contributory status by using ISO Form CG 20 01 04 13 or by an executed manuscript insurance company endorsement that provides primary and non-contributory status as broad as that contained in ISO Form CG 20 01 04 13. The Workers’ Compensation insurance policy is to contain, or be endorsed to contain, the following provision: the Consultant and its insurer shall waive any right of subrogation against the City, its officers, officials, employees, agents, and volunteers. If the Professional Liability (Errors and Omissions) insurance policy is written on a claims- made form: 1. The retroactive date must be shown, and must be before the effective date of the Agreement or the commencement of work by the Consultant. 2. Insurance must be maintained and evidence of insurance must be provided for at least five years after completion of the Agreement work or termination of the Agreement, whichever occurs first, or, in the alternative, the policy shall be endorsed to provide not less than a five-year discovery period. 3. If coverage is canceled or non-renewed, and not replaced with another claims-made policy form with a retroactive date prior to the effective date of the Agreement or the commencement of work by the Consultant, the Consultant must purchase “extended reporting” coverage for a minimum of five Years after completion of the Agreement work or termination of the Agreement, whichever occurs first. 4. A copy of the claims reporting requirements must be submitted to the City for review. 5. These requirements shall survive expiration or termination of the Agreement. All policies of insurance required herein shall be endorsed to provide that the coverage shall not be cancelled, non-renewed, reduced in coverage or in limits except after thirty calendar days’ written notice by certified mail, return receipt requested, has been given to the City. The Consultant is also responsible for providing written notice to the City under the same terms and conditions. Upon issuance by the insurer, broker, or agent of a notice of cancellation, non-renewal, or reduction in coverage or in limits, the Consultant         FYI-S Fed Fund Eng. Serv. CSA, Short Form, Total Fee (11-2022) Exhibit B Page 4 of 4 shall furnish the City with a new certificate and applicable endorsements for such policy(ies). In the event any policy is due to expire during the work to be performed for the City, the Consultant shall provide a new certificate, and applicable endorsements, evidencing renewal of such policy not less than fifteen calendar days prior to the expiration date of the expiring policy. VERIFICATION OF COVERAGE The Consultant shall furnish the City with all certificate(s) and applicable endorsements effecting coverage required hereunder. All certificates and applicable endorsements are to be received and approved by the City’s Risk Manager or designee prior to the City’s execution of the Agreement and before work commences. All non-ISO endorsements amending policy coverage shall be executed by a licensed and authorized agent or broker. Upon request of the City, the Consultant shall immediately furnish City with a complete copy of any insurance policy required under this Agreement, including all endorsements, with said copy certified by the underwriter to be a true and correct copy of the original policy. This requirement shall survive expiration or termination of this Agreement.         FYI-S Fed Fund Eng. Serv. CSA, Short Form, Total Fee (11-2022) Exhibit C Page 1 of 1 EXHIBIT C DISCLOSURE OF CONFLICT OF INTEREST FAT Air Traffic Control Tower Replacement and Implementation Study YES* NO 1 Are you currently in litigation with the City of Fresno or any of its agents? 2 Do you represent any firm, organization, or person who is in litigation with the City of Fresno? 3 Do you currently represent or perform work for any clients who do business with the City of Fresno? 4 Are you or any of your principals, managers, or professionals, owners or investors in a business which does business with the City of Fresno, or in a business which is in litigation with the City of Fresno? 5 Are you or any of your principals, managers, or professionals, related by blood or marriage to any City of Fresno employee who has any significant role in the subject matter of this service? 6 Do you or any of your subcontractors have, or expect to have, any interest, direct or indirect, in any other contract in connection with this Project? * If the answer to any question is yes, please explain in full below. Explanation: Signature Date (Name) (Company) (Address) Additional page(s) attached. (City, State Zip) x x x x x x SiSSSSgnature 2/13/2023 Joseph P. Jackson RS&H California, Inc. 369 Pine St. Suite 610 San Francisco, CA 94104         FYI-S Fed Fund Eng. Consultant Service Agreement, Short Form Total Fee (11-2022) Exhibit D Page 1 of 21 EXHIBIT D ASSURANCES Consultant Service Agreement between City of Fresno (City) and [Consultant Name] (Consultant) A. I. P. PROJECT NO. [AIP number(s)] [Project Title] During the performance of this Agreement (“contract” or “contract documents”), the Consultant, for itself, its assignees and successors in interest (collectively as “the contractor" or “the Consultant”) agrees as follows (hereafter, the ‘City” is referred to as “Sponsor”): I. PROVISIONS APPLICABLE TO ALL PROFESSIONAL SERVICES CONTRACTS A. ACCESS TO RECORDS AND REPORTS The contractor must maintain an acceptable cost accounting system. The contractor agrees to provide the sponsor, the Federal Aviation Administration, and the Comptroller General of the United States or any of their duly authorized representatives’ access to any books, documents, papers, and records of the contractor which are directly pertinent to the specific contract for the purpose of making audit, examination, excerpts and transcriptions. The contractor agrees to maintain all books, records and reports required under this contract for a period of not less than three years after final payment is made and all pending matters are closed. B. BUY AMERICAN CERTIFICATION The contractor agrees to comply with 49 USC § 50101, which provides that Federal funds may not be obligated unless all steel and manufactured goods used in AIP-funded projects are produced in the United States, unless the FAA has issued a waiver for the product; the product is listed as an Excepted Article, Material Or Supply in Federal Acquisition Regulation subpart 25.108; or is included in the FAA Nationwide Buy American Waivers Issued list. A bidder or offeror must submit the appropriate Buy America Certification (below) with all bids or offers on Airport Improvement Program (“AIP”)-funded projects. Bids or offers that are not accompanied by a completed Buy America certification must be rejected as nonresponsive. Type of Certification is based on Type of Project: There are two types of Buy American certifications. x For projects for a facility, the Certificate of Compliance Based on Total Facility (Terminal or Building Project) must be submitted. x For all other projects, the Certificate of Compliance Based on Equipment and Materials Used on the Project (Non-building construction projects such as runway or roadway construction; or equipment acquisition projects) must be         FYI-S Fed Fund Eng. Consultant Service Agreement, Short Form Total Fee (11-2022) Exhibit D Page 2 of 21 submitted. See Attachments A and B: Buy American Certifications C. GENERAL CIVIL RIGHTS PROVISIONS The contractor agrees that it will comply with pertinent statutes, Executive Orders and such rules as are promulgated to ensure that no person shall, on the grounds of race, creed, color, national origin, sex, age, or handicap be excluded from participating in any activity conducted with or benefiting from Federal assistance. This provision binds the contractor from the bid solicitation period through the completion of the contract. This provision is in addition to that required of Title VI of the Civil Rights Act of 1964. This provision also obligates the tenant/concessionaire/lessee or its transferee for the period during which Federal assistance is extended to the airport through the Airport Improvement Program, except where Federal assistance is to provide, or is in the form of personal property; real property or interest therein; structures or improvements thereon. In these cases the provision obligates the party or any transferee for the longer of the following periods: a. The period during which the property is used by the airport sponsor or any transferee for a purpose for which Federal assistance is extended, or for another purpose involving the provision of similar services or benefits; or b. The period during which the airport sponsor or any transferee retains ownership or possession of the property. D. CIVIL RIGHTS ACT OF 1964, TITLE VI Compliance with Nondiscrimination Requirements - During the performance of this contract, the contractor, for itself, its assignees, and successors in interest (hereinafter referred to as the “contractor”) agrees as follows: 1. Compliance with Regulations: The contractor (hereinafter includes consultants) will comply with the Title VI List of Pertinent Nondiscrimination Statutes and Authorities, as they may be amended from time to time, which are herein incorporated by reference and made a part of this contract. 2. Non-discrimination: The contractor, with regard to the work performed by it during the contract, will not discriminate on the grounds of race, color, or national origin in the selection and retention of subcontractors, including procurements of materials and leases of equipment. The contractor will not participate directly or indirectly in the discrimination prohibited by the Acts and the Regulations, including employment practices when the contract covers any activity, project, or program set forth in Appendix B of 49 CFR part 21. 3. Solicitations for Subcontracts, Including Procurements of Materials and Equipment: In all solicitations, either by competitive bidding, or negotiation made by the contractor for work to be performed under a subcontract, including procurements of materials, or leases of equipment, each potential subcontractor or supplier will be notified by the contractor of the contractor’s         FYI-S Fed Fund Eng. Consultant Service Agreement, Short Form Total Fee (11-2022) Exhibit D Page 3 of 21 obligations under this contract and the Acts and the Regulations relative to Non-discrimination on the grounds of race, color, or national origin. 4. Information and Reports: The contractor will provide all information and reports required by the Acts, the Regulations, and directives issued pursuant thereto and will permit access to its books, records, accounts, other sources of information, and its facilities as may be determined by the sponsor or the Federal Aviation Administration to be pertinent to ascertain compliance with such Acts, Regulations, and instructions. Where any information required of a contractor is in the exclusive possession of another who fails or refuses to furnish the information, the contractor will so certify to the sponsor or the Federal Aviation Administration, as appropriate, and will set forth what efforts it has made to obtain the information. 5. Sanctions for Noncompliance: In the event of a contractor’s noncompliance with the Non-discrimination provisions of this contract, the sponsor will impose such contract sanctions as it or the Federal Aviation Administration may determine to be appropriate, including, but not limited to: a. Withholding payments to the contractor under the contract until the contractor complies; and/or b. Cancelling, terminating, or suspending a contract, in whole or in part. 6. Incorporation of Provisions: The contractor will include the provisions of paragraphs one through six in every subcontract, including procurements of materials and leases of equipment, unless exempt by the Acts, the Regulations and directives issued pursuant thereto. The contractor will take action with respect to any subcontract or procurement as the sponsor or the Federal Aviation Administration may direct as a means of enforcing such provisions including sanctions for noncompliance. Provided, that if the contractor becomes involved in, or is threatened with litigation by a subcontractor, or supplier because of such direction, the contractor may request the sponsor to enter into any litigation to protect the interests of the sponsor. In addition, the contractor may request the United States to enter into the litigation to protect the interests of the United States. E. DISADVANTAGED BUSINESS ENTERPRISES Contract Assurance (§ 26.13) – The contractor or subcontractor shall not discriminate on the basis of race, color, national origin, or sex in the performance of this contract. The contractor shall carry out applicable requirements of 49 CFR Part 26 in the award and administration of DOT assisted contracts. Failure by the contractor to carry out these requirements is a material breach of this contract, which may result in the termination of this contract or such other remedy, as the recipient deems appropriate. Prompt Payment (§26.29) - The prime contractor agrees to pay each subcontractor under this prime contract for satisfactory performance of its contract no later than {specify number} days from the receipt of each payment the prime contractor receives from {Name of recipient}. The prime contractor agrees further to return retainage payments to each         FYI-S Fed Fund Eng. Consultant Service Agreement, Short Form Total Fee (11-2022) Exhibit D Page 4 of 21 subcontractor within {specify the same number as above} days after the subcontractor’s work is satisfactorily completed. Any delay or postponement of payment from the above referenced time frame may occur only for good cause following written approval of the {Name of Recipient}. This clause applies to both DBE and non-DBE subcontractors. F. FEDERAL FAIR LABOR STANDARDS ACT (MINIMUM WAGE) All contracts and subcontracts that result from this solicitation incorporate the following provisions by reference, with the same force and effect as if given in full text. The contractor has full responsibility to monitor compliance to the referenced statute or regulation. The contractor must address any claims or disputes that pertain to a referenced requirement directly with the Federal Agency with enforcement responsibilities. Requirement Federal Agency with Enforcement Responsibilities Federal Fair Labor Standards Act (29 USC 201) U.S. Department of Labor – Wage and Hour Division G. OCCUPATIONAL SAFETY AND HEALTH ACT OF 1970 All contracts and subcontracts that result from this solicitation incorporate the following provisions by reference, with the same force and effect as if given in full text. The contractor has full responsibility to monitor compliance to the referenced statute or regulation. The contractor must address any claims or disputes that pertain to a referenced requirement directly with the Federal Agency with enforcement responsibilities. Requirement Federal Agency with Enforcement Responsibilities Occupational Safety and Health Act of 1970 (20 CFR Part 1910) U.S. Department of Labor – Occupational Safety and Health Administration H. RIGHTS TO INVENTIONS All rights to inventions and materials generated under this contract are subject to regulations issued by the FAA and the Sponsor of the Federal grant under which this contract is executed. I. TRADE RESTRICTION CLAUSE The contractor or subcontractor, by submission of an offer and/or execution of a contract, certifies that it: a. Is not owned or controlled by one or more citizens of a foreign country included in the list of countries that discriminate against U.S. firms published by the Office of the United States Trade Representative (USTR);         FYI-S Fed Fund Eng. Consultant Service Agreement, Short Form Total Fee (11-2022) Exhibit D Page 5 of 21 b. Has not knowingly entered into any contract or subcontract for this project with a person that is a citizen or national of a foreign country on said list, or is owned or controlled directly or indirectly by one or more citizens or nationals of a foreign country on said list; c. Has not procured any product nor subcontracted for the supply of any product for use on the project that is produced in a foreign country on said list. Unless the restrictions of this clause are waived by the Secretary of Transportation in accordance with 49 CFR 30.17, no contract shall be awarded to a contractor or subcontractor who is unable to certify to the above. If the contractor knowingly procures or subcontracts for the supply of any product or service of a foreign country on said list for use on the project, the Federal Aviation Administration may direct through the Sponsor cancellation of the contract at no cost to the Government. Further, the contractor agrees that, if awarded a contract resulting from this solicitation, it will incorporate this provision for certification without modification in each contract and in all lower tier subcontracts. The contractor may rely on the certification of a prospective subcontractor unless it has knowledge that the certification is erroneous. The contractor shall provide immediate written notice to the sponsor if the contractor learns that its certification or that of a subcontractor was erroneous when submitted or has become erroneous by reason of changed circumstances. The subcontractor agrees to provide written notice to the contractor if at any time it learns that its certification was erroneous by reason of changed circumstances. This certification is a material representation of fact upon which reliance was placed when making the award. If it is later determined that the contractor or subcontractor knowingly rendered an erroneous certification, the Federal Aviation Administration may direct through the Sponsor cancellation of the contract or subcontract for default at no cost to the Government. Nothing contained in the foregoing shall be construed to require establishment of a system of records in order to render, in good faith, the certification required by this provision. The knowledge and information of a contractor is not required to exceed that which is normally possessed by a prudent person in the ordinary course of business dealings. This certification concerns a matter within the jurisdiction of an agency of the United States of America and the making of a false, fictitious, or fraudulent certification may render the maker subject to prosecution under Title 18, United States Code, Section 1001. J. BAN ON TEXTING AND DRIVING The contractor shall adopt and enforce workplace safety policies to decrease crashes caused by distracted drivers, including policies to ban text messaging while driving when performing any work for, or on behalf of, the Federal government. The contractor further agrees to conduct workplace safety initiatives commensurate with the size of its business, such as establishing rules or programs that prohibit text messaging while driving and education, awareness, and other outreach to employees about the safety risks associated with texting while driving.         FYI-S Fed Fund Eng. Consultant Service Agreement, Short Form Total Fee (11-2022) Exhibit D Page 6 of 21 K. COPELAND “ANTI-KICKBACK” ACT Contractor must comply with the requirements of the Copeland “Anti-Kickback” Act (18 USC 874 and 40 USC 3145), as supplemented by Department of Labor regulation 29 CFR part 3. Contractor and subcontractors are prohibited from inducing, by any means, any person employed on the project to give up any part of the compensation to which the employee is entitled. The Contractor and each Subcontractor must submit to the Owner, a weekly statement on the wages paid to each employee performing on covered work during the prior week. Owner must report any violations of the Act to the Federal Aviation Administration. L. DAVIS-BACON REQUIREMENTS 1. Minimum Wages. (i) All laborers and mechanics employed or working upon the site of the work will be paid unconditionally and not less often than once a week, and without subsequent deduction or rebate on any account (except such payroll deductions as are permitted by the Secretary of Labor under the Copeland Act (29 CFR Part 3)), the full amount of wages and bona fide fringe benefits (or cash equivalent thereof) due at time of payment computed at rates not less than those contained in the wage determination of the Secretary of Labor which is attached hereto and made a part hereof, regardless of any contractual relationship which may be alleged to exist between the Contractor and such laborers and mechanics. Contributions made or costs reasonably anticipated for bona fide fringe benefits under section 1(b)(2) of the Davis-Bacon Act on behalf of laborers or mechanics are considered wages paid to such laborers or mechanics, subject to the provisions of paragraph (1)(iv) of this section; also, regular contributions made or costs incurred for more than a weekly period (but not less often than quarterly) under plans, funds, or programs which cover the particular weekly period, are deemed to be constructively made or incurred during such weekly period. Such laborers and mechanics shall be paid the appropriate wage rate and fringe benefits on the wage determination for the classification of work actually performed, without regard to skill, except as provided in 29 CFR Part 5.5(a)(4). Laborers or mechanics performing work in more than one classification may be compensated at the rate specified for each classification for the time actually worked therein: Provided that the employer’s payroll records accurately set forth the time spent in each classification in which work is performed. The wage determination (including any additional classification and wage rates conformed under (1)(ii) of this section) and the Davis-Bacon poster (WH- 1321) shall be posted at all times by the Contractor and its subcontractors at the site of the work in a prominent and accessible place where it can easily be seen by the workers. (ii)(A) The contracting officer shall require that any class of laborers or mechanics, including helpers, which is not listed in the wage determination and which is to be employed under the contract shall be classified in conformance with the wage determination. The contracting officer shall approve an additional classification and wage rate and fringe benefits therefore only when the following criteria have been met: (1) The work to be performed by the classification requested is not performed by a classification in the wage determination; (2) The classification is utilized in the area by the construction industry; and         FYI-S Fed Fund Eng. Consultant Service Agreement, Short Form Total Fee (11-2022) Exhibit D Page 7 of 21 (3) The proposed wage rate, including any bona fide fringe benefits, bears a reasonable relationship to the wage rates contained in the wage determination. (B) If the Contractor and the laborers and mechanics to be employed in the classification (if known), or their representatives, and the contracting officer agree on the classification and wage rate (including the amount designated for fringe benefits where appropriate), a report of the action taken shall be sent by the contracting officer to the Administrator of the Wage and Hour Division, Employment Standards Administration, U.S. Department of Labor, Washington, DC 20210. The Administrator, or an authorized representative, will approve, modify, or disapprove every additional classification action within 30 days of receipt and so advise the contracting officer or will notify the contracting officer within the 30-day period that additional time is necessary. (C) In the event the Contractor, the laborers, or mechanics to be employed in the classification, or their representatives, and the contracting officer do not agree on the proposed classification and wage rate (including the amount designated for fringe benefits where appropriate), the contracting officer shall refer the questions, including the views of all interested parties and the recommendation of the contracting officer, to the Administrator for determination. The Administrator, or an authorized representative, will issue a determination within 30 days of receipt, and so advise the contracting officer or will notify the contracting officer within the 30-day period that additional time is necessary. (D) The wage rate (including fringe benefits where appropriate) determined pursuant to subparagraphs (1)(ii) (B) or (C) of this paragraph, shall be paid to all workers performing work in the classification under this contract from the first day on which work is performed in the classification. (E) Whenever the minimum wage rate prescribed in the contract for a class of laborers or mechanics includes a fringe benefit which is not expressed as an hourly rate, the contractor shall either pay the benefit as stated in the wage determination or shall pay another bona fide fringe benefit or an hourly cash equivalent thereof. (F) If the Contractor does not make payments to a trustee or other third person, the Contractor may consider as part of the wages of any laborer or mechanic the amount of any costs reasonably anticipated in providing bona fide fringe benefits under a plan or program: Provided that the Secretary of Labor has found, upon the written request of the Contractor, that the applicable standards of the Davis-Bacon Act have been met. The Secretary of Labor may require the Contractor to set aside in a separate account assets for the meeting of obligations under the plan or program. 2. Withholding. The Federal Aviation Administration or the sponsor shall upon its own action or upon written request of an authorized representative of the Department of Labor withhold or cause to be withheld from the Contractor under this contract or any other Federal contract with the same prime contractor, or any other federally-assisted contract subject to Davis- Bacon prevailing wage requirements, which is held by the same prime contractor, so much of the accrued payments or advances as may be considered necessary to pay laborers and mechanics, including apprentices, trainees, and helpers, employed by the Contractor or any subcontractor the full amount of wages required by the contract. In the event of failure to pay any laborer or mechanic, including any apprentice, trainee, or         FYI-S Fed Fund Eng. Consultant Service Agreement, Short Form Total Fee (11-2022) Exhibit D Page 8 of 21 helper, employed or working on the site of work, all or part of the wages required by the contract, the Federal Aviation Administration may, after written notice to the Contractor, Sponsor, Applicant, or Owner, take such action as may be necessary to cause the suspension of any further payment, advance, or guarantee of funds until such violations have ceased. 3. Payrolls and Basic Records. (i) Payrolls and basic records relating thereto shall be maintained by the Contractor during the course of the work and preserved for a period of three years thereafter for all laborers and mechanics working at the site of the work. Such records shall contain the name, address, and social security number of each such worker; his or her correct classification; hourly rates of wages paid (including rates of contributions or costs anticipated for bona fide fringe benefits or cash equivalents thereof of the types described in 1(b)(2)(B) of the Davis-Bacon Act); daily and weekly number of hours worked; deductions made; and actual wages paid. Whenever the Secretary of Labor has found under 29 CFR 5.5(a)(1)(iv) that the wages of any laborer or mechanic include the amount of any costs reasonably anticipated in providing benefits under a plan or program described in section 1(b)(2)(B) of the Davis-Bacon Act, the Contractor shall maintain records that show that the commitment to provide such benefits is enforceable, that the plan or program is financially responsible, and that the plan or program has been communicated in writing to the laborers or mechanics affected, and that show the costs anticipated or the actual costs incurred in providing such benefits. Contractors employing apprentices or trainees under approved programs shall maintain written evidence of the registration of apprenticeship programs and certification of trainee programs, the registration of the apprentices and trainees, and the ratios and wage rates prescribed in the applicable programs. (ii)(A) The Contractor shall submit weekly for each week in which any contract work is performed a copy of all payrolls to the Federal Aviation Administration if the agency is a party to the contract, but if the agency is not such a party, the Contractor will submit the payrolls to the applicant, Sponsor, or Owner, as the case may be, for transmission to the Federal Aviation Administration. The payrolls submitted shall set out accurately and completely all of the information required to be maintained under 29 CFR 5.5(a)(3)(i), except that full social security numbers and home addresses shall not be included on weekly transmittals. Instead the payrolls shall only need to include an individually identifying number for each employee (e.g. the last four digits of the employee’s social security number). The required weekly payroll information may be submitted in any form desired. Optional Form WH–347 is available for this purpose from the Wage and Hour Division Web site at www.dol.gov/whd/forms/wh347instr.htm or its successor site. The prime contractor is responsible for the submission of copies of payrolls by all subcontractors. Contractors and subcontractors shall maintain the full social security number and current address of each covered worker and shall provide them upon request to the Federal Aviation Administration if the agency is a party to the contract, but if the agency is not such a party, the Contractor will submit them to the applicant, sponsor, or Owner, as the case may be, for transmission to the Federal Aviation Administration, the Contractor, or the Wage and Hour Division of the Department of Labor for purposes of an investigation or audit of compliance with prevailing wage requirements. It is not a violation of this section for a prime contractor to require a subcontractor to provide addresses and         FYI-S Fed Fund Eng. Consultant Service Agreement, Short Form Total Fee (11-2022) Exhibit D Page 9 of 21 social security numbers to the prime contractor for its own records, without weekly submission to the sponsoring government agency (or the applicant, Sponsor, or Owner). (B) Each payroll submitted shall be accompanied by a "Statement of Compliance," signed by the Contractor or subcontractor or his or her agent who pays or supervises the payment of the persons employed under the contract and shall certify the following: (1) The payroll for the payroll period contains the information required to be provided under 29 CFR § 5.5(a)(3)(ii), the appropriate information is being maintained under 29 CFR § 5.5 (a)(3)(i), and that such information is correct and complete; (2) Each laborer and mechanic (including each helper, apprentice, and trainee) employed on the contract during the payroll period has been paid the full weekly wages earned, without rebate, either directly or indirectly, and that no deductions have been made either directly or indirectly from the full wages earned, other than permissible deductions as set forth in Regulations 29 CFR Part 3; (3) Each laborer or mechanic has been paid not less than the applicable wage rates and fringe benefits or cash equivalents for the classification of work performed, as specified in the applicable wage determination incorporated into the contract. (C) The weekly submission of a properly executed certification set forth on the reverse side of Optional Form WH-347 shall satisfy the requirement for submission of the “Statement of Compliance” required by paragraph (3)(ii)(B) of this section. (D) The falsification of any of the above certifications may subject the Contractor or subcontractor to civil or criminal prosecution under Section 1001 of Title 18 and Section 231 of Title 31 of the United States Code. (iii) The Contractor or subcontractor shall make the records required under paragraph (3)(i) of this section available for inspection, copying, or transcription by authorized representatives of the sponsor, the Federal Aviation Administration, or the Department of Labor and shall permit such representatives to interview employees during working hours on the job. If the Contractor or subcontractor fails to submit the required records or to make them available, the Federal agency may, after written notice to the Contractor, Sponsor, applicant, or Owner, take such action as may be necessary to cause the suspension of any further payment, advance, or guarantee of funds. Furthermore, failure to submit the required records upon request or to make such records available may be grounds for debarment action pursuant to 29 CFR 5.12. 4. Apprentices and Trainees. (i) Apprentices. Apprentices will be permitted to work at less than the predetermined rate for the work they performed when they are employed pursuant to and individually registered in a bona fide apprenticeship program registered with the U.S. Department of Labor, Employment and Training Administration, Bureau of Apprenticeship and Training, or with a State Apprenticeship Agency recognized by the Bureau, or if a person is employed in his or her first 90 days of probationary employment as an apprentice in such an apprenticeship program, who is not individually registered in the program, but who has been certified by the Bureau of Apprenticeship and Training or a State Apprenticeship Agency (where appropriate) to be eligible for probationary employment as an apprentice. The allowable ratio of apprentices to journeymen on the job site in any craft classification shall not be greater than the ratio permitted to the contractor as to the entire work force under the registered program. Any worker listed on a payroll at an apprentice wage rate, who is not registered or otherwise employed as stated above, shall be paid not less than         FYI-S Fed Fund Eng. Consultant Service Agreement, Short Form Total Fee (11-2022) Exhibit D Page 10 of 21 the applicable wage rate on the wage determination for the classification of work actually performed. In addition, any apprentice performing work on the job site in excess of the ratio permitted under the registered program shall be paid not less than the applicable wage rate on the wage determination for the work actually performed. Where a contractor is performing construction on a project in a locality other than that in which its program is registered, the ratios and wage rates (expressed in percentages of the journeyman’s hourly rate) specified in the Contractor’s or subcontractor’s registered program shall be observed. Every apprentice must be paid at not less than the rate specified in the registered program for the apprentice’s level of progress, expressed as a percentage of the journeymen hourly rate specified in the applicable wage determination. Apprentices shall be paid fringe benefits in accordance with the provisions of the apprenticeship program. If the apprenticeship program does not specify fringe benefits, apprentices must be paid the full amount of fringe benefits listed on the wage determination for the applicable classification. If the Administrator determines that a different practice prevails for the applicable apprentice classification, fringes shall be paid in accordance with that determination. In the event the Bureau of Apprenticeship and Training, or a State Apprenticeship Agency recognized by the Bureau, withdraws approval of an apprenticeship program, the Contractor will no longer be permitted to utilize apprentices at less than the applicable predetermined rate for the work performed until an acceptable program is approved. (ii) Trainees. Except as provided in 29 CFR 5.16, trainees will not be permitted to work at less than the predetermined rate for the work performed unless they are employed pursuant to and individually registered in a program which has received prior approval, evidenced by formal certification by the U.S. Department of Labor, Employment and Training Administration. The ratio of trainees to journeymen on the job site shall not be greater than permitted under the plan approved by the Employment and Training Administration. Every trainee must be paid at not less than the rate specified in the approved program for the trainee’s level of progress, expressed as a percentage of the journeyman hourly rate specified in the applicable wage determination. Trainees shall be paid fringe benefits in accordance with the provisions of the trainee program. If the trainee program does not mention fringe benefits, trainees shall be paid the full amount of fringe benefits listed on the wage determination unless the Administrator of the Wage and Hour Division determines that there is an apprenticeship program associated with the corresponding journeyman wage rate on the wage determination that provides for less than full fringe benefits for apprentices. Any employee listed on the payroll at a trainee rate that is not registered and participating in a training plan approved by the Employment and Training Administration shall be paid not less than the applicable wage rate on the wage determination for the classification of work actually performed. In addition, any trainee performing work on the job site in excess of the ratio permitted under the registered program shall be paid not less than the applicable wage rate on the wage determination for the work actually performed. In the event the Employment and Training Administration withdraws approval of a training program, the Contractor will no longer be permitted to utilize trainees at less than the applicable predetermined rate for the work performed until an acceptable program is approved. (iii) Equal Employment Opportunity. The utilization of apprentices, trainees, and journeymen under this part shall be in conformity with the equal employment opportunity         FYI-S Fed Fund Eng. Consultant Service Agreement, Short Form Total Fee (11-2022) Exhibit D Page 11 of 21 requirements of Executive Order 11246, as amended, and 29 CFR Part 30. 5. Compliance with Copeland Act Requirements. The Contractor shall comply with the requirements of 29 CFR Part 3, which are incorporated by reference in this contract. 6. Subcontracts. The Contractor or subcontractor shall insert in any subcontracts the clauses contained in 29 CFR Part 5.5(a)(1) through (10) and such other clauses as the Federal Aviation Administration may by appropriate instructions require, and also a clause requiring the subcontractors to include these clauses in any lower tier subcontracts. The prime contractor shall be responsible for the compliance by any subcontractor or lower tier subcontractor with all the contract clauses in 29 CFR Part 5.5. 7. Contract Termination: Debarment. A breach of the contract clauses in paragraph 1 through 10 of this section may be grounds for termination of the contract, and for debarment as a contractor and a subcontractor as provided in 29 CFR 5.12. 8. Compliance with Davis-Bacon and Related Act Requirements. All rulings and interpretations of the Davis-Bacon and Related Acts contained in 29 CFR Parts 1, 3, and 5 are herein incorporated by reference in this contract. 9. Disputes Concerning Labor Standards. Disputes arising out of the labor standards provisions of this contract shall not be subject to the general disputes clause of this contract. Such disputes shall be resolved in accordance with the procedures of the Department of Labor set forth in 29 CFR Parts 5, 6, and 7. Disputes within the meaning of this clause include disputes between the Contractor (or any of its subcontractors) and the contracting agency, the U.S. Department of Labor, or the employees or their representatives. 10. Certification of Eligibility. (i) By entering into this contract, the Contractor certifies that neither it (nor he or she) nor any person or firm who has an interest in the Contractor’s firm is a person or firm ineligible to be awarded Government contracts by virtue of section 3(a) of the Davis- Bacon Act or 29 CFR 5.12(a)(1). (ii) No part of this contract shall be subcontracted to any person or firm ineligible for award of a Government contract by virtue of section 3(a) of the Davis-Bacon Act or 29 CFR 5.12(a)(1). (iii) The penalty for making false statements is prescribed in the U.S. Criminal Code, 18 USC 1001. M. ENERGY CONSERVATION REQUIREMENTS Contractor and Subcontractor agree to comply with mandatory standards and policies relating to energy efficiency as contained in the state energy conservation plan issued in compliance with the Energy Policy and Conservation Act (42 USC 6201et seq.). N. FAIR LABOR STANDARDS ACT All contracts and subcontracts that result from this solicitation incorporate by reference the provisions of 29 CFR part 201, the Federal Fair Labor Standards Act (FLSA), with the same force and effect as if given in full text. The FLSA sets minimum wage, overtime pay, recordkeeping, and child labor standards for full and part-time workers.         FYI-S Fed Fund Eng. Consultant Service Agreement, Short Form Total Fee (11-2022) Exhibit D Page 12 of 21 The contractor has full responsibility to monitor compliance to the referenced statute or regulation. The contractor must address any claims or disputes that arise from this requirement directly with the U.S. Department of Labor – Wage and Hour Division. II. PROVISION APPLICABLE TO PROFESSIONAL SERVICES CONTRACTS $10,000 AND GREATER A. TERMINATION OF CONTRACT 1. The Sponsor may, by written notice, terminate this contract in whole or in part at any time, either for the Sponsor's convenience or because of failure to fulfill the contract obligations. Upon receipt of such notice services must be immediately discontinued (unless the notice directs otherwise) and all materials as may have been accumulated in performing this contract, whether completed or in progress, delivered to the Sponsor. 2. If the termination is for the convenience of the Sponsor, an equitable adjustment in the contract price will be made, but no amount will be allowed for anticipated profit on unperformed services. 3. If the termination is due to failure to fulfill the contractor's obligations, the Sponsor may take over the work and prosecute the same to completion by contract or otherwise. In such case, the contractor is liable to the Sponsor for any additional cost occasioned to the Sponsor thereby. 4. If, after notice of termination for failure to fulfill contract obligations, it is determined that the contractor had not so failed, the termination will be deemed to have been effected for the convenience of the Sponsor. In such event, adjustment in the contract price will be made as provided in paragraph 2 of this clause. 5. The rights and remedies of the sponsor provided in this clause are in addition to any other rights and remedies provided by law or under this contract. B. AFFIRMATIVE ACTION Minority Participation. Sponsors are required to set goals for minority participation in AIP funded projects exceeding $10,000. The goals for minority participation derive from Economic Area (EA) and Standard Metropolitan Statistical Area (SMSA) as established in Volume 45 of the Federal Register dated 10/3/80. Page 65984 contains a table of all EAs and SMSAs and the associated minority participation goals. To find the goals for minority participation, a sponsor must either refer to the Federal Register Notice or to the Department of Labor online document, “Participation Goals for Minorities and Females”. EAs and SMSAs span state boundaries. A sponsor may have to refer to entries for adjacent states in order to locate the goal for the project location. Female Participation. Executive Order 11246 has set a goal of 6.9% nationally for female participation for all construction projects. This value remains constant for all counties and states. C. EQUAL OPPORTUNITY CLAUSE During the performance of this contract, the Contractor agrees as follows: (1) The Contractor will not discriminate against any employee or applicant for employment because of race, color, religion, sex, or national origin. The         FYI-S Fed Fund Eng. Consultant Service Agreement, Short Form Total Fee (11-2022) Exhibit D Page 13 of 21 Contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex, sexual orientation, gender identify, or national origin. Such action shall include, but not be limited to, the following: employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff, or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The Contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided setting forth the provisions of this nondiscrimination clause. (2) The Contractor will, in all solicitations or advertisements for employees placed by or on behalf of the Contractor, state that all qualified applicants will receive considerations for employment without regard to race, color, religion, sex, or national origin. (3) The Contractor will send to each labor union or representative of workers with which it has a collective bargaining agreement or other contract or understanding, a notice to be provided advising the said labor union or workers’ representatives of the Contractor’s commitments under this section and shall post copies of the notice in conspicuous places available to employees and applicants for employment. (4) The Contractor will comply with all provisions of Executive Order 11246 of September 24, 1965, and of the rules, regulations, and relevant orders of the Secretary of Labor. (5) The Contractor will furnish all information and reports required by Executive Order 11246 of September 24, 1965, and by rules, regulations, and orders of the Secretary of Labor, or pursuant thereto, and will permit access to his books, records, and accounts by the administering agency and the Secretary of Labor for purposes of investigation to ascertain compliance with such rules, regulations, and orders. (6) In the event of the Contractor’s noncompliance with the nondiscrimination clauses of this contract or with any of the said rules, regulations, or orders, this contract may be canceled, terminated, or suspended in whole or in part and the Contractor may be declared ineligible for further Government contracts or federally assisted construction contracts in accordance with procedures authorized in Executive Order 11246 of September 24, 1965, and such other sanctions may be imposed and remedies invoked as provided in Executive Order 11246 of September 24, 1965, or by rule, regulation, or order of the Secretary of Labor, or as otherwise provided by law. (7) The Contractor will include the portion of the sentence immediately preceding paragraph (1) and the provisions of paragraphs (1) through (7) in every subcontract or purchase order unless exempted by rules, regulations, or orders of the Secretary of Labor issued pursuant to section 204 of Executive Order 11246 of September 24, 1965, so that such provisions will be binding upon each subcontractor or vendor. The Contractor will take such action with respect to any subcontract or purchase order as the administering agency may direct as a means of enforcing such provisions, including sanctions for noncompliance: Provided, however, that in the event a contractor becomes involved in, or is         FYI-S Fed Fund Eng. Consultant Service Agreement, Short Form Total Fee (11-2022) Exhibit D Page 14 of 21 threatened with, litigation with a subcontractor or vendor as a result of such direction by the administering agency the Contractor may request the United States to enter into such litigation to protect the interests of the United States. D. STANDARD FEDERAL EQUAL EMPLOYMENT OPPORTUNITY CONSTRUCTION CONTRACT SPECIFICATIONS 1. As used in these specifications: a. “Covered area” means the geographical area described in the solicitation from which this contract resulted; b. “Director” means Director, Office of Federal Contract Compliance Programs (OFCCP), U.S. Department of Labor, or any person to whom the Director delegates authority; c. “Employer identification number” means the Federal social security number used on the Employer’s Quarterly Federal Tax Return, U.S. Treasury Department Form 941; d. “Minority” includes: (1) Black (all persons having origins in any of the Black African racial groups not of Hispanic origin); (2) Hispanic (all persons of Mexican, Puerto Rican, Cuban, Central or South American, or other Spanish culture or origin regardless of race); (3) Asian and Pacific Islander (all persons having origins in any of the original peoples of the Far East, Southeast Asia, the Indian Subcontinent, or the Pacific Islands); and (4) American Indian or Alaskan native (all persons having origins in any of the original peoples of North America and maintaining identifiable tribal affiliations through membership and participation or community identification). 2. Whenever the Contractor, or any subcontractor at any tier, subcontracts a portion of the work involving any construction trade, it shall physically include in each subcontract in excess of $10,000 the provisions of these specifications and the Notice which contains the applicable goals for minority and female participation and which is set forth in the solicitations from which this contract resulted. 3. If the Contractor is participating (pursuant to 41 CFR part 60-4.5) in a Hometown Plan approved by the U.S. Department of Labor in the covered area either individually or through an association, its affirmative action obligations on all work in the Plan area (including goals and timetables) shall be in accordance with that Plan for those trades which have unions participating in the Plan. Contractors shall be able to demonstrate their participation in and compliance with the provisions of any such Hometown Plan. Each contractor or subcontractor participating in an approved plan is individually required to comply with its obligations under the EEO clause and to make a good faith effort to achieve each goal under the Plan in each trade in which it has employees. The overall good faith performance by other contractors or subcontractors toward a goal in an approved Plan does not excuse any covered contractor’s or subcontractor’s failure to take good faith efforts to achieve the Plan goals and timetables. 4. The Contractor shall implement the specific affirmative action standards provided in paragraphs 7a through 7p of these specifications. The goals set forth in the solicitation from which this contract resulted are expressed as percentages of the total hours of         FYI-S Fed Fund Eng. Consultant Service Agreement, Short Form Total Fee (11-2022) Exhibit D Page 15 of 21 employment and training of minority and female utilization the Contractor should reasonably be able to achieve in each construction trade in which it has employees in the covered area. Covered construction contractors performing construction work in a geographical area where they do not have a Federal or federally assisted construction contract shall apply the minority and female goals established for the geographical area where the work is being performed. Goals are published periodically in the Federal Register in notice form, and such notices may be obtained from any Office of Federal Contract Compliance Programs office or from Federal procurement contracting officers. The Contractor is expected to make substantially uniform progress in meeting its goals in each craft during the period specified. 5. Neither the provisions of any collective bargaining agreement nor the failure by a union with whom the Contractor has a collective bargaining agreement to refer either minorities or women shall excuse the Contractor’s obligations under these specifications, Executive Order 11246, or the regulations promulgated pursuant thereto. 6. In order for the non-working training hours of apprentices and trainees to be counted in meeting the goals, such apprentices and trainees shall be employed by the Contractor during the training period and the Contractor shall have made a commitment to employ the apprentices and trainees at the completion of their training, subject to the availability of employment opportunities. Trainees shall be trained pursuant to training programs approved by the U.S. Department of Labor. 7. The Contractor shall take specific affirmative actions to ensure equal employment opportunity. The evaluation of the Contractor’s compliance with these specifications shall be based upon its effort to achieve maximum results from its actions. The Contractor shall document these efforts fully and shall implement affirmative action steps at least as extensive as the following: a. Ensure and maintain a working environment free of harassment, intimidation, and coercion at all sites, and in all facilities at which the Contractor’s employees are assigned to work. The Contractor, where possible, will assign two or more women to each construction project. The Contractor shall specifically ensure that all foremen, superintendents, and other onsite supervisory personnel are aware of and carry out the Contractor’s obligation to maintain such a working environment, with specific attention to minority or female individuals working at such sites or in such facilities. b. Establish and maintain a current list of minority and female recruitment sources, provide written notification to minority and female recruitment sources and to community organizations when the Contractor or its unions have employment opportunities available, and maintain a record of the organizations’ responses. c. Maintain a current file of the names, addresses, and telephone numbers of each minority and female off-the-street applicant and minority or female referral from a union, a recruitment source, or community organization and of what action was taken with respect to each such individual. If such individual was sent to the union hiring hall for referral and was not referred back to the Contractor by the union or, if referred, not employed by the Contractor, this shall be documented in the file with the reason therefore along with whatever additional actions the Contractor may have taken. d. Provide immediate written notification to the Director when the union or unions         FYI-S Fed Fund Eng. Consultant Service Agreement, Short Form Total Fee (11-2022) Exhibit D Page 16 of 21 with which the Contractor has a collective bargaining agreement has not referred to the Contractor a minority person or female sent by the Contractor, or when the Contractor has other information that the union referral process has impeded the Contractor’s efforts to meet its obligations. e. Develop on-the-job training opportunities and/or participate in training programs for the area which expressly include minorities and women, including upgrading programs and apprenticeship and trainee programs relevant to the Contractor’s employment needs, especially those programs funded or approved by the Department of Labor. The Contractor shall provide notice of these programs to the sources compiled under 7b above. f. Disseminate the Contractor’s EEO policy by providing notice of the policy to unions and training programs and requesting their cooperation in assisting the Contractor in meeting its EEO obligations; by including it in any policy manual and collective bargaining agreement; by publicizing it in the company newspaper, annual report, etc.; by specific review of the policy with all management personnel and with all minority and female employees at least once a year; and by posting the company EEO policy on bulletin boards accessible to all employees at each location where construction work is performed. g. Review, at least annually, the company’s EEO policy and affirmative action obligations under these specifications with all employees having any responsibility for hiring, assignment, layoff, termination, or other employment decisions, including specific review of these items, with onsite supervisory personnel such superintendents, general foremen, etc., prior to the initiation of construction work at any job site. A written record shall be made and maintained identifying the time and place of these meetings, persons attending, subject matter discussed, and disposition of the subject matter. h. Disseminate the Contractor’s EEO policy externally by including it in any advertising in the news media, specifically including minority and female news media, and providing written notification to and discussing the Contractor’s EEO policy with other contractors and subcontractors with whom the Contractor does or anticipates doing business. i. Direct its recruitment efforts, both oral and written, to minority, female, and community organizations, to schools with minority and female students; and to minority and female recruitment and training organizations serving the Contractor’s recruitment area and employment needs. Not later than one month prior to the date for the acceptance of applications for apprenticeship or other training by any recruitment source, the Contractor shall send written notification to organizations, such as the above, describing the openings, screening procedures, and tests to be used in the selection process. j. Encourage present minority and female employees to recruit other minority persons and women and, where reasonable, provide after school, summer, and vacation employment to minority and female youth both on the site and in other areas of a contractor’s workforce. k. Validate all tests and other selection requirements where there is an obligation to do so under 41 CFR part 60-3. l. Conduct, at least annually, an inventory and evaluation at least of all minority and         FYI-S Fed Fund Eng. Consultant Service Agreement, Short Form Total Fee (11-2022) Exhibit D Page 17 of 21 female personnel, for promotional opportunities and encourage these employees to seek or to prepare for, through appropriate training, etc., such opportunities. m. Ensure that seniority practices, job classifications, work assignments, and other personnel practices do not have a discriminatory effect by continually monitoring all personnel and employment related activities to ensure that the EEO policy and the Contractor’s obligations under these specifications are being carried out. n. Ensure that all facilities and company activities are non-segregated except that separate or single user toilet and necessary changing facilities shall be provided to assure privacy between the sexes. o. Document and maintain a record of all solicitations of offers for subcontracts from minority and female construction contractors and suppliers, including circulation of solicitations to minority and female contractor associations and other business associations. p. Conduct a review, at least annually, of all supervisor’s adherence to and performance under the Contractor’s EEO policies and affirmative action obligations. 8. Contractors are encouraged to participate in voluntary associations, which assist in fulfilling one or more of their affirmative action obligations (7a through 7p). The efforts of a contractor association, joint contractor union, contractor community, or other similar groups of which the Contractor is a member and participant may be asserted as fulfilling any one or more of its obligations under 7a through 7p of these specifications provided that the Contractor actively participates in the group, makes every effort to assure that the group has a positive impact on the employment of minorities and women in the industry, ensures that the concrete benefits of the program are reflected in the Contractor’s minority and female workforce participation, makes a good faith effort to meet its individual goals and timetables, and can provide access to documentation which demonstrates the effectiveness of actions taken on behalf of the Contractor. The obligation to comply, however, is the Contractor’s and failure of such a group to fulfill an obligation shall not be a defense for the Contractor’s noncompliance. 9. A single goal for minorities and a separate single goal for women have been established. The Contractor, however, is required to provide equal employment opportunity and to take affirmative action for all minority groups, both male and female, and all women, both minority and non-minority. Consequently, if the particular group is employed in a substantially disparate manner (for example, even though the Contractor has achieved its goals for women generally), the Contractor may be in violation of the Executive Order if a specific minority group of women is underutilized. 10. The Contractor shall not use the goals and timetables or affirmative action standards to discriminate against any person because of race, color, religion, sex, or national origin. 11. The Contractor shall not enter into any subcontract with any person or firm debarred from Government contracts pursuant to Executive Order 11246. 12. The Contractor shall carry out such sanctions and penalties for violation of these specifications and of the Equal Opportunity Clause, including suspension, termination, and cancellation of existing. E. PROHIBITION OF SEGREGATED FACILITIES (a) The Contractor agrees that it does not and will not maintain or provide for its employees any segregated facilities at any of its establishments, and that it does not         FYI-S Fed Fund Eng. Consultant Service Agreement, Short Form Total Fee (11-2022) Exhibit D Page 18 of 21 and will not permit its employees to perform their services at any location under its control where segregated facilities are maintained. The Contractor agrees that a breach of this clause is a violation of the Equal Employment Opportunity clause in this contract. (b) “Segregated facilities,” as used in this clause, means any waiting rooms, work areas, rest rooms and wash rooms, restaurants and other eating areas, time clocks, locker rooms and other storage or dressing areas, parking lots, drinking fountains, recreation or entertainment areas, transportation, and housing facilities provided for employees that are segregated by explicit directive or are in fact segregated on the basis of race, color, religion, sex, or national origin because of written or oral policies or employee custom. The term does not include separate or single-user rest rooms or necessary dressing or sleeping areas provided to assure privacy between the sexes. (c) The Contractor shall include this clause in every subcontract and purchase order that is subject to the Equal Employment Opportunity clause of this contract. F. PROCUREMENT OF RECOVERED MATERIALS Contractor and subcontractor agree to comply with Section 6002 of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act, and the regulatory provisions of 40 CFR Part 247. In the performance of this contract and to the extent practicable, the Contractor and subcontractors are to use products containing the highest percentage of recovered materials for items designated by the Environmental Protection Agency (EPA) under 40 CFR Part 247 whenever: 1) The contract requires procurement of $10,000 or more of a designated item during the fiscal year; or 2) The contractor has procured $10,000 or more of a designated item using Federal funding during the previous fiscal year. The list of EPA-designated items is available at www.epa.gov/smm/comprehensive- procurement-guidelines-construction- products. Section 6002(c) establishes exceptions to the preference for recovery of EPA- designated products if the contractor can demonstrate the item is: a) Not reasonably available within a timeframe providing for compliance with the contract performance schedule; b) Fails to meet reasonable contract performance requirements; or c) Is only available at an unreasonable price. III. PROVISION APPLICABLE TO PROFESSIONAL SERVICES CONTRACTS $25,000 AND GREATER A. CERTIFICATIONS REGARDING DEBARMENT AND SUSPENSION 1. CERTIFICATE REGARDING DEBARMENT AND SUSPENSION (BIDDER OR OFFEROR) By submitting a bid/proposal under this solicitation, the bidder or offeror certifies that at the time the bidder or offeror submits its proposal that neither it nor its principals are presently debarred or suspended by any Federal department or agency from participation in this transaction.         FYI-S Fed Fund Eng. Consultant Service Agreement, Short Form Total Fee (11-2022) Exhibit D Page 19 of 21 2. CERTIFICATION REGARDING DEBARMENT AND SUSPENSION (SUCCESSFUL BIDDER REGARDING LOWER TIER PARTICIPANTS) The successful bidder, by administering each lower tier subcontract that exceeds $25,000 as a “covered transaction”, must verify each lower tier participant of a “covered transaction” under the project is not presently debarred or otherwise disqualified from participation in this federally assisted project. The successful bidder will accomplish this by: 1. Checking the System for Award Management at website: http://www.sam.gov 2. Collecting a certification statement similar to the Certificate Regarding Debarment and Suspension (Bidder or Offeror), above. 3. Inserting a clause or condition in the covered transaction with the lower tier contract If the FAA later determines that a lower tier participant failed to tell a higher tier that it was excluded or disqualified at the time it entered the covered transaction, the FAA may pursue any available remedy, including suspension and debarment. IV. PROVISIONS APPLICABLE TO PROFESSIONAL SERVICES CONTRACTS $100,000 AND GREATER A. LOBBYING AND INFLUENCING FEDERAL EMPLOYEES The bidder or offeror certifies by signing and submitting this contract, to the best of his or her knowledge and belief, that: 1) No Federal appropriated funds have been paid or will be paid, by or on behalf of the bidder or offeror, to any person for influencing or attempting to influence an officer or employee of an agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement. 2) If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form-LLL, “Disclosure Form to Report Lobbying,” in accordance with its instructions. This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by section 1352, title 31, U.S. Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure. B. BREACH OF CONTRACT TERMS Any violation or breach of terms of this contract on the part of the contractor or their         FYI-S Fed Fund Eng. Consultant Service Agreement, Short Form Total Fee (11-2022) Exhibit D Page 20 of 21 subcontractors may result in the suspension or termination of this contract or such other action that may be necessary to enforce the rights of the parties of this contract. The duties and obligations imposed by the contract documents and the rights and remedies available thereunder shall be in addition to and not a limitation of any duties, obligations, rights and remedies otherwise imposed or available by law. City will provide contractor written notice that describes the nature of the breach and corrective actions the contractor must undertake in order to avoid termination of the contract. City reserves the right to withhold payments to contractor until such time the Contractor corrects the breach or the City elects to terminate the contract. The City’s notice will identify a specific date by which the contractor must correct the breach. Owner may proceed with termination of the contract if the contractor fails to correct the breach by the deadline indicated in the City’s notice. The duties and obligations imposed by the Contract Documents and the rights and remedies available thereunder are in addition to, and not a limitation of, any duties, obligations, rights and remedies otherwise imposed or available by law. C. CLEAN AIR AND WATER POLLUTION CONTROL Contractors and subcontractors agree: 1. That any facility to be used in the performance of the contract or subcontract or to benefit from the contract is not listed on the Environmental Protection Agency (EPA) List of Violating Facilities; 2. To comply with all the requirements of Section 114 of the Clean Air Act, as amended, 42 U.S.C. 1857 et seq. and Section 308 of the Federal Water Pollution Control Act, as amended, 33 U.S.C. 1251 et seq. relating to inspection, monitoring, entry, reports, and information, as well as all other requirements specified in Section 114 and Section 308 of the Acts, respectively, and all other regulations and guidelines issued thereunder; 3. That, as a condition for the award of this contract, the contractor or subcontractor will notify the awarding official of the receipt of any communication from the EPA indicating that a facility to be used for the performance of or benefit from the contract is under consideration to be listed on the EPA List of Violating Facilities; 4. To include or cause to be included in any construction contract or subcontract which exceeds $150,000 the aforementioned criteria and requirements. D. CONTRACT WORK HOURS AND SAFETY STANDARDS ACT REQUIREMENTS 1. Overtime Requirements. No contractor or subcontractor contracting for any part of the contract work which may require or involve the employment of laborers or mechanics shall require or permit any such laborer or mechanic, including watchmen and guards, in any workweek in which he or she is employed on such work to work in excess of forty hours in such workweek unless such laborer or mechanic receives compensation at a rate not less than one and one-half times the basic rate of pay for all hours worked in excess of forty hours in such workweek.         FYI-S Fed Fund Eng. Consultant Service Agreement, Short Form Total Fee (11-2022) Exhibit D Page 21 of 21 2. Violation; Liability for Unpaid Wages; Liquidated Damages. In the event of any violation of the clause set forth in paragraph (1) above, the contractor and any subcontractor responsible therefor shall be liable for the unpaid wages. In addition, such contractor and subcontractor shall be liable to the United States (in the case of work done under contract for the District of Columbia or a territory, to such District or to such territory), for liquidated damages. Such liquidated damages shall be computed with respect to each individual laborer or mechanic, including watchmen and guards, employed in violation of the clause set forth in paragraph 1 above, in the sum of $10 for each calendar day on which such individual was required or permitted to work in excess of the standard workweek of forty hours without payment of the overtime wages required by the clause set forth in paragraph 1 above. 3. Withholding for Unpaid Wages and Liquidated Damages. The Federal Aviation Administration or the Sponsor shall upon its own action or upon written request of an authorized representative of the Department of Labor withhold or cause to be withheld, from any monies payable on account of work performed by the contractor or subcontractor under any such contract or any other Federal contract with the same prime contractor, or any other Federally-assisted contract subject to the Contract Work Hours and Safety Standards Act, which is held by the same prime contractor, such sums as may be determined to be necessary to satisfy any liabilities of such contractor or subcontractor for unpaid wages and liquidated damages as provided in the clause set forth in paragraph 2 above. 4. Subcontractors. The contractor or subcontractor shall insert in any subcontracts the clauses set forth in paragraphs 1 through 4 and also a clause requiring the subcontractor to include these clauses in any lower tier subcontracts. The prime contractor shall be responsible for compliance by any subcontractor or lower tier subcontractor with the clauses set forth in paragraphs 1 through 4 of this section.         FYI-S Fed Fund Eng. Consultant Service Agreement, Short Form Total Fee (11-2022) Exhibit D – Attachment A Page 1 of 2 Attachment A: CERTIFICATE OF BUY AMERICAN COMPLIANCE FOR TOTAL FACILITY (Buildings such as Terminal, SRE, ARFF, etc.) As a matter of bid responsiveness, the bidder or offeror must complete, sign, date, and submit this certification statement with their proposal. The bidder or offeror must indicate how they intend to comply with 49 USC § 50101 by selecting one of the following certification statements. These statements are mutually exclusive. Bidder must select one or the other (i.e. not both) by inserting a checkmark (9) or the letter “X”. † Bidder or offeror hereby certifies that it will comply with 49 USC. 50101 by: a) Only installing steel and manufactured products produced in the United States; or b) Installing manufactured products for which the FAA has issued a waiver as indicated by inclusion on the current FAA Nationwide Buy American Waivers Issued listing; or c) Installing products listed as an Excepted Article, Material or Supply in Federal Acquisition Regulation Subpart 25.108. By selecting this certification statement, the bidder or offeror agrees: 1. To provide to the Owner evidence that documents the source and origin of the steel and manufactured product. 2. To faithfully comply with providing US domestic products 3. To refrain from seeking a waiver request after establishment of the contract, unless extenuating circumstances emerge that the FAA determines justified. † The bidder or offeror hereby certifies it cannot comply with the 100% Buy American Preferences of 49 USC § 50101(a) but may qualify for either a Type 3 or Type 4 waiver under 49 USC § 50101(b). By selecting this certification statement, the apparent bidder or offeror with the apparent low bid agrees: 1. To the submit to the Owner within 15 calendar days of the bid opening, a formal waiver request and required documentation that support the type of waiver being requested. 2. That failure to submit the required documentation within the specified timeframe is cause for a non-responsive determination may results in rejection of the proposal. 3. To faithfully comply with providing US domestic products at or above the approved US domestic content percentage as approved by the FAA. 4. To furnish US domestic product for any waiver request that the FAA rejects. 5. To refrain from seeking a waiver request after establishment of the contract, unless extenuating circumstances emerge that the FAA determines justified. Required Documentation Type 3 Waiver - The cost of components and subcomponents produced in the United States is more that 60% of the cost of all components and subcomponents of the “facility”.         FYI-S Fed Fund Eng. Consultant Service Agreement, Short Form Total Fee (11-2022) Exhibit D – Attachment A Page 2 of 2 The required documentation for a type 3 waiver is: a) Listing of all manufactured products that are not comprised of 100% US domestic content (Excludes products listed on the FAA Nationwide Buy American Waivers Issued listing and products excluded by Federal Acquisition Regulation Subpart 25.108; products of unknown origin must be considered as non-domestic products in their entirety) b) Cost of non-domestic components and subcomponents, excluding labor costs associated with final assembly and installation at project location. c) Percentage of non-domestic component and subcomponent cost as compared to total “facility” component and subcomponent costs, excluding labor costs associated with final assembly and installation at project location. Type 4 Waiver – Total cost of project using US domestic source product exceeds the total project cost using non-domestic product by 25%. The required documentation for a type 4 of waiver is: a) Detailed cost information for total project using US domestic product b) Detailed cost information for total project using non-domestic product False Statements: Per 49 USC § 47126, this certification concerns a matter within the jurisdiction of the Federal Aviation Administration and the making of a false, fictitious or fraudulent certification may render the maker subject to prosecution under Title 18, United States Code. Date Signature Company Name Title         FYI-S Fed Fund Eng. Consultant Service Agreement, Short Form Total Fee (11-2022) Exhibit D – Attachment B Page 1 of 2 Attachment B: CERTIFICATE OF BUY AMERICAN COMPLIANCE FOR MANUFACTURED PRODUCTS (Non-building construction projects, equipment acquisition projects) As a matter of bid responsiveness, the bidder or offeror must complete, sign, date, and submit this certification statement with their proposal. The bidder or offeror must indicate how they intend to comply with 49 USC § 50101 by selecting one on the following certification statements. These statements are mutually exclusive. Bidder must select one or the other (not both) by inserting a checkmark (9) or the letter “X”. † Bidder or offeror hereby certifies that it will comply with 49 USC § 50101 by: a) Only installing steel and manufactured products produced in the United States, or; b) Installing manufactured products for which the FAA has issued a waiver as indicated by inclusion on the current FAA Nationwide Buy American Waivers Issued listing, or; c) Installing products listed as an Excepted Article, Material or Supply in Federal Acquisition Regulation Subpart 25.108. By selecting this certification statement, the bidder or offeror agrees: 1. To provide to the Owner evidence that documents the source and origin of the steel and manufactured product. 2. To faithfully comply with providing US domestic product 3. To furnish US domestic product for any waiver request that the FAA rejects 4. To refrain from seeking a waiver request after establishment of the contract, unless extenuating circumstances emerge that the FAA determines justified. † The bidder or offeror hereby certifies it cannot comply with the 100% Buy American Preferences of 49 USC § 50101(a) but may qualify for either a Type 3 or Type 4 waiver under 49 USC § 50101(b). By selecting this certification statement, the apparent bidder or offeror with the apparent low bid agrees: To the submit to the Owner within 15 calendar days of the bid opening, a formal waiver request and required documentation that support the type of waiver being requested. 1. That failure to submit the required documentation within the specified timeframe is cause for a non-responsive determination may result in rejection of the proposal. 2. To faithfully comply with providing US domestic products at or above the approved US domestic content percentage as approved by the FAA. 3. To refrain from seeking a waiver request after establishment of the contract, unless extenuating circumstances emerge that the FAA determines justified.         FYI-S Fed Fund Eng. Consultant Service Agreement, Short Form Total Fee (11-2022) Exhibit D – Attachment B Page 2 of 2 Required Documentation Type 3 Waiver - The cost of the item components and subcomponents produced in the United States is more that 60% of the cost of all components and subcomponents of the “item”. The required documentation for a type 3 waiver is: a) Listing of all product components and subcomponents that are not comprised of 100% US domestic content (Excludes products listed on the FAA Nationwide Buy American Waivers Issued listing and products excluded by Federal Acquisition Regulation Subpart 25.108; products of unknown origin must be considered as non-domestic products in their entirety) b) Cost of non-domestic components and subcomponents, excluding labor costs associated with final assembly at place of manufacture. c) Percentage of non-domestic component and subcomponent cost as compared to total “item” component and subcomponent costs, excluding labor costs associated with final assembly at place of manufacture. Type 4 Waiver – Total cost of project using US domestic source product exceeds the total project cost using non-domestic product by 25%. The required documentation for a type 4 of waiver is: a) Detailed cost information for total project using US domestic product b) Detailed cost information for total project using non-domestic product False Statements: Per 49 USC § 47126, this certification concerns a matter within the jurisdiction of the Federal Aviation Administration and the making of a false, fictitious or fraudulent certification may render the maker subject to prosecution under Title 18, United States Code. Date Signature Company Name Title         City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID 23-1379 Agenda Date:10/19/2023 Agenda #: 1.-D. REPORT TO THE CITY COUNCIL FROM:SANTINO DANISI, MBA, City Controller/Director Finance Department BY:COURTNEY ESPINOZA, Business Manager Finance Department, Grants Management Unit SUBJECT Actions pertaining to the rebudget of American Rescue Plan Act (ARPA)grant funding within various Departments: 1.***RESOLUTION -Adopting the 18th Amendment to the Annual Appropriation Resolution (AAR)No.2023-185 to reclassify $14,915,600 and appropriate $419,200 in various department budgets within the ARPA fund (citywide)(Requires 5 Affirmative Votes)(Subject to Mayor’s Veto). RECOMMENDATION Staff recommends City Council adopt the 18th Amendment to the Annual Appropriation Resolution (AAR)No.2023-185 to reclassify $14,915,600 and appropriate $419,200 for previously approved ARPA projects in various departments citywide. EXECUTIVE SUMMARY Staff recommends Council adopt the resolution approving the rebudget of various ARPA projects previously approved so that the respective available appropriations are in the correct departments for implementation of the various projects.The recommended resolution will reclassify $14,915,600 and appropriate $419,200 in funding within the current fiscal year budget. BACKGROUND In 2021,the City of Fresno was awarded American Rescue Plan Act funding in the amount of $170,808,029.Some projects were identified and approved by Council in the FY 2022 and FY 2023 budget process with several being completed in FY 2023.In June 2023,Council approved the reallocation of ARPA projects consistent with the FY 2024 budget process.Staff then reconciled all ARPA expenses through FY 2023 to determine accurate project balances and are now aligning these balances in each department’s ARPA fund for implementation.Approval of these actions will ensure that the actual remaining appropriations reconcile to the approved allocations and deduct for actual expenditures in the previous fiscal years.Based on the reconciliation of project expenses,a number of budgets require adjustments to meet the planned expenditures for the fiscal year. The 18th Amendment to the AAR 2023-185,referenced in the column labeled 18th Amendment on the ARPA Project Detail List attachment,summarizes projects being modified to reflect accurate budget appropriation according to the council City of Fresno Printed on 10/20/2023Page 1 of 2 powered by Legistar™ File #:ID 23-1379 Agenda Date:10/19/2023 Agenda #: 1.-D. List attachment,summarizes projects being modified to reflect accurate budget appropriation according to the council approved project allocations. Anything not accounted for 18th amendment remains unchanged in the FY 2024 budget. ENVIRONMENTAL FINDING By the definition provided in the California Environmental Quality Act Guidelines Section 15378 this item does not qualify as a project as defined by the California Environmental Quality Act. LOCAL PREFERENCE Local preference was not implemented because this item does not include an award of a contract. FISCAL IMPACT There is no new net fiscal impact.These projects are funded through American Rescue Plan Act funding and will not impact the general fund. See attached resolution for specific funds and associated costs. Attachments: ARPA Project Detail List 18th Amendment to the Annual Appropriation Resolution(AAR) No. 2023-185 City of Fresno Printed on 10/20/2023Page 2 of 2 powered by Legistar™ Date Adopted: 1 of 8 Date Approved: Effective Date: Resolution No. RESOLUTION NO. ___________ A RESOLUTION OF THE COUNCIL OF THE CITY OF FRESNO ADOPTING THE 18th AMENDMENT TO THE ANNUAL APPROPRIATION RESOLUTION NO. 2023-185 TO RECLASSIFY $14,915,600 AND APPROPRIATE $419,200 IN AMERICAN RESCUE PLAN ACT (ARPA) FUNDING IN NUMEROUS DEPARTMENTS BE IT RESOLVED BY THE COUNCIL OF THE CITY OF FRESNO: THAT PART III of the Annual Appropriation Resolution No. 2022-154 be and is hereby amended as follows: Increase/(Decrease) TO: GENERAL CITY PURPOSE DEPARTMENT American Rescue Plan Act-ARPA $ (75,000) TO: CITY ATTORNEY’S DEPARTMENT American Rescue Plan Act-ARPA $ (267,500) TO: PLANNING AND DEVELOPMENT DEPARTMENT American Rescue Plan Act-ARPA $(12,331,500) TO: DEPARTMENT OF PUBLIC WORKS American Rescue Plan Act-ARPA $ (1,137,100) TO: GENERAL SERVICES DEPARTMENT American Rescue Plan Act-ARPA $ (450,000) TO: FINANCE DEPARTMENT American Rescue Plan Act-ARPA $ (654,500) TO: POLICE DEPARTMENT American Rescue Plan Act-ARPA $ 13,630,900 TO: FIRE DEPARTMENT American Rescue Plan Act-ARPA $ 1,264,900 TO: PARKS, AFTER SCHOOL, RECREATION & COMMUNITY SERVICES DEPARTMENT American Rescue Plan Act-ARPA $ 439,000 THAT account titles and numbers requiring adjustment by this Resolution are as follows: 2 of 8 Increase/(Decrease) American Rescue Plan Act-ARPA Revenues: Account String: 2000-2041-9994-000-436101-32-1-0000-0000- $ 419,200 Total Revenues $ 419,200 Appropriations: Account String: 2000-2041-1100-060-658200-11-1-0000-0000- $ (75,000) Total Appropriations $ (75,000) Appropriations: Account String: 2000-2041-1410-202-658004-14-6-0000-0000- $ (2,500) 2000-2041-1410-202-658005-14-6-0000-0000- (265,000) Total Appropriations $ (267,500) Appropriations: Account String: 2000-2041-1906-450-651501-19-6-0000-0000- $ (309,000) 2000-2041-1906-450-658004-19-6-0000-0000- (12,022,500) Total Appropriations $(12,331,500) Appropriations: Account String: 2000-2041-9999-000-656113-20-5-0000-0000- $ (65,000) Project String: 209900354-CCTY-N/A-2041NONPER Total Appropriations $ (65,000) Appropriations: Account String: 2000-2041-9999-000-656113-20-5-0000-0000- $ (116,000) Project String: 209900374-CCTY-N/A-2041NONPER Total Appropriations $ (116,000) Appropriations: Account String: 2000-2041-9999-000-656113-20-5-0000-0000- $ (260,000) Project String: 209900375-CCTY-N/A-2041NONPER Total Appropriations $ (260,000) Appropriations: Account String: 2000-2041-9999-000-656113-20-5-0000-0000- $ (311,000) Project String: 209900378-CCTY-N/A-2041NONPER Total Appropriations $ (311,000) 3 of 8 Increase/(Decrease) Appropriations: Account String: 2000-2041-9999-000-656113-20-5-0000-0000- $ (192,000) Project String: 209900379-CCTY-N/A-2041NONPER Total Appropriations $ (192,000) Appropriations: Account String: 2000-2041-9999-000-658004-20-5-0000-0000- $ (45,000) Project String: 209900331-MISCADMIN-N/A-2041NONPER Total Appropriations $ (45,000) Appropriations: Account String: 2000-2041-9999-000-757507-20-5-0000-0000- $ (12,000) Project String: 209900309-CCNT-N/A-2041NONPER Total Appropriations $ (12,000) Appropriations: Account String: 2000-2041-9999-000-757507-20-5-0000-0000- $ (136,100) Project String: 209900326-CCNT-N/A-2041NONPER Total Appropriations $ (136,100) Appropriations: Account String: 2000-2041-3002-568-658200-30-0-0000-0000- $ (450,000) Total Appropriations $ (450,000) Appropriations: Account String: 2000-2041-9994-000-658004-32-1-0000-0000- $ (654,500) Total Appropriations $ (654,500) Appropriations: Account String: 2000-2041-1520-259-859310-15-2-0000-0000- $ 228,100 Project String: 159400003-REPAIRS Total Appropriations $ 228,100 Appropriations: Account String: 2000-2041-1520-260-859333-15-2-0000-0000- $ 165,100 Project String: 159400013-COMM Total Appropriations $ 165,100 4 of 8 Increase/(Decrease) Appropriations: Account String: 2000-2041-1530-270-651301-15-2-0000-0000- $ 149,100 Project String: 159400012-PERS Total Appropriations $ 149,100 Appropriations: Account String: 2000-2041-1530-270-757411-15-2-0000-0000- $ 331,100 Project String: 159400002-EQUIPMENT Total Appropriations $ 331,100 Appropriations: Account String: 2000-2041-1540-270-658004-15-2-0000-0000- $ 20,800 Project String: 159400005-EBIKES Total Appropriations $ 20,800 Appropriations: Account String: 2000-2041-9999-250-658004-15-2-0000-0000- $ 3,445,300 Project String: 159400001-PDHQ Total Appropriations $ 3,445,300 Appropriations: Account String: 2000-2041-9999-250-859323-15-2-0000-0000- $ 170,000 Project String: 159400006-VEHICLES Total Appropriations $ 170,000 Appropriations: Account String: 2000-2041-9999-275-651101-15-2-0000-0000- $ 4,000 Project String: 159400004-CSVY Total Appropriations $ 4,000 Appropriations: Account String: 2000-2041-9999-275-651101-15-2-0000-0000- $ 76,500 Project String: 159400004-ICTY Total Appropriations $ 76,500 Appropriations: Account String: 2000-2041-9999-275-651101-15-2-0000-0000- $ 55,900 Project String: 159400004-PROJMGMT Total Appropriations $ 55,900 5 of 8 Increase/(Decrease) Appropriations: Account String: 2000-2041-9999-275-651104-15-2-0000-0000- $ 56,300 Project String: 159400004-PERS Total Appropriations $ 56,300 Appropriations: Account String: 2000-2041-9999-275-653302-15-2-0000-0000- $ 59,700 Project String: 159400004-DCNT Total Appropriations $ 59,700 Appropriations: Account String: 2000-2041-9999-275-653303-15-2-0000-0000- $ 200 Project String: 159400004-PUBINFO Total Appropriations $ 200 Appropriations: Account String: 2000-2041-9999-275-653402-15-2-0000-0000- $ 85,000 Project String: 159400004-TLAB Total Appropriations $ 85,000 Appropriations: Account String: 2000-2041-9999-275-655501-15-2-0000-0000- $ 200 Project String: 159400004-MISC Total Appropriations $ 200 Appropriations: Account String: 2000-2041-9999-275-656106-15-2-0000-0000- $ 800 Project String: 159400004-MISC Total Appropriations $ 800 Appropriations: Account String: 2000-2041-9999-275-658026-15-2-0000-0000- $ 31,500 Project String: 159400004-PERMIT Total Appropriations $ 31,500 Appropriations: Account String: 2000-2041-9999-275-757507-15-2-0000-0000- $ 8,278,800 Project String: 159400004-CCNT Total Appropriations $ 8,278,800 6 of 8 Increase/(Decrease) Appropriations: Account String: 2000-2041-9999-275-859102-15-2-0000-0000- $ 2,500 Project String: 159400004-LEGAL Total Appropriations $ 2,500 Appropriations: Account String: 2000-2041-9999-275-859102-15-2-0000-0000- $ 9,600 Project String: 159400004-RFP Total Appropriations $ 9,600 Appropriations: Account String: 2000-2041-9999-275-859116-15-2-0000-0000- $ 405,300 Project String: 159400004-EQUIPMENT Total Appropriations $ 405,300 Appropriations: Account String: 2000-2041-9999-275-859117-15-2-0000-0000- $ 55,100 Project String: 159400004-OVERHEAD Total Appropriations $ 55,100 Appropriations: Account String: 2000-2041-1620-320-651101-16-3-0000-0000- $ 16,900 Project String: 162003002-PERS Total Appropriations $ 16,900 Appropriations: Account String: 2000-2041-1630-330-651101-16-3-0000-0000- $ 658,200 Project String: 163000002-PERS Total Appropriations $ 658,200 Appropriations: Account String: 2000-2041-1630-330-656101-16-3-0000-0000- $ 589,800 Project String: 163000002-SUPPLIES Total Appropriations $ 589,800 Appropriations: Account String: 2000-2041-9999-000-651101-17-4-0000-0000- $ 89,000 Project String: 179900085-WATERTOWER-IMRPOVE-2041PERS Total Appropriations $ 89,000 7 of 8 Increase/(Decrease) Appropriations: Account String: 2000-2041-9999-000-757101-17-4-0000-0000- $ 350,000 Project String: 179900085-WATERTOWER-IMRPOVE-2041NONPER Total Appropriations $ 350,000 THAT the purpose is to reclassify $14,915,600 and appropriate $419,200 in American Rescue Plan Act (ARPA) funding in numerous departments for previously approved ARPA projects. 8 of 8 CLERK’S CERTIFICATION STATE OF CALIFORNIA} COUNTY OF FRESNO } ss. CITY OF FRESNO } I, TODD STERMER, City Clerk of the City of Fresno, certify that the foregoing Resolution was adopted by the Council of the City of Fresno, California, at a regular meeting thereof, held on the Day of , 2023 AYES: NOES: ABSENT: ABSTAIN: Mayor Approval: , 2023 Mayor Approval/No Return: , 2023 Mayor Veto: , 2023 Council Override Veto: , 2023 TODD STERMER, CMC City Clerk BY: ____________________________ Deputy City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID 23-1500 Agenda Date:10/19/2023 Agenda #: 1.-E. REPORT TO THE CITY COUNCIL FROM:SANTINO DANISI, MBA, City Controller/Finance Director BY:COURTNEY ESPINOZA, Business Manager Finance Department, Grants Management Unit SUBJECT Actions pertaining to American Rescue Plan Act (ARPA) funding to the Valley Dream Center (VDC): 1.Adopt a finding of Categorical Exemption pursuant to CEQA Guidelines Section 15301/Class 1 for proposed project pursuant to the California Environmental Quality Act (CEQA). 2.Approve an agreement with VDC allocating $200,000 in ARPA funding for capital improvements to the Valley Dream Center’s gymnasium located at 1835 N Winery Avenue. RECOMMENDATION Staff recommends Council adopt a CEQA exemption for improvements to the Valley Dream Center’s gymnasium located at 1835 N Winery Avenue,approve an agreement with VDC allocating $200,000 in ARPA funding for these capital improvements,and authorize the City Manager to execute agreements,amendments,and modifications pertaining to this grant program. EXECUTIVE SUMMARY Staff recommends Council approve an agreement with VDC allocating $200,000 in ARPA funding for capital improvements to the Valley Dream Center’s gymnasium that was previously approved by Council through the budget process on June 22,2023.As a beneficiary of ARPA funding,VDC will complete much needed facility improvements in order to provide additional usage of the gymnasium to the community. BACKGROUND In 2021,the City of Fresno was awarded American Rescue Plan Act funding in the amount of $170,808,029.Of this funding,$200,000 was identified in a resolution passed by Council on June 22,2023 to allocate to the VDC to make capital improvements to the onsite gymnasium specifically the HVAC system.Due to the COVID-19 pandemic,the VDC has been negatively impacted by decreased revenue from donations,financial insecurity,increased costs,limited capacity to weather financial hardship and/or challenges covering operating costs. With this funding,VDC will be able to renovate its gymnasium by adding HVAC units,insulations and other climate control measures making the gym usable during the summer months.Upgrades to lighting,flooring and seating will also allow residents from the community to participate in games,tournaments,practices and other activities centered on wellness City of Fresno Printed on 10/30/2023Page 1 of 2 powered by Legistar™ File #:ID 23-1500 Agenda Date:10/19/2023 Agenda #: 1.-E. and health program through sports. ENVIRONMENTAL FINDING This project is exempt under Section 15301/Class 1 (Existing Facilities)of the California Environmental Quality Act (CEQA) Guidelines. LOCAL PREFERENCE This organization has been previously approved by Council. FISCAL IMPACT This program will be funded through American Rescue Plan Act funding and will not impact the general fund. Attachments: Valley Dream Center Categorical Exemption - CEQA ARPA CBO Agreement with Valley Dream Center City of Fresno Printed on 10/30/2023Page 2 of 2 powered by Legistar™ CITY OF FRESNO CATEGORICAL EXEMPTION ENVIRONMENTAL ASSESSMENT NO. P23-03246 THE PROJECT DESCRIBED HEREIN IS DETERMINED TO BE CATEGORICALLY EXEMPT FROM THE PREPARATION OF ENVIRONMENTAL DOCUMENTS PURSUANT TO ARTICLE 19 OF THE STATE CEQA GUIDELINES. APPLICANT: Courtney Espinoza City of Fresno – Grants Management Unit 2600 Fresno Street Fresno, CA 93721 PROJECT LOCATION: 1835 North Winery Avenue; Located on the west side of North Winery Avenue between East McKinley and East Clinton Avenues (APN: 494-152-25) PROJECT DESCRIPTION: The Environmental Assessment was filed by Courtney Espinoza of the City of Fresno – Grants Management Unit and pertains to 4.07 acres of property. The project proposes to install upgrades to the existing Valley Dream Center Gymnasium, including, but not limited to, lighting, flooring and seating, as well as installation of new HVAC units. This project is exempt under Section 15301/Class 1 of the California Environmental Quality Act (CEQA) Guidelines as follows: Under Section 15301/Class 1, the proposed project is exempt from CEQA requirements when the project consists of the operation, repair, maintenance, permitting, leasing, licensing, or minor alteration of existing public or private structures, facilities, mechanical equipment, or topographical features, involving negligible or no expansion of existing or former use. The key consideration is whether the project involves negligible or no expansion of use. The proposed project will renovate the existing gymnasium to meet current standards for safety, including upgrades to lighting, flooring and seating for sports activities, as well as install new HVAC systems, insulation, and other climate control measures. The project also proposes utilizing the gymnasium to organize youth basketball and volleyball practices, games and tournaments. No expansion of the existing structure or use is proposed. None of the exceptions to Categorical Exemptions set forth in the CEQA Guidelines, Section 15300.2 apply to the project. Furthermore, the proposed project is not expected to have a significant effect on the environment. A categorical exemption, as noted above, has been prepared for the project and the area is not environmentally sensitive. /// Date: October 4, 2023 Prepared By: Chris Lang, Supervising Planner Submitted by: Chris Lang Supervising Planner City of Fresno Planning & Development Department (559) 621-8023 Page 1 of 18 GRANT AGREEMENT BETWEEN THE CITY OF FRESNO AND THE VALLEY DREAM CENTER REGARDING FUNDING UNDER THE AMERICAN RESCUE PLAN ACT FOR CAPITAL IMPROVEMENTS TO THE ON SITE GYMNASIUM THIS GRANT AGREEMENT (AGREEMENT) is made and entered into effective upon execution by both parties (the Effective Date), by and between the CITY OF FRESNO (the CITY), and The Valley Dream Center (GRANTEE), to provide funding for capital improvements to the gymnasium on site adding HVAC systems. RECITALS WHEREAS, there is an increased need for assistance to non-profits recovering from the COVID-19 pandemic; and WHEREAS, the City desires to provide funds to assist GRANTEE in providing much needed capital infrastructure improvement to the Valley Dream Center’s gymnasium; and WHEREAS, GRANTEE represents it desires to and is professionally and legally capable of immediately providing these services for City of Fresno residents; and WHEREAS, GRANTEE acknowledges that grant funds being provided under this Agreement will be derived from the City’s allocation under the American Rescue Plan Act (Pub.L. 117-2) (hereinafter “ARPA”), and is subject to any constraints set forth therein including but not limited to, the Coronavirus State and Local Fiscal Recovery Funds (CSLFRF) Final Rule (31 CFR Part 35); and WHEREAS, this Agreement will be administered for the City by its City Manager or its designee. AGREEMENT NOW, THEREFORE, in consideration of the foregoing and of the covenants, conditions, and premises hereinafter contained to be kept and performed by the respective parties, it is mutually agreed as follows: 1. Scope of Services. GRANTEE shall perform to the satisfaction of the CITY the services described in Exhibit A, including all work incidental to, or necessary to perform, such services even though not specifically described in Exhibit A. 2. Grant Amount. City shall provide GRANTEE the amount of $200,000 for the services described in Exhibit A. One-half of the grant amount shall be distributed once the contract is fully executed, with the other half being distributed after successful completion of a performance review. 3. Term of Agreement and Time for Performance. This Agreement shall be effective from the Effective Date through 12 months, subject to earlier termination in accordance with this Agreement. The services as described in Exhibit A are to commence upon the Effective Date and shall be completed prior to expiration of this Agreement and in accordance with any performance schedule set forth in Exhibit A.         Page 2 of 18 4. Amendment to Increase or Decrease Scope of Services: The parties may modify this Agreement to increase or decrease the scope of services or provide for the rendition of services not required by this Agreement, which modification may include an adjustment to GRANTEE’s compensation. Any change in the scope of services must be made by written amendment to the Agreement signed by an authorized representative for each party. GRANTEE shall not be entitled to any additional compensation if services are performed prior to a signed written amendment. 5. Termination, Remedies and Force Majeure. (a) This Agreement shall terminate without any liability of the City or to GRANTEE upon the earlier of: (i) GRANTEE filing for protection under the federal bankruptcy laws, or any bankruptcy petition or petition for receiver commenced by a third party against GRANTEE; (ii) seven calendar days prior written notice with or without cause by the City to GRANTEE; (iii) the City's non-appropriation of funds sufficient to meet its obligations hereunder during any City fiscal year of this Agreement, or insufficient funding for the Project; or (iv) expiration of this Agreement. (b) Immediately upon any termination or expiration of this Agreement, GRANTEE shall (i) immediately stop all work hereunder; (ii) immediately cause any and all of its subcontractors to cease work; and (iii) return to the City any and all unearned payments and all properties and materials in the possession of GRANTEE that are owned by the City. Subject to the terms of this Agreement, GRANTEE shall be paid compensation for services satisfactorily performed prior to the effective date of termination. GRANTEE shall not be paid for any work or services performed or costs incurred which reasonably could have been avoided. (c) In the event of termination due to failure of GRANTEE to satisfactorily perform in accordance with the terms of this Agreement, the City may withhold an amount that would otherwise be payable as an offset to, but not in excess of, the City's damages caused by such failure. In no event shall any payment by the City pursuant to this Agreement constitute a waiver by the City of any breach of this Agreement which may then exist on the part of the GRANTEE, nor shall such payment impair or prejudice any remedy available to the City with respect to the breach. (d) Upon any breach of this Agreement by the GRANTEE, the City may (i) exercise any right, remedy (in contract, law or equity), or privilege which may be available to it under applicable laws of the State of California or any other applicable law; (ii) proceed by appropriate court action to enforce the terms of the Agreement; and/or (iii) recover all direct, indirect, consequential, economic, and incidental damages for the breach of the Agreement. If it is determined that the City improperly terminated this Agreement for default, such termination shall be deemed a termination for convenience. (e) GRANTEE shall provide the City with adequate written assurances of future performance, upon the Administrator’s request, in the event GRANTEE fails to comply with any terms or conditions of this Agreement. (f) GRANTEE shall be liable for default unless nonperformance is caused by an occurrence beyond the reasonable control of GRANTEE and without its fault or negligence such as, acts of God or the public enemy, acts of the City in its         Page 3 of 18 contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes, unusually severe weather, and delays of common carriers. GRANTEE shall notify the City in writing as soon as it is reasonably possible after the commencement of any excusable delay, setting forth the full particulars in connection therewith, and shall remedy such occurrence with all reasonable dispatch, and shall promptly give written notice to the Administrator of the cessation of such occurrence. 6. Confidential Information and Ownership of Documents. (a) Any reports, information, or other data prepared or assembled by GRANTEE pursuant to this Agreement shall not be made available to any individual or organization by GRANTEE without the prior written approval of the City. During the term of this Agreement, and thereafter, GRANTEE shall not, without the prior written consent of the City, disclose to anyone any Confidential Information. The term "Confidential Information" for the purposes of this Agreement shall include all proprietary and confidential information of the City, including but not limited to business plans, marketing plans, financial information, materials, compilations, documents, instruments, models, source or object codes, and other information disclosed or submitted, orally, in writing, or by any other medium or media. All Confidential Information shall be and remain confidential and proprietary in the City. (b) Any and all writings and documents prepared or provided by GRANTEE pursuant to this Agreement, including without limitation grant applications and supporting documents, are the property of the City at the time of preparation and shall be turned over to the City upon expiration or termination of the Agreement. Copies of grant applications and supporting documents shall be promptly provided to City during the term of this Agreement. GRANTEE shall not permit the reproduction or use thereof by any other person except as otherwise expressly provided herein. (c) If GRANTEE should subcontract all or any portion of the services to be performed under this Agreement, GRANTEE shall cause each subcontractor to also comply with the requirements of this Section 6. (d) This Section 6 shall survive expiration or termination of this Agreement. 7. Professional Skill. It is further mutually understood and agreed by and between the parties hereto that inasmuch as GRANTEE represents to the City that GRANTEE and its subcontractors, if any, are skilled in the profession and shall perform in accordance with the standards of said profession necessary to perform the services agreed to be done by it under this Agreement, the City relies upon the skill of the GRANTEE and any subcontractors to do and perform such services in a skillful manner and the GRANTEE agrees to thus perform the services and require the same of any subcontractors. Therefore, any acceptance of such services by the City shall not operate as a release of GRANTEE or any subcontractors from said professional standards. 8. Indemnification. To the furthest extent allowed by law, GRANTEE shall indemnify, hold harmless and defend CITY and each of its officers, officials, employees, agents and volunteers from any and all loss, liability, fines, penalties, forfeitures, costs and damages (whether in contract, tort or strict liability, including but not limited to         Page 4 of 18 personal injury, death at any time and property damage) incurred by CITY, GRANTEE or any other person, and from any and all claims, demands and actions in law or equity (including reasonable attorney's fees, litigation expenses and cost to enforce this agreement), arising or alleged to have arisen directly or indirectly out of performance of this Agreement. GRANTEE 'S obligations under the preceding sentence shall apply regardless of whether CITY or any of its officers, officials, employees, agents or volunteers are negligent, but shall not apply to any loss, liability, fines, penalties, forfeitures, costs or damages caused solely by the gross negligence, or caused by the willful misconduct, of CITY or any of its officers, officials, employees, agents or volunteers. If GRANTEE should subcontract all or any portion of the work to be performed under this Agreement, GRANTEE shall require each subcontractor to indemnify, hold harmless and defend CITY and each of its officers, officials, employees, agents and volunteers in accordance with the terms of the preceding paragraph. This section shall survive termination or expiration of this Agreement. Notwithstanding the aforementioned, GRANTEE recognizes that the source of funds for the grant to be provided hereunder is the City’s allocation from the ARPA. To this end GRANTEE shall, without limitation, indemnify the City, and each of its officers, officials, employees, agents, and volunteers from any and all loss, liability, fines, penalties, forfeitures, costs and damages incurred by the City from any and all claims, demands and actions in law or equity (including attorney's fees and litigation expenses), arising or alleged to have arisen directly or indirectly from the negligent or intentional acts or omissions, or willful misconduct of GRANTEE or any of its officers, officials, employees, agents, or volunteers in the performance of this Agreement and compliance with ARPA. This section shall survive termination or expiration of this Agreement. 9. Insurance. GRANTEE shall comply with all of the insurance requirements in Exhibit B to this Agreement. 10. Conflict of Interest and Non-Solicitation. (a) Prior to the City's execution of this Agreement, GRANTEE shall complete a City of Fresno conflict of interest disclosure statement in the form as set forth in Exhibit C. During the term of this Agreement, GRANTEE shall have the obligation and duty to immediately notify the City in writing of any change to the information provided by GRANTEE in such statement. (b) GRANTEE shall comply, and require its subcontractors to comply, with all applicable (i) professional canons and requirements governing avoidance of impermissible client conflicts; and (ii) federal, state and local conflict of interest laws and regulations including, without limitation, California Government Code Section 1090 et. seq., the California Political Reform Act (California Government Code Section 87100 et. seq.) and the regulations of the Fair Political Practices Commission concerning disclosure and disqualification (2 California Code of Regulations Section 18700 et. seq.). At any time, upon written request of the City, GRANTEE shall provide a written opinion of its legal counsel and that of any subcontractor that, after a due diligent inquiry, GRANTEE and the respective subcontractor(s) are in full compliance with all laws and regulations. GRANTEE shall take, and require its subcontractors to take, reasonable steps to avoid         Page 5 of 18 any appearance of a conflict of interest. Upon discovery of any facts giving rise to the appearance of a conflict of interest, GRANTEE shall immediately notify the City of these facts in writing. (c) In performing the work or services to be provided hereunder, GRANTEE shall not employ or retain the services of any person while such person either is employed by the City or is a member of any City council, commission, board, committee, or similar City body. This requirement may be waived in writing by the City Manager, if no actual or potential conflict is involved. (d) GRANTEE represents and warrants that it has not paid or agreed to pay any compensation, contingent or otherwise, direct or indirect, to solicit or procure this Agreement or any rights/benefits hereunder. (e) Neither GRANTEE, nor any of GRANTEE subcontractors performing any services on this Project, shall bid for, assist anyone in the preparation of a bid for, or perform any services pursuant to, any other contract in connection with this Project unless fully disclosed to and approved by the City Manager, in advance and in writing. GRANTEE and any of its subcontractors shall have no interest, direct or indirect, in any other contract with a third party in connection with this Project unless such interest is in accordance with all applicable law and fully disclosed to and approved by the City Manager, in advance and in writing. Notwithstanding any approval given by the City Manager under this provision, GRANTEE shall remain responsible for complying with Section 10(b), above. (f) If GRANTEE should subcontract all or any portion of the work to be performed or services to be provided under this Agreement, GRANTEE shall include the provisions of this Section 10 in each subcontract and require its subcontractors to comply therewith. (g) This Section 10 shall survive expiration or termination of this Agreement. 11. ARPA Compliance and Certification. GRANTEE shall submit only those expenditures which are eligible for payment and in compliance with the allowable expenditures, including the following eligibility requirements: GRANTEE shall provide the City with quarterly expenditure and performance reports, as defined in the Final Rule and Treasury Department’s SLFRF Compliance and Reporting Guidance (CRG). GRANTEE shall also provide an annual report as required under the CRG. These reports shall be in a form specified under the CRG and shall be accompanied by invoices and receipts that substantiate the figures on the expenditure report. Additionally, a certification signed by the Chief Executive or designee of GRANTEE certifying that the uses of the grant funds are consistent with those allowed under ARPA, shall be included with the expenditure report and substantiating documentation. As required by the 2 CFR Part 170, Appendix A award term regarding reporting subaward and executive compensation, recipients must also report the names and total compensation of their five most highly compensated executives and their subrecipients’ executives for the preceding completed fiscal year if (1) the recipient received 80 percent or more of its annual gross revenues from Federal procurement         Page 6 of 18 contracts (and subcontracts) and Federal financial assistance subject to the Transparency Act, as defined at 2 CFR 170.320 (and subawards), and received $25,000,000 or more in annual gross revenues from Federal procurement contracts (and subcontracts) and Federal financial assistance subject to the Transparency Act (and subawards), and (2) if the information is not otherwise public. If the GRANTEE is already disclosing this information as part of another agreement involving Federal monies, GRANTEE shall provide documentation to the City that it is fulfilling this requirement. GRANTEE’s failure to provide a Certification, or provide either the quarterly or annual expenditure/performance reports may be considered a default of this Agreement under Section 5 of this agreement. If GRANTEE is found to have provided services to ineligible individual, households, or entities or made an ineligible expenditure, CITY shall have the right to reclaim a dollar amount from the GRANTEE that is equal to the amount determined to be ineligible. 12. General Terms. (a) Except as otherwise provided by law, all notices expressly required of the City within the body of this Agreement, and not otherwise specifically provided for, shall be effective only if signed by the City Manager or designee. (b) The City is required under 2 CFR 200.332 to manage and monitor subrecipient compliance with ARPA guidance. Accordingly, GRANTEE agrees to permit City staff to conduct one performance review during the term of this agreement. City has the right to conduct additional performance reviews both during the term of this agreement and after the agreement’s term should the City believe these reviews are necessary. Records of GRANTEE expenses pertaining to the Project shall be kept on a generally recognized accounting basis and shall be available to the City or its authorized representatives upon request during regular business hours throughout the life of this Agreement and for a period of three years after final payment or, if longer, for any period required by law. Records related to GRANTEE’s performance metrics shall be made available and retained for the same time periods as the Project’s expense data. GRANTEE shall furthermore comply with all funding requirements as set forth in ARPA. If GRANTEE fails to provide City staff access or documentation necessary to conduct a City-requested performance review, City may terminate this Agreement in accordance with Section 5. In addition, all books, documents, papers, and records of GRANTEE pertaining to the Project shall be available for the purpose of making audits, examinations, excerpts, and transcriptions for the same period of time. If any litigation, claim, negotiations, audit, or other action is commenced before the expiration of said time period, all records shall be retained and made available to the City until such action is resolved, or until the end of said time period whichever shall later occur. If GRANTEE should subcontract all or any portion of the services to be performed under this Agreement, GRANTEE shall cause each subcontractor to also comply with the requirements of this paragraph. This Section 12(b) shall survive expiration or termination of this Agreement. (c) Prior to execution of this Agreement by the City, GRANTEE shall have provided evidence to the City that GRANTEE is licensed to perform the services         Page 7 of 18 called for by this Agreement (or that no license is required). If GRANTEE should subcontract all or any portion of the work or services to be performed under this Agreement, GRANTEE shall require each subcontractor to provide evidence to the City that subcontractor is licensed to perform the services called for by this Agreement (or that no license is required) before beginning work. (d) Prior to execution of this Agreement by the City, GRANTEE will permit City staff to conduct a subrecipient risk assessment, as required under the Uniform Guidance (2 CFR 200.332(b)). Failure to allow City staff to conduct this subrecipient risk assessment may result in the City terminating this Agreement in accordance with Section 5. Additionally, the GRANTEE’s failure to be certified by City staff at the end of the risk assessment as having adequate internal controls to manage the funding provided in this agreement may result in the City terminating this Agreement in accordance with Section 5. 13. Nondiscrimination. To the extent required by controlling federal, state, and local law, GRANTEE shall not employ discriminatory practices in the provision of services, employment of personnel, or in any other respect on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a disabled veteran, or veteran of the Vietnam era. Subject to the foregoing and during the performance of this Agreement, GRANTEE agrees as follows: (a) GRANTEE will comply with all applicable laws and regulations providing that no person shall, on the grounds of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a disabled veteran, or veteran of the Vietnam era be excluded from participation in, be denied the benefits of, or be subject to discrimination under any program or activity made possible by or resulting from this Agreement. (b) GRANTEE will not discriminate against any employee or applicant for employment because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a disabled veteran, or veteran of the Vietnam era. GRANTEE shall ensure that applicants are employed, and the employees are treated during employment, without regard to their race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a disabled veteran, or veteran of the Vietnam era. Such requirement shall apply to GRANTEE’s employment practices including, but not be limited to, the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. GRANTEE agrees to post in conspicuous places, available to employees and applicants for employment, notices setting forth the provision of this nondiscrimination clause. (c) GRANTEE will, in all solicitations or advertisements for employees placed by or on behalf of GRANTEE in pursuit hereof, state that all qualified applicants will receive consideration for employment without regard to race, religious creed, color,         Page 8 of 18 national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a disabled veteran, or veteran of the Vietnam era. (d) GRANTEE will send to each labor union or representative of workers with which it has a collective bargaining agreement or other contract or understanding, a notice advising such labor union or workers' representatives of the GRANTEE’s commitment under this section and shall post copies of the notice in conspicuous places available to employees and applicants for employment. (e) If GRANTEE should subcontract all or any portion of the services to be performed under this Agreement, GRANTEE shall cause each subcontractor to also comply with the requirements of this Section 13. 14. Independent Contractor. (a) In the furnishing of the services provided for herein, GRANTEE is acting solely as an independent contractor. Neither GRANTEE, nor any of its officers, agents, or employees shall be deemed an officer, agent, employee, joint venturer, partner, or associate of the City for any purpose. The City shall have no right to control or supervise or direct the manner or method by which GRANTEE shall perform its work and functions. However, the City shall retain the right to administer this Agreement so as to verify that GRANTEE is performing its obligations in accordance with the terms and conditions thereof. (b) This Agreement does not evidence a partnership or joint venture between GRANTEE and the City. GRANTEE shall have no authority to bind the City absent the City's express written consent. Except to the extent otherwise provided in this Agreement, GRANTEE shall bear its own costs and expenses in pursuit thereof. (c) Because of its status as an independent contractor, GRANTEE and its officers, agents, and employees shall have absolutely no right to employment rights and benefits available to City employees. GRANTEE shall be solely liable and responsible for all payroll and tax withholding and for providing to, or on behalf of, its employees all employee benefits including, without limitation, health, welfare, and retirement benefits. In addition, together with its other obligations under this Agreement, GRANTEE shall be solely responsible, indemnify, defend and save the City harmless from all matters relating to employment and tax withholding for and payment of GRANTEE’s employees, including, without limitation, (i) compliance with Social Security and unemployment insurance withholding, payment of workers’ compensation benefits, and all other laws and regulations governing matters of employee withholding, taxes and payment; and (ii) any claim of right or interest in the City’s employment benefits, entitlements, programs and/or funds offered employees of the City whether arising by reason of any common law, de facto, leased, or co-employee rights or other theory. It is acknowledged that during the term of this Agreement, GRANTEE may be providing services to others unrelated to the City or to this Agreement. 15. Notices. Any notice required or intended to be given to either party under the terms of this Agreement shall be in writing and shall be deemed to be duly given if delivered personally, transmitted by facsimile followed by telephone confirmation of         Page 9 of 18 receipt, or sent by United States registered or certified mail, with postage prepaid, return receipt requested, addressed to the party to which notice is to be given at the party's address set forth on the signature page of this Agreement or at such other address as the parties may from time to time designate by written notice. Notices served by United States mail in the manner above described shall be deemed sufficiently served or given at the time of the mailing thereof. 16. Binding. Once this Agreement is signed by all parties, it shall be binding upon, and shall inure to the benefit of, all parties, and each parties' respective heirs, successors, assigns, transferees, agents, servants, employees, and representatives. 17. Assignment. (a) This Agreement is personal to GRANTEE and there shall be no assignment by GRANTEE of its rights or obligations under this Agreement without the prior written approval of the City Manager or designee. Any attempted assignment by GRANTEE, its successors or assigns, shall be null and void unless approved in writing by the City Manager or designee. (b) GRANTEE hereby agrees not to assign the payment of any monies due GRANTEE from the City under the terms of this Agreement to any other individual(s), corporation(s), or entity(ies). The City retains the right to pay any and all monies due to the GRANTEE directly to the GRANTEE. 18. Compliance With Law. In providing the services required under this Agreement, GRANTEE shall at all times comply with all applicable laws of the United States, including but not limited to, the Americans with Disabilities Act (42 U.S.C. § 12101 et seq.), the State of California and the City, and all other applicable regulations promulgated by federal, state, regional, or local administrative and regulatory agencies, now in force and as they may be enacted, issued, or amended during the term of this Agreement. In addition, GRANTOR elects to receive funds from the Secretary under ARPA and will use the funds in a manner consistent with such section. 19. Waiver. The waiver by either party of a breach by the other of any provision of this Agreement shall not constitute a continuing waiver or a waiver of any subsequent breach of either the same or a different provision of this Agreement. No provisions of this Agreement may be waived unless in writing and signed by all parties to this Agreement. Waiver of any one provision herein shall not be deemed to be a waiver of any other provision herein. 20. Governing Law and Venue. This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of California, excluding, however, any conflict of laws rule which would apply the law of another jurisdiction. Venue for purposes of the filing of any action regarding the enforcement or interpretation of this Agreement and any rights and duties hereunder shall be Fresno County, California. 21. Headings. The section headings in this Agreement are for convenience and reference only and shall not be construed or held in any way to explain, modify or add to the interpretation or meaning of the provisions of this Agreement.         Page 10 of 18 22. Severability. The provisions of this Agreement are severable. The invalidity, or unenforceability of any one provision in this Agreement shall not affect the other provisions. 23. Interpretation. The parties acknowledge that this Agreement in its final form is the result of the combined efforts of the parties and that, should any provision of this Agreement be found to be ambiguous in any way, such ambiguity shall not be resolved by construing this Agreement in favor of or against either party, but rather by construing the terms in accordance with their generally accepted meaning. 24. Attorney's Fees. If either party is required to commence any proceeding or legal action to enforce or interpret any term, covenant or condition of this Agreement, the prevailing party in such proceeding or action shall be entitled to recover from the other party its reasonable attorney's fees and legal expenses. 25. Exhibits. Each exhibit and attachment referenced in this Agreement is, by the reference incorporated into and made a part of this Agreement. 26. Precedence of Documents. In the event of any conflict between the body of this Agreement and any exhibit or attachment hereto, the terms and conditions of the body of this Agreement shall control and take precedence over the terms and conditions expressed within the exhibit or attachment. Furthermore, any terms or conditions contained within any exhibit or attachment hereto which purport to modify the allocation of risk between the parties, provided for within the body of this Agreement, shall be null and void. 27. Cumulative Remedies. No remedy or election hereunder shall be deemed exclusive but shall, wherever possible, be cumulative with all other remedies at law or in equity. 28. No Third Party Beneficiaries. The rights, interests, duties, and obligations defined within this Agreement are intended for the specific parties hereto as identified in the preamble of this Agreement. Notwithstanding anything stated to the contrary in this Agreement, it is not intended that any rights or interests in this Agreement benefit or flow to the interest of any third parties. 29. Extent of Agreement. Each party acknowledges that they have read and fully understand the contents of this Agreement. This Agreement represents the entire and integrated agreement between the parties with respect to the subject matter hereof and supersedes all prior negotiations, representations or agreements, either written or oral. This Agreement may be modified only by written instrument duly authorized and executed by both the City and GRANTEE. [SIGNATURES FOLLOW ON NEXT PAGE]         Page 11 of 18 IN WITNESS WHEREOF, the parties have executed this Agreement at Fresno, California, on the day and year first above written. CITY OF FRESNO, a California municipal corporation By: Georgeanne A. White Date City Manager, City of Fresno APPROVED AS TO FORM: ANDREW JANZ City Attorney By: Angela Karst Date Senior Deputy City Attorney ATTEST: TODD STERMER, CMC City Clerk By: Date Deputy Valley Dream Center, a California nonprofit corporation By: Name: Title: (If corporation or LLC., Board Chair, Pres. or Vice Pres.) By: Name: Title: (If corporation or LLC., CFO, Treasurer, Secretary or Assistant Secretary) Addresses: CITY: City of Fresno/Finance Dept. Attention: Courtney Espinoza Business Manager 2600 Fresno Street Fresno, CA 93721 Phone: (559) 621-7008 FAX: (559) 457-1541 Valley Dream Center Attention: Craig Jones 1835 N. Winery Ave Fresno, CA 93703 Phone: (559) 492-3324 Attachments: 1. Exhibit A - Scope of Work, Budget and Metrics 2. Exhibit B - Insurance Requirements 3. Exhibit C - Conflict of Interest Disclosure Form           "     Page 12 of 18 EXHIBIT A Scope of Work, Budget and Metrics Executive Summary The Valley Dream Center is dedicated to revitalizing our existing gymnasium into a welcoming, energy-efficient space that can accommodate up to 250 youth from Fresno District 4 and neighboring areas. The primary goal is to promote health and wellness among local youth by offering basketball and volleyball practices, games, and tournaments. Our vision is to not only provide a safe and inviting environment for sports activities but also to foster community engagement and unity. Services Description x Renovate the existing gymnasium to meet modern standards of comfort and safety. x Install energy-efficient HVAC systems, insulation, and other climate control measures for year-round usability. x Upgrade lighting, flooring, and seating arrangements to create an attractive space for sports activities. x Organize regular practices, games and friendly tournaments to encourage participation and skill development. x Promote the importance of health and wellness programs through sports. x Establish partnerships with local schools, community organizations, and businesses to expand program reach. x Offer volunteer opportunities for community members to contribute to the program’s success. This initiative includes installing Title 24 compliant HVAC units, which will be placed strategically to ensure uniform temperature control, optimize energy efficiency and customize climate control for the entire gymnasium. After installation of the HVAC system, the Dream Center will encourage community youth to access the gymnasium free of charge on designated Saturdays throughout the year. Goals and Objectives x Ensure our facility meets safety standards for sports activities. x Reduce temperature fluctuations and improve indoor air quality to promote a conducive environment for youth sports activities.         Page 13 of 18 x Increase community engagement by expanding access to the gymnasium to accommodate a higher number of youth participation. x Foster a sense of community by providing a welcoming space for youth sports enthusiast, parents and local residents x Achieve energy efficiency and reduce operating cost. x Use environmentally friendly materials and practices wherever possible to minimize our carbon footprint. x Monitor and maintain the HVAC and insulation systems to ensure long term sustainability and performance. Program/Project Milestones and Timeline The Valley Dream Center project will be completed 10 weeks after funding is received. The youth engagement efforts will begin upon project completion. x Receive funding from the City of Fresno x Begin Installation of HVAC system (8-10 weeks for completion) x Organize Health and Wellness program, regular practices, games, and friendly tournaments to encourage youth participation and development. Program/Project Metrics x Faculties Energy Efficiency x Facility Safety x Youth/Community Participation x Sustainability         Page 14 of 18 Budget Organization Name:Valley Dream Center Expenditure Category:2.10 Aid to Nonprofit Organizations Service Type Description Time Period Cost Breakdown Cost Purchase Installation of 9 Bosch 19 SEER 5_Ton Heat Pump Package Units Including all necessary controls and Title 24 compliant equipment.8-10 weeks 140,500.00 140,500.00 Labor Insulate Building (Gym) Ceiling and Walls with R-36 and R-24 Insulation 8-10 weeks 32,500.00 32,500.00 Labor Install Sheet Rock and Frame Walls (Gym) 8-10 weeks 27,000.00 27,000.00 Capital 200,000.00 *add additional lines if needed, please ensure calculation are correct Total Grant Amount: 200,000.00 (pick from list of expenditure categories tab) Cost Category: Capital Improvements ARPA for Community Based Organizations Budget Narrative Organization Name:Valley Dream Center Expenditure Category:2.10 Aid to Nonprofit Organizations (pick from list of expenditure categories tab) CALCULATED TOTAL: $ 200,000.00 $ - $ 200,000.00 COST CATEGORY COST DESCRIPTION COST PER UNIT/HRS ($)UNITS TOTAL REQUESTED GRANT FUNDS TOTAL LEVERAGE TOTAL PROJECT COST Capital HVAC Equipment and Installation $ 200,000.00 1 200,000.00 - 200,000.00 - - - - - - - - - - - - See the cost categories on Budget Narrative Tab for which cost categories to use. Leverage is not required, however there is an opportunity to add Organization leverage to the program BUDGET ARPA for Community Based Organizations         Page 15 of 18 EXHIBIT B Insurance Requirements (a) Throughout the life of this Agreement, GRANTEE shall pay for and maintain in full force and effect all insurance as required herein with an insurance company(ies) either (i) admitted by the California Insurance Commissioner to do business in the State of California and rated no less than “A-VII” in the Best’s Insurance Rating Guide, or (ii) as may be authorized in writing by CITY'S Risk Manager or designee at any time and in his/her sole discretion. If the GRANTEE is self-insured, the following requirements will outline the responsibility of the self-insured coverage. The required policies of insurance as stated herein shall maintain limits of liability of not less than those amounts stated therein. However, the insurance limits available to CITY and STATE and each of their officers, officials, employees, agents and volunteers as additional insureds, shall be the greater of the minimum limits specified therein or the full limit of any insurance proceeds to the named insured. (b) If at any time during the life of the Agreement or any extension, GRANTEE fails to maintain any required insurance in full force and effect, all services and work under this Agreement shall be discontinued immediately, and all payments due or that become due to GRANTEE shall be withheld until notice is received by CITY that the required insurance has been restored to full force and effect and that the premiums therefore have been paid for a period satisfactory to CITY. Any failure to maintain the required insurance shall be sufficient cause for CITY to terminate this Agreement. No action taken by CITY pursuant to this section shall in any way relieve GRANTEE of its responsibilities under this Agreement. The phrase “fail to maintain any required insurance” shall include, without limitation, notification received by CITY that an insurer has commenced proceedings, or has had proceedings commenced against it, indicating that the insurer is insolvent. (c) The fact that insurance is obtained by GRANTEE shall not be deemed to release or diminish the liability of GRANTEE, including, without limitation, liability under the indemnity provisions of this Agreement. The duty to indemnify CITY and STATE by GRANTEE shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by GRANTEE. Approval or purchase of any insurance contracts or policies shall in no way relieve from liability nor limit the liability of GRANTEE, vendors, suppliers, invitees, consultants, medical professionals, subcontractors, consultants, or anyone employed directly or indirectly by any of them. Coverage shall be at least as broad as: 1. The most current version of Insurance Services Office (ISO) Commercial General Liability Coverage Form CG 00 01, providing liability coverage arising out of your business operations. The Commercial General Liability policy shall be written on an occurrence form and shall provide coverage for “bodily injury,” “property damage” and “personal and advertising injury” with coverage for premises and operations (including the use of owned and non- owned equipment), products and completed operations, and contractual         Page 16 of 18 liability (including, without limitation, indemnity obligations under the Agreement) with limits of liability not less than those set forth under “Minimum Limits of Insurance.” 2. The most current version of ISO *Commercial Auto Coverage Form CA 00 01, providing liability coverage arising out of the ownership, maintenance or use of automobiles in the course of your business operations. The Automobile Policy shall be written on an occurrence form and shall provide coverage for all owned, hired, and non-owned automobiles or other licensed vehicles (Code 1- Any Auto). 3. Workers’ Compensation insurance as required by the State of California and Employer’s Liability Insurance. MINIMUM LIMITS OF INSURANCE GRANTEE shall procure and maintain for the duration of the contract insurance with limits of liability not less than those set forth below. However, insurance limits available to CITY and STATE and each of their officers, officials, employees, agents and volunteers as additional insureds, shall be the greater of the minimum limits specified herein or the full limit of any insurance proceeds available to the named insured: 1. COMMERCIAL GENERAL LIABILITY: (i) $1,000,000 per occurrence for bodily injury and property damage; (ii) $1,000,000 per occurrence for personal and advertising injury; (iii) $2,000,000 aggregate for products and completed operations; and, (iv) $2,000,000 general aggregate applying separately to the work performed under the Agreement. 2. COMMERCIAL AUTOMOBILE LIABILITY: $1,000,000 per accident for bodily injury and property damage. 3. WORKERS’ COMPENSATION INSURANCE as required by the State of California with statutory limits. 4. EMPLOYER’S LIABILITY: (i) $1,000,000 each accident for bodily injury; (ii) $1,000,000 disease each employee; and, (iii) $1,000,000 disease policy limit. UMBRELLA OR EXCESS INSURANCE In the event GRANTEE purchases an Umbrella or Excess insurance policy(ies) to meet the “Minimum Limits of Insurance,” this insurance policy(ies) shall “follow form” and afford no less coverage than the primary insurance policy(ies). In addition, such Umbrella or Excess insurance policy(ies) shall also apply on a primary and non-contributory basis for         Page 17 of 18 the benefit of the CITY and STATE and each of their officers, officials, employees, agents and volunteers. DEDUCTIBLES AND SELF-INSURED RETENTIONS GRANTEE shall be responsible for payment of any deductibles contained in any insurance policy(ies) required herein and GRANTEE shall also be responsible for payment of any self-insured retentions. OTHER INSURANCE PROVISIONS/ENDORSEMENTS (i) All policies of insurance required herein shall be endorsed to provide that the coverage shall not be cancelled, non-renewed, reduced in coverage or in limits except after thirty calendar days’ written notice has been given to CITY, except ten days for nonpayment of premium. GRANTEE is also responsible for providing written notice to the CITY under the same terms and conditions. Upon issuance by the insurer, broker, or agent of a notice of cancellation, non-renewal, or reduction in coverage or in limits, GRANTEE shall furnish CITY with a new certificate and applicable endorsements for such policy(ies). In the event any policy is due to expire during the work to be performed for CITY, GRANTEE shall provide a new certificate, and applicable endorsements, evidencing renewal of such policy not less than fifteen calendar days prior to the expiration date of the expiring policy. (ii) The Commercial General and Automobile Liability insurance policies shall be written on an occurrence form. (iii) The Commercial General and Automobile Liability insurance policies shall be endorsed to name CITY and STATE and each of their officers, officials, agents, employees and volunteers as an additional insured. GRANTEE shall establish additional insured status for the CITY and STATE for all ongoing and completed operations under the Commercial General Liability policy by use of ISO Forms or an executed manuscript insurance company endorsements providing additional insured status. The Commercial General endorsements must be as broad as that contained in ISO Forms: GC 20 10 11 85 or CG 20 26 04 13. (iv) The Commercial General and Automobile Liability insurance shall contain, or be endorsed to contain, that the GRANTEE’S insurance shall be primary to and require no contribution from the CITY or STATE. The Commercial General Liability policy is required to include primary and non-contributory coverage in favor of the CITY and STATE for both the ongoing and completed operations coverage, and should be as broad as coverage contained in ISO endorsement CG 20 01 04 13. These coverages shall contain no special limitations on the scope of protection afforded to CITY and STATE and each of their officers, officials, employees, agents and volunteers (v) Should any of these policies provide that the defense costs are paid within the Limits of Liability, thereby reducing the available limits by defense costs,         Page 18 of 18 then the requirement for the Limits of Liability of these polices will be twice the above stated limits. (vi) All policies of insurance shall contain, or be endorsed to contain, a waiver of subrogation as to CITY and STATE and each of their officers, officials, agents, employees and volunteers. PROVIDING OF DOCUMENTS - GRANTEE shall furnish CITY with all certificate(s) and applicable endorsements effecting coverage required herein. All certificates and applicable endorsements are to be received by CITY’s Risk Manager within a reasonable time after execution of this agreement. All non- ISO endorsements amending policy coverage shall be executed by a licensed and authorized agent or broker. Upon request of CITY, GRANTEE shall immediately furnish CITY with a complete copy of any insurance policy required under this Agreement, including all endorsements, with said copy certified by the underwriter to be a true and correct copy of the original policy. This requirement shall survive expiration or termination of this Agreement. All subcontractors working under the direction of GRANTEE shall also be required to provide all documents noted herein. SUBCONTRACTORS- If GRANTEE subcontracts any or all of the services to be performed under this Agreement, GRANTEE shall be solely responsible for ensuring that its subcontractors maintain insurance coverage at levels no less than those required by applicable law and is customary in the relevant industry and shall indemnify CITY and STATE if failure to comply with this provision results in damages to the CITY or the GRANTEE.         EXHIBIT C DISCLOSURE OF CONFLICT OF INTEREST YES* NO 1 Are you currently in litigation with the City of Fresno or any of its agents? 2 Do you represent any firm, organization, or person who is in litigation with the City of Fresno? 3 Do you currently represent or perform work for any clients who do business with the City of Fresno? 4 Are you or any of your principals, managers, or professionals, owners or investors in a business which does business with the City of Fresno, or in a business which is in litigation with the City of Fresno? 5 Are you or any of your principals, managers, or professionals, related by blood or marriage to any City of Fresno employee who has any significant role in the subject matter of this service? 6 Do you or any of your subcontractors have, or expect to have, any interest, direct or indirect, in any other contract in connection with this Project? * If the answer to any question is yes, please explain in full below. Explanation: Signature Date (Name) (Company) (Address) Additional page(s) attached. (City, State Zip)         !    "              City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID 23-1484 Agenda Date:10/19/2023 Agenda #:1.-F. REPORT TO THE CITY COUNCIL FROM:BILLY ALCORN, Fire Chief Fresno Fire Department SUBJECT Actions pertaining to the Fresno Fire Department’s Firefighting Turnouts: 1.Award a three (3)year sole source contract,not to exceed $2,700,000 to LN Curtis (Curtis Tools for Heroes)for the purchase of Globe firefighting turnouts as a sole-source provider based on unique features only available with Globe turnouts. 2.***RESOLUTION -Adopt Resolution authorizing the Fire Department Chief or designee to enter into a three (3)year contract with Curtis Tools for Heroes without advertised competitive bidding. (Subject to Mayor’s Veto) RECOMMENDATIONS Staff recommends City Council adopt a resolution suspending competitive bidding under the sole source exception;award a three (3)year contract,not to exceed $2,700,000 to Curtis Tools for Heroes,exclusive regional distributor for the purchase of Globe turnouts as a sole-source provider based on unique features and overall test results of major manufacturers. EXECUTIVE SUMMARY The Fire Department,as part of its ongoing personal protective equipment (PPE)replacement plan for turnouts,projects up to 460 sets will need replacement between FY 2024 and FY 2027.With the expiration of its current supplier contract in FY 2023,a new contract is required starting in FY 2024. According to NFPA 1851,turnouts are intended to have a 10-year life span.This recommended standard has also been adopted by Cal-OSHA.Turnouts from major suppliers were tested and evaluated by a committee of members of the Fresno Fire Department.This test was completed in 2020 and is intended to be completed every 5 years.The Globe turnouts rated most favorable from composite test scores related to safety,heat resistance,insulation materials,and mobility factors among others. The $2,700,000 not to exceed amount also includes the cost of turnouts for one (1)attrition drill school per year over the next three (3)years.The Fire Department is estimating 26 recruits per drill school.This could change based upon the department’s annual attrition rates.FY 2024 portion of this agreement will be funded through ARPA funds already appropriated ($350,000)and the ARPA AAR reappropriating funding for the attrition drill school ($1,500,000). BACKGROUND Turnouts are the most essential part of firefighters PPE.It is the equipment that separates and City of Fresno Printed on 10/20/2023Page 1 of 3 powered by Legistar™ File #:ID 23-1484 Agenda Date:10/19/2023 Agenda #:1.-F. Turnouts are the most essential part of firefighters PPE.It is the equipment that separates and protects firefighters from heat,smoke,and flame.Turnouts must provide firefighters with heat protection as well as mobility and ventilation for rescue situations.Per NFPA,certified turnout gear consists of three layers of materials,together called a composite,which is made up of an outer shell, a moisture barrier, and a thermal liner. Each of the Fire Departments 375 firefighters has two sets of turnouts.Turnouts typically have a 10 -year life depending on wear and tear (Cal-OSHA and NFPA recommend turnouts be replaced after 10 years maximum).Due to the life expectancy of turnouts,the Fire Department expects to replace nearly 460 sets over the next three (3) fiscal years. The majority will be replaced in FY 2026. An existing contract with Curtis Tools for Heroes,who is the area’s exclusive distributor for Globe turnouts,expired in FY 2023.With a new contract pending,members of the Fire Department’s PPE Committee contacted distributors from California’s three main turnout manufacturers:Globe, Morning Pride,and Lion.Globe and Lion provided their turnouts with all essential specs for testing and evaluation purposes.Therefore,the department moved forward with testing the Globe and Lion turnouts. The turnouts from both manufacturers were put through a series of tests and evaluation scores were derived based on a number of important criteria. The key area that made Globe turnouts unique was that the tailoring and flexible materials in the garment gave firefighters greater overall wear -range of motion (agility)and breathability.These are extremely important factors when considering that during fires,members are carrying heavy hoses,possibly retrieving victims,climbing ladders,and moving about in tight spaces.In addition, Globe introduced a technology called Globe Guard,which provides increased protection against cancer causing carcinogens.Because these attributes could not be matched by the competing manufacturer,the Fire Department deems Globe turnouts to have unique safety characteristics that only their garments offer.As such,they are the only manufacturer to offer these resources within their turnouts. ENVIRONMENTAL FINDINGS This item is not a project as defined by CEQA. LOCAL PREFERENCE This contract would be awarded as a sole source,meaning local preference would not apply since there is a single provider of the specified equipment. FISCAL IMPACT ARPA funds ($350,000)have been adopted in the FY 2024 Budget for the 100 replacement sets as well as the reappropriation of funds through the ARPA AAR 2023-185 ($1,500,000)for Drill School costs.General Fund will be requested to purchase the replacement turnouts and turnouts for Drill School or new employee needs in FY 2025 and FY 2026. Below are the Fire Department’s estimates for the replacement needs and necessary equipment City of Fresno Printed on 10/20/2023Page 2 of 3 powered by Legistar™ File #:ID 23-1484 Agenda Date:10/19/2023 Agenda #:1.-F. Below are the Fire Department’s estimates for the replacement needs and necessary equipment needed for new employees in respective fiscal years. Amounts include sales/use tax. ·FY 2024 o 100 replacement sets = $ 396,900 o 52 new sets for Drill School = $ 206,400 ·FY 2025 o 110 replacement sets = $ 469,300 o 52 new sets for Drill School = $ 221,800 ·FY 2026 o 250 replacement sets = $1,146,600 o 52 new sets for Drill School = $ 238,500 The estimated inflation costs are 7.5% per year per vendor agreement. Attachments: Resolution establishing Sole-Source to Curtis Tools for Heroes Vendor Agreement with Curtis Tools for Heroes City of Fresno Printed on 10/20/2023Page 3 of 3 powered by Legistar™ 1 of 3 Date Adopted: Date Approved: Effective Date: City Attorney Approval: ______ Resolution No. ____________ RESOLUTION NO. ____________ A RESOLUTION OF THE COUNCIL OF THE CITY OF FRESNO, CALIFORNIA, AUTHORIZING THE ESTABLISHMENT OF A CONTRACT WITH LN CURTIS (CURTIS TOOLS FOR HEROES) FOR GLOBE TURNOUTS NOT TO EXCEED $2,700,000 WITHOUT ADVERTISED COMPETITIVE BIDDING. WHEREAS, the Fresno Fire Department is in need of a contract to purchase Turnouts over the next three (3) fiscal years as part of its annual turnout replacement plan, recruitments for Attrition Drill Schools, and to remain compliant with replacement guidelines established by the National Fire Protection Association (NFPA); and WHEREAS, Turnouts are the most essential part of firefighter Personal Protective Equipment as it is the equipment that separates and protects firefighters from heat, smoke, and flames; and WHEREAS, members of the Fire Department's PPE Committee contacted distributors from California's three main turnout manufacturers: Globe, Morning Pride, and Lion. Globe and Lion provided their turnouts with all essential specs for testing and evaluation purposes. Therefore, the department moved forward with testing the Globe and Lion turnouts; and WHEREAS, Globe Turnouts, after an extended series of tests and composite scores with a leading competitor in areas of heat resistance, durability, mobility and composite materials, were selected by members of the Fresno Fire Department. Test scores for Globe provided the most desired results for heat safety, cancer -causing resistant materials and mobility; and 2 of 3 WHEREAS, Curtis Tools for Heroes has the exclusive distributorship rights for the Fresno area to supply Globe Turnouts and is a sole source provider of Globe Turnouts; and WHEREAS, the Fresno Fire Department is scheduled to replace up to 460 turnouts over the next three (3) fiscal years and is estimating they will recruit one (1) Attrition Drill School per fiscal year over the next three (3) years at an estimated cost not to exceed $2,700,000; and WHEREAS, the Purchasing Manager represents that the unique characteristics of the desired turnouts are sourced solely by Curtis Tools for Heroes through their Globe Turnout product line. NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Fresno as follows: The Council has received and considered the report and recommendations of City staff. 1. The purchase of Globe Turnouts after sufficient tests and evaluations by professional firefighters of the Fresno Fire Department has the most -desired overall safety related properties when combining mobility, heat resistance, and cancer-protective materials. 2. The Council finds it proper for the City to dispense from competitive bidding requirements. 3. The Council appoints and authorizes the Fire Chief, or designee(s), and each of them as agents for the City of Fresno, to execute and enter into an Agreement for Globe turnouts from Curtis Tools for Heroes, not to exceed $2,700,000 in total over fiscal years 2024 through 2027. 3 of 3 4. This resolution shall be effective upon final approval. * * * * * * * * * * * * * * STATE OF CALIFORNIA ) COUNTY OF FRESNO ) ss. CITY OF FRESNO ) I, TODD STERMER, City Clerk of the City of Fresno, certify that the foregoing Resolution was adopted by the Council of the City of Fresno, at a regular meeting held on the day of , 2023. AYES : NOES : ABSENT : ABSTAIN : Mayor Approval: , 2023 Mayor Approval/No Return: , 2023 Mayor Veto: , 2023 Council Override Vote: , 2023 TODD STERMER, CMC City Clerk By: Deputy Date APPROVED AS TO FORM: ANDREW JANZ City Attorney By: ____________________________ Jennifer M. Wharton Date Deputy City Attorney CURTIS City of Fresno Finance Department/Purchasing Unit 2600 Fresno Street, Room 2156 Fresno, CA 93721 Subject: Contract for Firefighting Turnouts TOOLS FOR HEROES' The City of Fresno (Buyer) and Curtis Tools for Heroes (seller) agree to the following terms for the procurement of Globe Firefighting Turnouts. Term: 7/1/2023 through 6/30/2024 Options: two (2) additional one-year extensions with price increases not to exceed 7.5% annually. Globe Gxtreme Jacket per City of Fresno Specifications Globe GPS Pant per City of Fresno Specifications: $2100.00 $1570.00 Sales/Use Taxes are not included in the above pricing. FOB: Destination Contract renewal years: 7/1/2024 through 6/30/2025 price increase not to exceed 7.5% 7/1/2025 through 6/30/2026 price increase not to exceed 7.5% * Any extension beyond the above dates requires re-approval of City Council. Contract renewals are subject to price increases as a result of increased labor and material costs. Annual price increases will are subject to a 7.5% annual price increase cap. The City of Fresno makes no representation or guarantee with respect to any minimum purchases. Curtis Tools for Heroes looks forward to providing you with the highest quality firefighting turnouts in the industry. Curtis Tools for Heroes Contact information: Local Sales Representative: Chris Parano , cparano@lncur tis.com, 559-301-5156 City of Fresno Fire Department: Signature Name/Title Date Curtis Tools for Heroes: Nathan Belcher, Customer Svc. Mgr. T / 1... o/4 ° 2-3 Title/name Date 185 Lennon Lane, Suite 110 Walnut Creek, CA 94598 I Phone 510.839.5111 Fax 510.839.0219 LNCurtis.COM City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID 23-1498 Agenda Date:10/19/2023 Agenda #: 1.-G. REPORT TO THE CITY COUNCIL FROM:BILLY ALCORN, Fire Chief Fire Department SUBJECT: ***RESOLUTION -Adopting the 20th Amendment to the Annual Appropriation Resolution (AAR)2023 -185 appropriating $236,600 for the 2021 Assistance to Firefighters Grant for Firefighters Annual Physicals (Requires 5 Affirmative Votes) (Subject to Mayor’s Veto). RECOMMENDATION Staff recommends the City Council adopt the 20th Amendment to the Annual Appropriation Resolution (AAR)2023-185 to appropriate $236,600 for the 2021 Assistance to Firefighters Grant to allow the Fresno Fire Department to provide all firefighters with comprehensive National Fire Protection Association (NFPA)1582 integrated physical with enhanced screening for cancer and heart disease. EXECUTIVE SUMMARY The Fresno Fire Department received a $236,600 grant from FEMA in Fiscal Year 2023 to allow the Fresno Fire Department to provide all firefighters with comprehensive NFPA 1582 integrated physical with enhanced screening for cancer and heart disease. BACKGROUND In September 2022,Council approved the acceptance of the 2021 Assistance to Firefighters Grant (AFG)award.On June 8,2023,per agenda item ID 23-860,council approved a Consultant Services Contract with Gaetke Medical Corporation and 1582,LLC for annual physicals for the Fire Department sworn personnel. At that time, no appropriations resolution was brought before Council. ENVIRONMENTAL FINDINGS This is not a project pursuant to CEQA guidelines Section 15378. LOCAL PREFERENCE Local preference is not applicable to this item. City of Fresno Printed on 10/30/2023Page 1 of 2 powered by Legistar™ File #:ID 23-1498 Agenda Date:10/19/2023 Agenda #: 1.-G. FISCAL IMPACT Adoption of the 20th Amendment to AAR No.2023-185 will increase appropriations in the Miscellaneous Federal Grant Fund in the amount of $236,600.These expenses are grant reimbursable and revenue will offset expenditures. Attachment: 20th Amendment to AAR No. 2023-185 City of Fresno Printed on 10/30/2023Page 2 of 2 powered by Legistar™ Date Adopted: 1 of 2 Date Approved: Effective Date: Resolution No. RESOLUTION NO. ___________ A RESOLUTION OF THE COUNCIL OF THE CITY OF FRESNO ADOPTING THE 20th AMENDMENT TO THE ANNUAL APPROPRIATION RESOLUTION NO. 2023-185 TO APPROPRIATE $236,600 FOR THE 2021 ASSISTANCE TO FIREFIGHTERS GRANTS FOR FIREFIGHTERS ANNUAL PHYSICALS BE IT RESOLVED BY THE COUNCIL OF THE CITY OF FRESNO: THAT PART III of the Annual Appropriation Resolution No. 2023-185 be and is hereby amended as follows: Increase/(Decrease) TO: FIRE DEPARTMENT Misc Federal Grants - Fire $ 236,600 THAT account titles and numbers requiring adjustment by this Resolution are as follows: Misc Federal Grants - Fire Revenues: Account String: 2000-2062-1620-320-433104-16-3-0000-0000- $ 236,600 Total Revenues $ 236,600 Appropriations: Account String: 2000-2062-1620-320-653304-16-3-0000-0000- $ 236,600 Total Appropriations $ 236,600 THAT the purpose is to appropriate $236,600 to allow the Fresno Fire Department to provide all firefighters with comprehensive National Fire Protection Association (NFPA) 1582 integrated physical with enhanced screening for cancer and heart disease. 2 of 2 CLERK’S CERTIFICATION STATE OF CALIFORNIA} COUNTY OF FRESNO } ss. CITY OF FRESNO } I, TODD STERMER, City Clerk of the City of Fresno, certify that the foregoing Resolution was adopted by the Council of the City of Fresno, California, at a regular meeting thereof, held on the Day of , 2023 AYES: NOES: ABSENT: ABSTAIN: Mayor Approval: , 2023 Mayor Approval/No Return: , 2023 Mayor Veto: , 2023 Council Override Veto: , 2023 TODD STERMER, CMC City Clerk BY: ____________________________ Deputy City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID 23-1482 Agenda Date:10/19/2023 Agenda #: 1.-H. REPORT TO THE CITY COUNCIL FROM:BRIAN BARR, Director General Services Department BY:ROBIN O’MALLEY, Facilities Manager General Services Department, Facilities Management Division DEBBIE BERNARD, Project Manager General Services Department, Facilities Management Division SUBJECT Actions pertaining to the award of a construction contract for the City Hall North and South Parking Lot Security Camera project adding a total of 40 security cameras to the North and South parking lots (Bid File 12302202) (District 3): 1.Adopt finding of a Categorical Exemption pursuant to Section 15301(f)Existing Facilities of the California Environmental Quality Act (CEQA) Guidelines. 2.Award a construction contract to Alpha Omega Data Solutions of Los Banos,California,for $440,625 for the construction of the City Hall North and South Parking Lot Security Camera project. 3.Authorize the Director of General Services or designee to execute all related documents. RECOMMENDATION Staff recommends Council adopt a finding of a Categorical Exemption and award a construction contract to Alpha Omega Data Solutions of Los Banos,California,for $440,625 for the City Hall North and South Parking Lot Security Camera project and authorize the Director of General Services or designee to execute all related documents. EXECUTIVE SUMMARY The goal of this project is to improve security of City Hall and surrounding property.There are currently approximately 150 cameras located throughout the City Hall property and adjoining parking lots.This project will add a total of 40 cameras to the North and South parking lots that will provide extra monitoring coverage to the Fresno Police Department and City Hall Security staff. BACKGROUND In its continuing effort to improve security at City Hall,the Information Services Department (ISD),in City of Fresno Printed on 10/20/2023Page 1 of 3 powered by Legistar™ File #:ID 23-1482 Agenda Date:10/19/2023 Agenda #: 1.-H. In its continuing effort to improve security at City Hall,the Information Services Department (ISD),in coordination with the General Services Department,is expanding the building’s video security system.At present,there are approximately 150 cameras located throughout the property and adjoining parking areas.This project will provide an additional 40 cameras in the North and South parking areas. This expansion project was initiated by two security reports,one compiled by the Police Department and the other was the Threat Vulnerability Assessment by Elert &Associates.Once the project is completed,the additional cameras will provide extra monitoring coverage to the City Hall Security staff promoting overall safety within City Hall property.In addition,the new cameras will also be monitored by the Police Department’s Real Time Crime Center. This project also adds redundancy to network communications from City Hall.This is accomplished by installing a new backup fiber optic communications path for internet access and communications to other City facilities.Current City Hall network communications are being accomplished on a single communication path.Should the existing communication path become damaged,all City Hall communications will be severed,including network communications to other City facilities.The new redundant communication path will provide City Hall with a backup and allow network services to continue without interruption. Plans and specifications were prepared by Borrelli and Associates,Inc.,and a Notice Inviting Bids was published on May 3,2023,distributed to eight building exchanges,and posted on the City’s website.The specifications were distributed to 32 prospective bidders.One on-line bid proposal was received and opened in a public bid opening on June 6,2023.The sole bid will expire on November 3, 2023. The City Attorney has approved the contract as to form. ENVIRONMENTAL FINDINGS Staff has determined that a Categorical Exemption is appropriate,based on Section 15301(f)Existing Facilities of the CEQA Guidelines.Section 15301(f)exempts addition of safety protection devices in conjunction with existing structures,facilities.Furthermore,staff has determined that none of the exceptions to Categorical Exemptions set forth in the CEQA Guidelines,Section 15300.2 apply to this project.Staff recommends Council,based upon its own independent judgment adopt finding of a Categorical Exemption per staff determination,pursuant to Section 15301(f)of the CEQA Guidelines for the Fresno City Hall North and South Parking Lot Security Camera project. LOCAL PREFERENCE Local preference was not implemented as defined by FMC Section 4-108 because there was only one bid received. FISCAL IMPACT This project will not impact the General Fund.As adopted in the FY2024 budget,appropriations for this project have been included in the Security Assessment Fund under ISD. City of Fresno Printed on 10/20/2023Page 2 of 3 powered by Legistar™ File #:ID 23-1482 Agenda Date:10/19/2023 Agenda #: 1.-H. Attachments: Bid Evaluation Fiscal Impact Statement Standard Contract City of Fresno Printed on 10/20/2023Page 3 of 3 powered by Legistar™ EVALUATION OF BID PROPOSALS Page 1 FOR: FRESNO CITY HALL NORTH AND SOUTH PARKING LOT SURVEILLANCE CAMERA ADDITIONS Bid File No. 12302202 Bid Opening: 06/06/2023 Evaluation Form Rev. 07-2022 BIDDERS TOTAL NET BID AMOUNT 1. Alpha Omega Data Solutions 641 I Street Los Banos, CA 93635 $440,625.00 Each bidder has agreed to allow the City sixty-four (64) days from date bids are opened to accept or reject their bid proposal. Purchasing requests that you complete the following sections and return this bid evaluation to the Purchasing Division at the latest by Monday, July 3, 2023 at 5:00 P.M. The Engineer’s Estimate for this expenditure is $347,326.55. The contract price is 27% above the Engineer's Estimate. If the overage is greater than 10% or only one bid was received, give explanation: The City Hall North and South Parking Lot Surveillance Camera project consists mainly of low voltage electrical work; therefore, the specifications required all low voltage work to be done by a contractor with a C-7 license. There isn’t an abundance of local C-7 licensed contractors and only one contractor attended the pre-bid job site walk, it was Alpha Omega Data Solutions. The apparent low bidder probably had a good idea that they would be the only bidder to submit for the project, therefore increasing the bid amount. BACKGROUND OF PROJECT (To be completed by Evaluating Department/Division. Explain need for project/equipment): The Information Services Department (ISD) received appropriations to improve security at City Hall. In pursuit of that objective, the current City Hall camera system is to be expanded by adding a total of 22 new cameras. The feeds from these cameras will be available to Fresno PD to help promote general downtown security as well as the safety of City Hall staff and city property. EVALUATION OF BID PROPOSALS Page 2 FOR: FRESNO CITY HALL NORTH AND SOUTH PARKING LOT SURVEILLANCE CAMERA ADDITIONS Bid File No. 12302202 Bid Opening: 06/06/2023 Evaluation Form Rev. 07-2022 DEPARTMENT CONCLUSIONS AND RECOMMENDATION: [X] Award a contract in the amount of $ 440,625.00 to Alpha Omega Data Solutions as the lowest responsive and responsible bidder. Remarks: [ ] Reject all bids. Reason: Department Head Approval Title Director of General Services Date [ ] Approve Dept. Recommendation [ ] Approve GSD/Purchasing Recommendation [ ] Disapprove [ ] Disapprove [ ] See Attachment GENERAL SERVICES DEPARTMENT CITY MANAGER _______________________ Purchasing Manager Date City Manager or Designee Date General Services Director Date Evaluation Form Rev. 07-2022 FISCAL IMPACT STATEMENT PROGRAM: This project is funded by appropriations that the Information Services Department (ISD) received to improve security at City Hall, and is part of the adopted FY24 budget. TOTAL OR ANNUALIZED RECOMMENDATION CURRENT COST Direct Cost $440,625 *Indirect Cost $80,000 $5,000 TOTAL COST $520,625 $5,000 Additional Revenue or Savings Generated $0.00 $0.00 Net City Cost $520,625 $5,000 Amount Budgeted (If none budgeted, identify source) $520,625 $5,000 *Indirect costs are comprised of the following: Construction Management $25,500 Project Management $5,000 Contract Contingencies $45,000 Permits and Fees $2,000 Special Inspections $7,500 TOTAL $85,000 Evaluation Form Rev. 07-2022 FISCAL IMPACT STATEMENT PROGRAM: This project is funded by appropriations that the Information Services Department (ISD) received to improve security at City Hall, and is part of the adopted FY24 budget. TOTAL OR ANNUALIZED RECOMMENDATION CURRENT COST Direct Cost $440,625 *Indirect Cost $80,000 $5,000 TOTAL COST $520,625 $5,000 Additional Revenue or Savings Generated $0.00 $0.00 Net City Cost $520,625 $5,000 Amount Budgeted (If none budgeted, identify source) $520,625 $5,000 *Indirect costs are comprised of the following: Construction Management $25,500 Project Management $5,000 Contract Contingencies $45,000 Permits and Fees $2,000 Special Inspections $7,500 TOTAL $85,000 DPW 23.0/01-06-12 DPW NO FED DIV I.pdf 1.18 rev. 04-21 CONTRACT CITY OF FRESNO, CALIFORNIA PUBLIC WORK OF IMPROVEMENT THIS CONTRACT is made and entered into by and between CITY OF FRESNO, a California municipal corporation (City), and [Contractor Name], [Legal Identity] (Contractor) as follows: 1. Contract Documents. The “Notice Inviting Bids,” “Instructions to Bidders,” “Bid Proposal,” and the “Specifications” including “General Conditions,” “Special Conditions,” and “Technical Specifications” for the following: [Title] (Bid File No. [Bid File No.]) [Alternates (if any)] copies of which are annexed hereto, together with all the drawings, plans, and documents specifically referred to in said annexed documents, including Performance and Payment Bonds, if required, and are hereby incorporated into and made a part of this Contract, and shall be known as the Contract Documents. 2. Price and Work. For the monetary consideration of [Written Dollar Amount] dollars and [Written Cents Amount] cents ($[Amount]), as set forth in the Bid Proposal, Contractor promises and agrees to perform or cause to be performed, in a good and workmanlike manner, under the direction and to the satisfaction of the City’s “Engineer,” and in strict accordance with the Specifications, all of the work as set forth in the Contract Documents. 3. Payment. City accepts Contractor’s Bid Proposal as stated and agrees to pay the consideration stated, at the times, in the amounts, and under the conditions specified in the Contract Documents. 4. Indemnification. To the furthest extent allowed by law including California Civil Code Section 2782, Contractor shall indemnify, hold harmless and defend City and each of its officers, officials, employees, agents and volunteers from any and all loss, liability, fines, penalties, forfeitures, costs and damages (whether in contract, tort or strict liability, including, but not limited to personal injury, death at any time and property damage) incurred by City, Contractor or any other person, and from any and all claims, demands and actions in law or equity (including attorney’s fees and litigation expenses), arising or alleged to have arisen directly or indirectly out of performance of this Contract. Contractor’s obligations under the preceding sentence shall apply regardless of whether City or any of its officers, officials, employees, agents or volunteers are passively negligent, but shall not apply to any loss, liability, fines, penalties, forfeitures, costs or damages caused by the active or sole negligence, or willful misconduct, of City or any of its officers, officials, employees, agents or volunteers. If Contractor should subcontract all or any portion of the work to be performed under this Contract, Contractor shall require each subcontractor to indemnify, hold harmless and defend City and each of its officers, officials, employees, agents and volunteers in accordance with the terms of the preceding paragraph. This section shall survive termination or expiration of this Contract. 5. Trench Shoring Detailed Plan. Contractor acknowledges the provisions of Section 6705 of the California Labor Code and, if said provisions are applicable to this Contract, agrees to comply therewith. 6. Worker’s Compensation Certification. In compliance with the provisions of Section 1861 of the California Labor Code, Contractor hereby certifies as follows: I am aware of the provisions of Section 3700 of the California Labor Code which require every employer to be insured against liability for worker’s compensation or to undertake self-insurance in accordance with the provisions of that Code, and I will comply with such provisions before commencing the performance of work of this Contract and will make my subcontractors aware of this provision. [Signatures follow on the next page.] DPW 23.0/01-06-12 DPW NO FED DIV I.pdf 1.19 rev. 04-21 IN WITNESS WHEREOF, the parties have executed this Contract on the day and year here below written, of which the date of execution by City shall be subsequent to that of Contractor’s, and this Contract shall be binding and effective upon execution by both parties. [Contractor Name], [Legal Identity] By: Name: (Type or print written signature.) Title: (If corporation or LLC, Board Chair, Pres. or Vice Pres.) Dated: By: Name: (Type or print written signature.) Title: (If corporation or LLC, CFO, Treasurer, Secretary or Assistant Secretary) Dated: CITY OF FRESNO, a California municipal corporation By: [Name], [Title] Department of Public Works Dated: ATTEST: TODD STERMER, CRM City Clerk By: Deputy No signature of City Attorney required. Standard Document #DPW 23.0 has been used without modification as certified by the undersigned. By: [City Certifier Name] [City Certifier Title] Department of Public Works City address: City of Fresno Attention: [Name], [Title] [Street Address] Fresno, CA [Zip] City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID 23-1509 Agenda Date:10/19/2023 Agenda #:1.-I. REPORT TO THE CITY COUNCIL FROM:BRIAN BARR, Director General Services Department BY:CLIFF TRAUGH, Administrative Manager General Services Department SUBJECT Approve the award of a cooperative purchase agreement to Altec Industries,Inc.of Birmingham, Alabama,for the purchase of five Altec bucket trucks in the amount of $1,027,905 procured by means of a cooperative purchase agreement with Sourcewell,for the Department of Public Works and Department of Public Utilities. RECOMMENDATION Staff recommends Council approve the award of a cooperative purchase agreement to Altec Industries,Inc.of Birmingham,Alabama,for the purchase of five Altec bucket trucks in the amount of $1,027,905. EXECUTIVE SUMMARY The Department of Public Works,Street Maintenance Division seeks to purchase four Altec bucket trucks to maintain lighting infrastructure.The Department of Public Utilities,Wastewater Management Division seeks to purchase one Altec bucket truck for general plant maintenance and electrical work throughout the facility.Of the five units,four will be purchased as replacements with one unit for the Streets Maintenance Division to serve as an addition.The new trucks will be purchased through a competitively solicited cooperative procurement process administered by Sourcewell. BACKGROUND The Department of Public Works,Street Maintenance Division is responsible for maintaining 1,740 miles of City streets and boulevards.The traffic signal and street light team maintains 600 signalized intersections,45,000 street lights,and responds 24 hours a day to electrical outages,and damage. To accomplish this mission,the Street Maintenance Division operates 14 bucket trucks with a crew of 16 personnel. The Department of Public Utilities,Wastewater Management Division is responsible for the collection and treatment of wastewater produced by the City of Fresno.This is accomplished through the operation and maintenance of the Wastewater Treatment Plant as well as the collection system City of Fresno Printed on 10/30/2023Page 1 of 3 powered by Legistar™ File #:ID 23-1509 Agenda Date:10/19/2023 Agenda #:1.-I. operation and maintenance of the Wastewater Treatment Plant as well as the collection system supplying it.To continue this maintenance,bucket trucks are needed to reach electrical infrastructure and equipment that is not safely accessible through other means. The Streets Maintenance Division operates a bucket truck fleet consisting primarily of Altec AT40G models.This model has become the City’s standard bucket truck as it is cost effective,reliable,and offers a 45-foot working height which is capable of meeting the need for most jobs.The new units will be built to a similar specification,updated to the latest technology to increase safety,efficiency,and comply with the applicable emissions standard for this type of equipment. The bucket truck class of equipment is on a ten year or 100,000-mile replacement schedule which has been established by the General Services Department,Fleet Management Division as the optimum replacement time.The units identified for replacement are more than 15 years old and have exceeded their useful life.The Fleet Management Division recommends replacement based on the age and condition of the units. The equipment will be purchased through a competitively solicited cooperative procurement process administered by Sourcewell.The purchase price for the Altec bucket trucks is $205,581 each.This price includes the Sourcewell cooperative purchasing discount applied to City purchases,as well as local sales tax at 8.35 percent.The Purchasing Division has approved this contract and recommends Council to approve. The City Attorney has reviewed and approved to form. ENVIRONMENTAL FINDINGS By the definition provided in the California Environmental Quality Act (CEQA)Guidelines Section 15378, the award of this contract does not qualify as a “project” as defined by CEQA. LOCAL PREFERENCE Local preference was not implemented,the City is using a cooperative purchase agreement to purchase these items. FISCAL IMPACT No general funds will be used to purchase these items. The funding to cover the purchase cost of the Altec bucket trucks has been included in the FY2023 and FY2024 adopted budget under the operations of the Department of Public Works,Street Maintenance Division and the operations of the Department of Public Utilities,Wastewater Management Division.The source of funding for this project is Proposition 111 Gas Tax fund and the Wastewater Operating Fund, generated primarily by the collection of customer user fees. Due to global supply chain constraints the automotive industry has faced shortages of raw materials which has created massive under production in many vehicle types.This resulted in a lack of availability causing projects to not get completed within the typical 12-month period.Therefore,the funding for three of these trucks was not spent in FY2023 and if approved,the FY2023 funds will be re-appropriated to FY2024 to complete these acquisitions. City of Fresno Printed on 10/30/2023Page 2 of 3 powered by Legistar™ File #:ID 23-1509 Agenda Date:10/19/2023 Agenda #:1.-I. Attachments: Altec Contract Board Resolutions Comment and Review Evaluation Proof of Publication Proposal Opening Record Original RFP City of Fresno Printed on 10/30/2023Page 3 of 3 powered by Legistar™ 110421-ALT Rev. 3/2021 1 Solicitation Number: RFP #110421 CONTRACT This Contract is between Sourcewell, 202 12th Street Northeast, P.O. Box 219, Staples, MN 56479 (Sourcewell) and Altec Industries, Inc., 210 Inverness Center Drive, Birmingham, AL 35242 (Supplier). Sourcewell is a State of Minnesota local government unit and service cooperative created under the laws of the State of Minnesota (Minnesota Statutes Section 123A.21) that offers cooperative procurement solutions to government entities. Participation is open to eligible federal, state/province, and municipal governmental entities, higher education, K-12 education, nonprofit, tribal government, and other public entities located in the United States and Canada. Sourcewell issued a public solicitation for Public Utility Equipment with Related Accessories and Supplies from which Supplier was awarded a contract. Supplier desires to contract with Sourcewell to provide equipment, products, or services to Sourcewell and the entities that access Sourcewell’s cooperative purchasing contracts (Participating Entities). 1. TERM OF CONTRACT A. EFFECTIVE DATE. This Contract is effective upon the date of the final signature below. B. EXPIRATION DATE AND EXTENSION. This Contract expires December 27, 2025, unless it is cancelled sooner pursuant to Article 22. This Contract may be extended one additional year upon the request of Sourcewell and written agreement by Supplier. C. SURVIVAL OF TERMS. Notwithstanding any expiration or termination of this Contract, all payment obligations incurred prior to expiration or termination will survive, as will the following: Articles 11 through 14 survive the expiration or cancellation of this Contract. All other rights will cease upon expiration or termination of this Contract. 2. EQUIPMENT, PRODUCTS, OR SERVICES A. EQUIPMENT, PRODUCTS, OR SERVICES. Supplier will provide the Equipment, Products, or Services as stated in its Proposal submitted under the Solicitation Number listed above.          110421-ALT Rev. 3/2021 2 Supplier’s Equipment, Products, or Services Proposal (Proposal) is attached and incorporated into this Contract. Except as expressly agreed in the participating addendum or transaction document with the participating entity, all Equipment and Products provided under this Contract must be new and the current model. Supplier may offer close-out or refurbished Equipment or Products if they are clearly indicated in Supplier’s product and pricing list. Unless agreed to by the Participating Entities in advance, Equipment or Products must be delivered as operational to the Participating Entity’s site. This Contract offers an indefinite quantity of sales, and while substantial volume is anticipated, sales and sales volume are not guaranteed. B. WARRANTY. Supplier warrants that all new Equipment, Products, and Services furnished (which does not include equipment or products that are solely financed) are free from liens and encumbrances, and are free from defects in design, materials, and workmanship. In addition, Supplier warrants the Equipment, Products, and Services are suitable for and will perform in accordance with the ordinary use for which they are intended. Supplier’s dealers and distributors must agree to assist the Participating Entity in reaching a resolution in any dispute over warranty terms with the manufacturer. Any manufacturer’s warranty that extends beyond the expiration of the Supplier’s warranty will be passed on to the Participating Entity. C. DEALERS, DISTRIBUTORS, AND/OR RESELLERS. Upon Contract execution and throughout the Contract term, Supplier must provide to Sourcewell a current means to validate or authenticate Supplier’s authorized dealers, distributors, or resellers relative to the Equipment, Products, and Services offered under this Contract, which will be incorporated into this Contract by reference. It is the Supplier’s responsibility to ensure Sourcewell receives the most current information. 3. PRICING All Equipment, Products, or Services under this Contract will be priced at or below the price stated in Supplier’s Proposal. When providing pricing quotes to Participating Entities, all pricing quoted must reflect a Participating Entity’s total cost of acquisition. This means that the quoted cost is for delivered Equipment, Products, and Services that are operational for their intended purpose, and includes all costs to the Participating Entity’s requested delivery location. Regardless of the payment method chosen by the Participating Entity, the total cost associated with any purchase option of the Equipment, Products, or Services must always be disclosed in the pricing quote to the applicable Participating Entity at the time of purchase.          110421-ALT Rev. 3/2021 3 A. SHIPPING AND SHIPPING COSTS. All delivered Equipment and Products must be properly packaged. Damaged Equipment and Products may be rejected. If the damage is not readily apparent at the time of delivery, Supplier must permit the Equipment and Products to be returned within a reasonable time at no cost to Sourcewell or its Participating Entities. Participating Entities reserve the right to inspect the Equipment and Products at a reasonable time after delivery where circumstances or conditions prevent effective inspection of the Equipment and Products at the time of delivery. In the event of the delivery of nonconforming Equipment and Products, the Participating Entity will notify the Supplier as soon as possible and the Supplier will replace nonconforming Equipment and Products with conforming Equipment and Products that are acceptable to the Participating Entity. Supplier must arrange for and pay for the return shipment on Equipment and Products that arrive in a defective or inoperable condition. Sourcewell may declare the Supplier in breach of this Contract if the Supplier intentionally delivers substandard or inferior Equipment or Products. B. SALES TAX. Each Participating Entity is responsible for supplying the Supplier with valid tax- exemption certification(s). When ordering, a Participating Entity must indicate if it is a tax- exempt entity. C. HOT LIST PRICING. At any time during this Contract, Supplier may offer a specific selection of Equipment, Products, or Services at discounts greater than those listed in the Contract. When Supplier determines it will offer Hot List Pricing, it must be submitted electronically to Sourcewell in a line-item format. Equipment, Products, or Services may be added or removed from the Hot List at any time through a Sourcewell Price and Product Change Form as defined in Article 4 below. Hot List program and pricing may also be used to discount and liquidate close-out and discontinued Equipment and Products as long as those close-out and discontinued items are clearly identified as such. Current ordering process and administrative fees apply. Hot List Pricing must be published and made available to all Participating Entities. 4. PRODUCT AND PRICING CHANGE REQUESTS Supplier may request Equipment, Product, or Service changes, additions, or deletions at any time. All requests must be made in writing by submitting a signed Sourcewell Price and Product Change Request Form to the assigned Sourcewell Supplier Development Administrator. This approved form is available from the assigned Sourcewell Supplier Development Administrator. At a minimum, the request must: x Identify the applicable Sourcewell contract number;          110421-ALT Rev. 3/2021 4 x Clearly specify the requested change; x Provide sufficient detail to justify the requested change; x Individually list all Equipment, Products, or Services affected by the requested change, along with the requested change (e.g., addition, deletion, price change); and x Include a complete restatement of pricing documentation in Microsoft Excel with the effective date of the modified pricing, or product addition or deletion. The new pricing restatement must include all Equipment, Products, and Services offered, even for those items where pricing remains unchanged. A fully executed Sourcewell Price and Product Change Request Form will become an amendment to this Contract and will be incorporated by reference. 5. PARTICIPATION, CONTRACT ACCESS, AND PARTICIPATING ENTITY REQUIREMENTS A. PARTICIPATION. Sourcewell’s cooperative contracts are available and open to public and nonprofit entities across the United States and Canada; such as federal, state/province, municipal, K-12 and higher education, tribal government, and other public entities. The benefits of this Contract should be available to all Participating Entities that can legally access the Equipment, Products, or Services under this Contract. A Participating Entity’s authority to access this Contract is determined through its cooperative purchasing, interlocal, or joint powers laws. Any entity accessing benefits of this Contract will be considered a Service Member of Sourcewell during such time of access. Supplier understands that a Participating Entity’s use of this Contract is at the Participating Entity’s sole convenience and Participating Entities reserve the right to obtain like Equipment, Products, or Services from any other source. Supplier is responsible for familiarizing its sales and service forces with Sourcewell contract use eligibility requirements and documentation and will encourage potential participating entities to join Sourcewell. Sourcewell reserves the right to add and remove Participating Entities to its roster during the term of this Contract. B. PUBLIC FACILITIES. Supplier’s employees may be required to perform work at government- owned facilities, including schools. Supplier’s employees and agents must conduct themselves in a professional manner while on the premises, and in accordance with Participating Entity policies and procedures, and all applicable laws. 6. PARTICIPATING ENTITY USE AND PURCHASING A. ORDERS AND PAYMENT. To access the contracted Equipment, Products, or Services under this Contract, a Participating Entity must clearly indicate to Supplier that it intends to access this Contract; however, order flow and procedure will be developed jointly between Sourcewell and Supplier. Typically, a Participating Entity will issue an order directly to Supplier or its authorized          110421-ALT Rev. 3/2021 5 subsidiary, distributor, dealer, or reseller. If a Participating Entity issues a purchase order, it may use its own forms, but the purchase order should clearly note the applicable Sourcewell contract number. All Participating Entity orders under this Contract must be issued prior to expiration or cancellation of this Contract; however, Supplier performance, Participating Entity payment obligations, and any applicable warranty periods or other Supplier or Participating Entity obligations may extend beyond the term of this Contract. Supplier’s acceptable forms of payment are included in its attached Proposal. Participating Entities will be solely responsible for payment and Sourcewell will have no liability for any unpaid invoice of any Participating Entity. B. ADDITIONAL TERMS AND CONDITIONS/PARTICIPATING ADDENDUM. Additional terms and conditions to a purchase order, or other required transaction documentation, may be negotiated between a Participating Entity and Supplier, such as job or industry-specific requirements, legal requirements (e.g., affirmative action or immigration status requirements), or specific local policy requirements. Some Participating Entities may require the use of a Participating Addendum; the terms of which will be negotiated directly between the Participating Entity and the Supplier. Any negotiated additional terms and conditions for the direct purchase of new equipment or products must never be less favorable to the Participating Entity than what is contained in this Contract. C. SPECIALIZED SERVICE REQUIREMENTS. In the event that the Participating Entity requires service or specialized performance requirements not addressed in this Contract (such as e- commerce specifications, specialized delivery requirements, or other specifications and requirements), the Participating Entity and the Supplier may enter into a separate, standalone agreement, apart from this Contract. Sourcewell, including its agents and employees, will not be made a party to a claim for breach of such agreement. D. TERMINATION OF ORDERS. Participating Entities may terminate an order, in whole or in part, immediately upon notice to Supplier in the event of any of the following events: 1. The Participating Entity fails to receive funding or appropriation from its governing body at levels sufficient to pay for the equipment, products, or services to be purchased; or 2. Federal, state, or provincial laws or regulations prohibit the purchase or change the Participating Entity’s requirements. E. GOVERNING LAW AND VENUE. The governing law and venue for any action related to a Participating Entity’s order will be determined by the Participating Entity making the purchase.          110421-ALT Rev. 3/2021 6 7. CUSTOMER SERVICE A. PRIMARY ACCOUNT REPRESENTATIVE. Supplier will assign an Account Representative to Sourcewell for this Contract and must provide prompt notice to Sourcewell if that person is changed. The Account Representative will be responsible for: x Maintenance and management of this Contract; x Timely response to all Sourcewell and Participating Entity inquiries; and x Business reviews to Sourcewell and Participating Entities, if applicable. B. BUSINESS REVIEWS. Supplier must perform a minimum of one business review with Sourcewell per contract year. The business review will cover sales to Participating Entities, pricing and contract terms, administrative fees, sales data reports, supply issues, customer issues, and any other necessary information. 8. REPORT ON CONTRACT SALES ACTIVITY AND ADMINISTRATIVE FEE PAYMENT A. CONTRACT SALES ACTIVITY REPORT. Each calendar quarter, Supplier must provide a contract sales activity report (Report) to the Sourcewell Supplier Development Administrator assigned to this Contract. Reports are due no later than 45 days after the end of each calendar quarter. A Report must be provided regardless of the number or amount of sales during that quarter (i.e., if there are no sales, Supplier must submit a report indicating no sales were made). The Report must contain the following fields: x Participating Entity Name (e.g., City of Staples Highway Department); x Participating Entity Physical Street Address; x Participating Entity City; x Participating Entity State/Province; x Participating Entity Zip/Postal Code; x Participating Entity Contact Name; x Participating Entity Contact Email Address; x Participating Entity Contact Telephone Number; x Sourcewell Assigned Entity/Participating Entity Number; x Item Purchased Description; x Item Purchased Price; x Sourcewell Administrative Fee Applied; and x Date Purchase was invoiced/sale was recognized as revenue by Supplier. B. ADMINISTRATIVE FEE. In consideration for the support and services provided by Sourcewell, the Supplier will pay an administrative fee to Sourcewell on all Equipment, Products, and          110421-ALT Rev. 3/2021 7 Services provided to Participating Entities. The Administrative Fee must be included in, and not added to, the pricing. Supplier may not charge Participating Entities more than the contracted price to offset the Administrative Fee. The Supplier will submit payment to Sourcewell for the percentage of administrative fee stated in the Proposal multiplied by the total sales of all Equipment, Products, and Services purchased by Participating Entities under this Contract during each calendar quarter. Payments should note the Supplier’s name and Sourcewell-assigned contract number in the memo; and must be mailed to the address above “Attn: Accounts Receivable” or remitted electronically to Sourcewell’s banking institution per Sourcewell’s Finance department instructions. Payments must be received no later than 45 calendar days after the end of each calendar quarter. Supplier agrees to cooperate with Sourcewell in auditing transactions under this Contract to ensure that the administrative fee is paid on all items purchased under this Contract. In the event the Supplier is delinquent in any undisputed administrative fees, Sourcewell reserves the right to cancel this Contract and reject any proposal submitted by the Supplier in any subsequent solicitation. In the event this Contract is cancelled by either party prior to the Contract’s expiration date, the administrative fee payment will be due no more than 30 days from the cancellation date. 9. AUTHORIZED REPRESENTATIVE Sourcewell's Authorized Representative is its Chief Procurement Officer. Supplier’s Authorized Representative is the person named in the Supplier’s Proposal. If Supplier’s Authorized Representative changes at any time during this Contract, Supplier must promptly notify Sourcewell in writing. 10. AUDIT, ASSIGNMENT, AMENDMENTS, WAIVER, AND CONTRACT COMPLETE A. AUDIT. Pursuant to Minnesota Statutes Section 16C.05, subdivision 5, the books, records, documents, and accounting procedures and practices relevant to this Agreement are subject to examination by Sourcewell or the Minnesota State Auditor for a minimum of six years from the end of this Contract. This clause extends to Participating Entities as it relates to business conducted by that Participating Entity under this Contract. B. ASSIGNMENT. Neither party may assign or otherwise transfer its rights or obligations under this Contract without the prior written consent of the other party and a fully executed assignment agreement. Such consent will not be unreasonably withheld. Any prohibited assignment will be invalid.          110421-ALT Rev. 3/2021 8 C. AMENDMENTS. Any amendment to this Contract must be in writing and will not be effective until it has been duly executed by the parties. D. WAIVER. Failure by either party to take action or assert any right under this Contract will not be deemed a waiver of such right in the event of the continuation or repetition of the circumstances giving rise to such right. Any such waiver must be in writing and signed by the parties. E. CONTRACT COMPLETE. This Contract represents the complete agreement between the parties. No other understanding regarding this Contract, whether written or oral, may be used to bind either party.For any conflict between the attached Proposal and the terms set out in Articles 1-22 of this Contract, the terms of Articles 1-22 will govern. F. RELATIONSHIP OF THE PARTIES. The relationship of the parties is one of independent contractors, each free to exercise judgment and discretion with regard to the conduct of their respective businesses. This Contract does not create a partnership, joint venture, or any other relationship such as master-servant, or principal-agent. 11. INDEMNITY AND HOLD HARMLESS Supplier must indemnify, defend, save, and hold Sourcewell and its Participating Entities, including their agents and employees, harmless from any claims or causes of action, including attorneys’ fees incurred by Sourcewell or its Participating Entities, arising out of any negligent act or omission or willful misconduct in the performance of this Contract by the Supplier or its agents or employees; this indemnification includes injury or death to person(s) or property alleged to have been caused by some defect in the Equipment, Products, or Services under this Contract to the extent the Equipment, Product, or Service has been used according to its specifications. Sourcewell’s responsibility will be governed by the State of Minnesota’s Tort Liability Act (Minnesota Statutes Chapter 466) and other applicable law. 12. GOVERNMENT DATA PRACTICES Supplier and Sourcewell must comply with the Minnesota Government Data Practices Act, Minnesota Statutes Chapter 13, as it applies to all data provided by or provided to Sourcewell under this Contract and as it applies to all data created, collected, received, stored, used, maintained, or disseminated by the Supplier under this Contract. 13. INTELLECTUAL PROPERTY, PUBLICITY, MARKETING, AND ENDORSEMENT A. INTELLECTUAL PROPERTY 1. Grant of License. During the term of this Contract: a. Sourcewell grants to Supplier a royalty-free, worldwide, non-exclusive right and license to use thetrademark(s) provided to Supplier by Sourcewell in advertising and          110421-ALT Rev. 3/2021 9 promotional materials for the purpose of marketing Sourcewell’s relationship with Supplier. b. Supplier grants to Sourcewell a royalty-free, worldwide, non-exclusive right and license to use Supplier’s trademarks in advertising and promotional materials for the purpose of marketing Supplier’s relationship with Sourcewell. 2. Limited Right of Sublicense. The right and license granted herein includes a limited right of each party to grant sublicenses to their respective subsidiaries, distributors, dealers, resellers, marketing representatives, and agents (collectively “Permitted Sublicensees”) in advertising and promotional materials for the purpose of marketing the Parties’ relationship to Participating Entities. Any sublicense granted will be subject to the terms and conditions of this Article. Each party will be responsible for any breach of this Article by any of their respective sublicensees. 3. Use; Quality Control. a. Neither party may alter the other party’s trademarks from the form provided and must comply with removal requests as to specific uses of its trademarks or logos. b. Each party agrees to use, and to cause its Permitted Sublicensees to use, the other party’s trademarks only in good faith and in a dignified manner consistent with such party’s use of the trademarks. Upon written notice to the breaching party, the breaching party has 30 days of the date of the written notice to cure the breach or the license will be terminated. 4. As applicable, Supplier agrees to indemnify and hold harmless Sourcewell and its Participating Entities against any and all suits, claims, judgments, and costs instituted or recovered against Sourcewell or Participating Entities by any person on account of the use of any Equipment or Products by Sourcewell or its Participating Entities supplied by Supplier in violation of applicable patent or copyright laws. 5. Termination. Upon the termination of this Contract for any reason, each party, including Permitted Sublicensees, will have 30 days to remove all Trademarks from signage, websites, and the like bearing the other party’s name or logo (excepting Sourcewell’s pre-printed catalog of suppliers which may be used until the next printing). Supplier must return all marketing and promotional materials, including signage, provided by Sourcewell, or dispose of it according to Sourcewell’s written directions. B. PUBLICITY. Any publicity regarding the subject matter of this Contract must not be released without prior written approval from the Authorized Representatives. Publicity includes notices, informational pamphlets, press releases, research, reports, signs, and similar public notices prepared by or for the Supplier individually or jointly with others, or any subcontractors, with respect to the program, publications, or services provided resulting from this Contract. C. MARKETING. Any direct advertising, marketing, or offers with Participating Entities must be approved by Sourcewell. Send all approval requests to the Sourcewell Supplier Development Administrator assigned to this Contract.          110421-ALT Rev. 3/2021 10 D. ENDORSEMENT. The Supplier must not claim that Sourcewell endorses its Equipment, Products, or Services. 14. GOVERNING LAW, JURISDICTION, AND VENUE The substantive and procedural laws of the State of Minnesota will govern this Contract. Venue for all legal proceedings arising out of this Contract, or its breach, must be in the appropriate state court in Todd County, Minnesota or federal court in Fergus Falls, Minnesota. 15. FORCE MAJEURE Neither party to this Contract will be held responsible for delay or default caused by acts of God or other conditions that are beyond that party’s reasonable control. A party defaulting under this provision must provide the other party prompt written notice of the default. 16. SEVERABILITY If any provision of this Contract is found by a court of competent jurisdiction to be illegal, unenforceable, or void then both parties will be relieved from all obligations arising from that provision. If the remainder of this Contract is capable of being performed, it will not be affected by such determination or finding and must be fully performed. 17. PERFORMANCE, DEFAULT, AND REMEDIES A. PERFORMANCE. During the term of this Contract, the parties will monitor performance and address unresolved contract issues as follows: 1. Notification. The parties must promptly notify each other of any known dispute and work in good faith to resolve such dispute within a reasonable period of time. If necessary, Sourcewell and the Supplier will jointly develop a short briefing document that describes the issue(s), relevant impact, and positions of both parties. 2. Escalation. If parties are unable to resolve the issue in a timely manner, as specified above, either Sourcewell or Supplier may escalate the resolution of the issue to a higher level of management. The Supplier will have 30 calendar days to cure an outstanding issue. 3. Performance while Dispute is Pending. Notwithstanding the existence of a dispute, the Supplier must continue without delay to carry out all of its responsibilities under the Contract that are not affected by the dispute. If the Supplier fails to continue without delay to perform its responsibilities under the Contract, in the accomplishment of all undisputed work, the Supplier will bear any additional costs incurred by Sourcewell and/or its Participating Entities as a result of such failure to proceed. B. DEFAULT AND REMEDIES. Either of the following constitutes cause to declare this Contract, or any Participating Entity order under this Contract, in default:          110421-ALT Rev. 3/2021 11 1. Nonperformance of contractual requirements, or 2. A material breach of any term or condition of this Contract. The party claiming default must provide written notice of the default, with 30 calendar days to cure the default. Time allowed for cure will not diminish or eliminate any liability for liquidated or other damages. If the default remains after the opportunity for cure, the non-defaulting party may: x Exercise any remedy provided by law or equity, or x Terminate the Contract or any portion thereof, including any orders issued against the Contract. 18. INSURANCE A. REQUIREMENTS. At its own expense, Supplier must maintain insurance policy(ies) in effect at all times during the performance of this Contract with insurance company(ies) licensed or authorized to do business in the State of Minnesota having an “AM BEST” rating of A- or better, with coverage and limits of insurance not less than the following: 1. Workers’ Compensation and Employer’s Liability. Workers’ Compensation: As required by any applicable law or regulation. Employer's Liability Insurance: must be provided in amounts not less than listed below: Minimum limits: $500,000 each accident for bodily injury by accident $500,000 policy limit for bodily injury by disease $500,000 each employee for bodily injury by disease 2. Commercial General Liability Insurance. Supplier will maintain insurance covering its operations, with coverage on an occurrence basis, and must be subject to terms no less broad than the Insurance Services Office (“ISO”) Commercial General Liability Form CG0001 (2001 or newer edition), or equivalent. At a minimum, coverage must include liability arising from premises, operations, bodily injury and property damage, independent contractors, products-completed operations including construction defect, contractual liability, blanket contractual liability, and personal injury and advertising injury. All required limits, terms and conditions of coverage must be maintained during the term of this Contract. Minimum Limits: $1,000,000 each occurrence Bodily Injury and Property Damage $1,000,000 Personal and Advertising Injury $2,000,000 aggregate for Products-Completed operations $2,000,000 general aggregate          110421-ALT Rev. 3/2021 12 3. Commercial Automobile Liability Insurance. During the term of this Contract, Supplier will maintain insurance covering all owned, hired, and non-owned automobiles in limits of liability not less than indicated below. The coverage must be subject to terms no less broad than ISO Business Auto Coverage Form CA 0001 (2010 edition or newer), or equivalent. Minimum Limits: $1,000,000 each accident, combined single limit 4. Umbrella Insurance. During the term of this Contract, Supplier will maintain umbrella coverage over Employer’s Liability, Commercial General Liability, and Commercial Automobile. Minimum Limits: $2,000,000 5. Network Security and Privacy Liability Insurance. During the term of this Contract, Supplier will maintain coverage for network security and privacy liability. The coverage may be endorsed on another form of liability coverage or written on a standalone policy. The insurance must cover claims which may arise from failure of Supplier’s security resulting in, but not limited to, computer attacks, unauthorized access, disclosure of not public data – including but not limited to, confidential or private information, transmission of a computer virus, or denial of service. Minimum limits: $2,000,000 per occurrence $2,000,000 annual aggregate Failure of Supplier to maintain the required insurance will constitute a material breach entitling Sourcewell to immediately terminate this Contract for default. B. CERTIFICATES OF INSURANCE. Prior to commencing under this Contract, Supplier must furnish to Sourcewell a certificate of insurance, as evidence of the insurance required under this Contract. Prior to expiration of the policy(ies), renewal certificates must be mailed to Sourcewell, 202 12th Street Northeast, P.O. Box 219, Staples, MN 56479 or sent to the Sourcewell Supplier Development Administrator assigned to this Contract. The certificates must be signed by a person authorized by the insurer(s) to bind coverage on their behalf. Failure to request certificates of insurance by Sourcewell, or failure of Supplier to provide certificates of insurance, in no way limits or relieves Supplier of its duties and responsibilities in this Contract. C. ADDITIONAL INSURED ENDORSEMENT AND PRIMARY AND NON-CONTRIBUTORY INSURANCE CLAUSE. Supplier agrees to list Sourcewell and its Participating Entities, including their officers, agents, and employees, as an additional insured under the Supplier’s commercial general liability insurance policy with respect to liability arising out of activities, “operations,” or          110421-ALT Rev. 3/2021 13 “work” performed by or on behalf of Supplier, and products and completed operations of Supplier. The policy provision(s) or endorsement(s) must further provide that coverage is primary and not excess over or contributory with any other valid, applicable, and collectible insurance or self-insurance in force for the additional insureds. D. WAIVER OF SUBROGATION. Supplier waives and must require (by endorsement or otherwise) all its insurers to waive subrogation rights against Sourcewell and other additional insureds for losses paid under the insurance policies required by this Contract or other insurance applicable to the Supplier or its subcontractors. The waiver must apply to all deductibles and/or self-insured retentions applicable to the required or any other insurance maintained by the Supplier or its subcontractors. Where permitted by law, Supplier must require similar written express waivers of subrogation and insurance clauses from each of its subcontractors. E. UMBRELLA/EXCESS LIABILITY/SELF-INSURED RETENTION. The limits required by this Contract can be met by either providing a primary policy or in combination with umbrella/excess liability policy(ies), or self-insured retention. 19. COMPLIANCE A. LAWS AND REGULATIONS. All Equipment, Products, or Services provided under this Contract must comply fully with applicable federal laws and regulations, and with the laws in the states and provinces in which the Equipment, Products, or Services are sold. B. LICENSES. Supplier must maintain a valid and current status on all required federal, state/provincial, and local licenses, bonds, and permits required for the operation of the business that the Supplier conducts with Sourcewell and Participating Entities. 20. BANKRUPTCY, DEBARMENT, OR SUSPENSION CERTIFICATION Supplier certifies and warrants that it is not in bankruptcy or that it has previously disclosed in writing certain information to Sourcewell related to bankruptcy actions. If at any time during this Contract Supplier declares bankruptcy, Supplier must immediately notify Sourcewell in writing. Supplier certifies and warrants that neither it nor its principals are presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from programs operated by the State of Minnesota; the United States federal government or the Canadian government, as applicable; or any Participating Entity. Supplier certifies and warrants that neither it nor its principals have been convicted of a criminal offense related to the subject matter of this Contract. Supplier further warrants that it will provide immediate written notice to Sourcewell if this certification changes at any time.          110421-ALT Rev. 3/2021 14 21. PROVISIONS FOR NON-UNITED STATES FEDERAL ENTITY PROCUREMENTS UNDER UNITED STATES FEDERAL AWARDS OR OTHER AWARDS Participating Entities that use United States federal grant or FEMA funds to purchase goods or services from this Contract may be subject to additional requirements including the procurement standards of the Uniform Administrative Requirements, Cost Principles and Audit Requirements for Federal Awards, 2 C.F.R. § 200. Participating Entities may have additional requirements based on specific funding source terms or conditions. Within this Article, all references to “federal” should be interpreted to mean the United States federal government. The following list only applies when a Participating Entity accesses Supplier’s Equipment, Products, or Services with United States federal funds. A. EQUAL EMPLOYMENT OPPORTUNITY. Except as otherwise provided under 41 C.F.R. § 60, all contracts that meet the definition of “federally assisted construction contract” in 41 C.F.R. § 60- 1.3 must include the equal opportunity clause provided under 41 C.F.R. §60-1.4(b), in accordance with Executive Order 11246, “Equal Employment Opportunity” (30 FR 12319, 12935, 3 C.F.R. §, 1964-1965 Comp., p. 339), as amended by Executive Order 11375, “Amending Executive Order 11246 Relating to Equal Employment Opportunity,” and implementing regulations at 41 C.F.R. § 60, “Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor.” The equal opportunity clause is incorporated herein by reference. B. DAVIS-BACON ACT, AS AMENDED (40 U.S.C. § 3141-3148). When required by federal program legislation, all prime construction contracts in excess of $2,000 awarded by non- federal entities must include a provision for compliance with the Davis-Bacon Act (40 U.S.C. § 3141-3144, and 3146-3148) as supplemented by Department of Labor regulations (29 C.F.R. § 5, “Labor Standards Provisions Applicable to Contracts Covering Federally Financed and Assisted Construction”). In accordance with the statute, contractors must be required to pay wages to laborers and mechanics at a rate not less than the prevailing wages specified in a wage determination made by the Secretary of Labor. In addition, contractors must be required to pay wages not less than once a week. The non-federal entity must place a copy of the current prevailing wage determination issued by the Department of Labor in each solicitation. The decision to award a contract or subcontract must be conditioned upon the acceptance of the wage determination. The non-federal entity must report all suspected or reported violations to the federal awarding agency. The contracts must also include a provision for compliance with the Copeland “Anti-Kickback” Act (40 U.S.C. § 3145), as supplemented by Department of Labor regulations (29 C.F.R. § 3, “Contractors and Subcontractors on Public Building or Public Work Financed in Whole or in Part by Loans or Grants from the United States”). The Act provides that each contractor or subrecipient must be prohibited from inducing, by any means, any person employed in the construction, completion, or repair of public work, to give up any part of the compensation to which he or she is otherwise entitled. The non-federal entity must report all suspected or reported violations to the federal awarding agency. Supplier must be in compliance with all applicable Davis-Bacon Act provisions.          110421-ALT Rev. 3/2021 15 C. CONTRACT WORK HOURS AND SAFETY STANDARDS ACT (40 U.S.C. § 3701-3708). Where applicable, all contracts awarded by the non-federal entity in excess of $100,000 that involve the employment of mechanics or laborers must include a provision for compliance with 40 U.S.C. §§ 3702 and 3704, as supplemented by Department of Labor regulations (29 C.F.R. § 5). Under 40 U.S.C. § 3702 of the Act, each contractor must be required to compute the wages of every mechanic and laborer on the basis of a standard work week of 40 hours. Work in excess of the standard work week is permissible provided that the worker is compensated at a rate of not less than one and a half times the basic rate of pay for all hours worked in excess of 40 hours in the work week. The requirements of 40 U.S.C. § 3704 are applicable to construction work and provide that no laborer or mechanic must be required to work in surroundings or under working conditions which are unsanitary, hazardous or dangerous. These requirements do not apply to the purchases of supplies or materials or articles ordinarily available on the open market, or contracts for transportation or transmission of intelligence. This provision is hereby incorporated by reference into this Contract. Supplier certifies that during the term of an award for all contracts by Sourcewell resulting from this procurement process, Supplier must comply with applicable requirements as referenced above. D. RIGHTS TO INVENTIONS MADE UNDER A CONTRACT OR AGREEMENT. If the federal award meets the definition of “funding agreement” under 37 C.F.R. § 401.2(a) and the recipient or subrecipient wishes to enter into a contract with a small business firm or nonprofit organization regarding the substitution of parties, assignment or performance of experimental, developmental, or research work under that “funding agreement,” the recipient or subrecipient must comply with the requirements of 37 C.F.R. § 401, “Rights to Inventions Made by Nonprofit Organizations and Small Business Firms Under Government Grants, Contracts and Cooperative Agreements,” and any implementing regulations issued by the awarding agency. Supplier certifies that during the term of an award for all contracts by Sourcewell resulting from this procurement process, Supplier must comply with applicable requirements as referenced above. E. CLEAN AIR ACT (42 U.S.C. § 7401-7671Q.) AND THE FEDERAL WATER POLLUTION CONTROL ACT (33 U.S.C. § 1251-1387). Contracts and subgrants of amounts in excess of $150,000 require the non-federal award to agree to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act (42 U.S.C. § 7401- 7671q) and the Federal Water Pollution Control Act as amended (33 U.S.C. § 1251- 1387). Violations must be reported to the Federal awarding agency and the Regional Office of the Environmental Protection Agency (EPA). Supplier certifies that during the term of this Contract will comply with applicable requirements as referenced above. F. DEBARMENT AND SUSPENSION (EXECUTIVE ORDERS 12549 AND 12689). A contract award (see 2 C.F.R. § 180.220) must not be made to parties listed on the government wide exclusions in the System for Award Management (SAM), in accordance with the OMB guidelines at 2 C.F.R. §180 that implement Executive Orders 12549 (3 C.F.R. § 1986 Comp., p. 189) and 12689 (3 C.F.R. § 1989 Comp., p. 235), “Debarment and Suspension.” SAM Exclusions contains the names          110421-ALT Rev. 3/2021 16 of parties debarred, suspended, or otherwise excluded by agencies, as well as parties declared ineligible under statutory or regulatory authority other than Executive Order 12549. Supplier certifies that neither it nor its principals are presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation by any federal department or agency. G. BYRD ANTI-LOBBYING AMENDMENT, AS AMENDED (31 U.S.C. § 1352). Suppliers must file any required certifications. Suppliers must not have used federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a member of Congress, officer or employee of Congress, or an employee of a member of Congress in connection with obtaining any federal contract, grant, or any other award covered by 31 U.S.C. § 1352. Suppliers must disclose any lobbying with non-federal funds that takes place in connection with obtaining any federal award. Such disclosures are forwarded from tier to tier up to the non-federal award. Suppliers must file all certifications and disclosures required by, and otherwise comply with, the Byrd Anti-Lobbying Amendment (31 U.S.C. § 1352). H. RECORD RETENTION REQUIREMENTS. To the extent applicable, Supplier must comply with the record retention requirements detailed in 2 C.F.R. § 200.333. The Supplier further certifies that it will retain all records as required by 2 C.F.R. § 200.333 for a period of 3 years after grantees or subgrantees submit final expenditure reports or quarterly or annual financial reports, as applicable, and all other pending matters are closed. I. ENERGY POLICY AND CONSERVATION ACT COMPLIANCE. To the extent applicable, Supplier must comply with the mandatory standards and policies relating to energy efficiency which are contained in the state energy conservation plan issued in compliance with the Energy Policy and Conservation Act. J. BUY AMERICAN PROVISIONS COMPLIANCE. To the extent applicable, Supplier must comply with all applicable provisions of the Buy American Act. Purchases made in accordance with the Buy American Act must follow the applicable procurement rules calling for free and open competition. K. ACCESS TO RECORDS (2 C.F.R. § 200.336). Supplier agrees that duly authorized representatives of a federal agency must have access to any books, documents, papers and records of Supplier that are directly pertinent to Supplier’s discharge of its obligations under this Contract for the purpose of making audits, examinations, excerpts, and transcriptions. The right also includes timely and reasonable access to Supplier’s personnel for the purpose of interview and discussion relating to such documents. L. PROCUREMENT OF RECOVERED MATERIALS (2 C.F.R. § 200.322). A non-federal entity that is a state agency or agency of a political subdivision of a state and its contractors must comply with Section 6002 of the Solid Waste Disposal Act, as amended by the Resource Conservation          110421-ALT Rev. 3/2021 17 and Recovery Act. The requirements of Section 6002 include procuring only items designated in guidelines of the Environmental Protection Agency (EPA) at 40 C.F.R. § 247 that contain the highest percentage of recovered materials practicable, consistent with maintaining a satisfactory level of competition, where the purchase price of the item exceeds $10,000 or the value of the quantity acquired during the preceding fiscal year exceeded $10,000; procuring solid waste management services in a manner that maximizes energy and resource recovery; and establishing an affirmative procurement program for procurement of recovered materials identified in the EPA guidelines. M. FEDERAL SEAL(S), LOGOS, AND FLAGS. The Supplier not use the seal(s), logos, crests, or reproductions of flags or likenesses of Federal agency officials without specific pre-approval. N. NO OBLIGATION BY FEDERAL GOVERNMENT. The U.S. federal government is not a party to this Contract or any purchase by an Participating Entity and is not subject to any obligations or liabilities to the Participating Entity, Supplier, or any other party pertaining to any matter resulting from the Contract or any purchase by an authorized user. O. PROGRAM FRAUD AND FALSE OR FRAUDULENT STATEMENTS OR RELATED ACTS. The Contractor acknowledges that 31 U.S.C. 38 (Administrative Remedies for False Claims and Statements) applies to the Supplier’s actions pertaining to this Contract or any purchase by a Participating Entity. P. FEDERAL DEBT. The Supplier certifies that it is non-delinquent in its repayment of any federal debt. Examples of relevant debt include delinquent payroll and other taxes, audit disallowance, and benefit overpayments. Q. CONFLICTS OF INTEREST. The Supplier must notify the U.S. Office of General Services, Sourcewell, and Participating Entity as soon as possible if this Contract or any aspect related to the anticipated work under this Contract raises an actual or potential conflict of interest (as described in 2 C.F.R. Part 200). The Supplier must explain the actual or potential conflict in writing in sufficient detail so that the U.S. Office of General Services, Sourcewell, and Participating Entity are able to assess the actual or potential conflict; and provide any additional information as necessary or requested. R. U.S. EXECUTIVE ORDER 13224. The Supplier, and its subcontractors, must comply with U.S. Executive Order 13224 and U.S. Laws that prohibit transactions with and provision of resources and support to individuals and organizations associated with terrorism. S. PROHIBITION ON CERTAIN TELECOMMUNICATIONS AND VIDEO SURVEILLANCE SERVICES OR EQUIPMENT. To the extent applicable, Supplier certifies that during the term of this Contract it will comply with applicable requirements of 2 C.F.R. § 200.216.          110421-ALT Rev. 3/2021 18 T. DOMESTIC PREFERENCES FOR PROCUREMENTS. To the extent applicable, Supplier certifies that during the term of this Contract will comply with applicable requirements of 2 C.F.R. § 200.322. 22. CANCELLATION Sourcewell or Supplier may cancel this Contract at any time, with or without cause, upon 60 days’ written notice to the other party. However, Sourcewell may cancel this Contract immediately upon discovery of a material defect in any certification made in Supplier’s Proposal. Cancellation of this Contract does not relieve either party of financial, product, or service obligations incurred or accrued prior to cancellation. Sourcewell Altec Industries, Inc. 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Bid Number: RFP 110421 Vendor Name: Altec Industries, Inc. Exceptions to Terms, Conditions, or Specifications Form Only those Proposer Exceptions to Terms, Conditions, or Specifications that have been accepted by Sourcewell have been incorporated into the contract text. Documents Ensure your submission document(s) conforms to the following: 1. Documents in PDF format are preferred. Documents in ord, Excel, or compatible formats may also be provided. . Documents should NOT have a security password, as Sourcewell may not be able to open the file. t is your sole responsibility to ensure that the uploaded document(s) are not either defective, corrupted or blan and that the documents can be opened and viewed by Sourcewell. 3. 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7KH3URSRVHUGHFODUHVWKDWWKHUHLVDQDFWXDORUSRWHQWLDO&RQIOLFWRI,QWHUHVWUHODWLQJWRWKHSUHSDUDWLRQRILWVVXEPLVVLRQDQGRUWKH3URSRVHUIRUHVHHVDQDFWXDORU SRWHQWLDO&RQIOLFWRI,QWHUHVWLQSHUIRUPLQJWKHFRQWUDFWXDOREOLJDWLRQVFRQWHPSODWHGLQWKHELG <HV1R 7KH%LGGHUDFNQRZOHGJHVDQGDJUHHVWKDWWKHDGGHQGXPDGGHQGDEHORZIRUPSDUWRIWKH%LG'RFXPHQW Bid Number: RFP 110421 Vendor Name: Altec Industries, Inc.          &KHFNWKHER[LQWKHFROXPQ,KDYHUHYLHZHGWKLVDGGHQGXPEHORZWRDFNQRZOHGJHHDFKRIWKHDGGHQGD )LOH1DPH ,KDYHUHYLHZHGWKH EHORZDGGHQGXPDQG DWWDFKPHQWV LI DSSOLFDEOH 3DJHV $GGHQGXPBB3XEOLFB8WLOLW\B(TXLSPHQWB5)3B 7KX2FWREHU30  $GGHQGXPBB3XEOLFB8WLOLW\B(TXLSPHQWB5)3B 0RQ6HSWHPEHU30  $GGHQGXPBB3XEOLFB8WLOLW\B(TXLSPHQWB5)3B )UL6HSWHPEHU30  $GGHQGXPBB3XEOLFB8WLOLW\B(TXLSPHQWB5)3B 0RQ6HSWHPEHU30  Bid Number: RFP 110421 Vendor Name: Altec Industries, Inc.          SOURCEWELL STATE OF MINNESOTA Member______________ moved the adoption of the following Resolution: RESOLUTION TO APPROVE SOLICITATION AND/OR RE-SOLICITATION OF CATEGORIES Resolution No. 2021-18 WHEREAS, Sourcewell desires to issue a solicitation, and is seeking permission from the Board to issue a solicitation, for the categories listed on Appendix A, which is attached and incorporated. WHEREAS, through the Sourcewell Procurement Policy, the Board designated the Chief Procurement Officer to administer Sourcewell’s cooperative purchasing and contracting program; and WHEREAS, the Chief Procurement Officer recommends approval of categories detailed above. NOW THEREFORE BE IT RESOLVED that the Board of Directors hereby approves the solicitation of categories. The motion for the adoption of the foregoing resolution was duly seconded by Member ______________ and the following voted in favor: (list names here) and the following voted against: (list names here or “NONE”) whereupon said resolution was declared duly passed and adopted. ATTEST: _________________________________ Clerk to the Board of Directors                           APPENDIXA SOURCEWELLPROCUREMENTDEPARTMENT BOARDITEMSͲAugust2021 NEWCONTRACTS SupplierName ContractNumber SolicitationTitle BlinkChargingCo. 042221ͲBLK "ElectricVehicleSupplyEquipmentandRelatedServices" ChargePoint,Inc. 042221ͲCPI "ElectricVehicleSupplyEquipmentandRelatedServices" EVConnect,Inc. 042221ͲEVC "ElectricVehicleSupplyEquipmentandRelatedServices" EVBoxNorthAmerica,Inc. 042221ͲEVB "ElectricVehicleSupplyEquipmentandRelatedServices" FLOServicesUSA 042221ͲFLO "ElectricVehicleSupplyEquipmentandRelatedServices" FreewireTechnologies 042221ͲFRE "ElectricVehicleSupplyEquipmentandRelatedServices" LivingstonChargePort 042221ͲLIV "ElectricVehicleSupplyEquipmentandRelatedServices" NuvveHoldings 042221ͲNUV "ElectricVehicleSupplyEquipmentandRelatedServices" SemaConnect,Inc. 042221ͲSEM "ElectricVehicleSupplyEquipmentandRelatedServices" SiemensIndustry,Inc. 042221ͲSIE "ElectricVehicleSupplyEquipmentandRelatedServices" WirelessAdvancedVehicleElectrification(WAVE),LLC 042221ͲWVE "ElectricVehicleSupplyEquipmentandRelatedServices" TheActOneGroupInc./ATIMS 051321ͲAOG "PublicSafetySoftware" BackDraftOpCo,LLC 051321ͲBAK "PublicSafetySoftware" DeccanInternational 051321ͲDEC "PublicSafetySoftware" EnvisageTechnologies 051321ͲENV "PublicSafetySoftware" Genasys,Inc. 051321ͲGYS "PublicSafetySoftware" MotorolaSolutions,Inc. 051321ͲMOT "PublicSafetySoftware" OffDutyManagement,Inc. 051321ͲOFF "PublicSafetySoftware" QuicketSolutions,Inc. 051321ͲQKT "PublicSafetySoftware" RadioMobile,Inc. 051321ͲRDO "PublicSafetySoftware" SmartCOP,Inc. 051321ͲSMT "PublicSafetySoftware" UtilityAssociates,Inc. 051321ͲUTI "PublicSafetySoftware" Vaisala,Inc. 051321ͲVAI "PublicSafetySoftware" AbacusServiceCorporation 062421ͲABA "FacilitiesMaintenanceServices" KellermeyerBergensonsServices,LLC 062421ͲKEL "FacilitiesMaintenanceServices" LSSHoldings,LLC 062421ͲLSS "FacilitiesMaintenanceServices" SiemensIndustry,Inc. 062421ͲSIE "FacilitiesMaintenanceServices" SweepAmericaIntermediateHoldings,LLC 062421ͲSWP "FacilitiesMaintenanceServices" VanguardCleaningSystemsofWesternCanada 062421ͲVAN "FacilitiesMaintenanceServices" AlamoGroup,Inc. 070821ͲAGI "RoadRightͲofͲWayMaintenanceEquipment" Altoz,Inc. 070821ͲATZ "RoadRightͲofͲWayMaintenanceEquipment" BomfordTurner,Limited 070821ͲBFD "RoadRightͲofͲWayMaintenanceEquipment" BushHogInc. 070821ͲBHG "RoadRightͲofͲWayMaintenanceEquipment" DiamondMowers,LLC 070821ͲDMM "RoadRightͲofͲWayMaintenanceEquipment" FINNCorporation 070821ͲFNN "RoadRightͲofͲWayMaintenanceEquipment" GreenClimberofNorthAmerica,Inc. 070821ͲGCL "RoadRightͲofͲWayMaintenanceEquipment" LandPride,aDivisionofGreatPlainsMfg.Inc. 070821ͲLPI "RoadRightͲofͲWayMaintenanceEquipment" LogixITS 070821ͲLGX "RoadRightͲofͲWayMaintenanceEquipment" SchulteIndustries,Ltd. 070821ͲSCI "RoadRightͲofͲWayMaintenanceEquipment" TigerCorporation 070821ͲTGR "RoadRightͲofͲWayMaintenanceEquipment" CONTRACTEXTENSIONS SupplierName ContractNumber SolicitationTitle EnnisͲFlint,Inc.062817ͲEPI "AirportConsumableProductswithRelatedSuppliesand Services"CONSENTAGENDAITEMSStateofOhioͲIndefiniteDeliveryIndefiniteQuantityContracting AmbulanceandEMTVehicleswithRelatedEquipment,Accessories,andSupplies RequestingBoardpermissiontoReͲSolicitthefollowingcategories: RequestingBoardpermissiontoSolicitthefollowingcategories: KͲ12FoodProductsandDistributionwithRelatedServices PublicUtilityEquipmentwithRelatedAccessoriesandSupplies            SOURCEWELL STATE OF MINNESOTA Member ____________ moved the adoption of the following Resolution: RESOLUTION TO RATIFY COOPERATIVE CONTRACTING AWARDS 1/18/2022 Resolution No. 2022-03 WHEREAS, the Sourcewell Board of Directors previously authorized the solicitations for the cooperative categories listed on Appendix A, which is attached and incorporated; and WHEREAS, Sourcewell issued the cooperative contracting solicitations for the authorized categories; and WHEREAS, through the Sourcewell Procurement Policy, the Board designated the Chief Procurement Officer to administer Sourcewell’s cooperative purchasing and contracting program and to award all competitively solicited contracts, without limitation; and WHEREAS, the Chief Procurement Officer made the awards listed based on the results of the competitive solicitation process; and WHEREAS, the Board acknowledges that the awards made by the Chief Procurement Officer are valid and binding; however, based upon some members’ legal requirements the Chief Procurement Official is required to seek subsequent Board ratification of all cooperative purchasing awards. NOW THEREFORE BE IT RESOLVED by the Board of Directors ratifies the cooperative contracting awards made by the Chief Procurement Officer listed on Appendix A. The motion for the adoption of the foregoing resolution was duly seconded by Member______________ and the following voted in favor: (list names here) and the following voted against: (list names here or “NONE”) whereupon said resolution was declared duly passed and adopted. ATTEST: _________________________________ Clerk to the Board of Directors                        APPENDIXA SOURCEWELLPROCUREMENTDEPARTMENT BOARDITEMSͲJanuary2022 NEWCONTRACTS SupplierName ContractNumber SolicitationTitle AltecIndustries 110421ͲALT "PublicUtilityEquipmentwithRelatedAccessoriesandSupplies" ElliottEquipmentCompany 110421ͲEEC "PublicUtilityEquipmentwithRelatedAccessoriesandSupplies" TerexUtilities,Inc. 110421ͲTER "PublicUtilityEquipmentwithRelatedAccessoriesandSupplies" TheCharlesMachineWorks,Inc. 110421ͲCMW "PublicUtilityEquipmentwithRelatedAccessoriesandSupplies" TimeManufacturingCompany 110421ͲTIM "PublicUtilityEquipmentwithRelatedAccessoriesandSupplies" VermeerCorporation 110421ͲVRM "PublicUtilityEquipmentwithRelatedAccessoriesandSupplies" GlobalTeletherapy,LLC 102821ͲGTY "TeletherapyServices" LifeWorks,Ltd.102821ͲLFW "TeletherapyServices" MindBeaconHealth,Inc.102821ͲMND "TeletherapyServices" SWORDHealth,Inc.102821ͲSWD "TeletherapyServices" Talkspace,Inc.102821ͲTKS "TeletherapyServices" TheFamilyCentreofNorthernAlberta 102821ͲFMY "TeletherapyServices" BrindleeMountainFireApparatus 120921ͲBLE "UsedandPreͲOwnedFirefighting,FireService,Ambulance,and EmergencyServiceVehicleSolutions" AriesIndustries,Inc.120721ͲARS "UndergroundInfrastructureInspectionandRehabilitationEquipment withRelatedServices" BestEquipmentCompany,Inc.120721ͲBST "UndergroundInfrastructureInspectionandRehabilitationEquipment withRelatedServices" RapidView,LLC 120721ͲRVL "UndergroundInfrastructureInspectionandRehabilitationEquipment withRelatedServices" RauschElectronicsUSA,LLC 120721ͲRAU "UndergroundInfrastructureInspectionandRehabilitationEquipment withRelatedServices" CONTRACTEXTENSIONS SupplierName ContractNumber SolicitationTitle TYMCO,Inc. 122017ͲTYM "SewerVacuum,HydroͲExcavation,andStreetSweeperEquipmentwith RelatedAccessoriesandSupplies" NEWezIQCCONTRACTS CompanyName ContractNumber StateͲRegionͲTypeofWork ezIQCRENEWALS CompanyName ContractNumber F.H.Paschen,S.N.Nielsen&Associates,LLC VAͲECͲGC05Ͳ120920ͲFHP VigilContracting,Inc. VAͲNͲMH01Ͳ120920ͲVGL HITTContracting,Inc. VAͲEͲGC06Ͳ120920ͲHCI PaigeIndustrialServices,Inc. VAͲEͲMH01Ͳ120920ͲPAI HarrisonburgConstructionCo.,Inc. VAͲWCͲGC06Ͳ120920ͲHAR PaigeIndustrialServices,Inc. VAͲNͲGC01Ͳ120920ͲPAI JohnsonͲLauxConstruction,LLC VAͲNͲGC06Ͳ120920ͲJLC TheMatthewsGroup VAͲECͲGC02Ͳ120920ͲTMG SͲWorksConstructionCorporation VAͲECͲGC03Ͳ120920ͲSWC HITTContracting,Inc. VAͲECͲGC06Ͳ120920ͲHCI PaigeIndustrialServices,Inc. VAͲECͲMH01Ͳ120920ͲPAI F.H.Paschen,S.N.Nielsen&Associates,LLC VAͲEͲGC02Ͳ120920ͲFHP AdrianL.Merton,Inc. VAͲNͲMH02Ͳ120920ͲALM SͲWorksConstructionCorporation VAͲWCͲGC05Ͳ120920ͲSWCCONSENTAGENDAITEMSStateOfMinnesotaͲIndefiniteDeliveryIndefiniteQuantityConstruction RequestingBoardpermissiontoReͲSolicitthefollowingcategories: RequestingBoardpermissiontoSolicitthefollowingcategories: FoodProductsandDistribution(otherthanSchoolFoodAuthorities )withRelatedSupplies,Technology,andServices         APPENDIXAContinued JohnsonͲLauxConstruction,LLC VAͲWCͲGC01Ͳ120920ͲJLC CentennialContractorsEnterprises,Inc. VAͲEͲGC03Ͳ120920ͲCCE CentennialContractorsEnterprises,Inc. VAͲWͲGC05Ͳ120920ͲCCE CentennialContractorsEnterprises,Inc. VAͲNͲGC04Ͳ120920ͲCCE CentennialContractorsEnterprises,Inc. VAͲECͲGC01Ͳ120920ͲCCE TheMatthewsGroup VAͲEͲGC04Ͳ120920ͲTMG SͲWorksConstructionCorporation VAͲEͲGC05Ͳ120920ͲSWC TheMatthewsGroup VAͲNͲGC02Ͳ120920ͲTMG VigilContracting,Inc. VAͲNͲGC03Ͳ120920ͲVGL SͲWorksConstructionCorporation VAͲNͲGC05Ͳ120920ͲSWC F.H.Paschen,S.N.Nielsen&Associates,LLC VAͲWͲGC02Ͳ120920ͲFHP JohnsonͲLauxConstruction,LLC VAͲWͲGC03Ͳ120920ͲJLC SͲWorksConstructionCorporation VAͲWͲGC04Ͳ120920ͲSWC HITTContracting,Inc. VAͲWͲGC06Ͳ120920ͲHCI F.H.Paschen,S.N.Nielsen&Associates,LLC VAͲWCͲGC03Ͳ120920ͲFHP TheMatthewsGroup VAͲWCͲGC04Ͳ120920ͲTMG         COMMENT AND REVIEW to the REQUEST FOR PROPOSAL (RFP) #110421 Entitled Public Utility Equipment with Related Accessories and Supplies The following advertisement was placed September 16, 2021 in USA Today, in South Carolina’s The State, in The Oklahoman and on the Sourcewell website www.sourcewell-mn.gov, Sourcewell Procurement Portal https://proportal.sourcewell-mn.gov, Biddingo, Merx, The New York State Contract Reporter www.nyscr.ny.gov, PublicPurchase.com, and September 17, 2021 in Oregon’s Daily Journal of Commerce: Sourcewell, a State of Minnesota local government unit and service cooperative, is requesting proposals for Public Utility Equipment with Related Accessories and Supplies to result in a contracting solution for use by its Participating Entities. Sourcewell Participating Entities include thousands of governmental, higher education, K-12 education, nonprofit, tribal government, and other public agencies located in the United States and Canada. A full copy of the Request for Proposals can be found on the Sourcewell Procurement Portal [https://proportal.sourcewell- mn.gov]. Only proposals submitted through the Sourcewell Procurement Portal will be considered. Proposals are due no later than November 4, 2021, at 4:30 p.m. Central Time, and late proposals will not be considered. The solicitation process was conducted through the Sourcewell Procurement Portal. The following parties expressed interest in the solicitation by registering for this opportunity within the portal: Advanced Manufacturing and Fabrication, Inc. Morooka USA, LLC (Dominion Equipment) Altec Industries, Inc. Nelson Truck Equipment Co, Inc. Aramsco, Inc. New West Freightliner, Inc. Aries Industries, Inc. Prime Vendor, Inc. B&J Forklift Regina Construction Association Commercial Truck Equipment Corporation Sauber Manufacturing Company Computrol Fuel Systems, Inc. Schuler Brothers Investments CTOS Canada, Ltd. Sebright Products, Inc. Custom Truck One Source, L.P. SemaConnect Deep Trekker Sierra International Machinery, LLC Diamond Mowers Snap-on Industrial, A Division of IDSC Holdings, LLC Discount Two-Way Radio Corporation Source Atlantic, Ltd. DocuSign Envelope ID: 2CCD2CBF-A876-4385-BABB-AD522E530115 Sourcewell Page 2 of 4 Dobbs Ford, Inc. SPECTOR MANUFACTURING, INC. Domino Highvoltage Supply, Inc. Synergy Rents, LLC DuCo, LLC (Elliott Equipment Company) Terex Utilities Eagle Crusher Company, Inc. The Blue Book Network ePower Systems & Battery, Inc. The Charles Machine Works, Inc. FCAR TECH USA Time Manufacturing Company Great West Equipment US PATRIOT, LLC Holland Pump Company Valor Holdings, LLC Kaufman Trailers of NE, Inc. Vermeer Corporation Leadbelt PowerSports WABASH MFG., INC. Lion Buses, Inc. WASTEWATER SOLUTIONS, LLC All Proposals remained sealed within the Sourcewell Procurement Portal until the scheduled due date and time. Proposals were electronically opened, and the list of all Proposers was made publicly available on the Sourcewell Procurement Portal, on November 4, 2021, at 4:44:33 pm CT. Proposals were received from the following: Altec Industries, Inc. Computrol Fuel Systems, Inc. CTOS Canada, Ltd. Custom Truck One Source, L.P. Elliott Equipment Company(DuCo, LLC) Morooka USA, LLC (Dominion Equipment) Terex Utilities The Charles Machine Works, Inc. Time Manufacturing Company Vermeer Corporation Proposals were reviewed by the Proposal Evaluation Committee: Kim Austin, MBA, CPPB, Procurement Lead Analyst Brandon Town CPSM, CPSD, Procurement Analyst Carol Jackson, Procurement Analyst Craig West, Procurement Analyst The findings of the Proposal Evaluation Committee are summarized as follows: The Proposal Evaluation Committee applied the Sourcewell RFP evaluation criteria and determined that the products and services offered in the proposal response from Computrol Fuel Systems, Inc., fall outside of the Requested Equipment, Products, or Services of the RFP. All other proposals were found to meet the scope and mandatory submittal requirements and were evaluated. Altec Industries, Inc., provides Sourcewell participating entities access to their full product line of equipment, including aerial devices, cranes and cable placers. Standard warranty is one year on parts and labor with most models including a limited lifetime warranty. Altec directly sells and services through their robust sales network and 44 Service Centers located throughout the United States and Canada. They are offering participating entities competitive pricing. DocuSign Envelope ID: 2CCD2CBF-A876-4385-BABB-AD522E530115 Sourcewell Page 3 of 4 Elliot Equipment Company manufactures aerial work platforms, digger derricks, cranes, and boom trucks. Through their geographically dispersed distributors and internal sales and service teams, participating entities in Canada and the United States can receive sales and service support. Elliot offers a one-year warranty on parts and labor for aerials and digger derricks and two years on cranes. All products also include a lifetime structural warranty. Products included in this proposal are being offered with strong discounts from list prices. Terex Utilities, Inc. offers their full line of public utility equipment that includes digger derricks, aerial devices, auger drills, auger tools, equipment remounts, inspections, and repair services. They have a strong direct sales and service force that is supplemented by a large distributor and rental partner network that allows them to provide sales and service to Sourcewell participating entities in the United States and Canada. Replacement parts for Terex products are available for purchase through their online e-commerce platform. Terex Utilities, Inc. proposes a solid discount from their list pricing. The Charles Machine Works, Inc., dba Ditch Witch, offers a complete line of pedestrian and ride on trenchers, vibratory plows, compact utility products, stand on track loaders and attachments, directional drills, vacuum excavation products, micro trenching products, pipe and cable locators, tracking electronics, and pneumatic piercing tools. They have an independent dealer network throughout the United States and Canada, along with over 600 service personnel. Financing and competitive discounts off MSRP are available to Sourcewell participating entities. Time Manufacturing Company brands include Versalift, BrandFX, Ruthmann, Steiger, Ecoline, Eagle, Blueline and Aspen Aerials. They offer a complete solution including bucket trucks, high access aerials, compact aerials, service trucks, cable placers and digger derricks with a dealer network that covers the United States and Canada. Standard one-year parts and labor warranties are included, and extended warranties are available. Time Manufacturing offers competitive pricing and discounts off MSRP to Sourcewell participating entities. Vermeer Corporation has a comprehensive product lineup with trenchers, directional drills, piercing tools, and utility locating equipment. Their factory product specialists and dealerships located across the United States and Canada are available to fully serve Sourcewell participating entities. Standard warranties cover all products with extended warranty and service contracts available. Vermeer offers a competitive discount off standard pricing to Sourcewell participating entities. For these reasons, the Sourcewell Proposal Evaluation Committee recommends award of Sourcewell Contract #110421 to: Altec Industries, Inc. #110421-ALT Elliott Equipment #110421-EEC Terex Utilities, Inc. #110421-TER The Charles Machine Works, Inc. #110421-CMW Time Manufacturing Company #110421-TIM Vermeer Corporation #110421-VRM The preceding recommendations were approved on December 20, 2021. ___________________________________ Kim Austin, MBA, CPPB, Procurement Lead Analyst DocuSign Envelope ID: 2CCD2CBF-A876-4385-BABB-AD522E530115 Sourcewell Page 4 of 4 _____________________________________ Brandon Town CPSM, CPSD, Procurement Analyst _____________________________________ Carol Jackson, Procurement Analyst _______________________________________ Craig West, Procurement Analyst STATEMENT OF COMPLIANCE As Chief Procurement Officer for Sourcewell, I have reviewed the recommendation of the Evaluation Committee and the accompanying support materials documenting the process followed for RFP #110421 for Public Utility Equipment with Related Accessories and Supplies. The committee accepted, deemed responsive, evaluated, and recommended proposals for award. Under authority granted to the Chief Procurement Officer in Sourcewell’s bylaws, the recommendations set forth above are approved. I hereby certify: 1. Sourcewell is a government agency, created and authorized by Minnesota law to provide cooperative procurement contracts. 2. The procurement process and resulting contracts have been awarded in compliance with the laws of the State of Minnesota (Minnesota Statutes Chapter 471 and Minnesota Statutes Section 123A.21), and in conformity to Sourcewell’s Procurement Policy. Jeremy Schwartz, CSSBB, CPPO Chief Procurement Officer DocuSign Envelope ID: 2CCD2CBF-A876-4385-BABB-AD522E530115 AltecIndustries,Inc. ComputrolFuelSystemsInc. CTOSCanadaLtd.CustomTruckOneSource,L.P.DuCo,LLC(ElliottEquipmentCompany)MorookaUSA,LLC(DominionEquipmentParts) TerexUtilitiesTheCharlesMachineWorks,Inc.TimeManufacturingCompany VermeerCorporationPossible PointsConformance to Terms/ Conditions to Include Documentation 5044 - 34 43 44 37 41 45 41 44 Pricing 400348 - 241 301 336 246 340 344 332 338 Financial, Industry and Marketplace Successes 7565 - 50 61 61 54 64 62 56 63 Bidder's Ability to Sell/ Service Contract Nationally 10083 - 65 83 81 74 80 86 78 86 Bidder's Marketing Plan 5043 - 32 39 42 37 36 43 42 42 Value Added Attributes 7567 - 46 60 61 55 63 62 65 64 Warranty Coverages and Information 5045 - 37 43 44 42 43 43 42 44 Depth and Breadth of Offered Equipment, Products, or Services 200183 - 152 174 160 118 172 172 170 170 Total Points 1,000 878 0 657 804 829 663 839 857 826 851Rank Order11097584263_____________________________________________Carol Jackson, Procurement Analyst_____________________________________________Kim Austin, MBA, CPPB, Procurement Lead Analyst_____________________________________________Craig West, Procurement Analyst_____________________________________________Brandon Town, CPSM, CPSD, Procurement AnalystProposal EvaluationPublic Utility Equipment with Related Accessories and Supplies RFP #110421           The New York State Contract Reporter This document printed Wednesday, 09/15/2021 NYS' official source of contracting opportunities Bringing business and government together Contracting Opportunity * * * This ad has not been published. It has been reviewed and pending publication. * * * Title:Public Utility Equipment with Related Accessories and Supplies Agency:Sourcewell Division:Procurement Department Contract Number:110421 Contract Term:4 years, with potential 1 year extension Date of Issue:09/16/2021 Due Date/Time:11/04/2021 4:30 PM Central Time County(ies):All NYS counties Classification:Vehicles & Equipment - Commodities Opportunity Type:General Entered By:Chris Robinson Description:Sourcewell, a State of Minnesota local government unit and service cooperative, is requesting proposals for Public Utility Equipment with Related Accessories and Supplies to result in a contracting solution for use by its Participating Entities.  Sourcewell Participating Entities include thousands of governmental, higher education, K-12 education, nonprofit, tribal government, and other public agencies located in the United States and Canada. A full copy of the Request for Proposals can be found on the Sourcewell Procurement Portal [https://proportal .sourcewell-mn.gov]. Only proposals submitted through the Sourcewell Procurement Portal will be considered. Proposals are due no later than November 4, 2021, at 4:30 p.m. Central Time, and late proposals will not be considered. Service-Disabled Veteran-Owned Set Aside: No 1 of 2 Contact Information Primary contact:Sourcewell Procurement Department Chris Robinson Procurement Manager 202 12th Street NE P.O. Box 219 Staples, MN 56479 United States Ph: 218-895-4168 rfp@sourcewell-mn.gov Submit to contact:Sourcewell Procurement Department Chris Robinson Procurement Manager 202 12th Street NE P.O. Box 219 Staples, MN 56479 United States Ph: 218-895-4168 rfp@sourcewell-mn.gov     © 2021, Empire State Development http://www.esd.ny.gov/ 2 of 2 AFFIDAVIT OF PUBLICATION Account #Order Number Identification Order PO Amount Cols Depth 34474 134895 Print Legal Ad - IPL0040908 $132.13 1 18 L Attention:Carol Jackson SOURCEWELL PO BOX 219 STAPLES, MN 56479 State of South Carolina County of Richland I, Tara Pennington, makes oath that the advertisment, was published in The State, a newspaper published in the City of Columbia, State and County aforesaid, in the issue(s) of No. of Insertions:1 Beginning Issue of:09/16/2021 Ending Issue of:09/16/2021 Tara Pennington Sworn to and subscribed before me this 16th day of September in the year of 2021 Notary Public in and for the state of Texas, residing in Dallas County Errors- the liability of the publisher on account of errors in or omissions from any advertisement will in no way exceed the amount of the charge for the space occupied by the item in error, and then only for the first incorrect insertion.” Extra charge for lost or duplicate affidavits. Legal document please do not destroy! SPORTS E3 U SA TODAY ❚THURSDAY, SEPTEMBER 16, 2021 ❚7C LPGA Cambia Portland Classic Course: The Oregon Golf Club in West Linn. Yardage: 6,478. Par: 72. Prize money: $1.4 million. Winner’s share: $210,000. TV (ET): Thursday-Sunday, 3-6 p.m. (Golf). Notes: Nelly Korda is the Race to CME Globe lead- er. ... In the first LPGA event since Europe won the Solheim Cup, only six of the 24 players who were at Inverness are playing this week. Carlota Ciganda of Spain is the only European from the winning Solheim Cup team. The U.S. team mem- bers who are playing are Brittany Altomare, Jen- nifer Kupcho, Austin Ernst, Yealimi Noh and Mina Harigae. … Georgia Hall of England, the defending champion, is not playing. European Tour Dutch Open Course: Bernardus Golf in Cromvoirt, Nether- lands. Yardage: 7,200. Par: 72. Prize money: $1.182 million. TV (ET): Thursday-Friday, 9:30 a.m.-2:30 p.m. (Golf); Saturday-Sunday, 9 a.m.-1:30 p.m. (Golf). Notes: Billy Horschel, who won last weekend’s BMW PGA Championship at Wentworth, moved to No. 2 in the Race to Dubai, closing in on leader Collin Morikawa. … Louis Oosthuizen was planning to play until injuring his neck late in the PGA Tour season and wanting to rest. … The only member of the Europe Ryder Cup team at the Dutch Open is Graeme McDowell, a vice captain. PGA Tour Champions Sanford International Course: Minnehaha Country Club in Sioux Falls, South Dakota. Yardage: 6,729. Par: 70. Prize money: $1.8 million. Winner’s share: $270,000. TV: Friday-Sunday, 9:30-11:30 p.m. (Golf, delay). Notes: U.S. Ryder Cup captain Steve Stricker and three PGA Tour Champions-eligible assistants – Fred Couples, Jim Furyk and Davis Love III – are in the field. … Bernhard Langer remains atop the Charles Schwab Cup standings by about $2,500 over Jerry Kelly, with Furyk just over $8,000 out of the lead. … David Toms, who won last week- end’s Ascension Charity Classic, had not won since the U.S. Senior Open in 2018. – The Associated Press PRO GOLF NASCAR Camping World Truck Series UNOH 200 Presented by Ohio Logistics TV: 9 p.m. ET Thursday, FS1 Track: Bristol Motor Speedway Fast facts: Sheldon Creed, the defending series cham- pion, led 104 of the 147 laps at Darlington and has won three consecutive playoff races dating to last season. He leads John Hunter Nemechek by two points in the standings through one race in the post- season. Three-time champion Matt Crafton is third, 34 points behind. – The Associated Press MOTOR SPORTS NASCAR senior vice president of strategy and in- novation Ben Kennedy believes the collaboration be- tween industry stakeholders and fan feedback led to the creation of “what we think is ultimately the best Cup Series schedule that we’ve had so far.” On Wednesday, NASCAR rolled out the 2022 sched- ule, which includes two new stops. The first will be the Clash exhibition race to be run on a temporary short track built inside Los Angeles Memorial Coliseum, and then a visit to Illinois and World Wide Technology Raceway. The full schedule features 39 race events. While WWTR is the only new points-paying race, there are notable highlights. NASCAR returns to com- petition on Easter weekend for the first time since 1989. The event will be the second on the dirt at Bristol Motor Speedway and in prime time. “We learned that it’s important for us to make sure that dirt event is into the evening or under the lights, and we were able to secure that prime-time window on Fox,” Kennedy says. “You think of all the other sports leagues with NFL on Thanksgiving, NBA on Christ- mas. This was our opportunity to run on Easter Sun- day and drive a lot of momentum for fans who are watching at home through Fox’s season and NBC’s season, from start to finish.” The inaugural Bristol dirt race this year was rained out and pushed to Monday. It was well-received, but there were lessons learned with tire wear and visibility issues. Moving the race to prime time should keep the surface in better racing condition. Pocono was the only track to lose a race. For the first time since the early 1980s, it will not host two dates. A significant change is that teams will have only one off weekend next year. That will be after the June 12 race on the Sonoma road course. There have routinely been two weeks off during the Cup season for Easter and then one in summer. This year added one more because, besides Easter, NASCAR went on a two-week summer break in August to allow for the Olympics. “It’s something that we’re certainly looking at, and know it was nice to have the two-week off week with the Olympic break, and I think it was a natural break for our season this year,” says Kennedy. “That said, if you look at our schedule overall, starting on Presidents Day weekend as we traditionally have with the Dayto- na 500 and ending our season at Phoenix with the championship race, by the time you lay out the entire schedule, really ultimately, it leads to only one off week if we’re running on Sundays and weekends.” California’s Auto Club Speedway is back on the schedule after being shuttered during the COVID-19 pandemic. There are six road course races, five of which will be during the regular season. NASCAR also shuffled dates around late in the year, such as Watkins Glen being before the regular-season finale, and Texas and Kansas swapping postseason dates. Homestead is also back in the playoffs. Illinois track gets Cup date Kelly Crandall RACER magazine | USA TODAY Network All times ET MLB AMERICAN LEAGUE East Division W L Pct GB Tampa Bay 90 56 .616 — Toronto 82 64 .562 8 Boston 83 65 .561 8 New York 81 64 .559 8½ Baltimore 46 98 .319 43 Central Division W L Pct GB Chicago 83 61 .576 — Cleveland 70 73 .490 12½ Detroit 70 76 .479 14 Kansas City 66 78 .458 17 Minnesota 64 82 .438 20 West Division W L Pct GB Houston 84 60 .583 — Oakland 77 67 .535 7 Seattle 78 68 .534 7 Los Angeles 70 74 .486 14 Texas 54 90 .375 30 Tuesday’s Games Cleveland 3, Minnesota 1, 7 innings, 1st game Tampa Bay 2, Toronto 0 Detroit 1, Milwaukee 0, 11 innings Minnesota 6, Cleveland 3, 7 innings, 2nd game N.Y. Yankees 7, Baltimore 2 Texas 8, Houston 1 Chicago White Sox 9, L.A. Angels 3 Kansas City 10, Oakland 7 Boston 8, Seattle 4 Wednesday’s Games Detroit 4, Milwaukee 1 Toronto 6, Tampa Bay 3 Boston 9, Seattle 4, 10 innings N.Y. Yankees at Baltimore Cleveland at Minnesota Houston at Texas L.A. Angels at Chicago White Sox Oakland at Kansas City Thursday’s Games L.A. Angels (Ohtani 9-2) at Chicago White Sox (López 3-2), 2:10 p.m. Oakland (Blackburn 0-2) at Kansas City (Lynch 4-4), 2:10 p.m. N.Y. Yankees (Montgomery 5-6) at Baltimore (Ellis 1-0), 5:05 p.m. Detroit (Alexander 2-2) at Tampa Bay (Enns 1-0), 7:10 p.m. Houston (Valdez 10-5) at Texas (Otto 0-1), 8:05 p.m. Friday’s Games Cleveland at N.Y. Yankees, 7:05 p.m. Minnesota at Toronto, 7:07 p.m. Baltimore at Boston, 7:10 p.m. Detroit at Tampa Bay, 7:10 p.m. Chicago White Sox at Texas, 8:05 p.m. Arizona at Houston, 8:10 p.m. Seattle at Kansas City, 8:10 p.m. Oakland at L.A. Angels, 9:38 p.m. NATIONAL LEAGUE East Division W L Pct GB Atlanta 76 67 .531 — Philadelphia 72 72 .500 4½ New York 72 74 .493 5½ Miami 62 84 .425 15½ Washington 60 86 .411 17½ Central Division W L Pct GB Milwaukee 89 57 .610 — St. Louis 75 69 .521 13 Cincinnati 75 70 .517 13½ Chicago 66 79 .455 22½ Pittsburgh 53 91 .368 35 West Division W L Pct GB z-San Francisco 95 50 .655 — z-Los Angeles 93 53 .637 2½ San Diego 74 70 .514 20½ Colorado 67 78 .462 28 Arizona 47 98 .324 48 z-clinched playoff berth Tuesday’s Games Pittsburgh 6, Cincinnati 5 Detroit 1, Milwaukee 0, 11 innings Washington 8, Miami 2 Chicago Cubs 6, Philadelphia 3 Colorado 5, Atlanta 4 St. Louis 7, N.Y. Mets 6, 11 innings San Francisco 6, San Diego 1 L.A. Dodgers 8, Arizona 4 Wednesday’s Games Detroit 4, Milwaukee 1 Miami 8, Washington 6 Cincinnati at Pittsburgh Chicago Cubs at Philadelphia St. Louis at N.Y. Mets Colorado at Atlanta San Diego at San Francisco Arizona at L.A. Dodgers Thursday’s Games Colorado (Márquez 12-10) at Atlanta (Ander- son 7-5), 12:20 p.m. Cincinnati (Mahle 11-5) at Pittsburgh (Brubak- er 5-13), 12:35 p.m. San Diego (TBD) at San Francisco (Gausman 14-5), 3:45 p.m. Chicago Cubs (Hendricks 14-6) at Philadel- phia (TBD), 6:05 p.m. Friday’s Games Colorado at Washington, 7:05 p.m. L.A. Dodgers at Cincinnati, 7:10 p.m. Philadelphia at N.Y. Mets, 7:10 p.m. Pittsburgh at Miami, 7:10 p.m. Arizona at Houston, 8:10 p.m. Chicago Cubs at Milwaukee, 8:10 p.m. San Diego at St. Louis, 8:15 p.m. Atlanta at San Francisco, 9:45 p.m. NFL AMERICAN CONFERENCE East W L T Pct PF PA Miami 1 0 0 1.000 17 16 Buffalo 0 1 0 .000 16 23 N.Y. Jets 0 1 0 .000 14 19 New England 0 1 0 .000 16 17 South W L T Pct PF PA Houston 1 0 0 1.000 37 21 Indianapolis 0 1 0 .000 16 28 Jacksonville 0 1 0 .000 21 37 Tennessee 0 1 0 .000 13 38 North W L T Pct PF PA Cincinnati 1 0 0 1.000 27 24 Pittsburgh 1 0 0 1.000 23 16 Baltimore 0 1 0 .000 27 33 Cleveland 0 1 0 .000 29 33 West W L T Pct PF PA Denver 1 0 0 1.000 27 13 Kansas City 1 0 0 1.000 33 29 L.A. Chargers 1 0 0 1.000 20 16 Las Vegas 1 0 0 1.000 33 27 NATIONAL CONFERENCE East W L T Pct PF PA Philadelphia 1 0 0 1.000 32 6 Dallas 0 1 0 .000 29 31 N.Y. Giants 0 1 0 .000 13 27 Washington 0 1 0 .000 16 20 South W L T Pct PF PA Carolina 1 0 0 1.000 19 14 New Orleans 1 0 0 1.000 38 3 Tampa Bay 1 0 0 1.000 31 29 Atlanta 0 1 0 .000 6 32 North W L T Pct PF PA Chicago 0 1 0 .000 14 34 Detroit 0 1 0 .000 33 41 Green Bay 0 1 0 .000 3 38 Minnesota 0 1 0 .000 24 27 West W L T Pct PF PA Arizona 1 0 0 1.000 38 13 L.A. Rams 1 0 0 1.000 34 14 San Francisco 1 0 0 1.000 41 33 Seattle 1 0 0 1.000 28 16 Thursday’s Game N.Y. Giants at Washington, 8:20 p.m. Sunday’s Games Buffalo at Miami, 1 p.m. Cincinnati at Chicago, 1 p.m. Denver at Jacksonville, 1 p.m. Houston at Cleveland, 1 p.m. L.A. Rams at Indianapolis, 1 p.m. Las Vegas at Pittsburgh, 1 p.m. New England at N.Y. Jets, 1 p.m. New Orleans at Carolina, 1 p.m. San Francisco at Philadelphia, 1 p.m. Atlanta at Tampa Bay, 4:05 p.m. Minnesota at Arizona, 4:05 p.m. Dallas at L.A. Chargers, 4:25 p.m. Tennessee at Seattle, 4:25 p.m. Kansas City at Baltimore, 8:20 p.m. Monday’s Game Detroit at Green Bay, 8:15 p.m. WNBA EASTERN W L Pct GB x-Connecticut 24 6 .800 — x-Chicago 15 15 .500 9 Washington 12 18 .400 12 New York 11 19 .367 13 Atlanta 8 22 .267 16 Indiana 6 24 .200 18 WESTERN W L Pct GB x-Las Vegas 22 8 .733 — x-Minnesota 20 10 .667 2 x-Seattle 20 11 .645 2½ x-Phoenix 19 11 .633 3 x-Dallas 13 18 .419 9½ Los Angeles 11 19 .367 11 x-clinched playoff spot Tuesday’s Game Atlanta 85, Indiana 78 Wednesday’s Game New York at Connecticut Thursday’s Game Los Angeles at Atlanta, 7 p.m. Friday’s Games Minnesota at Indiana, 7 p.m. Washington at New York, 7 p.m. Las Vegas at Chicago, 8 p.m. Phoenix at Seattle, 10 p.m. SOCCER Champions League FIRST ROUND Home teams listed first; Top two in each group advance GROUP A GP W D L GF GA Pts Man. City 1 1 0 0 6 3 3 Club Brugge 1 0 1 0 1 1 1 PSG 1 0 1 0 1 1 1 RB Leipzig 1 0 0 1 3 6 0 Wednesday’s Games Club Brugge (Belgium) 1, PSG (France) 1 Manchester City 6, RB Leipzig (Germany) 3 GROUP B GP W D L GF GA Pts Liverpool 1 1 0 0 3 2 3 Atletico Madrid 1 0 1 0 0 0 1 Porto 1 0 1 0 0 0 1 AC Milan 1 0 0 1 2 3 0 Wednesday’s Games Atletico Madrid (Spain) 0, Porto (Portugal) 0 Liverpool 3, AC Milan (Italy) 2 GROUP C GP W D L GF GA Pts Ajax 1 1 0 0 5 1 3 Bor. Dortmund 1 1 0 0 2 0 3 Besiktas 1 0 0 1 1 2 0 Sporting Lisbon 1 0 0 1 1 5 0 Wednesday’s Games Besiktas (Turkey) 1, Borussia Dortmund 2 Sporting (Portugal) 1, Ajax (Netherlands) 5 GROUP D GP W D L GF GA Pts Sheriff 1 1 0 0 2 0 3 Real Madrid 1 1 0 0 1 0 3 Inter Milan 1 0 0 1 0 1 0 Shak. Donetsk 1 0 0 1 0 2 0 Wednesday’s Games Sheriff (Moldova) 2, Shakhtar Donetsk (Uk- raine) 0 Inter Milan (Italy) 0, Real Madrid (Spain) 1 GROUP E GP W D L GF GA Pts Bayern Munich 1 1 0 0 3 0 3 Dynamo Kyiv 1 0 1 0 0 0 1 Benfica 1 0 1 0 0 0 1 Barcelona 1 0 0 1 0 3 0 Tuesday’s Games Barcelona (Spain) 0, Bayern Munich 3 Dynamo Kyiv (Ukraine) 0, Benfica (Lisbon) 0 GROUP F GP W D L GF GA Pts Young Boys 1 1 0 0 2 1 3 Atalanta 1 0 1 0 2 2 1 Villarreal 1 0 1 0 2 2 1 Man. United 1 0 0 1 1 2 0 Tuesday’s Games Young Boys (Switzerland) 2, Man. United 1 Villarreal (Spain) 2, Atalanta (Italy) 2 GROUP G GP W D L GF GA Pts RB Salzburg 1 0 1 0 1 1 1 Sevilla 1 0 1 0 1 1 1 Lille 1 0 1 0 0 0 1 Wolfsburg 1 0 1 0 0 0 1 Tuesday’s Games Sevilla (Spain) 1, RB Salzburg (Austria) 1 Lille (France) 0, Wolfsburg (Germany) 0 GROUP H GP W D L GF GA Pts Juventus 1 1 0 0 3 0 3 Chelsea 1 1 0 0 1 0 3 Zenit St. P-burg 1 0 0 1 0 1 0 Malmo 1 0 0 1 0 3 0 Tuesday’s Games Chelsea 1, Zenit St. Petersburg (Russia) 0 Malmo (Sweden) 0, Juventus (Italy) 3 MLS Tuesday’s Games FC Dallas 3, New York City FC 3, tie Miami 1, Toronto FC 0 Columbus 2, New York 1 Wednesday’s Games Cincinnati at Atlanta CF Montréal at Orlando City Chicago at D.C. United Minnesota at Sporting Kansas City Los Angeles FC at Austin FC Colorado at Portland Houston at LA Galaxy Real Salt Lake at San Jose Friday’s Game New York at Miami, 7 p.m. Saturday’s Games D.C. United at Atlanta, 3:30 p.m. Columbus at New England, 7 p.m. Nashville at Toronto FC, 7:30 p.m. New York City FC at Cincinnati, 7:30 p.m. LA Galaxy at Minnesota, 8 p.m. San Jose at Austin FC, 8 p.m. Seattle at Real Salt Lake, 9:30 p.m. FC Dallas at Houston, 10 p.m. English Premier League Friday’s Game Newcastle vs. Leeds, 3 p.m. Saturday’s Games Wolverhampton vs. Brentford, 7:30 a.m. Burnley vs. Arsenal, 10 a.m. Liverpool vs. Crystal Palace, 10 a.m. Man City vs. Southampton, 10 a.m. Norwich vs. Watford, 10 a.m. Aston Villa vs. Everton, 12:30 p.m. COLLEGE FOOTBALL BOXTOROW HBCU Poll Records through Sept. 11 Rk.Team W-L Pts LW 1 Alabama A&M (16)1-0 168 1 2 Jackson State (1)2-0 143 3 3 Arkansas-Pine Bluff (1)1-0 134 2 4 North Carolina A&T 0-2 94 4 5 Florida A&M 1-1 83 6 6 North Carolina Central 1-1 79 5 7 Southern 1-1 59 9 8 South Carolina State 0-2 58 7 9 Alcorn State 1-1 41 NR T-10 Grambling 1-1 23 10 T-10 Prairie View A&M 1-1 23 NR Others receiving votes: Delaware State (1-1) 15; Bethune-Cookman (0-2) 4; Alabama State (1-1) 2; Norfolk State (0-2) 2; Hampton (1-1) 1; Tennessee State (0-2) 1. FOR THE RECORD MLS Friday Favorite Spread O/U Underdog INTER MIAMI 1.0 2.5 NY Red Bulls NCAAF Thursday Favorite Spread O/U Underdog UL LAFAYETTE 20.5 57.5 Ohio Friday Favorite Spread O/U Underdog C. Florida 6.5 67.5 LOUISVILLE Maryland 7.5 60.5 ILLINOIS Saturday Favorite Spread O/U Underdog MIAMI (FL)6.5 56.5 Michigan St. ARMY 33.5 48.5 Connecticut Cincinnati 3.5 49.5 INDIANA W. VIRGINIA 2.5 50.5 Virginia Tech Boston Coll.15.5 57.5 TEMPLE MICHIGAN 26.5 54.5 N. Illinois OKLAHOMA 22.5 61.5 Nebraska PITTSBURGH 15.5 61.5 W. Michigan TEXAS A&M 29.5 49.5 New Mexico Coastal Carol.13.5 57.5 BUFFALO COLORADO 2.5 48.5 Minnesota Nevada 1.5 50.5 K-STATE NOTRE DAME 7.5 58.5 Purdue usc 8.5 62.5 WASH. ST. CLEMSON 28.5 51.5 Georgia Tech Baylor 17.5 49.5 KANSAS E. Michigan 21.5 56.5 UMASS IOWA 22.5 56.5 Kent State OHIO ST.25.5 60.5 Tulsa Alabama 14.5 58.5 FLORIDA WAKE FOREST 4.5 61.5 Florida St. TOLEDO 14.5 58.5 Colorado St. Northwestern 2.5 49.5 DUKE WYOMING 6.5 53.5 Ball State ARKANSAS 23.5 52.5 Georgia Sthrn Mississippi St 3.5 64.5 MEMPHIS WASHINGTON 16.5 57.5 Arkansas St. MARSHALL 10.5 58.5 East Carolina LIBERTY 27.5 54.5 Old Dominion UT S. ANTNIO 12.5 59.5 Middle TN GEORGIA 31.5 48.5 S. Carolina TEXAS TECH 20.5 53.5 fiu Troy 9.5 50.5 STHRN MISS GEORGIA ST.3.5 63.5 Charlotte Utah 8.5 44.5 SN DIEGO ST. AIR FORCE 8.5 53.5 Utah State uab 11.5 57.5 N. TEXAS LSU 18.5 60.5 C. Michigan PENN ST.6.5 52.5 Auburn N. CAROLINA 8.5 65.5 Virginia OLE MISS 14.5 76.5 Tulane TEXAS 25.5 53.5 Rice Stanford 12.5 48.5 VANDERBILT BOISE ST.3.5 57.5 Oklahoma St. Arizona State 3.5 51.5 BYU Iowa State 30.5 51.5 UNLV UCLA 11.5 63.5 Fresno St. NFL Thursday Favorite Spread O/U Underdog WASHINGTON 3.5 40.5 Giants Sunday Favorite Spread O/U Underdog 49ers 3.5 50.5 EAGLES Patriots 5.5 42.5 JETS Bills 3.5 48.5 DOLPHINS Rams 3.5 47.5 COLTS BEARS 2.5 44.5 Bengals BROWNS 11.5 47.5 Texans Saints 3.5 44.5 PANTHERS Broncos 5.5 45.5 JAGUARS STEELERS 4.5 46.5 Raiders BUCCANEERS 12.5 51.5 Falcons CARDINALS 4.5 51.5 Vikings SEAHAWKS 5.5 53.5 Titans CHARGERS 2.5 55.5 Cowboys Chiefs 3.5 54.5 RAVENS Monday Favorite Spread O/U Underdog PACKERS 10.5 47.5 Lions ODDS PROVIDED BY Odds are subject to change. Tipico Sportsbook does not offer lines for New Jersey-based college sports teams. Gannett may earn revenue from audience referrals to betting services. 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Proposals are due no later than November 4, 2021, at 4:30 p.m. CentralTime, and late proposals will not be considered. NOTICES PUBLIC NOTICE ELIMINATE your overwhelming debt We can help if your total debt is $10,000 or more! Avoid bankruptcy today and start over completely debt-free. 800-825-1306 THE CALL IS FREE. CREDIT CARD DEBT MEDICAL DEBT PERSONAL LOANS FINANCIALFINANCIAL IMPROVE YOUR CREDIT SCORE Are you getting hit with high interest rates because of a low credit score? Improve it today! 800-852-4931 FREEConsultation FREECreditEvaluation GET NOTICED! Advertise in USA TODAY’s Marketplace!Call:1-800-397-0070 Notice Basic Information Details Dates Contact Information Pre-Bidding Events Bid Submission Process Estimated Contract Value (CAD)$360,000,000.00 (Not shown to suppliers) Reference Number 0000208518 Issuing Organization Sourcewell Owner Organization Solicitation Type RFP - Request for Proposal (Formal) Solicitation Number 110421 Title Public Utility Equipment with Related Accessories and Supplies Source ID PP.CO.USA.868485.C88455 Location All of Canada, All of Canada Purchase Type Duration:4 years Description Sourcewell, a State of Minnesota local government unit and service cooperative, is requesting proposals for Public Utility Equipment with Related Accessories and Supplies to result in a contracting solution for use by its Participating Entities. Sourcewell Participating Entities include thousands of governmental, higher education, K-12 education, nonprofit, tribal government, and other public agencies located in the United States and Canada. A full copy of the Request for Proposals can be found on the Sourcewell Procurement Portal [https://proportal.sourcewell-mn.gov]. Only proposals submitted through the Sourcewell Procurement Portal will be considered. Proposals are due no later than November 4, 2021, at 4:30 p.m. Central Time, and late proposals will not be considered. Publication 2021/09/16 09:37:30 AM EDT Question Acceptance Deadline 2021/10/28 05:30:00 PM EDT Questions are submitted online No Bid Intent Not Available Closing Date 2021/11/04 05:30:00 PM EDT Prebid Conference 2021/10/13 11:00:00 AM EDT Procurement Department 218-894-1930 rfp@sourcewell-mn.gov Event Type Prebid Conference Attendance Recommended Event date 2021/10/13 11:00:00 AM EDT Location Online Conference Event Note Login information will be emailed two business days prior to the event. Bid Submission Type Electronic Bid Submission Pricing In attached document Pricing In attached document Bid Documents List Item Name Description Mandatory Bid Documents Documents defining the proposal Yes 110421 - Public Utility Equipment with Related Accessori... 2021/09/16 09:37:38 AM EDT Page 1 of 2 Categories Selected Categories GSIN Categories (4) G Goods Goods N39 Materiel Handling Equipment Materiel Handling Equipment N3950C DERRICKS DERRICKS N54 Prefabricated Structures And Scaffolding Prefabricated Structures And Scaffolding N5440F PLATFORMS, TELESCOPING PLATFORMS, TELESCOPING S Services Services S Utilities Utilities S Utilities UTILITIES C Construction Construction 515 Special trade construction work Special trade construction work 5151B PILE DRIVING PILE DRIVING MERX Category (1) G Goods Goods G19 Machinery and Tools Machinery and Tools UNSPSC Categories (2) 20000000 Mining and Well Drilling Machinery and Accessories 20120000 Oil and gas drilling and exploration equipment 20121800 Directional drilling equipment 22000000 Building and Construction Machinery and Accessories 22100000 Heavy construction machinery and equipment 22101800 Aerial lifts 110421 - Public Utility Equipment with Related Accessori... 2021/09/16 09:37:38 AM EDT Page 2 of 2   ProposalOpeningRecord  Dateofopening:November4,2021  SourcewellpostedRequestforProposal#110421,fortheprocurementofPublicUtilityEquipmentwith RelatedAccessoriesandSupplies,ontheSourcewellProcurementPortal[proportal.sourcewellͲmn.gov]on Thursday,September16,2021,andthesolicitationremainedinanopenstatuswithintheportaluntil November4,2021,at4:30pmCT.TheRFPrequiredthatallproposalsbesubmittedthroughtheSourcewell ProcurementPortalnolaterthan4:30pmCTonNovember4,2021,thedateandtimespecifiedinthe SolicitationSchedule.  TheundersignedcertifythatallresponsesreceivedonRequestforProposal#110421weresubmittedthrough theSourcewellProcurementPortal,andthateachProposer’sresponsematerialwasdigitallysealedupon submissionandremainedinaccessibleuntiltheduedateandtimespecifiedintheSolicitationSchedule.  Responseswerereceivedfromthefollowing:  AltecIndustries,Inc.ͲSubmitted11/04/21at12:46:34PM ComputrolFuelSystems,Inc.ͲSubmitted11/03/21at5:59:29PM CTOSCanada,Ltd.ͲSubmitted11/03/21at12:12:51PM CustomTruckOneSource,L.P.ͲSubmitted11/04/21at3:54:01PM DuCo,LLC(ElliottEquipmentCompany)ͲSubmittedSun10/24/21at12:37:28PM MorookaUSA,LLC(DominionEquipment)ͲSubmitted11/04/21at3:41:41PM TerexUtilitiesͲSubmitted11/04/21at12:54:24PM TheCharlesMachineWorks,Inc.ͲSubmitted11/03/21at1:03:54PM TimeManufacturingCompanyͲSubmitted11/03/21at4:22:23PM VermeerCorporationͲSubmitted11/04/21at3:17:41PM  TheProposalswereopenedelectronically,andalistofallProposerswasmadepubliclyavailableinthe SourcewellProcurementPortal,onNovember4,2021,at4:44:33PMCT.Allresponsiveproposalswere thensubmittedforreviewbytheSourcewellEvaluationCommittee.      ____________________________________________________________________ ChrisRobinson,CPSM,ProcurementManagerCarolJackson,ProcurementAnalyst         Rev. 3/2021 Sourcewell RFP #110421 Public Utility Equipment with Related Accessories and Supplies Page 1 RFP #110421 REQUEST FOR PROPOSALS for Public Utility Equipment with Related Accessories and Supplies Proposal Due Date: November 4, 2021, 4:30 p.m., Central Time Sourcewell, a State of Minnesota local government unit and service cooperative, is requesting proposals for Public Utility Equipment with Related Accessories and Supplies to result in a contracting solution for use by its Participating Entities. Sourcewell Participating Entities include thousands of governmental, higher education, K-12 education, nonprofit, tribal government, and other public agencies located in the United States and Canada. A full copy of the Request for Proposals can be found on the Sourcewell Procurement Portal [https://proportal.sourcewell- mn.gov]. Only proposals submitted through the Sourcewell Procurement Portal will be considered. Proposals are due no later than November 4, 2021, at 4:30 p.m. Central Time, and late proposals will not be considered. Solicitation Schedule Public Notice of RFP Published: September 16, 2021 Pre-proposal Conference: October 13, 2021, 10:00 a.m., Central Time Question Submission Deadline: October 28, 2021, 4:30 p.m., Central Time Proposal Due Date: November 4, 2021, 4:30 p.m., Central Time Late responses will not be considered. Opening: November 4, 2021, 6:30 p.m., Central Time See RFP Section V.G. “Opening” Rev. 3/2021 Sourcewell RFP #110421 Public Utility Equipment with Related Accessories and Supplies Page 2 I. ABOUT SOURCEWELL A. SOURCEWELL Sourcewell is a State of Minnesota local government unit and service cooperative created under the laws of the State of Minnesota (Minnesota Statutes Section 123A.21) that facilitates a competitive public solicitation and contract award process for the benefit of its 50,000+ participating entities across the United States and Canada. Sourcewell’s solicitation process complies with State of Minnesota law and policies, conforms to Canadian trade agreements, and results in cooperative purchasing solutions from which Sourcewell’s Participating Entities procure equipment, products, and services. Cooperative purchasing provides participating entities and suppliers increased administrative efficiencies and the power of combined purchasing volume that result in overall cost savings. At times, Sourcewell also partners with other purchasing cooperatives to combine the purchasing volume of their membership into a single solicitation and contract expanding the reach of contracted suppliers’ potential pool of end users. Sourcewell uses a website-based platform, the Sourcewell Procurement Portal, through which all proposals to this RFP must be submitted. B. USE OF RESULTING CONTRACTS In the United States, Sourcewell’s contracts are available for use by: • Federal and state government entities; • Cities, towns, and counties/parishes; • Education service cooperatives; • K-12 and higher education entities; • Tribal government entities; • Some nonprofit entities; and • Other public entities. In Canada, Sourcewell’s contracts are available for use by: • Provincial and territorial government departments, ministries, agencies, boards, councils, committees, commissions, and similar agencies; • Regional, local, district, and other forms of municipal government, municipal organizations, school boards, and publicly-funded academic, health, and social service entities referred to as MASH sector (this should be construed to include but not be limited to the Cities of Calgary, Edmonton, Toronto, Ottawa, and Winnipeg), as well as any corporation or entity owned or controlled by one or more of the preceding entities; • Crown corporations, government enterprises, and other entities that are owned or controlled by these entities through ownership interest; Rev. 3/2021 Sourcewell RFP #110421 Public Utility Equipment with Related Accessories and Supplies Page 3 • Members of the Rural Municipalities of Alberta (RMA) and their represented Associations: MASH (municipalities, academic institutions, schools and hospitals) and MUSH (municipalities, universities, schools and hospitals) sectors, and other governmental agencies eligible to use the Sourcewell contracts. MASH and MUSH sector refers to regional, local, district or other forms of municipal government, school boards, publicly-funded academic, health and social service entities, as well as any corporation or entity owned or controlled by one or more of the preceding entities, including but not limited to represented associations, Saskatchewan Association of Rural Municipalities ("SARM"), Association of Manitoba Municipalities ("AMM"), Local Authorities Services/Association of Municipalities Ontario ("LAS/AMO", excluding the cities of Toronto and Ottawa), Nova Scotia Federation of Municipalities (“NSFM”), Federation of Prince Edward Island Municipalities (“FPEIM”), Municipalities Newfoundland Labrador (“MNL”), Union of New Brunswick Municipalities (“UNBM”), North West Territories Association of Communities ("NWTAC") and their members. RMA Participants may include all not-for-profit agencies for Canadian provinces and territories. For a listing of current United States and Canadian Participating Entities visit Sourcewell’s website (note: there is a tab for each country): https://www.sourcewell-mn.gov/sourcewell-for- vendors/agency-locator. Participating Entities typically access contracted equipment, products, or services through a purchase order issued directly to the contracted supplier. A Participating Entity may request additional terms or conditions related to a purchase. Use of Sourcewell contracts is voluntary and Participating Entities retain the right to obtain similar equipment, products, or services from other sources. To meet Participating Entities’ needs, Sourcewell broadly publishes public notice of all solicitation opportunities, including this RFP. In the United States each state-level procurement department receives notice for possible re-posting. Proof of publication will be available at the conclusion of the solicitation process. II. SOLICITATION DETAILS A. SOLUTIONS-BASED SOLICITATION This RFP and contract award process is a solutions-based solicitation; meaning that Sourcewell is seeking equipment, products, or services that meet the general requirements of the scope of this RFP and that are commonly desired or are required by law or industry standards. Rev. 3/2021 Sourcewell RFP #110421 Public Utility Equipment with Related Accessories and Supplies Page 4 B. REQUESTED EQUIPMENT, PRODUCTS, OR SERVICES It is expected that proposers will offer a wide array of equipment, products, or services at lower prices and with better value than what they would ordinarily offer to a single government entity, a school district, or a regional cooperative. 1. Sourcewell is seeking proposals for Public Utility Equipment with Related Accessories and Supplies including, but not limited to: a. Chassis-mounted, trailer-mounted, and self-propelled (wheel or track): i. Telescopic, articulated, mast, and boom, aerial lifts, towers, buckets, and platforms; ii. Digger derricks, and cable placing, pulling, and tensioning equipment; and, iii. Directional drills, trenchless excavation equipment, thrust and boring machines, soil piercing tools, trenchers, rock wheels, and pile drivers. b. Utility locating equipment; and, c. Accessories, supplies, replacement or wear parts, and services related to the offering of the solutions in subsections 1. a. and b. above. 2. The primary focus of this solicitation is on Public Utility Equipment with Related Accessories and Supplies. This solicitation should NOT be construed to include excavators principally intended for the cleaning of sewer lines, catch basins, and storm sewers, or for municipal pumping applications. 3. This solicitation does not include those equipment, products, or services covered under categories included in contracts currently maintained by Sourcewell: a. Trailers with Related Equipment, Accessories, and Services (RFP #121918), except the trailer-mounted solutions identified in subsections 1. a. i. – iii. above; b. Heavy Construction Equipment with Related Accessories, Attachments, and Supplies (RFP #032119); c. Medium Duty and Compact Construction Equipment with Related Attachments, Accessories, and Supplies (RFP #040319); d. Ag Tractors with Related Attachments, Accessories, and Supplier (RFP #110719); e. Class 4-8 Chassis with Related Equipment, Accessories, and Services (RFP #060920), except the chassis-mounted solutions identified in subsections 1. a. i. – iii. above; f. Forklifts and Lift Trucks with Related Services (RFP #091520); and, g. Sewer Vacuum, Hydro-Excavation, and Municipal Pumping Equipment with Related Accessories and Supplies (RFP #101221). Proposers may include related equipment, accessories, and services to the extent that these solutions are complementary to the equipment, products, or service(s) being proposed. Rev. 3/2021 Sourcewell RFP #110421 Public Utility Equipment with Related Accessories and Supplies Page 5 Generally, the solutions for Participating Entities are turn-key solutions, providing a combination of equipment, products and services, delivery, and installation to a properly operating status. However, equipment or products only solutions may be appropriate for situations where Participating Entities possess the ability, either in-house or through local third- party contractors, to properly install and bring to operation the equipment or products being proposed. Sourcewell prefers suppliers that provide a sole source of responsibility for the equipment, products, and services provided under a resulting contract. If proposer is including the equipment, products, and services of its subsidiary entities, the proposer must also identify all included subsidiaries in its proposal. If proposer requires the use of distributors, dealers, resellers, or subcontractors to provide the equipment, products, or services, the proposal must address how the equipment, products or services will be provided to Participating Entities, and describe the network of distributors, dealers, resellers, and/or subcontractors that will be available to serve Participating Entities under a resulting contract. Sourcewell desires the broadest possible selection of equipment, products, and services being proposed over the largest possible geographic area and to the largest possible cross-section of Sourcewell current and future Participating Entities. C. REQUIREMENTS It is expected that proposers have knowledge of all applicable industry standards, laws, and regulations and possess an ability to market and distribute the equipment, products, or services to Participating Entities. 1. Safety Requirements. All items proposed must comply with current applicable safety or regulatory standards or codes. 2. Deviation from Industry Standard. Deviations from industry standards must be identified with an explanation of how the equipment, products, and services will provide equivalent function, coverage, performance, and/or related services. 3. New Equipment and Products. Proposed equipment and products must be for new, current model; however, proposer may offer certain close-out equipment or products if it is specifically noted in the Pricing proposal. 4. Delivered and operational. Unless clearly noted in the proposal, equipment and products must be delivered to the Participating Entity as operational. 5. Warranty. All equipment, products, supplies, and services must be covered by a warranty that is the industry standard or better. D. ANTICIPATED CONTRACT TERM Sourcewell anticipates that the term of any resulting contract(s) will be four years, with an optional one year extension that may be offered based on the best interests of Sourcewell and its Participating Entities. Rev. 3/2021 Sourcewell RFP #110421 Public Utility Equipment with Related Accessories and Supplies Page 6 E. ESTIMATED CONTRACT VALUE AND USAGE Based on past volume of similar contracts, the estimated annual value of all transactions from contracts resulting from this RFP are anticipated to be USD $90 Million; therefore, proposers are expected to propose volume pricing. Sourcewell anticipates considerable activity under the contract(s) awarded from this RFP; however, sales and sales volume from any resulting contract are not guaranteed. F. MARKETING PLAN Proposer’s sales force will be the primary source of communication with Participating Entities. The proposer’s Marketing Plan should demonstrate proposer’s ability to deploy a sales force or dealer network to Participating Entities, as well as proposer’s sales and service capabilities. It is expected that proposer will promote and market any contract award. G. ADDITIONAL CONSIDERATIONS 1. Contracts will be awarded to proposers able to best meet the need of Participating Entities. Proposers should submit their complete line of equipment, products, or services that are applicable to the scope of this RFP. 2. Proposers should include all relevant information in its proposal, since Sourcewell cannot consider information that is not included in the proposal. Sourcewell reserves the right to verify proposer’s information and may request clarification from a proposer, including samples of the proposed equipment or products. 3. Depending upon the responses received in a given category, Sourcewell may need to organize responses into subcategories in order to provide the broadest coverage of the requested equipment, products, or services to Participating Entities. Awards may be based on a subcategory. 4. A proposer’s documented negative past performance with Sourcewell or its Participating Entities occurring under a previously awarded Sourcewell contract may be considered in the evaluation of a proposal. III. PRICING A. REQUIREMENTS All proposed pricing must be: 1. Either Line-Item Pricing or Percentage Discount from Catalog Pricing, or a combination of these: a. Line-item Pricing is pricing based on each individual product or services. Each line must indicate the proposer’s published “List Price,” as well as the “Contract Price.” Rev. 3/2021 Sourcewell RFP #110421 Public Utility Equipment with Related Accessories and Supplies Page 7 b. Percentage Discount from Catalog or Category is based on a percentage discount from a catalog or list price, defined as a published Manufacturer’s Suggested Retail Price (MSRP) for the products or services. Individualized percentage discounts can be applied to any number of defined product groupings. Proposers will be responsible for providing and maintaining current published MSRP with Sourcewell, and this pricing must be included in its proposal and provided throughout the term of any Contract resulting from this RFP. 2. The proposer’s not to exceed price. A not to exceed price is the highest price for which equipment, products, or services may be billed to a Participating Entity. However, it is permissible for suppliers to sell at a price that is lower than the contracted price. 3. Stated in U.S. and Canadian dollars (as applicable). 4. Clearly understandable, complete, and fully describe the total cost of acquisition (e.g., the cost of the proposed equipment, products, and services delivered and operational for its intended purpose in the Participating Entity’s location). Proposers should clearly identify any costs that are NOT included in the proposed product or service pricing. This may include items such as installation, set up, mandatory training, or initial inspection. Include identification of any parties that impose such costs and their relationship to the proposer. Additionally, proposers should clearly describe any unique distribution and/or delivery methods or options offered in the proposal. B. ADMINISTRATIVE FEES Proposers are expected to pay to Sourcewell an administrative fee in exchange for Sourcewell facilitating the resulting contracts. The administrative fee is normally calculated as a percentage of the total sales to Participating Entities for all contracted equipment, products, or services made during a calendar quarter, and is typically one percent (1%) to two percent (2%). In some categories, a flat fee may be an acceptable alternative. IV. CONTRACT Proposers awarded a contract will be required to execute a contract with Sourcewell (see attached template). Only those modifications the proposer indicates in its proposal will be available for discussion. Much of the language in the Contract reflects Minnesota legal requirements and cannot be altered. Numerous and/or onerous exceptions that contradict Minnesota law may result in the proposal being disqualified from further review and evaluation. To request a modification to the template Contract, a proposer must submit the Exceptions to Terms, Conditions, or Specifications table with its proposal. Only those exceptions noted at the time of the proposal submission will be considered. Exceptions must: 1. Clearly identify the affected article and section. Rev. 3/2021 Sourcewell RFP #110421 Public Utility Equipment with Related Accessories and Supplies Page 8 2. Clearly note the requested modification; and as applicable, provide requested alternative language. Unclear requests will be automatically denied. Only those exceptions that have been accepted by Sourcewell will be included in the contract document provided to the awarded supplier for signature. If a proposer receives a contract award resulting from this solicitation it will have up to 30 days to sign and return the contract. After that time, at Sourcewell’s sole discretion, the contract award may be revoked. V. RFP PROCESS A. PRE-PROPOSAL CONFERENCE Sourcewell will hold an optional, non-mandatory pre-proposal conference via webcast on the date and time noted in the Solicitation Schedule for this RFP and on the Sourcewell Procurement Portal. The purpose of this conference is to allow potential proposers to ask questions regarding this RFP and Sourcewell’s competitive contracting process. Information about the webcast will be sent to all entities that have registered for this solicitation opportunity through their Sourcewell Procurement Portal Supplier Account. Pre-proposal conference attendance is optional. B. QUESTIONS REGARDING THIS RFP AND ORAL COMMUNICATION All questions regarding this RFP must be submitted through the Sourcewell Procurement Portal. The deadline for submission of questions is found in the Solicitation Schedule and on the Sourcewell Procurement Portal. Answers to questions will be issued through an addendum to this RFP. Repetitive questions will be summarized into a single answer and identifying information will be removed from the submitted questions. All questions, whether specific to a proposer or generally related to the RFP, must be submitted using this process. Do not contact individual Sourcewell staff to ask questions or request information as this may disqualify the proposer from responding to this RFP. Sourcewell will not respond to questions submitted after the deadline. C. ADDENDA Sourcewell may modify this RFP at any time prior to the proposal due date by issuing an addendum. Addenda issued by Sourcewell become a part of the RFP and will be delivered to potential proposers through the Sourcewell Procurement Portal. Sourcewell accepts no liability in connection with the delivery of any addenda. Rev. 3/2021 Sourcewell RFP #110421 Public Utility Equipment with Related Accessories and Supplies Page 9 Before a proposal will be accepted through the Sourcewell Procurement Portal, all addenda, if any, must be acknowledged by the proposer by checking the box for each addendum. It is the responsibility of the proposer to check for any addenda that may have been issued up to the solicitation due date and time. If an addendum is issued after a proposer submitted its proposal, the Sourcewell Procurement Portal will WITHDRAW the submission and change the proposer’s proposal status to INCOMPLETE. The proposer can view this status change in the “MY BIDS” section of the Sourcewell Procurement Portal Supplier Account. The proposer is solely responsible to check the “MY BIDS” section of the Sourcewell Procurement Portal Supplier Account periodically after submitting its proposal (and up to the Proposal Due Date). If the proposer’s proposal status has changed to INCOMPLETE, the proposer is solely responsible to: i) make any required adjustments to its proposal; ii) acknowledge the addenda; and iii) ensure the re-submitted proposal is received through the Sourcewell Procurement Portal no later than the Proposal Due Date and time shown in the Solicitation Schedule above. D. PROPOSAL SUBMISSION Proposer’s complete proposal must be submitted through the Sourcewell Procurement Portal no later than the date and time specified in the Solicitation Schedule. Any other form of proposal submission, whether electronic, paper, or otherwise, will not be considered by Sourcewell. Late proposals will not be considered. It is the proposer’s sole responsibility to ensure that the proposal is received on time. It is recommended that proposers allow sufficient time to upload the proposal and to resolve any issues that may arise. The time and date that a proposal is received by Sourcewell is solely determined by the Sourcewell Procurement Portal web clock. In the event of problems with the Sourcewell Procurement Portal, follow the instructions for technical support posted in the portal. It may take up to 24 hours to respond to certain issues. Upon successful submission of a proposal, the Sourcewell Procurement Portal will automatically generate a confirmation email to the proposer. If the proposer does not receive a confirmation email, contact Sourcewell’s support provider at support@bidsandtenders.ca. To ensure receipt of the latest information and updates via email regarding this solicitation, or if the proposer has obtained this solicitation document from a third party, the onus is on the proposer to create a Sourcewell Procurement Portal Supplier Account and register for this solicitation opportunity. Within the Sourcewell Procurement Portal, all proposals must be digitally acknowledged by an authorized representative of the proposer attesting that the information contained in in the proposal is true and accurate. By submitting a proposal, proposer warrants that the information Rev. 3/2021 Sourcewell RFP #110421 Public Utility Equipment with Related Accessories and Supplies Page 10 provided is true, correct, and reliable for purposes of evaluation for potential contract award. The submission of inaccurate, misleading, or false information is grounds for disqualification from a contract award and may subject the proposer to remedies available by law. E. GENERAL PROPOSAL REQUIREMENTS Proposals must be: • In substantial compliance with the requirements of this RFP or it will be considered nonresponsive and be rejected. • Complete. A proposal will be rejected if it is conditional or incomplete. • Submitted in English. • Valid and irrevocable for 90 days following the Proposal Due Date. Any and all costs incurred in responding to this RFP will be borne by the proposer. F. PROPOSAL WITHDRAWAL Prior to the proposal deadline, a proposer may withdraw its proposal. G. OPENING The Opening of proposals will be conducted electronically through the Sourcewell Procurement Portal. A list of all proposers will be made publicly available in the Sourcewell Procurement Portal after the Proposal Due Date, but no later than the Opening time listed in the Solicitation Schedule. To view the list of proposers, verify that the Sourcewell Procurement Portal opportunities list search is set to “All” or “Closed.” The solicitation status will automatically change to “Closed” after the Proposal Due Date and Time. VI. EVALUATION AND AWARD A. EVALUATION It is the intent of Sourcewell to award one or more contracts to responsive and responsible proposers offering the best overall quality, selection of equipment, products, and services, and price that meet the commonly requested specifications of Sourcewell and its Participating Entities. The award(s) will be limited to the number of proposers that Sourcewell determines is necessary to meet the needs of its Participating Entities. Factors to be considered in determining the number of contracts to be awarded in any category may include the following: • The number of and geographic location of: o Proposers necessary to offer a comprehensive selection of equipment, products, or services for Participating Entities’ use. Rev. 3/2021 Sourcewell RFP #110421 Public Utility Equipment with Related Accessories and Supplies Page 11 o A proposer’s sales and service network to assure availability of product supply and coverage to meet Participating Entities’ anticipated needs. • Total evaluation scores. • The attributes of proposers, and their equipment, products, or services, to assist Participating Entities achieve environmental and social requirements, preferences, and goals. Information submitted as part of a proposal should be as specific as possible when responding to the RFP. Do not assume Sourcewell has any knowledge about a specific supplier or product. B. AWARD(S) Award(s) will be made to the proposer(s) whose proposal conforms to all conditions and requirements of the RFP, and consistent with the award criteria defined in this RFP. Sourcewell may request written clarification of a proposal at any time during the evaluation process. Proposal evaluation will be based on the following scoring criteria and the Sourcewell Evaluator Scoring Guide (a copy is available in the Sourcewell Procurement Portal): Conformance to RFP Requirements 50 Financial Viability and Marketplace Success 75 Ability to Sell and Deliver Service 100 Marketing Plan 50 Value Added Attributes 75 Warranty 50 Depth and Breadth of Offered Equipment, Products, or Services 200 Pricing 400 TOTAL POINTS 1000 C. PROTESTS OF AWARDS Any protest made under this RFP by a proposer must be in writing, addressed to Sourcewell’s Executive Director, and delivered to the Sourcewell office located at 202 12th Street NE, P.O. Box 219, Staples, MN 56479. All documents that comprise the complete protest package must be received no later than 10 calendar days’ following Sourcewell’s notice of contract award(s) or non-award and must be time stamped by Sourcewell no later than 4:30 p.m., Central Time. A protest must allege a procedural, technical, or legal defect, with supporting documentation. A protest that merely requests a re-evaluation of a proposal’s content will not be entertained A protest must include the following items: • The name, address, and telephone number of the protester; Rev. 3/2021 Sourcewell RFP #110421 Public Utility Equipment with Related Accessories and Supplies Page 12 • Identification of the solicitation by RFP number; • A precise statement of the relevant facts; • Identification of the alleged procedural, technical, or legal defect; • Analysis of the basis for the protest; • Any additional supporting documentation; • The original signature of the protester or its representative; and • Protest bond in the amount of $20,000 (except where prohibited by law or treaty). Protests that do not address these elements will not be reviewed. D. RIGHTS RESERVED This RFP does not commit Sourcewell to award any contract, and a proposal may be rejected if it is nonresponsive, conditional, incomplete, conflicting, or misleading. Proposals that contain false statements or do not support an attribute or condition stated by the proposer may be rejected. Sourcewell reserves the right to: • Modify or cancel this RFP at any time; • Reject any and all proposals received; • Reject proposals that do not comply with the provisions of this RFP; • Select, for contracts or for discussion, a proposal other than that with the lowest cost; • Independently verify any information provided in a proposal; • Disqualify any proposer that does not meet the requirements of this RFP, is debarred or suspended by the United States or Canada, State of Minnesota, Participating Entity’s state or province; has an officer, or other key personnel, who have been charged with a serious crime; or is bankrupt, insolvent, or where bankruptcy or insolvency are a reasonable prospect; • Waive or modify any informalities, irregularities, or inconsistencies in the proposals received; • Clarify any part of a proposal and discuss any aspect of the proposal with any proposer; and negotiate with more than one proposer; • Award a contract if only one responsive proposal is received if it is in the best interest of Participating Entities; and • Award a contract to one or more proposers if it is in the best interest of Participating Entities. E. DISPOSITION OF PROPOSALS All materials submitted in response to this RFP will become property of Sourcewell and will become public record in accordance with Minnesota Statutes Section 13.591, after negotiations are complete. Sourcewell considers that negotiations are complete upon execution of a resulting contract. It is the proposer’s responsibility to clearly identify any data submitted that Rev. 3/2021 Sourcewell RFP #110421 Public Utility Equipment with Related Accessories and Supplies Page 13 it considers to be protected. Proposer must also include a justification for the classification citing the applicable Minnesota law. Sourcewell may reject proposals that are marked confidential or nonpublic, either substantially or in their entirety. Sourcewell will not consider the prices submitted by the proposer to be confidential, proprietary, or trade secret materials. Financial information, including financial statements, provided by a proposer is not considered trade secret under the statutory definition. 9/20/2021 Addendum No. 1 Solicitation Number: RFP 110421 Solicitation Name: Public Utility Equipment with Related Accessories and Supplies Consider the following Question and Answer to be part of the above-titled solicitation documents. The remainder of the documents remain unchanged. Question 1: Are radio batteries and accessories considered in-scope for this contract? Answer 1: Each proposer, in its discretion, will propose the equipment, products, and services that it deems to fall within Sourcewell’s requested equipment, products, and services as stated in RFP Section II. B. - Requested Equipment, Products or Services. However, only those products within the scope of the RFP will be included in any contract awarded by Sourcewell as a result of this solicitation. Proposals are evaluated based on the criteria stated in the RFP. End of Addendum Acknowledgement of this Addendum to RFP 110421 posted to the Sourcewell Procurement Portal on 9/20/2021, is required at the time of proposal submittal. 9/24/2021 Addendum No. 2 Solicitation Number: RFP 110421 Solicitation Name: Public Utility Equipment with Related Accessories and Supplies Consider the following Question and Answer to be part of the above-titled solicitation documents. The remainder of the documents remain unchanged. Question 1: Can we submit a bid response that includes the body, with installation, and excludes the chassis? Can chassis pricing be added later? Answer 1: Sourcewell will not advise a proposer on the content of the proposal. Each proposer, in its discretion, will propose the equipment, products, and services that it deems to fall within Sourcewell’s requested equipment, products, and services as described in RFP Section II. B (Requested Equipment, Products and Services). The solicitation is a competitive process and proposals are evaluated on the content submitted. The Proposer’s complete proposal must be submitted through the Sourcewell Procurement Portal no later than the date and time specified in the Solicitation Schedule (RFP Section V. D.), and all relevant information should be included in the proposal (RFP Section II., G.). For additional guidance on the process for pricing changes during the contract term refer to Section 4. – Product and Pricing Change Requests in the Sourcewell template contract available on the Sourcewell Procurement Portal. End of Addendum Acknowledgement of this Addendum to RFP 110421 posted to the Sourcewell Procurement Portal on 9/24/2021, is required at the time of proposal submittal. 9/27/2021 Addendum No. 3 Solicitation Number: RFP 110421 Solicitation Name: Public Utility Equipment with Related Accessories and Supplies Consider the following Question and Answer to be part of the above-titled solicitation documents. The remainder of the documents remain unchanged. Question 1: We saw a posting for this solicitation on a website other than the Sourcewell Procurement Portal. Are the products or commodities listed on the other site part of this opportunity, or is the opportunity only for the equipment or products included in the Sourcewell RFP? Answer 1: The requested equipment, products, or services for this solicitation are as stated in RFP Section II. B. – Requested Equipment, Products, or Services. The contents of a posting on a site other than the Sourcewell Procurement Portal have no impact on the scope of the Sourcewell RFP. End of Addendum Acknowledgement of this Addendum to RFP 110421 posted to the Sourcewell Procurement Portal on 9/27/2021, is required at the time of proposal submittal. 10/14/2021 Addendum No. 4 Solicitation Number: RFP 110421 Solicitation Name: Public Utility Equipment with Related Accessories and Supplies Consider the following Questions and Answers to be part of the above-titled solicitation documents. The remainder of the documents remain unchanged. Question 1: Would bulk water dispensing and wastewater receiving systems be in scope for this RFP? Answer 1: Each proposer, in its discretion, will propose the equipment, products, and services that it deems to fall within Sourcewell’s requested equipment, products, and services as stated in RFP Section II. B. - Requested Equipment, Products or Services. However, only those products within the scope of the RFP will be included in any contract awarded by Sourcewell as a result of this solicitation. Proposals are evaluated based on the criteria stated in the RFP. Question 2: We have already been awarded an agreement by Canoe Procurement Group of Canada. Can it be transferred to this Sourcewell opportunity, or will we have to bid again? Answer 2: The solicitation issued by Sourcewell is independent of contracts that have been previously awarded by Canoe Procurement Group of Canada. To participate in the Sourcewell competitive solicitation, a proposal must be submitted through the Sourcewell Procurement Portal. Guidance on preparing a response in the Portal can be found in the “Submit Response Guide” found on the “Bids Homepage” in the Resource Materials section. After selecting “Start Submission” from the Bid Details page, a proposer will navigate to Step 1 to begin the submission. End of Addendum Acknowledgement of this Addendum to RFP 110421 posted to the Sourcewell Procurement Portal on 10/14/2021, is required at the time of proposal submittal. City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID 23-1339 Agenda Date:10/19/2023 Agenda #:1.-J. REPORT TO THE CITY COUNCIL FROM:BRYON HORN, Chief Information Officer Information Services Department SUBJECT Approve the purchase of laptops,docking stations,and desktops from Dell Technologies (Dell)in an amount not to exceed $2,525,100,utilizing NASPO Contract MNWNC-108/7-15-70-34-003 for year two of the Citywide Computer Replacement Plan (Plan). RECOMMENDATIONS Staff recommends that City Council approve the purchase of laptops,docking stations,and desktops from Dell Technologies in an amount not to exceed $2,525,100 utilizing NASPO Contract MNWNC- 108/7-15-70-34-003. EXECUTIVE SUMMARY On March 10,2022,the City Council approved AAR No.2021-178 to appropriate $500,000 for the newly established Citywide Computer Replacement Plan.In the FY23 and FY24 approved budgets, $1.6 million and $2.525 million were allocated,respectively,from fixed revenues to fund the citywide replacement plan.The first order of year two is projected to be $1.454 million and is for 500 laptops, 500 docking stations,and 100 desktops from Dell,replacing the oldest city computers in the 5-year replacement cycle.Due to the fluctuating cost of technology and possible supply issues,we are asking for an amount not to exceed $2,525,100 for any potential increases.Funding for this contract is available within the adopted FY24 budget and pricing is based on NASPO Contract MNWNC-108/7 -15-70-34-003. BACKGROUND The Plan was put in place to establish predictable technology replacement cycles.In past years, budget constraints have resulted in continued use of outdated equipment which,in turn,has increased our cyber security risk.The Information Services Department (ISD)believes that computer replacements should not be considered one-time costs but rather an ongoing expense of running the City.Creating predictable replacement cycles will keep the City’s business operations running effectively,allow departments to easily plan for computer replacement costs,while also enabling ISD to manage these replacements in a secure, methodical, and cost-effective way. City of Fresno Printed on 10/30/2023Page 1 of 2 powered by Legistar™ File #:ID 23-1339 Agenda Date:10/19/2023 Agenda #:1.-J. Beginning in FY23,departments began contributing to the fund,annually,through yearly fixed charges.ISD has organized the City’s 4,261 computer assets (not including vehicle computers for PD and Fire)by their purchase date/end of warranty date and identified which computers need to be replaced each year.In FY24,citywide fixed charges for the computer replacement plan were $2,525,100 (excludes PD/Fire vehicle replacement monies). The Telework Technology Upgrade,which used CARES funding to mobilize the City’s workforce,via the deployment of over 1,500 laptops during the COVID-19 pandemic,helped to modernize the City’s computers.ISD plans to continue this work by deploying laptops when possible.This pending order, year two of the Plan,will prioritize replacing outdated devices with laptops.Desktops are only deployed with a valid use case such as a front counter,lab,kiosk or shared workstations.Further orders will be placed as ISD continues to have discussions with departments about devices that best fit their needs.We also expect some of the replacement plan funds to be used to supplement the cost of specialized computers that were up for replacement.Specialized devices require a 10X to be submitted and ISD will supplement the cost of those devices. ISD has had ongoing communications with Dell to identify a model that would support user needs and deliver a blend of performance and value over its life.With technology advancements,these conversations will be ongoing as we continue to refresh the City’s devices in a 5-year rotation. After a thorough review,ISD decided that ordering 600 devices and 500 peripherals (docking stations) through the Dell NASPO contract pricing provides the best value and quality to the City. ENVIRONMENTAL FINDINGS The approval of this agreement is not a project for the purposes of the California Environmental Quality Act. LOCAL PREFERENCE Local preference was not implemented because this item is a cooperative purchase and is being procured utilizing the NASPO Contract MNWNC-108/7-15-70-34-003. FISCAL IMPACT Funding is available in the Information Services Department’s (ISD) Computer Replacement Fund. ATTACHMENTS RESOLUTION_50th AAR Computer Replacement Fund Dell Quote #3000158215176.4 Dell Cooperative Purchase Agreement - Signed Exhibit A - MN Computers Released RFP Exhibit B - Computer Equipment CA Dell Executed - PA City of Fresno Printed on 10/30/2023Page 2 of 2 powered by Legistar™ A quote for your consideration Based on your business needs, we put the following quote together to help with your purchase decision. Below is a detailed summary of the quote we’ve created to help you with your purchase decision. To proceed with this quote, you may respond to this email, order online through your Premier page, or, if you do not have Premier, use this Quote to Order. Quote No.3000158215176.4 Total $1,454,785.97 Customer #107622525 Quoted On Aug. 17, 2023 Expires by Sep. 16, 2023 Contract Name Dell NASPO Computer Equipment PA - California Contract Code C000000181156 Customer Agreement #MNWNC-108 / 7-15-70-34- 003 Deal ID 26248372 Sales Rep Chris Mak Phone (800) 456-3355, 6182369 Email Christopher_Mak@Dell.com Billing To ACCOUNTS PAYABLE CITY OF FRESNO INFO SRVCS DEPT 2600 FRESNO ST RM 1059 FRESNO, CA 93721-3620 Message from your Sales Rep Please contact your Dell sales representative if you have any questions or when you are ready to place an order. Thank you for shopping with Dell! Regards, Chris Mak Shipping Group Shipping To ARMEN MEGERDICHIAN CITY OF FRESNO 2600 FRESNO ST FRESNO, CA 93721-3620 (559) 621-7128 Shipping Method Standard Delivery Free Cost Product Unit Price Quantity Subtotal Mobile Precision 3581 $2,215.32 500 $1,107,660.00 Precision 3460 Small Form Factor $1,492.13 100 $149,213.00 Dell Thunderbolt 4 Dock- WD22TB4 $206.95 500 $103,475.00 Page 1 Dell Marketing LP. U.S. only. Dell Marketing LP. is located at One Dell Way, Mail Stop 8129, Round Rock, TX 78682 Subtotal: Shipping: Environmental Fee: Non-Taxable Amount: Taxable Amount: Estimated Tax: Total: $1,360,348.00 $0.00 $2,500.00 $261,795.00 $1,101,053.00 $91,937.97 $1,454,785.97 Page 2 Dell Marketing LP. U.S. only. Dell Marketing LP. is located at One Dell Way, Mail Stop 8129, Round Rock, TX 78682 Shipping Group Details Shipping To ARMEN MEGERDICHIAN CITY OF FRESNO 2600 FRESNO ST FRESNO, CA 93721-3620 (559) 621-7128 Shipping Method Standard Delivery Free Cost Quantity Subtotal Mobile Precision 3581 Estimated delivery if purchased today: Sep. 01, 2023 Contract # C000000181156 Customer Agreement # MNWNC-108 / 7-15-70-34-003 $2,215.32 500 $1,107,660.00 Description SKU Unit Price Quantity Subtotal Mobile Precision Workstation 3581 CTO 210-BGDR -500 - Intel Core i7-13700H, vPro Essentials (24MB Cache, 14 Cores, 20 Threads, 2.4 - 5.0 GHz Turbo, 45W)379-BFDQ -500 - Windows 11 Pro, English, Spanish, French, Brazilian Portuguese 619-ARSB -500 - No Microsoft Office License Included 658-BCSB -500 - Intel Core i7-13700H Processor with NVIDIA RTX A1000 6GB GDDR6 Graphics 329-BHXY -500 - NVIDIA® RTX A1000 6GB, GDDR6 Graphics Card 490-BIGL -500 - 15.6" FHD 1920 x 1080, 60 Hz, 250 nits, touch, IR FHD Camera and Mic with WLAN + 4G WWAN 391-BHKG -500 - FHD/IR Camera, Temporal Noise Reduction, Camera Shutter, Mic 319-BBJG -500 - 32 GB, 2 x 16 GB, DDR5, 4800 MT/s 370-AGZK -500 - 512 GB, M.2 2280, Gen 4 PCIe NVMe SSD, Class 40 400-BOVR -500 - No Additional Hard Drive 401-AAGM -500 - No RAID 780-BBFE -500 - English US backlit keyboard with numeric keypad, 99-key 583-BHBG -500 - Single Pointing, Smart Card Reader (w/CV3)346-BJVM -500 - Intel AX211 Wi-Fi 6/6E (up to 6GHz where available) 2x2 with Bluetooth Wireless 555-BHLT -500 - 6 Cell, 97WHr, Standard Battery 451-BDDL -500 - 6 Cell Battery Cable 451-BDDJ -500 - 130W Type C Power Adapter 492-BDGH -500 - Intel vPro Management Disabled 631-BBHW -500 - ENERGY STAR Qualified 387-BBLW -500 - EPEAT 2018 Registered (Gold)379-BDZB -500 - Power Cord 1M US 470-AFGV -500 - Wireless Intel AX211 WLAN Driver MOD-SRV 555-BJML -500 - Mix Packaging for 130W Adapter 340-DKFX -500 - Custom Configuration 817-BBBB -500 - Intel Core i7 Processor Label 340-CUEQ -500 - Dell Additional Software 658-BFPP -500 - Page 3 Dell Marketing LP. U.S. only. Dell Marketing LP. is located at One Dell Way, Mail Stop 8129, Round Rock, TX 78682 Quick Setup Guide for Mobile Precision 3581 340-DJXT -500 - Bottom Door 354-BBHG -500 - Dell Limited Hardware Warranty Plus Service 997-1129 -500 - ProSupport Plus: Accidental Damage Service, 5 Years 997-1068 -500 - ProSupport Plus: 7x24 Technical Support, 5 Years 997-1139 -500 - ProSupport Plus: Next Business Day Onsite, 5 Years 997-6068 -500 - ProSupport Plus: Keep Your Hard Drive, 5 Years 997-1089 -500 - Thank you for choosing Dell ProSupport Plus. For tech support, visit www.dell.com/contactdell or call 1-866-516-3115 997-8367 -500 - Intel(R) Rapid Storage Technology Driver 409-BCWS -500 - Quantity Subtotal Precision 3460 Small Form Factor Estimated delivery if purchased today: Sep. 05, 2023 Contract # C000000181156 Customer Agreement # MNWNC-108 / 7-15-70-34-003 $1,492.13 100 $149,213.00 Description SKU Unit Price Quantity Subtotal Precision 3460 SFF CTO BASE 210-BCTU -100 - 13th Generation Intel Core i7-13700 (30MB Cache, 16 Core (8+8), 2.1GHz to 5.2GHz (65W)) TDP 338-CKHZ -100 - HEATSINK for 65W CPU 412-AAZQ -100 - Windows 10 Pro (Includes Windows 11 Pro License) English, French, Spanish 619-AQMP -100 - No Microsoft Office License Included 658-BCSB -100 - Intel Integrated Graphics only 490-BBBS -100 - 32GB (2x16GB) DDR5 4800MHz, SO-DIMM, Non-ECC 370-AGXG -100 - 512GB PCIe NVMe(TM) Gen4 M.2 SSD 400-BMQN -100 - Thermal Pad for 3460 SFF SSD 412-AAZZ -100 - Dell KB216 Wired Keyboard English 580-ADJC -100 - Intel Management Engine with vPro 631-ADHJ -100 - ENERGY STAR Qualified 387-BBLW -100 - EPEAT 2018 Registered (Gold)379-BDZB -100 - System Power Cord C13 (US 125V, 15A)450-AHDU -100 - Dell Optical Mouse - MS116 (Black)570-ABIE -100 - Shipping Material 340-CQYR -100 - SHIP,PWS,LNK,NO,NO,AMF 340-CBUU -100 - Custom Configuration 817-BBBB -100 - Intel Core i7 vPro Enterprise Processor Label 389-EDDR -100 - Additional Software Win 10 658-BFND -100 - Quick Setup Guide, Precision 3460 340-CYUT -100 - Precision 3460 SFF with 300W (80 Plus Platinum) PSU, RPL and ADL Compatible 321-BJHY -100 - No Optical Drive 429-ABKR -100 - Integrated Intel SATA Controller 403-BBCE -100 - No Media Card Reader 385-BBBL -100 - Page 4 Dell Marketing LP. U.S. only. Dell Marketing LP. is located at One Dell Way, Mail Stop 8129, Round Rock, TX 78682 Internal Speaker 520-AARD -100 - Dell Precision TPM 340-ACBY -100 - No SATA RAID 780-BBCJ -100 - Precision 3460 Plat Reg Label DAO 389-ECXZ -100 - C1 SSD Boot + SSD 449-BBYR -100 - No Hard Drive 400-AKZR -100 - No Hard Drive 400-AKZR -100 - No Hard Drive 400-AKZR -100 - No Additional Network Card Selected (Integrated NIC included)555-BBJO -100 - No Hard Drive 400-AKZR -100 - CMS Software not included 632-BBBJ -100 - Dell Limited Hardware Warranty Plus Service 997-2808 -100 - ProSupport Plus: 7x24 Technical Support, 5 Years 997-2861 -100 - ProSupport Plus: Keep Your Hard Drive, 5 Years 997-2870 -100 - ProSupport Plus: Accidental Damage Service, 5 Years 997-2879 -100 - ProSupport Plus: Next Business Day Onsite, 5 Years 997-6822 -100 - Thank you for choosing Dell ProSupport Plus. For tech support, visit www.dell.com/contactdell or call 1-866-516-3115 997-8367 -100 - Intel Rapid Storage Technology Driver, Precision 3460 409-BCWM -100 - Quantity Subtotal Dell Thunderbolt 4 Dock- WD22TB4 Estimated delivery if purchased today: Aug. 23, 2023 Contract # C000000181156 Customer Agreement # MNWNC-108 / 7-15-70-34-003 $206.95 500 $103,475.00 Description SKU Unit Price Quantity Subtotal BASE,DS,WD22TB4 US 180W 210-BDQH -500 - Advanced Exchange Service, 3 Years 872-8550 -500 - Dell Limited Hardware Warranty 872-8557 -500 - Subtotal: Shipping: Environmental Fee: Estimated Tax: Total: $1,360,348.00 $0.00 $2,500.00 $91,937.97 $1,454,785.97 Page 5 Dell Marketing LP. U.S. only. Dell Marketing LP. is located at One Dell Way, Mail Stop 8129, Round Rock, TX 78682 Important Notes Terms of Sale This Quote will, if Customer issues a purchase order for the quoted items that is accepted by Supplier, constitute a contract between the entity issuing this Quote (“Supplier”) and the entity to whom this Quote was issued (“Customer”). Unless otherwise stated herein, pricing is valid for thirty days from the date of this Quote. All product, pricing and other information is based on the latest information available and is subject to change. Supplier reserves the right to cancel this Quote and Customer purchase orders arising from pricing errors. Taxes and/or freight charges listed on this Quote are only estimates. The final amounts shall be stated on the relevant invoice. Additional freight charges will be applied if Customer requests expedited shipping. Please indicate any tax exemption status on your purchase order and send your tax exemption certificate to Tax_Department@dell.com or ARSalesTax@emc.com, as applicable. Governing Terms: This Quote is subject to: (a) a separate written agreement between Customer or Customer’s affiliate and Supplier or a Supplier´s affiliate to the extent that it expressly applies to the products and/or services in this Quote or, to the extent there is no such agreement, to the applicable set of Dell’s Terms of Sale (available at www.dell.com/terms or www.dell.com/oemterms), or for cloud/as-a- Service offerings, the applicable cloud terms of service (identified on the Offer Specific Terms referenced below); and (b) the terms referenced herein (collectively, the “Governing Terms”). Different Governing Terms may apply to different products and services on this Quote. The Governing Terms apply to the exclusion of all terms and conditions incorporated in or referred to in any documentation submitted by Customer to Supplier. Supplier Software Licenses and Services Descriptions: Customer’s use of any Supplier software is subject to the license terms accompanying the software, or in the absence of accompanying terms, the applicable terms posted on www.Dell.com/eula. Descriptions and terms for Supplier-branded standard services are stated at www.dell.com/servicecontracts/global or for certain infrastructure products at www.dellemc.com/en-us/customer-services/product-warranty-and-service-descriptions.htm. Offer-Specific, Third Party and Program Specific Terms: Customer’s use of third-party software is subject to the license terms that accompany the software. Certain Supplier-branded and third-party products and services listed on this Quote are subject to additional, specific terms stated on www.dell.com/offeringspecificterms (“Offer Specific Terms”). In case of Resale only: Should Customer procure any products or services for resale, whether on standalone basis or as part of a solution, Customer shall include the applicable software license terms, services terms, and/or offer-specific terms in a written agreement with the end- user and provide written evidence of doing so upon receipt of request from Supplier. In case of Financing only: If Customer intends to enter into a financing arrangement (“Financing Agreement”) for the products and/or services on this Quote with Dell Financial Services LLC or other funding source pre-approved by Supplier (“FS”), Customer may issue its purchase order to Supplier or to FS. If issued to FS, Supplier will fulfill and invoice FS upon confirmation that: (a) FS intends to enter into a Financing Agreement with Customer for this order; and (b) FS agrees to procure these items from Supplier. Notwithstanding the Financing Agreement, Customer’s use (and Customer’s resale of and the end-user’s use) of these items in the order is subject to the applicable governing agreement between Customer and Supplier, except that title shall transfer from Supplier to FS instead of to Customer. If FS notifies Supplier after shipment that Customer is no longer pursuing a Financing Agreement for these items, or if Customer fails to enter into such Financing Agreement within 120 days after shipment by Supplier, Customer shall promptly pay the Supplier invoice amounts directly to Supplier. Customer represents that this transaction does not involve: (a) use of U.S. Government funds; (b) use by or resale to the U.S. Government; or (c) maintenance and support of the product(s) listed in this document within classified spaces. Customer further represents that this transaction does not require Supplier’s compliance with any statute, regulation or information technology standard applicable to a U.S. Government procurement. For certain products shipped to end users in California, a State Environmental Fee will be applied to Customer’s invoice. Supplier encourages customers to dispose of electronic equipment properly. Electronically linked terms and descriptions are available in hard copy upon request. ^DELL BUSINESS CREDIT (DBC): Offered to business customers by WebBank, who determines qualifications for and terms of credit. Taxes, shipping and other charges are extra and vary. The Total Minimum Payment Due is the greater of either $20 or 3% of the New Balance shown on the statement rounded up to the next dollar, plus all past due amounts. Dell and the Dell logo are trademarks of Dell Inc. Page 6 Dell Marketing LP. U.S. only. Dell Marketing LP. is located at One Dell Way, Mail Stop 8129, Round Rock, TX 78682 GSD-S Formal Cooperative Purchase Agreement (06-2023) -1- FORMAL COOPERATIVE PURCHASE AGREEMENT THIS AGREEMENT (Agreement) is made and entered into EFFECTIVE . by and between CITY OF FRESNO, a California municipal corporation (City), and DELL MARKETING, L.P., (Vendor). AGREEMENT NOW, THEREFORE, in consideration of the foregoing and of the covenants, conditions, and promises hereinafter contained to be kept and performed by the respective parties, it is mutually agreed as follows: 1. The Charter for the City allows for cooperative purchase agreements for materials, supplies, equipment, and public work of improvement. The City is allowed to piggyback an existing government agency’s agreement, under Fresno City Charter 1208. The parties agree the Vendor was the lowest responsive and responsible bidder for Invitation for Bid (IFB) issued by the State of Minnesota. The IFB is attached hereto as Exhibit A and is incorporated herein by reference. The Parties agree that the Vendor has entered a Cooperative Purchase Contract with the State of Minnesota (Original Government Contract). 2. Vendor’s Obligation. Vendor shall provide those services and carry out that work described in the Original Government Contract, which is attached hereto as Exhibit B and is incorporated herein by reference, subject to all the terms and conditions contained or incorporated herein. 3. City’s Obligation. City shall make to the Vendor those payments described in Exhibits A and B, subject to all the terms and condition contained or incorporated herein 4. Notwithstanding the requirements that the Original Government Contract is fully binding on the Parties, the parties have agreed to modify certain non-material provisions of the Original Government Contract as applied to this Agreement between the Vendor and the City, as follows: a) City’s Insurance and Indemnity provisions attached as Exhibit C. b) Address change for the City: Notwithstanding the address and contract information for the government entity as set out in Exhibit B, the Vendor agrees that notices and invoices will be sent to: City of Fresno Attention: Rachel Archer 2600 Fresno Street, Room 1059 Fresno, CA 93721 Phone: (559) 621-7138 FAX: (559) 457-1045 c) Notwithstanding anything in Exhibits A and B to the contrary, this Agreement shall be governed by, and construed and enforced in accordance with , the         GSD-S Formal Cooperative Purchase Agreement (06-2023) -2- laws of the State of California, excluding however, any conflict of laws rule which would apply the law of another jurisdiction. Venue for purposes of the filing of any action regarding the enforcement or interpretation of this Agreement and any rights and duties hereunder shall be Fresno County, California. d) All other provisions in the Original Government Contract are fully binding on the parties and will represent the agreement between the City and the Vendor. [Signatures follow on the next page.]         GSD-S Formal Cooperative Purchase Agreement (06-2023) -3- IN WITNESS WHEREOF, the parties have executed this Agreement at Fresno, California, the day and year first above written. CITY OF FRESNO, a California municipal corporation By: 0HOLVVD3HUDOHV3XUFKDVLQJ0DQDJHU *HQHUDO6HUYLFHV'HSDUWPHQW No signature of City Attorney required. Standard Document #GSD-S Formal Cooperative Purchase Agreement (10-2022) has been used without modification, as certified by the undersigned. By: '\DQ$\DOD 3URFXUHPHQW6SHFLDOLVW ATTEST: TODD STERMER, CMC City Clerk By: Date Dell Marketing LP By: Name: Title: (If corporation or LLC., Board Chair, Pres. or Vice Pres.) By: Name: Title: (If corporation or LLC., CFO, Treasurer, Secretary or Assistant Secretary) Deputy Addresses: CITY City of Fresno Attention: Rachel Archer 2600 Fresno Street, Room 1059 Fresno, CA 93721 Phone: (559) 621-7138 E-mail: rachel.archer@fresno.gov Vendor: Dell Marketing LP Attention: Chris Mak One Dell Way, Mail Stop 8129 Round Rock, TX 78682 Phone: (800) 456-3355, 6182369 E-mail: Christopher_Mak@Dell.com Attachments: Exhibit A - Invitation For Bids Exhibit B - Original Government Contract Exhibit C - City’s Insurance and Indemnity                    1 SECTION 1: SCOPE OF WORK | 2014_0122 The State of Minnesota REQUEST FOR PROPOSAL MINNESOTA WSCA-NASPO Master Agreement for: Computer Equipment (Desktops, Laptops, Tablets, Servers, Storage and Ruggedized Devices including Related Peripherals & Services) 2 SECTION 1: SCOPE OF WORK | 2014_0122 Materials Management Division 112 Administration Building 50 Sherburne Avenue St. Paul, MN 55155 Voice: 651.296.2600 Fax: 651.297.3996 STATE OF MINNESOTA REQUEST FOR PROPOSAL (RFP) COMPUTER EQUIPMENT: (DESKTOPS, LAPTOPS, TABLETS, SERVERS, STORAGE, RUGGEDIZED DEVICES INCLUDING RELATED PERIPHERALS & SERVICES) DUE DATE: ORIGINAL DUE DATE: November 18, 2013 REVISED DUE DATE: January 29, 2014 TIME: 3:00 P.M., CENTRAL TIME 3 SECTION 1: SCOPE OF WORK | 2014_0122 TABLE OF CONTENTS SECTION 1: SCOPE OF WORK .......................................................................................................................................................... 4 A. INTRODUCTION ............................................................................................................................................................................ 4 B. OBJECTIVE ..................................................................................................................................................................................... 5 C. WSCA-NASPO BACKGROUND INFORMATION ....................................................................................................................... 5 D. PARTICIPATING STATES ............................................................................................................................................................. 5 E. PRODUCT BAND DEFINITIONS .................................................................................................................................................. 8 F. CONFIGURATION DOLLAR LIMITS ........................................................................................................................................... 9 G. RESTRICTIONS ............................................................................................................................................................................ 10 H. DEFINITIONS ................................................................................................................................................................................ 11 SECTION 2: MASTER AGREEMENT TERMS AND CONDITIONS ............................................................................................ 15 A. GENERAL TERMS, CONDITIONS & INSTRUCTIONS ............................................................................................................ 16 CHECKLIST. .................................................................................................................................................................................. 21 B. WSCA-NASPO TERMS AND CONDITIONS .............................................................................................................................. 22 C. MINNESOTA TERMS AND CONDITIONS ................................................................................................................................ 29 D. FORMS ........................................................................................................................................................................................... 37 SECTION 3: RESPONSE REQUIREMENTS.................................................................................................................................... 57 A. RESPONSE REQUIREMENTS: BUSINESS ................................................................................................................................ 58 B. RESPONSE REQUIREMENTS: ENVIRONMENTAL ................................................................................................................. 62 C. RESPONSE REQUIREMENTS: QUALIFICATIONS ................................................................................................................. 63 D. RESPONSE REQUIREMENTS: CUSTOMER SUPPORT AND MASTER AGREEMENT MANAGEMENT ......................... 66 SECTION 4: COST PROPOSAL ......................................................................................................................................................... 71 SECTION 5: EVALUATION PROCESS ............................................................................................................................................ 76 SECTION 6: ATTACHMENTS ............................................................................................................................................................ 78 A PARTICIPATING STATES ........................................................................................................................................................... 79 B. MODEL PARTICIPATING ADDENDUM ................................................................................................................................ 122 C. MODEL MASTER AGREEMENT .............................................................................................................................................. 125 D. ACTION REQUEST FORM SAMPLE ........................................................................................................................................ 131 E. PRODUCT AND SERVICE SCHEDULE................................................................................................................................... 134 F. BULK/VOLUME PRICING EXAMPLES .................................................................................................................................. 135 G. DETAIL SALES REPORT TEMPLATE ..................................................................................................................................... 136 H. SAMPLE PRICE WORKBOOKS ................................................................................................................................................ 137 I. SOLICITATION ADDENDUM SUMMARY………………………………………………………………………………..…138 J. QUESTIONS AND ANSWERS PROVIDED VIA ADDENDUMS 4 SECTION 1: SCOPE OF WORK | 2014_0122 SECTION 1: SCOPE OF WORK A. INTRODUCTION The State of Minnesota, Department of Administration, Materials Management Division is requesting proposals on behalf of the State of Minnesota and WSCA-NASPO Cooperative Procurement Program (“WSCA-NASPO”). The purpose of this Request For Proposal (hereafter called the RFP) is to establish Minnesota WSCA-NASPO Master Agreement(s) with qualified manufacturers for Computer Equipment (Desktops, Laptops, Tablets, Servers, Storage and Ruggedized Devices including related Peripherals & Services). This RFP describes a relationship to be established between the Lead State and a responder and also specifies contractual conditions and details the basis for the responses, the subsequent review, and the final selection process. Detailed Contract obligations and measures of performance may be further defined in the final negotiated Contracts. The RFP shall not be construed to limit the Lead State’s right to issue or not issue any Contract, to reject all proposals, or to negotiate with more than one responder. Sealed responses must be received in the office of the Director of the Materials Management Division and time-stamped no later than the date and time specified, at which time the names of the vendors responding to this RFP will be read. Late responses cannot be considered. The laws of Minn. Stat. Ch. 16C apply to this RFP. For the purpose of this RFP, there are six product bands identified below which may be awarded. Responders must only respond to Bands in which they manufacture the defined product. The State of Minnesota intends to establish multiple awards per band. The State of Minnesota reserves the right to eliminate any bands from the final award. Band 1: Desktop Band 2: Laptop Band 3: Tablet Band 4: Server Band 5: Storage Band 6: Ruggedized Devices The Master Agreement(s) resulting from this RFP will replace the current State of Minnesota WSCA/NAPSO PC Contracts awarded in 2009. Information on these contracts is available at http://www.mmd.admin.state.mn.us/wsca/2009- 2014_contracts.asp. All authorized governmental entities in any State are welcome to use the resulting Master Agreements through WSCA- NASPO with the approval of the State Chief Procurement Official. Upon final award of the overarching Master Agreements, Contract Vendors are able to sign Participating Addendums (PA) at the option of Participating States. Participating States reserve the right to add State specific terms and conditions and modify the scope of the contract in their Participating Addendum as allowed by the Master Agreement. This RFP will result in a Master Agreement. The Master Agreement contract terms will begin on the date of contract execution, to 24 months after the date of contract execution, with the option to extend up to 36 months, upon agreement by both parties. Participating States will have the option to participate and further refine their Terms and Conditions through a Participating Addendum. 5 SECTION 1: SCOPE OF WORK | 2014_0122 B. OBJECTIVE The objectives of this RFP are to:  Obtain greater volume-based price discounts for quantity one purchases by leveraging the purchasing power of multiple states and their political subdivisions.  Obtain competitive pricing for specific standard configurations through a Premium Saving Package (PSP) program  Reduce contracting costs for each participating state through a cooperative competitive procurement process Proposers will provide an initial discount for a quantity of one unit. Proposers are to base discounts on the collective volume of potential purchases by the numerous state and local government entities. The objective of the procurement is to consolidate spend for participating entities to receive highly competitive pricing at the quantity one unit. In Calendar Year 2012, there was approximately $2,249,935,555.39 of spend. Further bulk/quantity savings are obtained when additional quantities are requested. Participating States and political subdivisions are encouraged to continually re- compete and obtain quotes for further quantity discounts among the awarded vendors to obtain the lowest price. The awarded Contract Vendors should realize significant savings by managing a single comprehensive Master Agreement establishing common terms, conditions, pricing and administrative structure. C. WSCA-NASPO BACKGROUND INFORMATION Since 1993, the Western States Contracting Alliance (WSCA) served as the primary cooperative purchasing arm of The National Association of State Procurement Officials (NASPO) and encouraged, fostered, and guided participating members to work collaboratively in an effort to create true procurement cooperatives. NASPO has formed a subsidiary entity, the WSCA-NASPO Cooperative Purchasing Organization (WSCA-NASPO), LLC to manage its WSCA-NASPO national cooperative purchasing program. The LLC was formed in October of 2012 and began operating officially on January 1, 2013. A 21-member Management Board has been appointed to oversee the operations and activities of the new organization. WSCA-NASPO represents a unified, nationally-focused cooperative purchasing program that will leverage the collective expertise and experience of WSCA and NASPO, aggregate the demand of all 50 states, the District of Columbia and the five organized territories, and their political subdivisions and other eligible entities, and help spur innovation and competition in the marketplace. D. PARTICIPATING STATES Apart from the Lead State conducting the solicitation, the states listed below have signified their intent to participate in the Master Agreement(s) resulting from this RFP. These States are considered Participating States for the purposes of this solicitation and its resulting contracts(s). WSCA-NASPO experience has shown states that have participated in previous WSCA-NASPO solicitations will continue to participate in subsequent solicitations. WSCA-NASPO is still in the process of gathering Intent to Participates from the current participating states for this Solicitation and will be added through an addendum process. Additional states may decide to participate during the course of this solicitation or after the Master Agreements have been awarded. Some State specific Terms and Conditions are provided in Section 6. These are for informational purposes only and will be negotiated with individual States after award of the Master Agreement. All States reserve the right to add additional terms and conditions to a participating addendums. 6 SECTION 1: SCOPE OF WORK | 2014_0122 Intent to Participate Notices have been received to date from the following States: Alaska Arkansas California Colorado Connecticut Delaware Georgia Hawaii Idaho Indiana Iowa Kansas Louisiana Maine Massachusetts Minnesota Missouri Montana Nebraska Nevada New Hampshire New Jersey New Mexico North Dakota Oklahoma Oregon Rhode Island South Carolina South Dakota Tennessee Utah Vermont Washington Wyoming 7 SECTION 1: SCOPE OF WORK | 2014_0122 Current States Participating Sales Volumes for Calendar Year 2012: WSCA-NASPO Computer Equipment, Peripherals & Related Services (MN) AL $ 1,991.58 SC $ 127,553,244.51 AK $ 24,884,137.39 SD $ 18,202,443.15 AZ $ 122,381,318.74 TN $ 2,926,492.79 AR $ 62,658,846.17 WY $ 14,746,570.36 CA $ 404,480,102.37 AS $ - CO $ 75,872,058.49 DC $ 3,269,745.16 CT $ 28,836,220.63 GU $ 13,780.52 DE $ 23,509,996.64 MP $ - FL $ 132,505,135.81 PR $ - GA $ 130,038,621.09 VI $ - HI $ 28,997,688.94 ID $ 31,482,975.19 TOTAL $ 2,249,935,555.39 IL $ 19,257,318.80 IN $ 179,972.91 IA $ 40,306,892.81 KS $ 45,893,491.19 KY $ 23,441,498.83 LA $ 85,333,419.12 ME $ 849,845.49 MD $ 4,487,490.52 MA $ 71,782,524.97 MI $ 16,171,200.29 MN $ 120,195,299.91 MS $ 933.00 MO $ 22,025,159.85 MT $ 13,309,651.01 NE $ 29,261,413.77 NV $ 47,743,617.59 NH $ 9,098,920.23 NJ $ 272,610,471.34 NM $ 38,547,219.37 NY $ 133,791.94 NC $ 13,974,511.45 ND $ 10,568,665.27 OH $ 47,619,206.76 OK $ 41,259,365.85 OR $ 47,675,346.81 PA $ 2,881,183.44 RI $ 10,995,869.42 8 SECTION 1: SCOPE OF WORK | 2014_0122 E. PRODUCT BAND DEFINITIONS This RFP is divided into six (6) hardware product bands. Each band includes related peripherals and services. All products and services offered within each band are subject to the restrictions provided in the Product Restrictions Section of this RFP. With the evolution of technology bands will be flexible and may be redefined during the course of the contract. BAND 1: DESKTOP. A desktop computer is a personal computer intended for regular use at a single location. A desktop computer typically comes in several units connected together during installation: (1) the processor, 2) display monitor and 3) input devices usually a keyboard and a mouse. All operating systems for tablets are allowed. Zero Clients, Thin clients, all in ones and workstations will also be included under desktops. Ruggedized equipment may also be included in the Product and Service schedule for this band BAND 2: LAPTOP. A laptop computer is a personal computer for mobile use. A laptop includes a display, keyboard, point device such as a touchpad and speakers into a single unit. A laptop can be used away from an outlet using a rechargeable battery. All operating systems for tablets are allowed. Laptops will include notebooks, ultrabook, mobile thin clients, chromebooks and netbooks. Computers with mobile operating systems will also be included under laptops. Tablets that have the option to be utilized with a keyboard can be sold in this band. Ruggedized equipment may also be included in the Product and Service Schedule for this band BAND 3: TABLET. A tablet is a mobile computer that provides a touchscreen which acts as the primary means of control. All operating systems for tablets are allowed. Ruggedized equipment may also be included as a category in the Product and Service Schedule for this band. BAND 4: SERVER. A server is a physical computer dedicated to run one or more services or applications (as a host) to serve the needs of the users of other computers on a network. This band also includes server appliances. Server appliances have their hardware and software preconfigured by the manufacturer. It also includes embedded networking components such as those found in blade chassis systems. Ruggedized equipment may also be included in the Product and Service Schedule for this band. BAND 5: STORAGE. Storage is hardware with the ability to store large amounts of data. This band includes SAN switching necessary for the proper functioning of the storage environment. Ruggedized equipment may also be included in the Product and Service Schedule for this band. BAND 6: RUGGEDIZED DEVICES Ruggedized refers to devices specifically designed to operate reliably in harsh usage environments and conditions, such as strong vibrations, extreme temperatures and wet or dusty conditions . Ruggedized Devices may also be offered under bands 1-5 of the Master Agreement. Examples of peripherals/accessories/options: Include but are not limited to: printers, monitors, multifunction printers, audiovisual equipment, instructional equipment, cabling, modems, networking to support server, storage and client applications such as routers, switches. Software is an option which must be related to the purchase of equipment and subject to configuration limits. Third party products are allowed to be offered as peripherals/accessories/options and may be offered in any related band. 9 SECTION 1: SCOPE OF WORK | 2014_0122 F. CONFIGURATION DOLLAR LIMITS 1. CONFIGURATION DOLLAR LIMITS. The following configuration limits apply to the Master Agreement. Participating States may define their configuration limits in their participating addendum. The Participating State’s Chief Procurement Official may increase or decrease the configuration limits, as defined in their Participating Addendum. The Participating State will determine with the Contract Vendor how to approve these modifications to the State’s Product and Service Schedule. The dollar limits identified below are based on a SINGLE computer configuration. This is NOT a restriction on the purchase of multiple configurations (e.g. an entity could purchase 10 laptops @ $10,000 for a total purchase price of $100,000). ITEM CONFIGURATION* Server $500,000 Storage $500,000 Desktops $ 10,000 Laptops $ 10,000 Tablets $ 5,000 Peripherals $ 5,000 Services Addressed by each State in participating addendum * Configuration is defined as the combination of hardware and software components that make up the total functioning system. Software purchases are considered a part of the configuration limit of the equipment. 10 SECTION 1: SCOPE OF WORK | 2014_0122 G. RESTRICTIONS The following restrictions apply to the Master Agreement. A Participating State may set further restrictions of products in their Participating Addendum. The Participating State will determine with the Contract Vendor how to approve these modifications to the State’s Product and Service Schedule. a. Software 1. Software is restricted to operating systems and commercial off-the-shelf (COTS) software and is subject to equipment configuration limits. 2. Software is an option which must be related to the procurement of equipment. 3. Software must be pre-loaded or provided as an electronic link with the initial purchase of equipment. 4. Software such as middleware which is not always installed on the equipment, but is related to storage and server equipment (band 4&5) purchased, is allowed and may be procured after the initial purchase of equipment. b. Services 1. Services must be related to the procurement of equipment. 2. Service limits will be addressed by each State. 3. Wireless phone and internet service is not allowed. 4. Cloud Services including acquisitions structured as managed on-site services are not allowed. 5. Managed Print Services are not allowed. c. Third Party Products. 1. Contract Vendors can only offer Third Party Products in the bands they have been awarded. 2. Contract Vendor cannot offer products manufactured by another Contract Vendor holding a Minnesota WSCA-NASPO Master Agreement unless approved by the Lead State. d. Additional Product/Services 1. Hardware and software required to solely support wide area network (WAN) operation and management are not allowed. 2. Lease/Rentals of equipment may be allowed and will be addressed by each State. 3. Cellular Phone Equipment is not allowed. 4. EPEAT Bronze requirement may be waived, on a State case by case basis, if approved by the State’s Chief Procurement Officer. 11 SECTION 1: SCOPE OF WORK | 2014_0122 H. DEFINITIONS Acceptance. See Section 2B28 for Terms regarding Acceptance and Acceptance Testing. Accessory. Accessories do not extend the functionality of the computer, but enhances the user experience i.e. mouse pad, monitor stand. For the purposes of this proposal, accessories are considered peripherals. Bands: For the purpose of this solicitation, there are six product bands which may be awarded. Each product band includes related peripherals and services. Responders must only respond to Bands in which they manufacture the defined product. Responder may receive an award in one or more bands for which they manufacture a product based on the evaluation. Cloud Services. Delivery of computing as a service rather than a product, whereby shared resources, software and information are provided to computers and other devices as a utility over a network, such as the Internet. (Cloud Services including acquisitions structured as managed on-site services are not allowed.) Contract Vendor or Contractor. The manufacturer responsible for delivering products or performing services under the terms and conditions set forth in the Master Agreement. The Contract Vendor must ensure partners utilized in the performance of this contract adhere to all the terms and conditions. For the purposes of this RFP, the term Partner will be utilized in naming the relationship a manufacturer has with another company to market and sell the contract. Participating States will have final determination/approval if a Partner may be approved for that state in the role identified by the Contract Vendor. Components. Parts that make up a computer configuration. Configuration. The combination of hardware and software components that make up the total functioning system. Desktop. This is Band 1 of this solicitation. A desktop computer is a personal computer intended for regular use at a single location. A desktop computer typically comes in several units connected together during installation: (1) the processor, 2) display monitor and 3) input devices usually a keyboard and a mouse. Desktop virtualization endpoints such as zero and thin clients will also be included under the Desktop Band. Energy Star®. A voluntary energy efficiency program sponsored by the U.S. Environmental Protection Agency. The Energy Star program makes identification of energy efficient computers easy by labeling products that deliver the same or better performance as comparable models while using less energy and saving money. Energy Star qualified computers and monitors automatically power down to 15 watts or less when not in use and may actually last longer than conventional products because they spend a large portion of time in a low-power sleep mode. For additional information on the Energy Star program, including product specifications and a list of qualifying products, visit the Energy Star website at http://www.energystar.gov. EPEAT. A system for identifying more environmentally preferable computer desktops, laptops, and monitors. It includes an ANSI standard - the IEEE 1680 EPEAT standard – and website www.epeat.net to identify products manufacturers have declared as meeting the standard. EPEAT provides a clear and consistent set of performance criteria for the design of products. It is not a third-party certification program. Instead, Manufacturers self-certify that their products are in conformance with the environmental performance standard for electronic products. Finalist. A respondent who is found to be responsive under Phases I and II of the evaluation process and will be considered in Phase III. FOB Destination. Shipping charges are included in the price of the item and the shipped item becomes the legal property and responsibility of the receiver when it reaches its destination unless there is acceptance testing required. FOB Inside Delivery. Special Shipping arrangements, such as inside delivery, may include additional fees payable by the Purchasing Entity. Any FOB inside delivery must be annotated on the Purchasing Entity ordering document. General Consulting. Services related to advising agencies on how best to use information technology to meet business objectives. Examples of such services would include management and administration of IT systems. Each State will have varying laws, rules, policies and procedures surrounding general consulting which need adherence. Minnesota Statute 12 SECTION 1: SCOPE OF WORK | 2014_0122 section 16C.08 defines general consulting for the State of Minnesota. See link: https://www.revisor.mn.gov/statutes/?id=16C.08 Laptop. This is Band 2 of this solicitation. A laptop computer is a personal computer for mobile use. A laptop includes a display, keyboard, point device such as a touchpad and speakers into a single unit. A laptop can be used awa y from an outlet using a rechargeable battery. Laptop Band may include notebooks, ultrabooks, and netbooks. Computers with mobile operating systems will also be included under the Laptop Band. Lead State. The State conducting this cooperative solicitation and centrally administering any resulting Master Agreement with the permission of the Signatory States. Minnesota is the Lead State for this procurement and the laws of Minnesota Statute Chapter 16C apply to this procurement. Mandatory. Within the requirements, the terms “must” and “shall” identify a mandatory item or factor. Failure to meet a mandatory requirement results in the rejection of the Responder’s proposal unless all responders are unable to meet the mandatory requirement. Any objections to requirements should be identified by proposers in the Question and Answer period. Manufacturer. A company that, as one of its primary business function, designs, assembles owns the trademark/patent and markets branded computer equipment. Master Agreement. The underlying agreement executed by and between the Lead State and the Contract Vendor. Middleware. Middleware is the software “glue” that helps programs and databases (which may be on different computers) work together. Its most basic function is to enable communication between different pieces of software. Options. An item of equipment or a feature that may be chosen as an addition to or replacement for standard equipment and features. Order. A purchase order, sales order, or other document use d by a Purchasing Entity to order the Equipment. Participating Addendum. A written statement of agreement signed by the Contract Vendor and a Participating State or other Participating Entity that clarifies the operation of this Master Agreement for the Participating Entity (e.g., ordering procedures specific to a Participating State) and may add other state -specific language or other requirements. A Participating Addendum evidences the Participant’s willingness to purchase and the Contract Vendor’s willingness to provide equipment under the terms and conditions of this Master Agreement with any and all exceptions noted and agreed upon. Participating States. States that utilize the Master Agreement established by the RFP and enter into a Participating Addendum which further defines their participation. Participating Entity. A Participating State, or other legal entity, properly authorized by a Participating State to enter into the Master Agreement through a Participating Addendum and that authorizes orders from the Master Agreement by Purchasing Entities. Under the WSCA-NASPO program, in some cases, local governments, political subdivisions or other entities in a State may be authorized by the chief procurement official to execute its own Participating Addendum where a Participating Addendum is not executed by the chief procurement official for that state that covers local governments, political subdivisions, or other government entities in the state. Partner. A company, authorized by the Contract Vendor and approved by the Participating State, to provide marketing, support, or other authorized contract services on behalf of the Contract Vendor in accordance with the terms and conditions of the Contract Vendor’s Master Agreement. In the RFP, Partner is the term that will be used to call out the many different relationships a manufacturer may have with another company to market their product including, but not limited to agents, subcontractors, partners, fulfillment partners, channel partners, business partners, servicing subcontractor, etc. Peripherals. A peripheral means any hardware product that can be attached to, added within or networked with personal computers, servers and storage. Peripherals extend the functionality of a computer without modifying the core components of the system. For the purposes of this proposal, peripherals are defined as including accessories. Peripherals may be manufactured by a third party, however, Contract Vendor shall not offer any peripherals manufactured by another Contract Vendor holding a Master Agreement. The Contract Vendors shall provide the warranty service and maintenance for all peripherals on the Master Agreement. 13 SECTION 1: SCOPE OF WORK | 2014_0122 Per Transaction Multiple Unit Discount. A contractual volume discount based on dollars in a single purchase order or combination of purchase orders submitted at one time by a Participating Entity or multiple entities conducting a cooperative purchase. Premium Savings Packages. Deeply discounted standard configurations available to Purchasing Entities using the Master Agreement. This specification includes a commitment to maintain and upgrade (keep pace with the advance of technology) the standard configurations for a stated period of time or intervals. WSCA-NASPO reserves the right to expand and modify the PSP throughout the life of the contract. For more information see: http://www.wnpsp.com/index.html. Purchasing Entity – means a state, city, county, district, other political subdivision of a State, and a nonprofit organization under the laws of some states if authorized by a Participating Addendum, that issues an order against the Master Agreement and becomes financially committed to the purchase. Ruggedized. This is band 6 of this solicitation. Ruggedized refers to equipment specifically designed to operate reliably in harsh usage environments and conditions, such as strong vibrations, extreme temperatures and wet or dusty conditions. Services. Broadly classed as installation/de-installation, maintenance, support, training, migration, and optimization of products offered or supplied under the Master Agreement. These types of services may include, but are not limited to: warranty services, maintenance, installation, de-installation, factory integration (software or equipment components), asset management, recycling/disposal, training and certification, pre-implementation design, disaster recovery planning and support, service desk/helpdesk, and any other directly related technical support service required for the effective operation of a product offered or supplied. Contract Vendors may offer, but participating States and entities do not have to accept, limited professional services related ONLY to the equipment and configuration of the equipment purchased through the resulting contracts. EACH PARTICIPATING STATE DETERMINES RESTRICTIONS AND NEGOTIATES TERMS FOR SERVICES. Server. This is Band 4 of this solicitation. A server is a physical computer dedicated to run one or more services or applications (as a host) to serve the needs of the users of other computers on a network. This band also includes server appliances. Server appliances have their hardware and software preconfigured by the manufacturer. It also includes embedded networking components such as those found in blade chassis systems. Ruggedized equipment may also be included in the Product and Service Schedule for this band. Storage. This is Band 5 of this solicitation. Storage is hardware with the ability to store large amounts of data. This band includes SAN switching necessary for the proper functioning of the storage environment. Ruggedized equipment may also be included in the Product and Service Schedule for this band. Storage Area Network. A storage area network (SAN) is a high-speed special-purpose network (or subnetwork) that interconnects different kinds of data storage devices with associated data servers on behalf of a larger network of users. Storage as a Service (STaaS). An architecture model by which a provider allows a customer to rent or lease storage space on the provider’s hardware infrastructure on a subscription basis. E.g., manage onsite or cloud services. Software. For the purposes of this proposal, software is commercial operating off the shelf machine-readable object code instructions including microcode, firmware and operating system software that are preloaded on equipment. The term “Software” applies to all parts of software and documentation, including new releases, updates, and modifications of software. Tablet. This is Band 3 of this solicitation. A tablet is a mobile computer that provides a touchscreen which acts as the primary means of control. Tablet band may include notebooks, ultrabooks, and netbooks that are touchscreen capable. Takeback Program. The Contract Vendor’s process for accepting the return of the equipment or other products at the end of life. Third Party Products. Products sold by the Contract Vendor which are manufactured by another company. Upgrade. Refers to replacement of existing software, hardware or hardware component with a newer version. Warranty. The Manufacturers general warranty tied to the product at the time of purchase 14 SECTION 1: SCOPE OF WORK | 2014_0122 Wide Area Network or WAN. A data network that serves users across a broad geographic area and often uses transmission devices provided by common carriers. WSCA-NASPO. The WSCA-NASPO cooperative purchasing program, facilitated by the WSCA-NASPO Cooperative Purchasing Organization LLC, a 501(c)(3) limited liability company that is a subsidiary org anization of the National Association of State Procurement Officials (NASPO). The WSCA-NASPO Cooperative Purchasing Organization facilitates administration of the cooperative group contracting consortium of state chief procurement officials for the benefi t of state departments, institutions, agencies, and political subdivisions and other eligible entities (i.e., colleges, school districts, counties, cities, some nonprofit organizations, etc.) for all states and the District of Columbia. The WSCA-NASPO Cooperative Development Team is identified in the Master Agreement as the recipient of reports and may be performing contract administration functions as assigned by the Lead State Contract Administrator. 15 SECTION 2: MASTER AGREEMENT TERMS AND CONDITIONS | 2014_0122 SECTION 2: MASTER AGREEMENT TERMS AND CONDITIONS ALL TERMS AND CONDITIONS A-D APPLY TO THE MASTER AGREEMENT CONTRACT A statement of acceptance of the proposed Master Agreement Terms and Conditions, unless taken exception to, as specified in the RFP must be included in the response. Any suggestions for alternate language shall be presented. A. GENERAL TERMS, CONDITIONS & INSTRUCTIONS B. WSCA-NASPO TERMS & CONDITIONS C. MINNESOTA TERMS AND CONDITIONS D. FORMS 16 SECTION 2: MASTER AGREEMENT TERMS AND CONDITIONS | 2014_0122 SECTION 2: MASTER AGREEMENT TERMS AND CONDITIONS A. GENERAL TERMS, CONDITIONS & INSTRUCTIONS 1. ACCEPTANCE OF TERMS AND CONDITIONS The contents of the RFP and the response of the successful responder will become Master Agreement contractual obligations, along with the final Master Agreement, if acquisition action ensues. A statement of acceptance of the proposed Contract Terms and Conditions, unless taken exception to, as specified in the RFP must be included in the response. Any suggestions for alternate language shall be presented. The Lead State is under no obligation to accept wording changes submitted by the responder. The Lead State is solely responsible for rendering decisions in matters of interpretation on all terms and conditions. Any response which fails to comply with this requirement may be disqualified as nonresponsive. All general proposal terms, specifications and WSCA-NASPO Terms & Conditions form a part of this RFP and will apply to any Master Agreements entered into as a result thereof. 2. CONFLICT OF TERMS/ORDER OF PRECEDENCE: 1. A Participating Entity’s Participating Addendum (“PA”); 2. Minnesota WSCA-NASPO Master Agreement (includes negotiated Terms & Conditions) 3. The Solicitation; and 4. Accepted portions of Contract Vendor's response to the Solicitation, as modified in any proposal revisions (if permitted) These documents shall be read to be consistent and complementary. Any conflict among these documents shall be resolved by giving priority to these documents in the order listed above. Contract Vendor terms and conditions that apply to this Master Agreement are only those that are expressly accepted by the Lead State and must be in writing and attached to the Master Agreement as an Exhibit or Attachment. No other terms and conditions shall apply, including terms and conditions listed in the Contract Vendor’s response to the Solicitation, or terms listed or referenced on the Contract Vendor's website, in the Contract Vendor quotation/sales order or in similar documents subsequently provided by the Contract Vendor. The solicitation language prevails unless a mutually agreed exception has been negotiated. 3. ADDENDA TO THE RFP. Any addendum issued will become a part of the RFP. The Lead State may modify or clarify the RFP by issuing one or more addenda to all parties who have received the RFP. Each responder must follow the directions on the addendum. Addenda will be numbered consecutively in the order they are issued. 4. AWARD. The award of this solicitation will be based upon the total accumulated points as established in the RFP, for separate items, by grouping items, or by total lot, and where at its sole discretion the Lead State believes it will receive the best value. The Lead State reserves the right to award this solicitation to a single responder, or to multiple responders, whichever is in the best interest of the Lead State. It is the State’s intent to award to multiple responders. The Lead State reserves the right to accept all or part of an offer, to reject all offers, to cancel the solicitation, or to re- issue the solicitation, whichever is in the best interest of the Lead State. The Sourcing Team will make a recommendation on the award of this RFP. The commissioner of Administration or designee may accept or reject the recommendation of the Sourcing Team. The final award decision will be made by the Commissioner of Administration and the WSCA-NASPO Management Board. 5. CLARIFICATION. If a responder discovers any significant ambiguity, error, conflict, discrepancy, omission, or other deficiency in the RFP, the responder shall immediately notify the Acquisition Management Specialist in writing, as specified in the introduction, of such error and request modification or clarification of the document. This notification is due no later than seven calendar days prior to the proposal due date and time. Responders are cautioned that any activity or communication with a State employee or officer, or a member of the Evaluation Team, regarding this Solicitation’s contents or process, is strictly prohibited and may, as a result, have its response rejected. Any communication regarding this Solicitation, its content or process, must be directed to the Acquisition Management Specialist listed in the Solicitation documents. 17 SECTION 2: MASTER AGREEMENT TERMS AND CONDITIONS | 2014_0122 6. COMPLETION OF RESPONSES. A response may be rejected if it is conditional or incomplete. Responses that contain conflicting, false, or misleading statements or that provide references that contradict or do not support an attribute or condition stated by the responder, may be rejected. 7. MASTER AGREEMENT ADMINISTRATOR. The Master Agreement Administrator designated by WSCA-NASPO and the State of Minnesota, Department of Administration is: Susan Kahle. Direct all correspondence and inquiries, legal questions, general issues, or technical issues regarding this RFP to: Susan Kahle Acquisition Management Specialist Fax: 651.297.3996 Department of Administration E-mail: susan.kahle@state.mn.us Materials Management Division 50 Sherburne Avenue 112 Administration Building St. Paul, MN 55155 8. DISPOSITION OF RESPONSES. All materials submitted in response to this RFP will become property of the Lead State and will become public record after the evaluation process is completed. The evaluation process is complete when negotiations with the selected vendors are final. If the responder submits information in response to this RFP that it believes to be trade secret materials, as defined by the Minnesota Government Data Practices Act, Minn. Stat. § 13.37, the responder must: a. clearly mark all trade secret materials in its response at the time the response is submitted; b. include a statement with its response justifying the trade secret designation for each item; and, c. defend any action seeking release of the materials it believes to be trade secret, and indemnify and hold harmless the Lead State, its agents and employees, from any judgments awarded against the Lead State in favor of the party requesting the materials, and any and all costs connected with that defense. This indemnification survives the Lead State’s award of a Master Agreement. In submitting a response to the RFP, the responder agrees that this indemnification survives as long as the trade secret materials are in possession of the Lead State. The Lead State will not consider the prices submitted by the responder to be trade secret materials. 9. DISPUTE RESOLUTION PROCEDURES. Any issue a responder has with the RFP document, which includes, but is not limited to, the terms, conditions, and specifications, must be submitted in writing to and received by the Master Agreement Administrator prior to the opening due date and time. Any issue a responder has with the Master Agreement award must be submitted in writing to the Master Agreement Administrator within five working days from the time the notice of the intent to award is issued. This notice may be made by any of the following methods: notification by letter, fax or email, or posted on the Materials Management website, www.mmd.admin.state.mn.us. The Lead State will respond to any protest received that follows the above procedure. For those protests that meet the above submission requirements, the appeal process is, in sequence: The responsible Master Agreement Administrator, the Materials Management Division (MMD) Assistant Director, and the MMD Director. 10. ELECTRONIC FILES TO DOWNLOAD, COMPLETE, AND RETURN. Responders must download a Word/Excel document. To download the document, you must type or copy and paste the URL address listed below into your browser address line. When the document file opens, use the “Save As…” feature to save the document to your computer hard drive or other media. If you use the URL address listed below as a link, you will be unable to save the document to your hard drive or other media. Please type or copy and paste the following URL address into your browser: 9/16/13 Version: http://www.mmd.admin.state.mn.us/process/admin/documents/19512ComputerRFP.doc Version dated 01/22/2014 provided via addendum 12 includes revisions resulting from addenda. If you need assistance please contact our HelpLine at 651.296.2600. 11. ENTIRE AGREEMENT. A written Master Agreement (including the contents of this RFP and selected portions of Contract Vendor’s response incorporated therein by reference) and any written addenda thereto constitute the entire agreement of the parties to the Master Agreement. 18 SECTION 2: MASTER AGREEMENT TERMS AND CONDITIONS | 2014_0122 12. IRREVOCABLE OFFER. In accordance with this Request for Proposal, and subject to all conditions thereof, the undersigned agrees that its response to this RFP, or any part thereof, is an irrevocable offer for 180 days following the submission deadline date unless stated otherwise in the RFP. It is understood and agreed that the response, or any part thereof, when accepted by the appropriate department and State officials in writing, may become part of a legal and binding Master Agreement between the undersigned vendor and the State of Minnesota. 13. MATERIAL DEVIATION. A responder shall be presumed to be in agreement with these terms and conditions unless it takes specific exception to one or more of the conditions. Submission by the responder of its proposed language shall not be viewed as an exception unless the responder specifically states in the response that its proposed changes are intended to supersede the terms and conditions. RESPONDERS ARE CAUTIONED THAT BY TAKING ANY EXCEPTION THEY MAY BE MATERIALLY DEVIATING FROM THE REQUEST FOR PROPOSAL. IF A RESPONDER MATERIALLY DEVIATES FROM THE GENERAL TERMS, CONDITIONS AND INSTRUCTIONS OR THE WSCA-NASPO TERMS AND CONDITIONS AND/OR SPECIFICATIONS, ITS RESPONSE MAY BE REJECTED. A material deviation is an exception to the Request for Proposal general or WSCA-NASPO terms and conditions and/or specifications that: a. gives the responder taking the exception a competitive advantage over other vendors; or, b. gives the Lead State something significantly different from that which the Lead State requested. 14. NONRESPONSIVE RESPONSES. Responses that do not comply with the provisions in the RFP may be considered nonresponsive and may be rejected. 15. NOTICES. If one party is required to give notice to the other under the Master Agreement, such notice shall be in writing and shall be effective upon receipt. Delivery may be by certified United States mail or by hand, in which case a signed receipt shall be obtained. A facsimile transmission shall constitute sufficient notice, provided the receipt of the transmission is confirmed by the receiving party. Either party must notify the other of a change in address for notification purposes. All notices to the Lead State shall be addressed as follows: Susan Kahle susan.kahle@state.mn.us Acquisition Management Specialist 50 Sherburne Avenue 112 Administration Bldg. St. Paul, MN 55155 16. PRE-PROPOSAL MEETING. A pre-proposal meeting will be held for all interested responders to review any concerns regarding this Request for Proposal. Attendance at this meeting is NOT MANDATORY, but is strongly recommended. See Schedule of events for date and time. To register for webinar: https://amrmsevents.webex.com/amrmsevents/onstage/g.php?d=663850855&t=a 17. PROPOSAL PREPARATION. Responses are to be prepared and presented in the same sequential order as the questions are presented in this document. Responses deviating from the request for proposal format and organization may be removed from further consideration. Responses are expected to provide a straightforward and concise description of the responder’s ability to meet the requirements. MARKETING MATERIALS WILL NOT BE ACCEPTED AS A RESPONSE. The response to this Request for Proposal (RFP) must be returned sealed. Sealed responses must be received in the office of the Director of the Materials Management Division and time-stamped no later than the date and time specified in the schedule of events, at which time the names of the vendors responding to this RFP will be read. Late responses cannot be considered. The laws of Minn. Stat. Ch. 16C and all other applicable laws apply to this Request for Proposal. NARRATIVE RESPONSE  UTILIZE DOUBLE SIDED PRINTING - DO NOT INCLUDE UNNECESSARY BINDERS 19 SECTION 2: MASTER AGREEMENT TERMS AND CONDITIONS | 2014_0122  CLEARLY TAB AND MARK EACH DOCUMENT ACCORDING TO SECTIONS 1-6 AS NOTED IN THE TABLE OF CONTENTS. Submit 1 ORIGINAL and 3 COPIES of the narrative response. Submit an electronic version in a searchable .pdf and also an unlocked word document. The original copy of the response must be signed by an authorized member of the firm and marked Original. Do not include the COST PROPOSAL in the narrative response. The Cost proposal are to be submitted sealed and separately. COST PROPOSAL  SUBMIT SEPARATELY FROM NARRATIVE IN SEALED ENVELOP CLEARLY MARKED COST PROPOSAL Submit 1 ORIGINAL PRINTED COST PROPOSAL in a separate sealed envelope marked Cost Proposal. Submit an electronic version in a searchable .pdf, word and an unlocked EXCEL document. Responses are to be sealed in mailing envelopes or packages with the responder’s name and address clearly written on the outside. Once the RFP is awarded, the original copies will be kept, but all other copies and the electronic copies may be destroyed. Costs for developing a response to this RFP are entirely the responder’s responsibility and shall not be chargeable to the State of Minnesota or to any agency thereof. This Request for Proposal does not commit the Lead State to award any Master Agreement or to pay any costs incurred by the vendors responding. Any materials submitted may be incorporated by reference in the final Master Agreement. The Lead State reserves the right to accept or reject any or all responses or parts of responses and to waive informalities therein. All responses must be prepared as stated herein and properly signed. Address all correspondence and inquiries regarding this RFP to the Master Agreement Administrator. THIS IS A REQUEST FOR PROPOSAL; NOT A PURCHASE ORDER. a. ALTERATIONS. Any alteration, particularly in the price used to determine the successful response, may be rejected unless the alteration is initialed by the person authorized to contractually obligate the responder. Proof of authorization shall be provided upon request. b. An AUTHORIZED SIGNATURE is required. The response must be in the legal name of the firm or business, and must be fully and properly executed and signed by an officer or other authorized representative who shall state his/her title. Proof of authority of the person signing the response shall be furnished upon request. If the responder is a corporation, a secretarial certificate of an excerpt of the corporate minutes showing that the signing officer has authority to contractually obligate the corporation shall be furnished. Where the corporation has designated an attorney-in-fact, the ordinary power of attorney should be furnished. If the responder is a partnership, a letter of authorization shall be furnished, signed by one of the general partners. If the responder is a proprietor, and the person signing the response is other than the owner, a letter of authorization signed by the owner shall be furnished. FORMS MUST BE COMPLETED AND RETURNED WITH YOUR RESPONSE OR THE RESPONSE MAY BE REJECTED. 18. QUESTIONS. Questions must be submitted in writing to Master Agreement Administrator. All questions received by the cutoff date and time will be responded to via an addendum to official solicitation holders. Be specific and cite the section, item and page number to which the question refers. Contact regarding this RFP with any State personnel other than the Master Agreement Administrator may result in rejection of the response. See schedule of events for date and time. 20 SECTION 2: MASTER AGREEMENT TERMS AND CONDITIONS | 2014_0122 Responses to questions released via addendum 3: MN WSCA-NASPO COMPUTER RESPONSES. RESPONSES TO QUESTIONS DUE NOV 22 released via addendum 5. 19. SCHEDULE OF EVENTS. This section provides a tentative schedule of the critical project dates. Responders should carefully examine and make certain they have a clear understanding of the requirements of the specified project milestones and the associated dates. Date/Time ACTION September 16, 2013 Publish RFP October 1, 2013 1:00 p.m. – 3:30 p.m. Central Time Optional Pre-Proposal Webinar To register for webinar: https://amrmsevents.webex.com/amrmsevents/onstage/g.php?d=663850855&t=a October 7, 2013 Due 3:00 P.M. CT Questions Due Clearly reference the section and item to which question pertains. Accepted via email to susan.kahle@state.mn.us ORIGINAL: NOVEMBER 18, 2013 Proposal Due Date/Proposal Opening 3:00 P.M. CT REVISED: JANUARY 21, 2014 Proposal Due Date/Proposal Opening 3:00 P.M. CT 20. TAXPAYER IDENTIFICATION: The Contract Vendor shall be registered as a vendor to the Lead State in the SWIFT Procurement System. Registration must be done online at http://www.mmb.state.mn.us/vendorresources. 21 SECTION 2: MASTER AGREEMENT TERMS AND CONDITIONS | 2014_0122 CHECKLIST. This list may not be comprehensive, read the RFP thoroughly for information required in this solicitation. One original and three copies of the NARRATIVE proposal. One electronic searchable pdf and one editable word/ excel document on flash drive or CD. DO NOT INCLUDE COST PROPOSAL WITH THE NARRATIVE One original PRINTED COST proposal SEALED including the cost evaluation forms. Also include one electronic flash drive or CD as searchable .pdf and word document in sealed in separate envelope Cost Proposal includes: 1. Responses to Section 4 2. Baseline Price List 3. Proposed Product and Services Schedule 4. Price Workbooks for applicable Bands – include all tabs. Pricing based on Nov 15th Signed Addendums (if applicable) Response to Master Agreement Terms & Conditions (A-D) in order presented in the RFP, clearly marked and tabbed. Acceptance of Terms of condition must be noted and alternative language presented. Utilize Exception form provided Response to Requirements in order presented in the RFP, clearly marked and tabbed. Describe HOW the requirement will be met. NOTE: Requirements need to be checked yes or no. If checked no, response may be rejected. Vendors should express concerns regarding requirements during the question and answer period . If ALL vendors are unable to meet the requirement, the Lead State reserves the right to waive the requirement. Forms included in RFP ___ Signature Page ___Affirmative Action Certification ___Trade Secret Information NOTE: Trade secret information must be redacted from proposal and submitted in separate sealed envelope clearly marked with the Trade Secret Form. ___Affidavit of Non-Collusion ___Service & Delivery ___Savings ___Taxpayer Identification ___Veterans Preference ___ Question Form ___ T&C Exception Form ___ VPAT WCAG Accessibility Form (for the proposed website supporting the contract) Insurance - Does not need to be provided with proposal, but evidence must be provided prior to award. Review and confirm company can meet these requirements. 22 SECTION 2: MASTER AGREEMENT TERMS AND CONDITIONS | 2014_0122 SECTION 2: MASTER AGREEMENT TERMS AND CONDITIONS B. WSCA-NASPO TERMS AND CONDITIONS 1. ADMINISTRATIVE FEES. The Contract Vendor shall pay a WSCA-NASPO Administrative Fee of one-tenth of one percent (0.1% or 0.001) in accordance with the Terms and Conditions of the Master Agreement no later than 60 days following the end of each calendar quarter. The WSCA-NASPO Administrative Fee shall be submitted quarterly and is based on sales of products and services (less any charges for taxes or shipping). The WSCA-NASPO Administrative Fee is not negotiable. This fee is to be included as part of the pricing submitted with proposal. Additionally, some states may require an additional fee be paid directly to the state on purchases made by Purchasing Entities within that state. For all such requests, the fee level, payment method and schedule for such reports and payments will be incorporated into the Participating Addendum that is made a part of the Master Agreement. The Contract Vendor may adjust the Master Agreement pricing accordingly for purchases made by Purchasing Entities within the jurisdiction of the state. All such agreements may not affect the WSCA-NASPO Administrative Fee or the prices paid by the Purchasing Entities outside the jurisdiction of the state requesting the additional fee. 2. AGREEMENT ORDER OF PRECEDENCE. The Master Agreement shall consist of the following documents: 1. A Participating Entity’s Participating Addendum (“PA”); 2. Minnesota WSCA-NASPO Master Agreement (includes negotiated Terms and Conditions) 3. The Solicitation; and 4. Accepted portions of the Contract Vendor's response to the Solicitation, as modified in any proposal revisions (if permitted) These documents shall be read to be consistent and complementary. Any conflict among these documents shall be resolved by giving priority to these documents in the order listed above. Contract Vendor terms and conditions that apply to this Master Agreement are only those that are expressly accepted by the Lead State and must be in writing and attached to this Master Agreement as an Exhibit or Attachment. No other terms and conditions shall apply, including terms and conditions listed in the Contract Vendor’s response to the Solicitation, or terms listed or referenced on the Contract Vendor's website, in the Contract Vendor quotation/sales order or in similar documents subsequently provided by the Contract Vendor. The solicitation language prevails unless a mutually agreed exception has been negotiated. 3. AMENDMENTS. The terms of this Master Agreement shall not be waived, altered, modified, supplemented or amended in any manner whatsoever without prior written approval of the WSCA-NASPO Master Agreement Administrator. 4. ASSIGNMENT OF ANTITRUST RIGHTS. Contract Vendor irrevocably assigns to a Participating Entity any claim for relief or cause of action which the Contract Vendor now has or which may accrue to the Contract Vendor in the future by reason of any violation of state or federal antitrust laws (15 U.S.C. § 1-15 or a Participating Entity’s state antitrust provisions), as now in effect and as may be amended from time to time, in connection with any goods or services provided to the Contract Vendor for the purpose of carrying out the Contract Vendor's obligations under this Master Agreement or Participating Addendum, including, at a Participating Entity's option, the right to control any such litigation on such claim for relief or cause of action. 5. ASSIGNMENT/SUBCONTRACT. Contract Vendor shall not assign, sell, transfer, subcontract or sublet rights, or delegate responsibilities under this Master Agreement, in whole or in part, without the prior written approval of the WSCA-NASPO Master Agreement Administrator. 6. CANCELLATION. Unless otherwise stated in the terms and conditions, any Master Agreement may be canceled by either party upon 60 days’ notice, in writing, prior to the effective date of the cancellation. Further, any Participating Entity may cancel its participation upon 30 days written notice, unless otherwise limited or stated in the special terms and conditions of this solicitation or in the applicable Participating Addendum. Cancellation may be in whole or in part. Any cancellation under this provision shall not affect the rights and obligations attending orders outstanding at the time of cancellation, including any right of a Participating Entity to indemnification by the Contract Vendor, rights of payment for goods/services delivered and accepted, and rights attending any warranty or default in performance in 23 SECTION 2: MASTER AGREEMENT TERMS AND CONDITIONS | 2014_0122 association with any order. Cancellation of the Master Agreement due to Contract Vendor default may be immediate if defaults cannot be reasonably cured as allowed per Default and Remedies term. 7. CONFIDENTIALITY, NON-DISCLOSURE AND INJUNCTIVE RELIEF. 7.1 Confidentiality. Contract Vendor acknowledges that it and its employees or agents may, in the course of providing the Product under this Master Agreement, be exposed to or acquire information that is confidential to Participating Entity or Participating Entity’s clients. Any and all information of any form that is marked as confidential or would by its nature be deemed confidential obtained by Contract Vendor or its employees or agents in the performance of this Master Agreement, including, but not necessarily limited to (a) any Participating Entity records, (b) personnel records, and (c) information concerning individuals, is confidential information of Participating Entity (“Confidential Information”). Any reports or other documents or items (including software) that result from the use of the Confidential Information by Contract Vendor shall be treated in the same manner as the Confidential Information. Confidential Information does not include information that (a) is or becomes (other than by disclosure by Contract Vendor) publicly known; (b) is furnished by Participating Entity to others without restrictions similar to those imposed by this Master Agreement; (c) is rightfully in Contract Vendor’s possession without the obligation of nondisclosure prior to the time of its disclosure under this Master Agreement; (d) is obtained from a source other than Participating Entity without the obligation of confidentiality, (e) is disclosed with the written consent of Participating Entity or; (f) is independently developed by employees, agents or subcontractor of Contract Vendor who can be shown to have had no access to the Confidential Information 7.2 Non-Disclosure. Contract Vendor shall hold Confidential Information in confidence, using at least the industry standard of confidentiality, and not to copy, reproduce, sell, assign, license, market, transfer or otherwise dispose of, give, or disclose Confidential Information to third parties or use Confidential Information for any purposes whatsoever other than the performance of this Master Agreement to Participating Entity hereunder, and to advise each of its employees and agents of their obligations to keep Confidential Information confidential. Contract Vendor shall use commercially reasonable efforts to assist Participating Entity in identifying and preventing any unauthorized use or disclosure of any Confidential Information. Without limiting the generality of the foregoing, Contract Vendor shall advise Participating Entity immediately if Contract Vendor learns or has reason to believe that any person who has had access to Confidential Information has violated or intends to violate the terms of this Master Agreement and Contract Vendor shall at its expense cooperate with Participating Entity in seeking injunctive or other equitable relief in the name of Participating Entity or Contract Vendor against any such person. Except as directed by Participating Entity, Contract Vendor will not at any time during or after the term of this Master Agreement disclose, directly or indirectly, any Confidential Information to any person, except in accordance with this Master Agreement, and that upon termination of this Master Agreement or at Participating Entity’s request, Contract Vendor shall turn over to Participating Entity all documents, papers, and other matter in Contract Vendor's possession that embody Confidential Information. Notwithstanding the foregoing, Contract Vendor may keep one copy of such Confidential Information necessary for quality assurance, audits and evidence of the performance of this Master Agreement. 7.3 Injunctive Relief. Contract Vendor acknowledges that breach of this Section, including disclosure of any Confidential Information, will cause irreparable injury to Participating Entity that is inadequately compensable in damages. Accordingly, Participating Entity may seek and obtain injunctive relief against the breach or threatened breach of the foregoing undertakings, in addition to any other legal remedies that may be available. Contract Vendor acknowledges and agrees that the covenants contained herein are necessary for the protection of the legitimate business interests of Participating Entity and are reasonable in scope and content. 7.4 Participating Entity is agreeing to the above language to the extent is not in conflict with Participating Entities public disclosure laws. 8. DEBARMENT. The Contract Vendor certifies that neither it nor its principals are presently debarred, suspended, proposed for debarment, declared ineligible, or voluntary excluded from participation in this transaction (Master Agreement) by any governmental department or agency. If the Contract Vendor cannot certify this statement, attach a written explanation for review by WSCA-NASPO. In any order against this Master Agreement for a requirement established by a Purchasing Entity that discloses the use of federal funding, to the extent another form of certification is not required by a Participating Addendum or the order of the Purchasing Entity, the Contractor’s quote represents a recertification consistent with the terms of paragraph 8, Section 2D, Minnesota Terms and Conditions 9. DEFAULTS & REMEDIES. a. The occurrence of any of the following events shall be an event of default under this Master Agreement: i. Nonperformance of contractual requirements; or ii. A material breach of any term or condition of this Master Agreement; or 24 SECTION 2: MASTER AGREEMENT TERMS AND CONDITIONS | 2014_0122 iii. Any representation or warranty by Contract Vendor in response to the solicitation or in this Master Agreement proves to be untrue or materially misleading; or iv. Institution of proceedings under any bankruptcy, insolvency, reorganization or similar law, by or against Contract Vendor, or the appointment of a receiver or similar officer for Contract Vendor or any of its property, which is not vacated or fully stayed within thirty (30) calendar days after the institution or occurrence thereof; or v. Any default specified in another section of this Master Agreement. b. Upon the occurrence of an event of default, Lead State shall issue a written notice of default, identifying the nature of the default, and providing a period of 30 calendar days in which Contract Vendor shall have an opportunity to cure the default. The Lead State shall not be required to provide advance written notice or a cure period and may immediately terminate this Master Agreement in whole or in part if the Lead State, in its sole discretion, determines that it is reasonably necessary to preserve public safety or prevent immediate public crisis. Time allowed for cure shall not diminish or eliminate Contract Vendor’s liability for damages, including liquidated damages to the extent provided for under this Master Agreement. c. If Contract Vendor is afforded an opportunity to cure and fails to cure the default within the period specified in the written notice of default, Contract Vendor shall be in breach of its obligations under this Master Agreement and Lead State shall have the right to exercise any or all of the following remedies: i. Exercise any remedy provided by law; and ii. Terminate this Master Agreement and any related Master Agreements or portions thereof; and iii. Impose liquidated damages as provided in this Master Agreement; and iv. Suspend Contract Vendor from receiving future bid solicitations; and v. Suspend Contract Vendor’s performance; and vi. Withhold payment until the default is remedied. d. In the event of a default under a Participating Addendum, a Participating Entity shall provide a written notice of default as described in this section and have all of the rights and remedies under this paragraph regarding its participation in the Master Agreement, in addition to those set forth in its Participating Addendum. Unless otherwise specified in a Purchase Order, a Purchasing Entity shall provide written notice of default as described in this section and have all of the rights and remedies under this paragraph and any applicable Participating Addendum with respect to an Order placed by the Purchasing Entity. Nothing in these Master Agreement Terms and Conditions shall be construed to limit the rights and remedies available to a Purchasing Entity under the applicable commercial code. 10. DELIVERY. Unless otherwise indicated in the Master Agreement, the prices are the delivered price to any Purchasing Entity. All deliveries shall be F.O.B. destination with all transportation and handling charges paid by the Contract Vendor. Additional delivery charges will not be allowed for back orders. 11. FORCE MAJEURE. Neither party to this Master Agreement shall be held responsible for delay or default caused by fire, riot, acts of God and/or war which is beyond that party’s reasonable control. The WSCA-NASPO Master Agreement Administrator may terminate this Master Agreement after determining such delay or default will reasonably prevent successful performance of the Master Agreement. 12. GOVERNING LAW. This procurement and the resulting agreement shall be governed by and construed in accordance with the laws of the Lead State sponsoring and administering the procurement. The construction and effect of any Participating Addendum or order against the Master Agreements shall be governed by and construed in accordance with the laws of the Participating Entity’s State. Venue for any claim, dispute or action concerning an order placed against the Master Agreements or the effect of a Participating Addendum shall be in the Purchasing Entity’s State. 13. INDEMNIFICATION. DELETED SEE SECTION 2C1714.INDEMNIFICATION – INTELLECTUAL PROPERTY. DELETED SEE SECTION 2C17 15. INDEPENDENT CONTRACT VENDOR. The Contract Vendor shall be an independent Contract Vendor, and as such shall have no authorization, express or implied to bind WSCA-NASPO or the respective states to any agreements, settlements, liability or understanding whatsoever, and agrees not to perform any acts as agent for WSCA-NASPO or the states, except as expressly set forth herein. 16. INDIVIDUAL CUSTOMER. Except to the extent modified by a Participating Addendum, each Participating Entity shall follow the terms and conditions of the Master Agreement and applicable Participating Addendum and will have the same rights and responsibilities for their purchases as the Lead State has in the Master Agreement, including but not limited to, any indemnity or to recover any costs allowed in the Master Agreement and applicable Participating Addendum for their purchases. Each Purchasing Entity will be responsible for its own charges, fees, and liabilities. 25 SECTION 2: MASTER AGREEMENT TERMS AND CONDITIONS | 2014_0122 The Contract Vendor will apply the charges and invoice each Purchasing Entity individually. 17. INSURANCE. Except to the extent modified by a Participating Addendum, Contract Vendor shall, during the term of this Master Agreement, maintain in full force and effect, the insurance described in this section. Contract Vendor shall acquire such insurance from an insurance carrier or carriers licensed to conduct business in the Participating Entity’s state and having a rating of A-, Class VII or better, in the most recently published edition of Best’s Reports. Failure to buy and maintain the required insurance may result in this Master Agreement’s termination or at a Participating Entity’s option, result in termination of its Participating Addendum. Coverage shall be written on an occurrence basis. The minimum acceptable limits shall be as indicated below, with no deductible for each of the following categories: a) Commercial General Liability covering the risks of bodily injury (including death), property damage and personal injury, including coverage for contractual liability, with a limit of not less than $1 million per occurrence/$2 million general aggregate; b) Contract Vendor must comply with any applicable State Workers Compensation or Employers Liability Insurance requirements. Contract Vendor shall pay premiums on all insurance policies. Such policies shall also reference this Master Agreement and shall have a condition that they not be revoked by the insurer until thirty (30) calendar days after notice of intended revocation thereof shall have been given to Participating Entity by the Contract Vendor. Prior to commencement of the work, Contract Vendor shall provide to the Participating Entity a written endorsement to the Contract Vendor’s general liability insurance policy that (i) names the Participating Entity as an additional insured, (ii) provides that no material alteration, cancellation, non-renewal, or expiration of the coverage contained in such policy shall have effect unless the named Participating Entity has been given at least thirty (30) days prior written notice, and (iii) provides that the Contract Vendor’s liability insurance policy shall be primary, with any liability insurance of the Participating Entity as secondary and noncontributory. Contract Vendor shall furnish to Participating Entity copies of certificates of all required insurance within thirty (30) calendar days of the Participating Addendum’s effective date and prior to performing any work. Copies of renewal certificates of all required insurance shall be furnished within thirty (30) days after renewal date. These certificates of insurance must expressly indicate compliance with each and every insurance requirement specified in this section. Failure to provide evidence of coverage may, at the Lead State Master Agreement Administrator’s sole option, result in this Master Agreement’s termination. Coverage and limits shall not limit Contract Vendor’s liability and obligations under this Master Agreement. 18. LAWS AND REGULATIONS. Any and all supplies, services and equipment offered and furnished shall comply fully with all applicable Federal and State laws and regulations. 19. LICENSE OF PRE-EXISTING INTELLECTUAL PROPERTY. DELETED – SEE SECTION 2B30 FOR REVISED TERM ADDRESSING TITLE OF PRODUCT. 20. NO WAIVER OF SOVEREIGN IMMUNITY. The Lead State, Participating Entity or Purchasing Entity to the extent it applies does not waive its sovereign immunity by entering into this Contract and fully retains all immunities and defenses provided by law with regard to any action based on this Contract. If a claim must be brought in a federal forum, then it must be brought and adjudicated solely and exclusively within the United States District Court of the Participating Entity’s State. 21. ORDER NUMBERS. Contract order and purchase order numbers shall be clearly shown on all acknowledgments, shipping labels (if possible), packing slips, invoices, and on all correspondence. 22. PARTICIPANTS. WSCA-NASPO Cooperative Purchasing Organization LLC is not a party to the Master Agreement. It is a nonprofit cooperative purchasing organization assisting states in administering the WSCA/NASPO cooperative purchasing program for state government departments, institutions, agencies and political subdivisions (e.g., colleges, school districts, counties, cities, etc.,) for all 50 states and the District of Columbia. Obligations under this Master Agreement are limited to those Participating States who have signed a Participating Addendum where contemplated by the solicitation. Financial obligations of Participating States are limited to the orders placed by the departments or other state agencies and institutions having available funds. Participating States incur no financial 26 SECTION 2: MASTER AGREEMENT TERMS AND CONDITIONS | 2014_0122 obligations on behalf of political subdivisions. Unless otherwise specified in the solicitation, the resulting award will be permissive. 23. PARTICIPATION OF ENTITIES. Use of specific WSCA-NASPO cooperative Master Agreements by state agencies, political subdivisions and other entities (including cooperatives) authorized by individual state’s statutes to use state contracts are subject to the approval of the respective State Chief Procurement Official. Issues of interpretation and eligibility for participation are solely within the authority of the respective State Chief Procurement Official. 24. PAYMENT . Payment for completion of an order under this Master Agreement is normally made within 30 days following the date the entire order is delivered or the date a correct invoice is received, whichever is later. After 45 days the Contract Vendor may assess overdue account charges up to a maximum rate of one percent per month on the outstanding balance. Payments will be remitted by mail. Payments may be made via a State or political subdivision “Purchasing Card” with no additional charge. 25. PUBLIC INFORMATION. The Master Agreement and all related documents are subject to disclosure pursuant to the Participating Entity’s public information laws. 26. RECORDS ADMINISTRATION AND AUDIT. The disclosure of records in Participating States relating to Participating addenda and orders placed against the Master Agreement shall be governed by the laws of the Participating State and entity who placed the order. The Contractor shall maintain books, records, documents, and other evidence pertaining to this Master Agreement and orders placed by Purchasing Entities under it to the extent and in such detail as shall adequately reflect performance and administration of payments and fees. Contractor shall permit the Lead State, a Participating Entity, a Purchasing Entity, the federal government (including its grant awarding entities and the U.S. Comptroller General), and any other duly authorized agent of a governmental agency, to audit, inspect, examine, copy and/or transcribe Contractor's books, documents, papers and records directly pertinent to this Master Agreement or orders placed by a Purchasing Entity under it for the purpose of making audits, examinations, excerpts, and transcriptions. This right shall survive for a period of five (5) years following termination of this Agreement or final payment for any order placed by a Purchasing Entity against this Agreement, whichever is later, to assure compliance with the terms hereof or to evaluate performance hereunder. Without limiting any other remedy available to any governmental entity, the Contractor shall reimburse the applicable Lead State, Participating Entity, or Purchasing Entity for an overpayments inconsistent with the terms of the Master Agreement or orders or underpayment of fees found as a result of the examination of the Contractor’s records. The rights and obligations herein right exist in addition to any quality assurance obligation in the Master Agreement requiring the Contractor to self-audit contract obligations and that permits the Lead State Master Agreement Administrator to review compliance with those obligations. Records will be retained longer if required by Participating Entity’s law. 27. REPORTS - SUMMARY AND DETAILED USAGE. In addition to other reports that may be required by this solicitation, the Contract Vendor shall provide the following WSCA-NASPO reports. A. Summary Sales Data. The Contractor shall submit quarterly sales reports directly to WSCA-NASPO using the WSCA-NASPO Quarterly Sales/Administrative Fee Reporting Tool found at http://www.naspo.org/WNCPO/Calculator.aspx. Any/all sales made under the contract shall be reported as cumulative totals by state. Even if Contractor experiences zero sales during a calendar quarter, a report is still required. Reports shall be due no later than the last day of the month following the end of the calendar quarter (as specified in the reporting tool). B. Detailed Sales Data. Contract Vendor shall also report detailed sales data by: state; entity/customer type, e.g., local government, higher education, K12, non-profit; Purchasing Entity name; Purchasing Entity bill-to and ship-to locations; Purchasing Entity and Contract Vendor Purchase Order identifier/number(s); Purchase Order Type (e.g., sales order, credit, return, upgrade, determined by industry practices); Purchase Order date; Ship Date; and line item description, including product number if used. The report shall be submitted in any form required by the solicitation. Reports are due on a quarterly basis and must be received by the Lead State no later than the last day of the month 27 SECTION 2: MASTER AGREEMENT TERMS AND CONDITIONS | 2014_0122 following the end of the reporting period. Reports shall be delivered to the Lead State and to the WSCA-NASPO Cooperative Development Team electronically through email; CD-Rom, jump drive or other electronic matter as determined by the Lead State. Detailed sales data reports shall include sales information for all sales under Participating Addenda executed under this Master Agreement. The format for the detailed sales data report is in Section 6, Attachment H. C. Reportable sales for the summary sales data report and detailed sales data report includes sales to employees for personal use where authorized by the Participating Addendum. Specific data in relation to sales to employees for personal use to be defined in the final contract award to ensure only public information is reported. D. Timely submission of these reports is a material requirement of the Master Agreement. The recipient of the reports shall have exclusive ownership of the media containing the reports. The Lead State and WSCA-NASPO shall have a perpetual, irrevocable, non-exclusive, royalty free, transferable right to display, modify, copy, and otherwise use reports, data and information provided under this section. 28. ACCEPTANCE AND ACCEPTANCE TESTING A. Acceptance. Purchasing Entity (the entity authorized under the terms of any Participating Addendum to place orders under this Master Agreement) shall determine whether all Products and Services delivered meet the Contractor’s published specifications (a.k.a. “Specifications”). No payment shall be made for any Products or Services until the Purchasing Entity has accepted the Products or Services. The Purchasing Entity will make every effort to notify the Contractor within thirty (30) calendar days following delivery of non-acceptance of a Product or completion of Service. In the event that the Contractor has not been notified within 30 calendar days from delivery of Product or completion of Service, the Product and Services will be deemed accepted on the 31st day after delivery of Product or completion of Services. This clause shall not be applicable, if acceptance testing and corresponding terms have been mutually agreed to by both parties in writing. B. Acceptance Testing. The Purchasing Entity (the entity authorized under the terms of any Participating Addendum to place orders under this Master Agreement) and the Contract Vendor shall determine if Acceptance Testing is applicable and/or required for the purchase. The terms in regards to acceptance testing will be negotiated, in writing, as mutually agreed. If Acceptance Testing is NOT applicable, the terms regarding Acceptance in the Contract shall prevail. 29. SYSTEM FAILURE OR DAMAGE. In the event of system failure or damage caused by the Contract Vendor or its Product, the Contract Vendor agrees to use its commercially reasonable efforts to restore or assist in restoring the system to operational capacity. The Contract Vendor shall be responsible under this provision to the extent a 'system' is defined at the time of the Order; otherwise the rights of the Purchasing Entity shall be governed by the Warranty. 30. TITLE OF PRODUCT. OWNERSHIP a. Ownership of Documents/Copyright. Any reports, studies, photographs, negatives, databases, computer programs, or other documents, whether in tangible or electronic forms, prepared by the Contract Vendor in the performance of its obligations under the Master Agreement and paid for by the Purchasing Entity shall be the exclusive property of the Purchasing Entity and all such material shall be remitted to the Purchasing Entity by the Contract Vendor upon completion, termination or cancellation of the Master Agreement. The Contract Vendor shall not use, willingly allow or cause to allow such material to be used for any purpose other than performance of the Contract Vendor’s obligations under this Master Agreement without the prior written consent of the Purchasing Entity. b. Rights, Title and Interest. All rights, title, and interest in all of the intellectual property rights, including copyrights, patents, trade secrets, trade marks, and service marks in the said documents that the Contract Vendor conceives or originates, either individually or jointly with others, which arises out of the performance of the Master Agreement, will be the property of the Purchasing Entity and are, by the Master Agreement, assigned to the Purchasing Entity along with ownership of any and all copyrights in the copyrightable material. The Contract Vendor also agrees, upon the request of the Purchasing Entity, to execute all papers and perform all other acts necessary to assist the Purchasing Entity to obtain and register copyrights on such materials. Where applicable, works of authorship created by the Contract Vendor for the Purchasing Entity in performance of the Master Agreement shall be considered “works for hire” as defined in the U.S. Copyright Act. 28 SECTION 2: MASTER AGREEMENT TERMS AND CONDITIONS | 2014_0122 c. Notwithstanding the above, the Purchasing Entity will not own any of the Contract Vendor’s pre-existing intellectual property that was created prior to the Master Agreement and which the Purchasing Entity did not pay the Contract Vendor to create. The Contract Vendor grants the Purchasing Entity a perpetual, irrevocable, non- exclusive, royalty free license for Contract Vendor’s pre-existing intellectual property that is contained in the products, materials, equipment or services that are purchased through this Master Agreement. 31. WAIVER OF BREACH. Failure of Lead State Master Agreement Administrator, Participating Entity, or Purchasing Entity to declare a default or enforce any rights and remedies shall not operate as a waiver under this Master Agreement or Participating Addendum. Any waiver by the Lead State or Participating Entity must be in writing. Waiver by the Lead State Master Agreement Administrator, Participating Entity, or Purchasing Entity of any default, right or remedy under this Master Agreement or Participating Addendum, or breach of any terms or requirements shall not be construed or operate as a waiver of any subsequent default or breach of such term or requirement, or of any other term or requirement under this Master Agreement, a Participating Addendum, or order. 32. WARRANTY. The warranty provided must be the manufacturers written warranty tied to the product at the time of purchase and must include the following:: (a) the Product performs according to the specifications (b) the Product is suitable for the ordinary purposes for which such Product is used, (c) the Product is designed and manufactured in a commercially reasonable manner, and (d) the Product is free of defects. For third party products sold by the Contract Vendor, the Contract Vendor will assign the manufacturer or publisher’s warranty and maintenance. The Contract Vendor will provide warranty and maintenance call numbers and assist the customer in engaging the manufacturer on warranty and maintenance issues. Upon breach of the warranty, the Contract Vendor will repair or replace (at no charge to the Purchasing Entity) the Product whose nonconformance is discovered and made known to the Contract Vendor. If the repaired and/or replaced Product proves to be inadequate, or fails of its essential purpose, the Contract Vendor will refund the full amount of any payments that have been made. The rights and remedies of the parties under this warranty are in addition to any other rights and remedies of the parties provided by law or so ordered by the court. 29 SECTION 2: MASTER AGREEMENT TERMS AND CONDITIONS | 2014_0122 SECTION 2: MASTER AGREEMENT TERMS AND CONDITIONS C. MINNESOTA TERMS AND CONDITIONS 1. ACCEPTANCE OF PROPOSAL CONTENT. The contents of this RFP and selected portions of response of the successful Proposer will become contractual obligations, along with the final Master Agreement, if acquisition action ensues. The Lead State is solely responsible for rendering the decision in matters of interpretation of all terms and conditions. 2. ACCESSIBILITY STANDARDS. The State of Minnesota has developed IT Accessibility Standards effective September 1, 2010, which entails, in part, the Web Content Accessibility Guidelines (WCAG) 2.0 (Level AA) and Section 508 Subparts A-D which can be viewed at http://www.mmd.admin.state.mn.us/pdf/accessibility_standard.pdf Responders must complete the WCAG VPAT form included in the FORMS section of the RFP. The completed VPAT form will be scored based on its compliance with the Accessibility Standards. The requested WCAG VPAT applies to the responder’s website to be offered under the Contract. For products offered, VPATS are only to be provided upon request by the participating entity. Upon request by the participating entity, the responder must make best efforts to provide Voluntary Product Accessibility Templates (VPATS) for all products offered in its response. Click here for link to VPATS for both Section 508 VPAT and WCAG 2.0 VPAT http://mn.gov/oet/policies-and-standards/accessibility/#. 3. ADMINISTRATIVE PERSONNEL CHANGES. The Contract Vendor must notify the Contract Administrator of changes in the Contract Vendor’s key administrative personnel, in advance and in writing. Any employee of the Contract Vendor who, in the opinion of the State of Minnesota, is unacceptable, shall be removed from the project upon written notice to the Contract Vendor. In the event that an employee is removed pursuant to a written request from the Acquisition Management Specialist, the Contract Vendor shall have 10 working days in which to fill the vacancy with an acceptable employee. 4. AMENDMENT(S). Master Agreement amendments shall be negotiated by the Lead State with the Contract Vendor whenever necessary to address changes in the terms and conditions, costs, timetable, or increased or decreased scope of work. An approved Master Agreement amendment means one approved by the authorized signatories of the Contract Vendor and the Lead State as required by law. 5. AMERICANS WITH DISABILITIES ACT (ADA). Products provided under the Master Agreement must comply with the requirements of the Americans with Disabilities Act (ADA). The Contract Vendor’s catalog and other marketing materials utilized to offer products under the Master Agreement must state when a product is not in compliance. If any descriptive marketing materials are silent as to these requirements, the Contract Vendor agrees that the customer can assume the product meets or exceeds the ADA requirements. 6. AWARD OF RELATED CONTRACTS. In the event the Lead State undertakes or awards supplemental Contracts for work related to the Master Agreement or any portion thereof, the Contract Vendor shall cooperate fully with all other Contract Vendors and the State in all such cases. All Master Agreements between subcontractors and the Contract Vendor shall include a provision requiring compliance with this section. 7. AWARD OF SUCCESSOR CONTRACTS. In the event the State undertakes or awards a successor for work related to the Contract or any portion thereof, the current Contract Vendor shall cooperate fully during the transition with all other Contract Vendors and the State in all such cases. All Master Agreements between subcontractors and the Contract Vendor shall include a provision requiring compliance with this section. 8. CERTIFICATION REGARDING DEBARMENT, SUSPENSION, INELIGIBILITY AND VOLUNTARY EXCLUSION a. Certification regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion – Lower Tier Covered Transactions. Instructions for certification: 1. By signing and submitting this proposal, the prospective lower tier participant [responder] is providing the certification set out below. 2. The certification in this clause is a material representation of fact upon which reliance was placed when this transaction was entered into. If it is later determined that the prospective lower tier participant knowingly 30 SECTION 2: MASTER AGREEMENT TERMS AND CONDITIONS | 2014_0122 rendered an erroneous certification, in addition to other remedies available to the federal government, the department or agency with which this transaction originated may pursue available remedies, including suspension and/or debarment. 3. The prospective lower tier participant shall provide immediate written notice to the person to whom this proposal [response] is submitted if at any time the prospective lower tier participant learns that its certification was erroneous when submitted or had become erroneous by reason of changed circumstances. 4. The terms covered transaction, debarred, suspended, ineligible lower tier covered transaction, participant, person, primary covered transaction, principal, proposal, and voluntarily excluded, as used in this clause, have the meaning set out in the Definitions and Coverages section of rules implementing Executive Order 12549. You may contact the person to which this proposal is submitted for assistance in obtaining a copy of those regulations. 5. The prospective lower tier participant agrees by submitting this response that, should the proposed covered transaction be entered into, it shall not knowingly enter into any lower tier covered transaction [subcontract equal to or exceeding $25,000] with a person who is proposed for debarment under 48 CFR part 9, subpart 9.4, debarred, suspended, declared ineligible, or voluntarily excluded from participation in this covered transaction, unless authorized by the department or agency with which this transaction originated. 6. The prospective lower tier participant further agrees by submitting this proposal that it will include this clause titled, “Certification Regarding Debarment, Suspension, Ineligibility, and Voluntary Exclusion – Lower Tier Covered Transaction,” without modification, in all lower tier covered transactions and in all solicitations for lower tier covered transactions. 7. A participant in a covered transaction may rely upon a certification of a prospective participant in a lower tier covered transaction that it is not proposed for debarment under 48 CFR part 9, subpart 9.4, debarred, suspended, ineligible, or voluntarily excluded from covered transactions, unless it knows that the certification is erroneous. A participant may decide the method and frequency by which it determines the eligibility of its principals. Each participant may, but is not required to, check the list of parties excluded from federal procurement and nonprocurement programs. 8. Nothing contained in the foregoing shall be construed to require establishment of a system of records in order to render in good faith the certification required by this clause. The knowledge and information of a participant is not required to exceed that which is normally possessed by a prudent person in the ordinary course of business dealings. 9. Except for transactions authorized under paragraph 5 of these instructions, if a participant in a covered transaction knowingly enters into a lower tier covered transaction with a person who is proposed for debarment under 48 CFR part 9, subpart 9.4, suspended, debarred, ineligible, or voluntarily excluded from participation in this transaction, in addition to other remedies available to the Federal government, the department or agency with which this transaction originated may pursue available remedies, including suspension and/or debarment. b. Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion – Lower Tier Covered Transactions. 1. The prospective lower tier participant certifies, by submission of this proposal, that neither it nor its principals is presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation in this transaction by any Federal department or agency. 2. Where the prospective lower tier participant is unable to certify to any of the statements in this certification, such prospective participant shall attach an explanation to this proposal. 9. CHANGE REQUESTS. The Lead State reserves the right to request, during the term of the Master Agreement, changes to the products offered. Products introduced during the term of the Master Agreement shall go through a formal review process. A formal process of changing the Master Agreement shall be developed during the negotiation of the Master Agreement. The Contract Vendor shall evaluate and recommend products for which agencies have an expressed need. The Lead State shall require the Contract Vendor to provide a summary of its research of those 31 SECTION 2: MASTER AGREEMENT TERMS AND CONDITIONS | 2014_0122 products being recommended for inclusion in the Master Agreement as well as defining how adding the product will enhance the Master Agreement. The Lead State may request that products, other than those recommended, are added to the Master Agreement. In the event that the Lead State desires to add new products and services that are not included in the original Master Agreement, the Lead State requires that independent manufacturers and resellers cooperate with the already established Contract Vendor in order to meet the Lead State’s requirements. Evidence of the need to add products or services should be demonstrated to the Lead State. The Master Agreement shall be modified via supplement or amendment. The Lead State will negotiate the inclusion of the products and services with the Contract Vendor. No products or services will be added to the Master Agreement without the Lead State’s prior approval. 10. CONFLICT MINERALS. Contract Vendor agrees to provide information upon request regarding adherence to the Federal Conflict Minerals Trade Act. See: http://beta.congress.gov/111/bills/hr4173/111hr4173enr.pdf#page=838 http://www.sec.gov/news/press/2012/2012-163.htm 11. COPYRIGHTED MATERIAL WAIVER. The Lead State reserves the right to use, reproduce and publish proposals in any manner necessary for State agencies and local units of government to access the responses, including but not limited to photocopying, State Intranet/Internet postings, broadcast faxing, and direct mailing. In the event that the response contains copyrighted or trademarked materials, it is the responder’s responsibility to obtain permission for the Lead State to reproduce and publish the information, regardless of whether the responder is the manufacturer or reseller of the products listed in the materials. By signing its response, the responder certifies that it has obtained all necessary approvals for the reproduction and/or distribution of the contents of its response and agrees to indemnify, protect, save and hold the Lead State, its representatives and employees harmless from any and all claims arising from the violation of this section and agrees to pay all legal fees incurred by the Lead State in the defense of any such action. 12. EFFECTIVE DATE. Pursuant to Minnesota law, the Master Agreement arising from this RFP shall be effective upon the date of final execution by the Lead State, unless a later date is specified in the Master Agreement. 13. FOREIGN OUTSOURCING OF WORK. Upon request, the Contract Vendor is required to provide information regarding the location of where services, data storage and/or location of data processing under the Master Agreement will be performed. 14. GOVERNMENT DATA PRACTICES. The Contract Vendor and the Lead State must comply with the Minnesota Government Data Practices Act, Minn. Stat. Ch. 13, (and where applicable, if the Lead State contracting party is part of the judicial branch, with the Rules of Public Access to Records of the Judicial Branch promulgated by the Minnesota Supreme Court as the same may be amended from time to time) as it applies to all data provided by the Lead State to the Contract Vendor and all data provided to the Lead State by the Contract Vendor. In addition, the Minnesota Government Data Practices Act applies to all data created, collected, received, stored, used, maintained, or disseminated by the Contract Vendor in accordance with the Master Agreement that is private, nonpublic, protected nonpublic, or confidential as defined by the Minnesota Government Data Practices Act, Ch. 13 (and where applicable, that is not accessible to the public under the Rules of Public Access to Records of the Judicial Branch). In the event the Contract Vendor receives a request to release the data referred to in this article, the Contract Vendor must immediately notify the Lead State. The Lead State will give the Contract Vendor instructions concerning the release of the data to the requesting party before the data is released. The civil remedies of Minn. Stat. § 13.08, apply to the release of the data by either the Contract Vendor or the Lead State. The Contract Vendor agrees to indemnify, save, and hold the State of Minnesota, its agent and employees, harmless from all claims arising out of, resulting from, or in any manner attributable to any violation of any provision of the Minnesota Government Data Practices Act (and where applicable, the Rules of Public Access to Records of the Judicial Branch), including legal fees and disbursements paid or incurred to enforce this provision of the Master Agreement. In the event that the Contract Vendor subcontracts any or all of the work to be performed under the Master Agreement, the Contract Vendor shall retain responsibility under the terms of this article for such work. 15. HAZARDOUS SUBSTANCES. To the extent that the goods to be supplied by the Contract Vendor contain or may create hazardous substances, harmful physical agents or infectious agents as set forth in applicable State and federal laws and regulations, the Contract Vendor must provide Material Safety Data Sheets regarding those substances. A copy must be included with each delivery. 32 SECTION 2: MASTER AGREEMENT TERMS AND CONDITIONS | 2014_0122 16. HUMAN RIGHTS/AFFIRMATIVE ACTION. The Lead State requires affirmative action compliance by its Contract Vendors in accordance with Minn. Stat. § 363A.36 and Minn. R. 5000.3400 to 5000.3600. a. Covered contracts and Contract Vendors. One-time acquisitions, or a contract for a predetermined amount of goods and/or services, where the amount of your response is in excess of $100,000 requires completion of the Affirmative Action Certification page. If the solicitation is for a contract for an indeterminate amount of goods and/or services, and the State estimated total value of the contract exceeds $100,000 whether it will be a multiple award contract or not, you must complete the Affirmative Action Certification page. If the contract dollar amount or the State estimated total contract amount exceeds $100,000 and the Contract Vendor employed more than 40 full-time employees on a single working day during the previous 12 months in Minnesota or in the state where it has its principal place of business, the Contract Vendor must comply with the requirements of Minn. Stat. § 363A.36, subd. 1 and Minn. R. 5000.3400 to 5000.3600. A Contract Vendor covered by Minn. Stat. § 363A.36, subd. 1 and Minn. R. 5000.3400 to 5000.3600 that had more than 40 full-time employees within Minnesota on a single working day during the previous 12 months must have a certificate of compliance issued by the commissioner of the Department of Human Rights (certificate of compliance). A Contract Vendor covered by Minn. Stat. § 363A.36, subd. 1 that did not have more than 40 full-time employees on a single working day during the previous 12 months within Minnesota but that did have more than 40 full-time employees in the state where it has its principal place of business and that does not have a certificate of compliance must certify that it is in compliance with federal affirmative action requirements. b. Minn. Stat. § 363A.36, subd. 1 requires the Contract Vendor to have an affirmative action plan for the employment of minority persons, women, and qualified disabled individuals approved by the commissioner of the Department of Human Rights (commissioner) as indicated by a certificate of compliance. Minn. Stat. § 363A.36 addresses suspension or revocation of a certificate of compliance and contract consequences in that event. A contract awarded without a certificate of compliance may be voided. c. Minn. R. 5000.3400-5000.3600 implement Minn. Stat. § 363A.36. These rules include, but are not limited to, criteria for contents, approval, and implementation of affirmative action plans; procedures for issuing certificates of compliance and criteria for determining a Contract Vendor’s compliance status; procedures for addressing deficiencies, sanctions, and notice and hearing; annual compliance reports; procedures for compliance review; and contract consequences for noncompliance. The specific criteria for approval or rejection of an affirmative action plan are contained in various provisions of Minn. R. 5000.3400-5000.3600 including, but not limited to, parts 5000.3420-5000.3500 and parts 5000.3552-5000.3559. d. Disabled Workers. Minn. R. 5000.3550 provides the Contract Vendor must comply with the following affirmative action requirements for disabled workers. AFFIRMATIVE ACTION FOR DISABLED WORKERS (a) The Contract Vendor must not discriminate against any employee or applicant for employment because of physical or mental disability in regard to any position for which the employee or applicant for employment is qualified. The Contract Vendor agrees to take affirmative action to employ, advance in employment, and otherwise treat qualified disabled persons without discrimination based upon their physical or mental disability in all employment practices such as the following: employment, upgrading, demotion or transfer, recruitment, advertising, layoff or termination, rates of pay or other forms of compensation, and selection for training, including apprenticeship. (b) The Contract Vendor agrees to comply with the rules and relevant orders of the Minnesota Department of Human Rights issued pursuant to the Minnesota Human Rights Act. (c) In the event of the Contract Vendor’s noncompliance with the requirements of this clause, actions for noncompliance may be taken in accordance with Minn. Stat. § 363A.36 and the rules and relevant orders of the Minnesota Department of Human Rights issued pursuant to the Minnesota Human Rights Act. (d) The Contract Vendor agrees to post in conspicuous places, available to employees and applicants for employment, notices in a form to be prescribed by the commissioner of the Minnesota Department of Human Rights. Such notices must state the Contract Vendor’s obligation under the law to take affirmative action to 33 SECTION 2: MASTER AGREEMENT TERMS AND CONDITIONS | 2014_0122 employ and advance in employment qualified disabled employees and applicants for employment, and the rights of applicants and employees. (e) The Contract Vendor must notify each labor union or representative of workers with which it has a collective bargaining agreement or other contract understanding, that the Contract Vendor is bound by the terms of Minn. Stat. § 363A.36 of the Minnesota Human Rights Act and is committed to take affirmative action to employ and advance in employment physically and mentally disabled persons. e. Consequences. The consequences of a Contract Vendor’s failure to implement its affirmative action plan or make a good faith effort to do so include, but are not limited to, suspension or revocation of a certificate of compliance by the commissioner, refusal by the commissioner to approve subsequent plans, and termination of all or part of the Contract by the commissioner or the State. f. Certification. The Contract Vendor hereby certifies that it is in compliance with the requirements of Minn. Stat. § 363A.36, subd. 1 and Minn. R. 5000.3400-5000.3600 and is aware of the consequences for noncompliance. It is agreed between the parties that Minn. Stat. 363.36 and Minn. R. 5000.3400 to 5000.3600 are incorporated into any contract between these parties based upon this specification or any modification of it. A copy of Minn. Stat. § 363A.36 and Minn. R. 5000.3400 to 5000.3600 are available upon request from the contracting agency. 17. INDEMNIFICATION The Contract Vendor shall indemnify, protect, save and hold harmless the Lead State and the Participating Entity, its representatives and employees, from any and all claims or causes of action, including all legal fees incurred by the Lead State and the Participating Entity arising from the performance of the Master Agreement by the Contract Vendor or its agents, employees, or subcontractors. This clause shall not be construed to bar any legal remedies the Contract Vendor may have with the Lead State’s and Participating Entity’s failure to fulfill its obligations pursuant to the Master Agreement. If the Participating Entity’s laws require approval of a third party to defend Participating Entity, Participating Entity wil l seek such approval and if approval is not received, Contract Vendor is not required to defend that Participating Entity. INTELLECTUAL PROPERTY INDEMNIFICATION. The Contract Vendor warrants that any materials or products provided or produced by the Contract Vendor or utilized by the Contract Vendor in the performance of this Master Agreement will not infringe upon or violate any patent, copyright, trade secret, or any other proprietary right of any third party. In the event of any such claim by any third party against the Participating Entity, the Participating Entity shall promptly notify the Contract Vendor. The Contract Vendor, at its own expense, shall indemnify; defend to the extent permitted by the Participating Entity’s laws, and hold harmless the Participating Entity against any loss, cost, expense, or liability (including legal fees) arising out of such a claim, whether or not such claim is successful against the Participating Entity. If such a claim has occurred, or in the Contract Vendor’s opinion is likely to occur, the Contract Vendor shall either procure for the Participating Entity the right to continue using the materials or products or replacement or modified materials or products. If an option satisfactory to the Participating Entity is not reasonably available, the Participating Entity shall return the materials or products to the Contract Vendor, upon written request of the Contract Vendor and at the Contract Vendor’s expense. This remedy is in addition to any other remedy provided by law 18. JURISDICTION AND VENUE. This RFP and any ensuing Master Agreement, its amendments and supplements thereto, shall be governed by the laws of the State of Minnesota, USA. Venue for all legal proceedings arising out of the Master Agreement, or breach thereof, shall be in the State or federal court with competent jurisdiction in Ramsey County, Minnesota. By submitting a response to this Request for Proposal, a Responder voluntarily agrees to be subject to the jurisdiction of Minnesota for all proceedings arising out of this RFP, any ensuing Master Agreement, or any breach thereof. 19. LAWS AND REGULATIONS. Any and all services, articles or equipment offered and furnished must comply fully with all local, State and federal laws and regulations, including Minn. Stat. § 181.59 prohibiting discrimination and business registration requirements of the Office of the Minnesota Secretary of State. 20. NONVISUAL ACCESS STANDARDS. Pursuant to Minn. Stat. § 16C.145, the Contract Vendor shall comply with the following nonvisual technology access standards : 34 SECTION 2: MASTER AGREEMENT TERMS AND CONDITIONS | 2014_0122 a. That the effective interactive control and use of the technology, including the operating system applications programs, prompts, and format of the data presented, are readily achievable by nonvisual means; b. That the nonvisual access technology must be compatible with information technology used by other individuals with whom the blind or visually impaired individual must interact; c. That nonvisual access technology must be integrated into networks used to share communications among employees, program participants, and the public; and d. That the nonvisual access technology must have the capability of providing equivalent access by nonvisual means to telecommunications or other interconnected network services used by persons who are not blind or visually impaired. These standards do not require the installation of software or peripheral devices used for nonvisual access when the information technology is being used by individuals who are not blind or visually impaired. 21. NOTICE TO RESPONDERS. Pursuant to Minn. Stat. § 270C.65, subd. 3, Contract Vendors are required to provide their Federal Employer Identification Number or Social Security Number. This information may be used in the enforcement of federal and State tax laws. Supplying these numbers could result in action to require a Contract Vendor to file tax returns and pay delinquent tax liabilities. These numbers will be available to federal and State tax authorities and State personnel involved in the payment of State obligations. 22. ORGANIZATIONAL CONFLICTS OF INTEREST. The responder warrants that, to the best of its knowledge and belief, and except as otherwise disclosed, there are no relevant facts or circumstances which could give rise to organizational conflicts of interest. An organizational conflict of interest exists when, because of existing or planned activities or because of relationships with other persons: ● a Contract Vendor is unable or potentially unable to render impartial assistance or advice to the State; ● the Contract Vendor’s objectivity in performing the work is or might be otherwise impaired; or ● the Contract Vendor has an unfair competitive advantage. The Contract Vendor agrees that if an organizational conflict of interest is discovered after award, an immediate and full disclosure in writing shall be made to the Assistant Director of the Department of Administration’s Materials Management Division that shall include a description of the action the Contract Vendor has taken or proposes to take to avoid or mitigate such conflicts. If an organizational conflict of interest is determined to exist, the State may, at its discretion, cancel the Master Agreement. In the event the Contract Vendor was aware of an organizational conflict of interest prior to the award of the Master Agreement and did not disclose the conflict to the Master Agreement Administrator, the State may terminate the Master Agreement for default. The provisions of this clause shall be included in all subcontracts for work to be performed, and the terms “Contract,”“Contract Vendor,” “Master Agreement”, “Master Agreement Administrator” and “Contract Administrator” modified appropriately to preserve the State’s rights. 23. PAYMENT CARD INDUSTRY DATA SECURITY STANDARD AND CARDHOLDER INFORMATION SECURITY. Contract Vendor assures all of its Network Components, Applications, Servers, and Subcontractors (if any) comply with the Payment Card Industry Data Security Standard (“PCIDSS”). “Network Components” shall include, but are not limited to, Contract Vendor’s firewalls, switches, routers, wireless access points, network appliances, and other security appliances; “Applications” shall include, but are not limited to, all purchased and custom external (web) applications. “Servers” shall include, but are not limited to, all of Contract Vendor’s web, database, authentication, DNS, mail, proxy, and NTP servers. “Cardholder Data” shall mean any personally identifiable data associated with a cardholder, including, by way of example and without limitation, a cardholder’s account number, expiration date, name, address, social security number, or telephone number. Subcontractors (if any) must be responsible for the security of all Cardholder Data in its possession; and will only use Cardholder Data for assisting cardholders in completing a transaction, providing fraud control services, or for other uses specifically required by law. Contract Vendor must have a business continuity program which conforms to PCIDSS to protect Cardholder Data in the event of a major disruption in its operations or in the event of any other disaster or system failure which may occur to operations; will continue to safeguard Cardholder Data in the event this Agreement terminates or expires; and ensure that a representative or agent of the payment card industry and a representative or agent of the State shall be provided with full cooperation and access to conduct a thorough security 35 SECTION 2: MASTER AGREEMENT TERMS AND CONDITIONS | 2014_0122 review of Contract Vendor’s operations, systems, records, procedures, rules, and practices in the event of a security intrusion in order to validate compliance with PCIDSS. 24. PERFORMANCE WHILE DISPUTE IS PENDING. Notwithstanding the existence of a dispute, the parties shall continue without delay to carry out all of their responsibilities under the Master Agreement that are not affected by the dispute. If a party fails to continue without delay to perform its responsibilities under the Master Agreement, in the accomplishment of all undisputed work, any additional cost incurred by the other parties as a result of such failure to proceed shall be borne by the responsible party. 25. PREFERENCE. Targeted/Economically Disadvantaged.In accordance with Minn. Stat. § 16C.16, subds. 6 and 7, eligible certified targeted group (TG) businesses and certified economically disadvantaged (ED) businesses will receive a 6 percent preference on the basis of award for this RFP. The preference is applied only to the first $500,000 of the response to the RFP. Eligible TG businesses must be currently certified by the Materials Management Division prior to the bid opening date and time. To verify TG/ED certification, refer to the Materials Management Division’s web site at www.mmd.admin.state.mn.usunder “Vendor Information, Directory of Certified TG/ED Vendors.” To verify TG eligibility for preference, refer to the Materials Management Division’s web site under “Vendor Information, Targeted Groups Eligible for Preference in State Purchasing” or call the Division’s HelpLine at 651.296.2600. Reciprocal Preference. In accordance with Minn. Stat. §16C.06, subd 7, the acquisition of goods or services shall be allowed a preference over a non-resident vendor from a state that gives or requires a preference to vendors from that state, the preference shall be equal to the preference given or required by the state of the non-resident vendor. If you wish to be considered a Minnesota Resident vendor you must claim that by filling out the Resident Vendor Form included in this solicitation and include it in your response. Veteran. In accordance with Minn. Stat. § 16C.16, subd. 6a, (a) Except when mandated by the federal government as a condition of receiving federal funds, the commissioner shall award up to a six percent preference in the amount bid on state procurement to certified small businesses that are majority-owned and operated by: (1) recently separated veterans who have served in active military service, at any time on or after September 11, 2001, and who have been discharged under honorable conditions from active service, as indicated by the person's United States Department of Defense form DD-214 or by the commissioner of veterans affairs; (2) veterans with service-connected disabilities, as determined at any time by the United States Department of Veterans Affairs; or (3) any other veteran-owned small businesses certified under section 16C.19, paragraph (d). In accordance with Minn. Stat. § 16C.19 (d), a veteran-owned small business, the principal place of business of which is in Minnesota, is certified if it has been verified by the United States Department of Veterans Affairs as being either a veteran-owned small business or a service disabled veteran-owned small business, in accordance with Public Law 109-461 and Code of Federal Regulations, title 38, part 74. To receive a preference the veteran-owned small business must meet the statutory requirements above by the solicitation opening date and time. The preference is applied only to the first $500,000 of the response. If responder is claiming the veteran-owned preference, attach documentation, sign and return form with response to the solicitation. Only eligible veteran-owned small businesses that meet the statutory requirements and provide adequate documentation will be given the preference. 26. PUBLIC INFORMATION. Once the information contained in the responses is deemed public information, interested parties may request to obtain the public information. You may call 651.201.2413 between the hours of 8:00 a.m. to 4:30 p.m. to arrange this. 27. PUBLICITY. Any publicity given to the program, publications or services provided resulting from a State contract for goods or services, including but not limited to notices, informational pamphlets, press releases, research, reports, signs and similar public notices prepared by or for the Contract Vendor, or its employees individually or jointly with others, or any subcontractors, shall identify the State as the sponsoring agency and shall not be released, unless 36 SECTION 2: MASTER AGREEMENT TERMS AND CONDITIONS | 2014_0122 such release is a specific part of an approved work plan included in the Master Agreement prior to its approval by the State’s Authorized Representative and the State’s Assistant Director or designee of Materials Management Division. The Contract Vendor shall make no representations of the State’s opinion or position as to the quality or effectiveness of the products and/or services that are the subject of the Master Agreement without the prior written consent of the State’s Assistant Director or designee of Materials Management Division. Representations include any publicity, including but not limited to advertisements, notices, press releases, reports, signs, and similar public notices. 28. PURCHASE ORDERS. The State requires that there will be no minimum order requirements or charges to process an individual purchase order. The Master Agreement number and the PO number must appear on all documents (e.g., invoices, packing slips, etc.). The Ordering Entity’s purchase order constitutes a binding contract 29. RIGHTS RESERVED. Notwithstanding anything to the contrary, the State reserves the right to: a. reject any and all responses received; b. select, for Master Agreements or for negotiations, a response other than that with the lowest cost; c. waive or modify any informalities, irregularities, or inconsistencies in the responses received; d. negotiate any aspect of the proposal with any responder and negotiate with more than one responder; e. request a BEST and FINAL OFFER, if the State deems it necessary and desirable; and e. terminate negotiations and select the next response providing the best value for the State, prepare and release a new RFP, or take such other action as the State deems appropriate if negotiations fail to result in a successful Master Agreement. 30. RISK OF LOSS OR DAMAGE. The State is relieved of all risks of loss or damage to the goods and/or equipment during periods of transportation, and installation by the Contract Vendor and in the possession of the Contract Vendor or their authorized agent. 31. SEVERABILITY. If any provision of the Master Agreement, including items incorporated by reference, is found to be illegal, unenforceable, or void, then both the State and the Contract Vendor shall be relieved of all obligations arising under such provisions. If the remainder of the Master Agreement is capable of performance it shall not be affected by such declaration or finding and shall be fully performed. 32. STATE AUDITS (Minn. Stat. § 16C.05, subd. 5). The books, records, documents, and accounting procedures and practices of the Contract Vendor or other party, that are relevant to the Master Agreement or transaction are subject to examination by the contracting agency and either the Legislative Auditor or the State Auditor as appropriate for a minimum of six years after the end of the Master Agreement or transaction. The State reserves the right to authorize delegate(s) to audit this Master Agreement and transactions. 33. SURVIVABILITY. The following rights and duties of the State and responder will survive the expiration or cancellation of the resulting Master Agreements. These rights and duties include, but are not limited to paragraphs: Indemnification, Hold Harmless and Limitation of Liability, State Audits, Government Data Practices, Governing Law, Jurisdiction and Venue, Publicity, Intellectual Property Indemnification, and Admin Fees. 34. TRADE SECRET/CONFIDENTIAL INFORMATION. Any information submitted as Trade Secret must be identified and submitted per the Trade Secret Form and must meet Minnesota Trade Secret as defined in Minn. Stat. § 13.37. 37 SECTION 2: MASTER AGREEMENT TERMS AND CONDITIONS | 2014_0122 D. FORMS 38 SECTION 2: MASTER AGREEMENT TERMS AND CONDITIONS | 2014_0122 Materials Management Division 112 Administration Building 50 Sherburne Avenue St. Paul, MN 55155 Voice: 651.296.2600 Fax: 651.297.3996 REQUEST FOR PROPOSAL SIGNATURE PAGE Computer Equipment: (Desktops, Laptops, Tablets, Servers & Storage including Related Peripherals & Services) Name of Vendor: Vendor E-Mail: Address: Phone: Fax: Date: Authorized Signature: Typed name of signer: Title: Signer must be authorized to contractually obligate the vendor. Type or print clearly the name of the person who prepared the response: EMAIL/PHONE: 39 SECTION 2: MASTER AGREEMENT TERMS AND CONDITIONS | 2014_0122 40 SECTION 2: MASTER AGREEMENT TERMS AND CONDITIONS | 2014_0122 Trade Secret Information Form Under Minnesota’s Data Practices Act, data submitted in a response becomes public upon completion of the evaluation process and negotiations are complete, or upon completion of the selection process for a solicitation. However, “trade secret information” as defined in Minn. Stat. § 13.37, subd. 1(b), cannot be disclosed to the public. While the majority of data submitted in a response is not trade secret information, the following form is needed to assist the State in making appropriate determinations about the release of data provided in a response. All responders must select one of the following boxes: □ My response does not contain “trade secret information.” I understand that my entire response will become public record in accordance with Minn. Stat. § 13.591. □ My response does contain trade secret information because it contains data that: 1. is a formula, pattern, compilation, program, device, method, technique or process; AND 2. is the subject of efforts by myself or my organization that are reasonable under the circumstances to maintain its secrecy; AND 3. derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use. Complete only if trade secret status is asserted: I am claiming that aspects of my response contain trade secret information. I have completed the following: □ I have clearly marked and placed any data I claim to be “trade secret information” in a separate envelope AND I am attaching an explanation justifying the trade secret designation. Please note that failure to attach an explanation may result in a determination that the data does not meet the statutory trade secret definition. All data that does not meet the definition of trade secret as defined by Minn.Stat. § 13.591subd.1(b) will become public in accordance with Minn. Stat. § 13.591. The State reserves its right to make its own determination of Responder’s Trade Secret Materials. By submitting this response, responder agrees to indemnify and hold the State, its agents and employees, harmless from any claims or causes of action relating to the State’s withholding of data based upon reliance on the above representations, including the payment of all costs and attorney fees incurred by the State in defending such an action. ONLY information properly identified utilizing this from will be eligible for Trade Secret designation. This form must accompany any documentation that is being submitted for Trade Secret. This includes but is not limited to any material that may be submitted as part of the solicitation response, or in relation to a subsequent Master Agreement. Information labeled “confidential”, “proprietary”, or labeled with similar tags with regard to limiting the State’s disclosure will NOT be eligible for trade secret designation unless the form provided in the solicitation is properly completed and submitted as a cover page to the information, and it meets the statutory definition of a trade secret. By submitting a response you agree that the information submitted that does not follow the trade secret process defined herein and does not meet the statutory definition of trade secret may be released by the State without prior notification to the responder and/or the Contract Vendor. 41 SECTION 2: MASTER AGREEMENT TERMS AND CONDITIONS | 2014_0122 STATE OF MINNESOTA DEPARTMENT OF ADMINISTRATION MATERIALS MANAGEMENT DIVISION AFFIDAVIT OF NONCOLLUSION I hereby swear (or affirm) under the penalty of perjury: 1. That I am the responder (if the responder is an individual), a partner in the company (if the responder is a partnership), or an officer or employee of the responding corporation having authority to sign on its behalf (if the responder is a corporation); 2. That the attached response has been arrived at by the responder independently and has been submitted without collusion with and without any agreement, understanding or planned common course of action with any other vendor designed to limit fair or open competition; 3. That the contents of the RFP response have not been communicated by the responder or its employees or agents to any person not an employee or agent of the responder and will not be communicated to any such persons prior to the official opening of the responses; and 4. I certify that the statements in this affidavit are true and accurate. Authorized Signature: Date: Firm Name: Subscribed and sworn to me this day of _____________________________________________________________ Notary Public My commission expires _________________________________________ 42 SECTION 2: MASTER AGREEMENT TERMS AND CONDITIONS | 2014_0122 STATE OF MINNESOTA DEPARTMENT OF ADMINISTRATION MATERIALS MANAGEMENT DIVISION PRIMARY CONTACT PERSON FOR MASTER AGREEMENT: NAME: TITLE: TELEPHONE NUMBER: FAX NUMBER: TOLL FREE NUMBER: E-MAIL: CONTACT PERSON TO EXPEDITE ORDERS (if different from above): NAME: TITLE: TELEPHONE NUMBER: FAX NUMBER: TOLL FREE NUMBER: E-MAIL: ORDER ADDRESS: STREET/PO BOX: CITY/STATE: ZIPCODE: TELEPHONE NUMBER: FAX NUMBER: TOLL FREE NUMBER: E-MAIL: REMIT-TO ADDRESS: STREET/PO BOX: CITY/STATE: ZIPCODE: TELEPHONE NUMBER: FAX NUMBER: TOLL FREE NUMBER: E-MAIL: 43 SECTION 2: MASTER AGREEMENT TERMS AND CONDITIONS | 2014_0122 STATE OF MINNESOTA DEPARTMENT OF ADMINISTRATION MATERIALS MANAGEMENT DIVISION CONTRACT SAVINGS SAVINGS REPORT. Responders are required to calculate the percentage savings the State will realize as a result of the Master Agreement and include the amount of the percentage savings in the response. Master Agreement Prices Average: % Less than the price quoted to the general public (for reporting purposes only). 44 SECTION 2: MASTER AGREEMENT TERMS AND CONDITIONS | 2014_0122 STATE OF MINNESOTA DEPARTMENT OF ADMINISTRATION MATERIALS MANAGEMENT DIVISION TAXPAYER/VENDOR IDENTIFICATION The Contract Vendor consents to disclosure of its social security number, federal employer tax identification number, and/or Minnesota tax identification number to federal and State tax agencies and State personnel involved in the payment of State obligations. These identification numbers may be used in the enforcement of federal and State tax laws which could result in action requiring the Contract Vendor to file tax returns and pay delinquent tax liabilities, if any (Minn. Stat. § 270C.65). Firm Name: ___________________________________________________ Address: ______________________________________________________ ______________________________________________________ ______________________________________________________ Minnesota SWIFT Vendor Registration Number: ______________________ If you are not registered as a vendor to the State in the SWIFT Procurement System, you must register online at http://www.mmb.state.mn.us/vendorresources. (Note: If approved, you will receive your vendor number approximately two business days after you register.) Are you a sole proprietorship? Yes No Are you an independent contractor? Yes No 45 SECTION 2: MASTER AGREEMENT TERMS AND CONDITIONS | 2014_0122 STATE OF MINNESOTA RESIDENT VENDOR FORM In accordance with Laws of Minnesota 2013, Chapter 142, Article 3, Section 16, amending Minn. Stat. § 16C.02, subd. 13, a “Resident Vendor” means a person, firm, or corporation that: (1) is authorized to conduct business in the state of Minnesota on the date a solicitation for a contract is first advertised or announced. It includes a foreign corporation duly authorized to engage in business in Minnesota; (2) has paid unemployment taxes or income taxes in this state during the 12 calendar months immediately preceding submission of the bid or proposal for which any preference is sought; (3) has a business address in the state; and (4) has affirmatively claimed that status in the bid or proposal submission. To receive recognition as a Minnesota Resident Vendor (“Resident Vendor”), your company must meet each elem ent of the statutory definition above by the solicitation opening date and time. If you wish to affirmatively claim Resident Vendor status, you should do so by submitting this form with your bid or proposal. Resident Vendor status may be considered for purposes of resolving tied low bids or the application of a reciprocal preference. I HEREBY CERTIFY THAT THE COMPANY LISTED BELOW: 1. Is authorized to conduct business in the State of Minnesota on the date a solicitation for a contract is first advertised or announced. (This includes a foreign corporation duly authorized to engage in business in Minnesota.) ___Yes ___No (must check yes or no) 2. Has paid unemployment taxes or income taxes in the State of Minnesota during the 12 calendar months immediately preceding submission of the bid or proposal for which any preference is sought. ___Yes ___No (must check yes or no) 3. Has a business address in the State of Minnesota. ___Yes ___No (must check yes or no) 4. Agrees to submit documentation, if requested, as part of the bid or proposal process, to verify compliance with the above statutory requirements. ___Yes ___No (must check yes or no) BY SIGNING BELOW, you are certifying your compliance with the requirements set forth herein and claiming Resident Vendor status in your bid or proposal submission. Name of Company: __________________________________________ Date: ______________________ Authorized Signature: __________________________________________Telephone: ______________________ Printed Name: __________________________________________Title: ______________________ IF YOU ARE CLAIMING RESIDENT VENDOR STATUS, SIGN AND RETURN THIS FORM WITH YOUR BID OR PROPOSAL SUBMISSION. 46 SECTION 2: MASTER AGREEMENT TERMS AND CONDITIONS | 2014_0122 STATE OF MINNESOTA VETERAN-OWNED PREFERENCE FORM In accordance with Minn. Stat. § 16C.16, subd. 6a, (a) Except when mandated by the federal government as a condition of receiving federal funds, the commissioner shall award up to a six percent preference in the amount bid on state procurement to certified small businesses that are majority-owned and operated by: (1) recently separated veterans who have served in active military service, at any time on or after September 11, 2001, and who have been discharged under honorable conditions from active service, as indicated by the person's United States Department of Defense form DD-214 or by the commissioner of veterans affairs; (2) veterans with service-connected disabilities, as determined at any time by the United States Department of Veterans Affairs; or (3) any other veteran-owned small businesses certified under section 16C.19, paragraph (d). In accordance with Minn. Stat. § 16C.19 (d), a veteran-owned small business, the principal place of business of which is in Minnesota, is certified if it has been verified by the United States Department of Veterans Affairs as being either a veteran-owned small business or a service disabled veteran-owned small business, in accordance with Public Law 109-461 and Code of Federal Regulations, title 38, part 74. _____________________________________________________________________________________________ To receive a preference the veteran-owned small business must meet the statutory requirements above by the solicitation opening date and time. The preference is applied only to the first $500,000 of the response. If you are claiming the veteran-owned preference, attach documentation, sign and return this form with your response to the solicitation. Only eligible veteran-owned small businesses that meet the statutory requirements and provide adequate documentation will be given the preference. _____________________________________________________________________________________________ I HEREBY CERTIFY THAT THE FIRM LISTED BELOW: My firm is a certified small business and it is majority-owned and operated by an eligible person as defined by Minn. Stat. § 16C.16, subd. 6a. ___Yes ___No (must check yes or no) State the type of documentation attached:______________________________________ DOCUMENTATION MUST BE PROVIDED FOR ONE OF THE FOLLOWING REQUIREMENTS: ___ (1) recently separated veterans who have served in active military service, at any time on or after September 11, 2001, and who have been discharged under honorable conditions from active service, as indicated by the person's Unite d States Department of Defense form DD-214 or by the commissioner of veterans affairs; State the type of documentation attached: ___ (2) veterans with service-connected disabilities, as determined at any time by the United States Department of Veterans Affairs; State the type of documentation attached: ___ (3) any other veteran-owned small businesses certified under Minnesota Statute Section 16C.19, paragraph (d). State the type of documentation attached: Name of Company: ________________________________ Date: _____________________________ Authorized Signature: ________________________________ Telephone: _____________________________ Printed Name: ________________________________ Title: _____________________________ IF YOU ARE CLAIMING THE VETERAN-OWNED PREFERENCE, ATTACH DOCUMENTATION, SIGN AND RETURN THIS FORM WITH YOUR RESPONSE TO THE SOLICITATION. 47 SECTION 2: MASTER AGREEMENT TERMS AND CONDITIONS | 2014_0122 QUESTION FORM WSCA-NASPO COMPUTER EQUIPMENT DUE: OCTOBER 7, 2013 DUE 3:00 P.M. CT POST ADDENDUM 3: DUE: NOVEMBER 22, 2013 2:00 P.M.CT VENDOR NAME: __________________________ Questions must be submitted in writing to Master Agreement Administrator @ susan.kahle@state.mn.us. All questions received by the cutoff date and time will be responded to via an addendum to official solicitation holders. Be specific and cite the section, item and page number to which the question refers. Contact regarding this RFP with any State personnel other than the Master Agreement Administrator may result in rejection of the response. See schedule of events for when questions are due. SECTION REFERENCE QUESTION: 48 SECTION 2: MASTER AGREEMENT TERMS AND CONDITIONS | 2014_0122 TERMS, CONDITIONS AND SPECIFICATIONS EXCEPTION FORM WSCA-NASPO COMPUTER EQUIPMENT RESPONDERS ARE CAUTIONED THAT BY TAKING ANY EXCEPTION THEY MAY BE MATERIALLY DEVIATING FROM THE REQUEST FOR PROPOSAL. IF A RESPONDER MATERIALLY DEVIATES FROM THE GENERAL TERMS, CONDITIONS AND INSTRUCTIONS OR THE WSCA-NASPO TERMS AND CONDITIONS AND/OR SPECIFICATIONS, ITS RESPONSE MAY BE REJECTED. The State reserves the right to reject an exception or the entire proposal if exceptions are not provided on this form. VENDOR NAME: __________________________ INSTRUCTIONS: Cleary identify the Section and item number of the exception e.g. Section 2. A. 5 and provide original term and alternate language suggestion SECTION REFERENCE ORIGINAL TERM ALTERNATE LANGUAGE SUGGESTION 49 SECTION 2: MASTER AGREEMENT TERMS AND CONDITIONS | 2014_0122 VPAT Web Content Accessibility Guidelines 2.0 level AA The requested WCAG VPAT applies to the responder’s website to be offered under the Contract. For products offered, VPATS are only to be provided upon request by the participating entity.It is strongly recommended Technical Staff who are trained in Accessibility complete this form. The comments portion must be filled in to further define how accessibility is or is not met. The quality of the comments impacts the reviewers’ understanding of the accessibility of your product/service. NOTE: MN only adopted the standards that are level A and level AA. This list includes level AAA standards, which are optional and highlighted in yellow. Comments are not required for level AAA. Principle 1: Perceivable – information and user interface components must be presentable to users in ways they can perceive. Standard Description Apply Yes/No Meets Yes/No Comments (mandatory) Guideline 1.1 Text Alternatives: Provide text alternatives for any non-text content so that it can be changed into other forms people need, such as large print, braille, speech, symbols or simpler language. 1.1.1 Non-text Content: All non-text content that is presented to the user has a text alternative that serves the equivalent purpose, except for the situations listed below (Level A).  Controls, Input: If non-text content is a control or accepts user input, then it has a name that describes its purpose. (Refer to Guideline 4.1 for additional requirements for controls and content that accepts user input.)  Time-Based Media: If non-text content is time-based media, then text alternatives at least provide descriptive identification of the non-text content. (Refer to Guideline 1.2 for the additional requirements for media.)  Test: If non-text content is a test or exercise that would be invalid if presented in text, then text alternatives at least provide descriptive identification of the non-text content.  Sensory: If non-text content is primarily intended to create a specific sensory experience, then text alternatives at least provide descriptive identification of the non-text content.  CAPTCHA: If the purpose of non-text content is to confirm that content is being accessed by a person rather than a computer, then text alternatives that identify and describe the purpose of the non-text content are provided, and alternative forms of CAPTCHA using output modes for different types of sensory perception are provided to accommodate different disabilities.  Decorative, Formatting, Invisible: If non-text content is pure decoration, is used only for visual formatting, or is not presented to users, then it is implemented in a way that it can be ignored by assistive technology. 50 SECTION 2: MASTER AGREEMENT TERMS AND CONDITIONS | 2014_0122 VPAT Web Content Accessibility Guidelines 2.0 level AA Guideline 1.2 Time-based Media: Provide alternatives for time-based media. 1.2.1 Audio-only and Video-only (Prerecorded): For prerecorded audio-only and prerecorded video-only media, the following are true, except when the audio or video is a media alternative for text and is clearly labeled as such (Level A):  Prerecorded Audio-only: An alternative for time-based media is provided that presents equivalent information for prerecorded audio - only content.  Prerecorded Video-only: Either an alternative for time-based media or an audio track is provided that presents equivalent information for prerecorded video-only content. 1.2.2 Captions (Prerecorded): Captions are provided for all prerecorded audio content in synchronized media, except when the media is a media alternative for text and is clearly labeled as such. (Level A) 1.2.3 Audio Description or Media Alternative (Prerecorded): An alternative for time-based media or audio description of the prerecorded video content is provided for synchronized media, except when the media is a media alternative for text and is clearly labeled as such. (Level A) 1.2.4 Captions (Live): Captions are provided for all live audio content in synchronized media. (Level AA) 1.2.5 Audio Description (Prerecorded): Audio description is provided for all prerecorded video content in synchronized media. (Level AA) 1.2.6 Sign Language (Prerecorded): Sign language interpretation is provided for all prerecorded audio content in synchronized media. (Level AAA) 1.2.7 Extended Audio Description (Prerecorded): Where pauses in foreground audio are insufficient to allow audio descriptions to convey the sense of the video, extended audio description is provided for all prerecorded video content in synchronized media. (Level AAA) 1.2.8 Media Alternative (Prerecorded): An alternative for time-based media is provided for all prerecorded synchronized media and for all prerecorded video-only media. (Level AAA) 1.2.9 Audio-only (Live): An alternative for time-based media that presents equivalent information for live audio-only content is provided. (Level AAA) 51 SECTION 2: MASTER AGREEMENT TERMS AND CONDITIONS | 2014_0122 VPAT Web Content Accessibility Guidelines 2.0 level AA Guideline 1.3 Adaptable: Create content that can be presented in different ways (for example simpler layout) without losing information or structure. 1.3.1 Info and Relationships: Information, structure, and relationships conveyed through presentation can be programmatically determined or are available in text. (Level A) 1.3.2 Meaningful Sequence: When the sequence in which content is presented affects its meaning, a correct reading sequence can be programmatically determined. (Level A) 1.3.3 Sensory Characteristics: Instructions provided for understanding and operating content do not rely solely on sensory characteristics of components such as shape, size, visual location, orientation, or sound. (Level A) Guideline 1.4 Distinguishable: Make it easier for users to see and hear content including separating foreground from backgrou nd. 1.4.1 Use of Color: Color is not used as the only visual means of conveying information, indicating an action, prompting a response, or distinguishing a visual element. (Level A) 1.4.2 Audio Control: If any audio on a Web page plays automatically for more than 3 seconds, either a mechanism is available to pause or stop the audio, or a mechanism is available to control audio volume independently from the overall system volume level. (Level A) 1.4.3 Contrast (Minimum): The visual presentation of text and images of text has a contrast ratio of at least 4.5:1, except for the following: (Level AA)  Large Text: Large-scale text and images of large-scale text have a contrast ratio of at least 3:1;  Incidental: Text or images of text that are part of an inactive user interface component, that are pure decoration, that are not visible to anyone, or that are part of a picture that contains significant other visual content, have no contrast requirement.  Logotypes: Text that is part of a logo or brand name has no minimum contrast requirement. 1.4.4 Resize text: Except for captions and images of text, text can be resized without assistive technology up to 200 percent without loss of content or functionality. (Level AA) 1.4.5 Images of Text: If the technologies being used can achieve the visual presentation, text is used to convey information rather than images of text except for the following: (Level AA)  Customizable: The image of text can be visually customized to the user's requirements;  Essential: A particular presentation of text is essential to the information being conveyed. 1.4.6 Contrast (Enhanced): The visual presentation of text and images of text has a contrast ratio of at least 7:1, except for the following: (Level AAA)  Large Text: Large-scale text and images of large-scale text have a contrast ratio of at least 4.5:1;  Incidental: Text or images of text that are part of an inactive user interface component, that are pure decoration, that are not visible to anyone, or that are part of a picture that contains significant other visual content, have no contrast requirement.  Logotypes: Text that is part of a logo or brand name has no minimum contrast requirement. 52 SECTION 2: MASTER AGREEMENT TERMS AND CONDITIONS | 2014_0122 1.4.7 Low or No Background Audio: For prerecorded audio-only content that (1) contains primarily speech in the foreground, (2) is not an audio CAPTCHA or audio logo, and (3) is not vocalization intended to be primarily musical expression such as singing or rapping, at least one of the following is true: (Level AAA)  No Background: The audio does not contain background sounds.  Turn Off: The background sounds can be turned off.  20 dB: The background sounds are at least 20 decibels lower than the foreground speech content, with the exception of occasional sounds that last for only one or two seconds. 1.4.8 Visual Presentation: For the visual presentation of blocks of text, a mechanism is available to achieve the following: (Level AAA)  Foreground and background colors can be selected by the user.  Width is no more than 80 characters or glyphs (40 if CJK).  Text is not justified (aligned to both the left and the right margins).  Line spacing (leading) is at least space-and-a-half within paragraphs, and paragraph spacing is at least 1.5 times larger than the line spacing.  Text can be resized without assistive technology up to 200 percent in a way that does not require the user to scroll horizontally to read a line of text on a full-screen window. 1.4.9 Images of Text (No Exception): Images of text are only used for pure decoration or where a particular presentation of text is essential to the information being conveyed. (Level AAA) 53 SECTION 2: MASTER AGREEMENT TERMS AND CONDITIONS | 2014_0122 VPAT Web Content Accessibility Guidelines 2.0 level AA Principle 2: Operable - User interface components and navigation must be operable. Standard Description Apply Yes/No Meets Yes/No Comments Guideline 2.1 Keyboard Accessible: Make all functionality available from a keyboard. 2.1.1 Keyboard: All functionality of the content is operable through a keyboard interface without requiring specific timings for individual keystrokes, except where the underlying function requires input that depends on the path of the user's movement and not just the endpoints. (Level A) 2.1.2 No Keyboard Trap: If keyboard focus can be moved to a component of the page using a keyboard interface, then focus can be moved away from that component using only a keyboard interface, and, if it requires more than unmodified arrow or tab keys or other standard exit methods, the user is advised of the method for moving focus away. (Level A) 2.1.3 Keyboard (No Exception): All functionality of the content is operable through a keyboard interface without requiring specific timings for individual keystrokes. (Level AAA) Guideline 2.2 Enough Time: Provide users enough time to read and use content. 2.2.1 Timing Adjustable: For each time limit that is set by the content, at least one of the following is true: (Level A)  Turn off: The user is allowed to turn off the time limit before encountering it; or  Adjust: The user is allowed to adjust the time limit before encountering it over a wide range that is at least ten times the length of the default setting; or  Extend: The user is warned before time expires and given at least 20 seconds to extend the time limit with a simple action (for example, "press the space bar"), and the user is allowed to extend the time limit at least ten times; or  Real-time Exception: The time limit is a required part of a real-time event (for example, an auction), and no alternative to the time limit is possible; or  Essential Exception: The time limit is essential and extending it would invalidate the activity; or  20 Hour Exception: The time limit is longer than 20 hours. 2.2.2 Pause, Stop, Hide: For moving, blinking, scrolling, or auto -updating information, all of the following are true: (Level A)  Moving, blinking, scrolling: For any moving, blinking or scrolling information that (1) starts automatically, (2) lasts more than five seconds, and (3) is presented in parallel with other content, there is a mechanism for the user to pause, stop, or hide it unless the movement, blinking, or scrolling is part of an activity where it is essential; and  Auto-updating: For any auto-updating information that (1) starts automatically and (2) is presented in parallel with other content, there is a mechanism for the user to pause, stop, or hide it or to control the frequency of the update unless the auto-updating is part of an activity where it is essential. 2.2.3 No Timing: Timing is not an essential part of the event or activity presented by the content, except for non-interactive synchronized media and real- time events. (Level AAA) 2.2.4 Interruptions: Interruptions can be postponed or suppressed by the user, except interruptions involving an emergency. (Level AAA) 2.2.5 Interruptions: Interruptions can be postponed or suppressed by the user, except interruptions involving an emergency. (Level AAA) Guideline 2.3 Seizures: Do not design content in a way that is known to cause seizures. 2.3.1 Three Flashes or Below Threshold: Web pages do not contain anything that flashes more than three times in any one second period, or the flash is below the general flash and red flash thresholds. (Level A) 54 SECTION 2: MASTER AGREEMENT TERMS AND CONDITIONS | 2014_0122 2.3.2 Three Flashes: Web pages do not contain anything that flashes more than three times in any one second period. (Level AAA) Guideline 2.4 Navigable: Provide ways to help users navigate, find content, and determine where they are. 2.4.1 Bypass Blocks: A mechanism is available to bypass blocks of content that are repeated on multiple Web pages. (Level A) 2.4.2 Page Titled: Web pages have titles that describe topic or purpose. (Level A) 2.4.3 Focus Order: If a Web page can be navigated sequentially and the navigation sequences affect meaning or operation, focusable components receive focus in an order that preserves meaning and operability. (Level A) 2.4.4 Link Purpose (In Context): The purpose of each link can be determined from the link text alone or from the link text together with its programmatically determined link context, except where the purpose of the link would be ambiguous to users in general. (Level A) 2.4.5 Multiple Ways: More than one way is available to locate a Web page within a set of Web pages except where the Web Page is the result of, or a step in, a process. (Level AA) 2.4.6 Headings and Labels: Headings and labels describe topic or purpose. (Level AA) 2.4.7 Focus Visible: Any keyboard operable user interface has a mode of operation where the keyboard focus indicator is visible. (Level AA) 2.4.8 Location: Information about the user's location within a set of Web pages is available. (Level AAA) 2.4.9 Link Purpose (Link Only): A mechanism is available to allow the purpose of each link to be identified from link text alone, except where the purpos e of the link would be ambiguous to users in general. (Level AAA) 2.4.10 Section Headings: Section headings are used to organize the content. (Level AAA) Principle 3: Understandable - Information and the operation of user interface must be understandable. Standard Description Apply Yes/No Meets Yes/No Comments Guideline 3.1 Readable: Make text content readable and understandable. 3.1.1 Language of Page: The default human language of each Web page can be programmatically determined. (Level A) 3.1.2 Language of Parts: The human language of each passage or phrase in the content can be programmatically determined except for proper names, technical terms, words of indeterminate language, and words or phrases that have become part of the vernacular of the immediately surrounding text. (Level AA) 3.1.3 Unusual Words: A mechanism is available for identifying specific definitions of words or phrases used in an unusual or restricted way, including idioms and jargon. (Level AAA) 3.1.4 Abbreviations: A mechanism for identifying the expanded form or meaning of abbreviations is available. (Level AAA) 3.1.5 Reading Level: When text requires reading ability more advanced than the lower secondary education level after removal of proper names and titl es, supplemental content, or a version that does not require reading ability more advanced than the lower secondary education level, is available. (Level AAA) 3.1.6 Pronunciation: A mechanism is available for identifying specific pronunciation of words where meaning of the words, in context, is ambiguous without knowing the pronunciation. (Level AAA) Guideline 3.2 Predictable: Make Web pages appear and operate in predictable ways. 3.2.1 On Focus: When any component receives focus, it does not initiate a change of context. (Level A) 3.2.2 On Input: Changing the setting of any user interface component does not automatically cause a change of context unless the user has been advised of the behavior before using the component. (Level A) 55 SECTION 2: MASTER AGREEMENT TERMS AND CONDITIONS | 2014_0122 3.2.3 Consistent Navigation: Navigational mechanisms that are repeated on multiple Web pages within a set of Web pages occur in the same relative order each time they are repeated, unless a change is initiated by the user. (Level AA) 3.2.4 Consistent Identification: Components that have the same functionality within a set of Web pages are identified consistently. (Level AA) 3.2.5 Change on Request: Changes of context are initiated only by user request or a mechanism is available to turn off such changes. (L evel AAA) Guideline 3.3 Input Assistance: Help users avoid and correct mistakes. 3.3.1 Error Identification: If an input error is automatically detected, the item that is in error is identified and the error is described to the user in text. (Level A) 3.3.2 Labels or Instructions: Labels or instructions are provided when content requires user input. (Level A) 3.3.3 Error Suggestion: If an input error is automatically detected and suggestions for correction are known, then the suggestions are provided to the user, unless it would jeopardize the security or purpose of the content. (Level AA) 3.3.4 Error Prevention (Legal, Financial, Data): For Web pages that cause legal commitments or financial transactions for the user to occur, that modify or delete user-controllable data in data storage systems, or that submit user test responses, at least one of the following is true: (Level AA)  Reversible: Submissions are reversible.  Checked: Data entered by the user is checked for input errors and the user is provided an opportunity to correct them.  Confirmed: A mechanism is available for reviewing, confirming, and correcting information before finalizing the submission. 3.3.5 Help: Context-sensitive help is available. (Level AAA) 3.3.6 Error Prevention (All): For Web pages that require the user to submit information, at least one of the following is true: (Level AAA)  Reversible: Submissions are reversible.  Checked: Data entered by the user is checked for input errors and the user is provided an opportunity to correct them.  Confirmed: A mechanism is available for reviewing, confirming, and correcting information before finalizing the submission. 56 SECTION 2: MASTER AGREEMENT TERMS AND CONDITIONS | 2014_0122 VPAT Web Content Accessibility Guidelines 2.0 level AA Principle 4: Robust - Content must be robust enough that it can be interpreted reliably by a wide variety of user agents, including assistive technologies. Standard Description Apply Yes/No Meets Yes/No Comments Guideline 4.1 Compatible: Maximize compatibility with current and future user agents, i ncluding assistive technologies. 4.1.1 Parsing: In content implemented using markup languages, elements have complete start and end tags, elements are nested according to their specifications, elements do not contain duplicate attributes, and any IDs are unique, except where the specifications allow these features. (Level A) 4.1.2 Name, Role, Value: For all user interface components (including but not limited to: form elements, links and components generated by scripts), the name and role can be programmatically determined; states, properties, and values that can be set by the user can be programmatically set; and notification of changes to these items is available to user agents, including assistive technologies. (Level A) 57 SECTION 3: RESPONSE REQUIREMENTS | 2014_0122 SECTION 3: RESPONSE REQUIREMENTS A. Business B. Environmental C. Qualifications D. Customer Support 58 SECTION 3: RESPONSE REQUIREMENTS | 2014_0122 A. RESPONSE REQUIREMENTS: BUSINESS Confirm the responder meets, understands and will comply with the requirement by checking YES. Mandatory Requirements are indicated with “M” need to be checked yes. DESCRIBE FULLY AND PROVIDE DETAIL HOW THE PROPOSAL SATISFIES EACH ITEM. A RESPONSE REQUIREMENTS: BUSINESS M = MANDATORY MEETS UNDERSTAND & WILL COMPLY? 1 PROPOSED BANDS. Responders may respond to any or all bands. Responder must identify the bands they will be proposing (check all that apply): Band 1: Desktop Band 2: Laptop Band 3: Tablet Band 4: Server Band 5: Storage Band 6: Ruggedized Devices Responder must verify they are a manufacturer of each band proposed and describe their manufacturing process and facilities. M YES NO 2 MANUFACTURER VERIFICATION. The manufacturer’s name shall appear on the computer equipment. The Contract Vendors shall provide the warranty service and maintenance for equipment on a Master Agreement. Describe proposed warranty in Section 3A6 in accordance to WSCA-NASPO warranty term. M YES NO 3 THIRD PARTY PRODUCTS. Products offered may be manufactured by a third party; however, Contract Vendor must provide the warranty service and maintenance for all third party products on the Master Agreement. Contract Vendor may not offer another manufacture’s product holding a Master Agreement without prior approval. Warranty documents for Products manufactured by a third party are preferred to be delivered to the Participating Entity with the Products. Contract Vendor can only offer third party products in a band they have been awarded. Describe proposed warranty in Section 3A6 in accordance to WSCA-NASPO warranty term. M YES NO 4 PRODUCT RESTRICTIONS. Responder must agree to adhere to the restrictions in the Scope of Work throughout the life of the Master Agreement. Describe thoroughly how Contract Vendor will manage product restrictions for Participating States. M YES NO 59 SECTION 3: RESPONSE REQUIREMENTS | 2014_0122 A RESPONSE REQUIREMENTS: BUSINESS M = MANDATORY MEETS UNDERSTAND & WILL COMPLY? 5 MAINTAINING THE PRODUCT AND SERVICE SCHEDULE (PSS). Contract Vendors will develop and maintain an electronic Product and Service Schedule (PSS) which identifies a complete listing of all products and services included in the awarded Master Agreement as well as individual Participating State’s PSS’s. It is understood that manufacturer’s pricing models will vary and final negotiation of how the PSS is presented will be finalized upon award. The PSS will be available for audit purposes and end users to verify pricing based on the minimum discounts withcategorized exceptions provided off a designated base line price list. The minimum discounts with categorized exceptions and designated price list must be provided upon request. The PSS may contain the following information:  Band number  Category  Product Brand  Item number  Item description  List Price  Discount provided  Discounted price PSS is to be maintained as follows: 1. The PSS prices for Products and services will conform to the guaranteed minimum discount with categorized exception levels 2. The Contract Vendor may make model changes; add new Products, and Product upgrades or Services to the PSS. 3. The Contract Vendor agrees to delete obsolete and discontinued Products from the PSS 4. The Contract Vendor will work with each State to develop a satisfactory PSS reflecting the individual States restrictions. The state reserves the right to make PSS format changes throughout the life of the master agreement. Contract Vendor will request changes to the PSS utilizing an Actio n Request Form (ARF). A sample has been provided in the Section 6. This ARF will be finalized upon negotiations and reaffirms and tracks changes made to the Master Agreement. Changes may be made quarterly. M YES NO 6 WARRANTY AND MAINTENANCE. The Contract Vendor shall ensure warranty service and maintenance for all equipment, including third party products provided. Describe in detail how the responder will secure warranty for all products and services. The Contract vendor agrees to facilitate the Manufacturer or Publisher warranty and maintenance of third party products furnished through the Master Agreement. Describe in detail how the responder will secure warranty for all products and services. M YES NO 60 SECTION 3: RESPONSE REQUIREMENTS | 2014_0122 A RESPONSE REQUIREMENTS: BUSINESS M = MANDATORY MEETS UNDERSTAND & WILL COMPLY? 7 LEASING. Individual Participating States and Participating Entities may enter in to lease agreements for the products covered in the Master Agreements resulting from the RFP, if they have the legal authority to enter into t hese types of agreements. The Participating Addendum by each State will identify if and how leasing agreement terms will be conducted. YES NO 8 DELIVERY. Delivery of ordered product should be completed within thirty (30) calendar days after receipt of an order, unless otherwise agreed to by the ordering agency. M YES NO 9 FREIGHT. All prices shall be FOB Destination, prepaid and allowed (with freight included in the price), to the address, receiving dock or warehouse as specified on the ordering agency’s purchase order, In those situations in which the “deliver-to” address has no receiving dock or agents, the Contract Vendor must be able to deliver to the person specified on the PO without additional cost. If there is a special case where inside delivery fee must be charged, the Contract Vendor will notify the customer in advance in order for the customer to determine if the additional cost will affect the decision to utilize the Contract Vendor. M YES NO 10 VENDOR PERFORMANCE MEETING. An annual vendor performance meeting may be held each year with the WSCA-NASPO Sourcing Team. Participation by the Contract Vendor is mandatory. Historically vendor performance meetings have been held in the State of Minnesota. M YES NO 11 AUDITING. Contract Vendors agree to audits, including but not limited to the Lead State or 3rd party to ensure products sold, pricing and administrative fees are compliant with Master Agreement terms and conditions. Responders must describe:  how the responder regularly self audits the Master Agreement to ensure compliance  how an end user will be able to self audit to ensure quotes provided are at the discount off list price  how often the web pricing and invoicing is audited to insure contractual compliance.  reporting mechanisms available such as Invoice reports which will assist in State’s ability to audit the Master Agreement through vendor supplied reporting tools.  how the responder ensures that States with multiple Master Agreements are monitored to ensure purchases are correctly booked with the correct Master Agreement. M YES NO 12 SELF AUDIT: Vendors are required to conduct at a minimum a quarterly self-audit, unless approved by the Lead State. The audit will sample a minimum of one tenth of one percent (.001) of orders with a maximum of 100 audits per quarter conducted. For example: Up to 1,000 sales = 1 audit; 10,000 sales = 10 audits; Up to 100,000 sales = 100 audits. This will be a random sample of orders and invoices and must include documentation of pricing. Summary findings are to be reported to Lead State with actions to correct documented findings. M YES NO 13 PREFERENCE PROGRAMS. Describe experience and capacity to meet minority and women business enterprises and other local purchasing preferences that vary among potential Participating Entities, including but not limited to the use of these businesses in their partner relationships. YES NO 61 SECTION 3: RESPONSE REQUIREMENTS | 2014_0122 A RESPONSE REQUIREMENTS: BUSINESS M = MANDATORY MEETS UNDERSTAND & WILL COMPLY? 14 GEOGRAPHIC OFFERING. While the primary purpose of this solicitation is to select a Responders who can offer all products and services within a band for all Participating States, to encourage small business participation Responders are permitted to submit a proposal on more limited geographical areas. Clearly describe the geographical limits (e.g. by State name) if proposing a geographical area less than that of all Participating States. Identify at least one State. If a Proposer elects to submit a Proposal for a single State then the Proposer will be willing to supply the entire State. The option to grow the business to other States may be allowed upon approval of the WSCA-NASPO Management Board. The proposer will be evaluated on the same criteria as all other vendors and referred to the identified State for consideration of a Master Agreement. YES NO 15 MASTER AGREEMENT TERMINATION. Upon termination or expiration of the Master Agreement awarded from this RFP the following will occur:  All websites, on-line offering systems and Electronic Catalog functions supported and/or available as part of the Master Agreement will cease and be removed from public viewing access without redirecting to another website.  If approved by the Lead State, Customer data/user accounts acquired during the term of the Master Agreement shall be destroyed or returned to the State at the request of the Participating State’s administrator unless required to maintain per audit.  No references to the Master Agreement shall be made on the Contract Vendor’s commercial website without permission by the Lead State.  If approved by the Lead State, hard copy catalogs and promotional literature shall be destroyed or returned to the Participating State at the end of the Master Agreement term upon the request of the Participating State. YES NO 16 PREMIUM SAVINGS PACKAGE PROGRAM. Contract Vendors who participate in the PSP program commit to maintain and upgrade (keep pace with the advance of technology) the standard configurations for a stated period of time or intervals, as determined by the Participating Entities. Provide marketing plan of the PSP Program including leading with PSP Program and displaying prominently on websites to market aggressively to all States. YES NO n/a for server storage vendors 17 PROMOTIONS. Contract Vendors are allowed to provide promotions for deeply discounted products based on their inventory and sales. Promotions will also provide increased savings to States. The Contract Vendors will be responsible to market these offers. Describe what kind of promotions will be available and how marketing will be conducted. YES NO 62 SECTION 3: RESPONSE REQUIREMENTS | 2014_0122 B. RESPONSE REQUIREMENTS: ENVIRONMENTAL Confirm the responder meets, understands and will comply with the requirement by checking YES. Mandatory Requirements are indicated with “M” need to be checked yes. DESCRIBE FULLY AND PROVIDE DETAIL HOW THE PROPOSAL SATISFIES EACH ITEM. B RESPONSE REQUIREMENTS: ENVIRONMENTAL M = MANDATORY MEETS UNDERSTAND & WILL COMPLY? 1 ENVIRONMENTALLY PREFERABLE PURCHASING COMMITMENT. Explain commitment to environmentally preferable purchase specifically in the areas below. a. End of life management: Include detailed information regarding takeback, recycling and trade in programs available b. Environmental solutions: Provide detail on how additional value is provided regarding environmental solutions such as selling refurbished/remanufactured toner and equipment. Outline how your company is willing to work with the State and the manufacturers to minimize impact on the environment. Specifically address: MATERIALS - manufacturer declaration on reduction / elimination of hazardous materials i.e.; mercury and lead. PRODUCT – In general how does the responder identify product longevity, percent of packaging and packing materials that are recycled/reusable, availability of replacement parts for life extension, cost, and complication to upgrade. CORPORATE – detail if company has in place regarding sell/procurement of refurbished/remanufactured products. c. Environmental certifications. Describe how certifications/registrations are identified on the website; as well as labels on equipment and/or packing list. YES NO 2 EPEAT REGISTRATION. Responder agrees that applicable products offered that have EPEAT Standards provided under the Master Agreements resulting from this RFP are to have achieved a minimum EPEAT Bronze registration. M YES NO n/a storage 3 TOTAL COST OF OWNERSHIP. Describe how your company can provide users information to assist in evaluating the Total Cost of Ownership in utilizing products. E.g. equipment that runs more efficiently, with less supplies, etc. YES NO 4 ENERGY STAR COMPLIANT PRODUCTS. Describe manufacturer commitment to EnergyStar Program. YES NO 5 ENVIRONMENTAL IMPROVEMENT PROGRAM. Describe Product environm ental improvement program for products that have not yet received the applicable standards or certification. In addition, describe environmental efforts in each of the following areas: reduction/minimization/avoidance of the use of toxic and hazardous constituents (cadmium, chromium, mercury, and/or lead); compliance with international directives such as the European Union’s WEEE Directive on reduction of chlorinated plastics (PVC) and brominated flame retardants. YES NO 63 SECTION 3: RESPONSE REQUIREMENTS | 2014_0122 C. RESPONSE REQUIREMENTS: QUALIFICATIONS Confirm the responder meets, understands and will comply with the requirement by checking YES. Mandatory Requirements are indicated with “M” need to be checked yes. DESCRIBE FULLY AND PROVIDE DETAIL HOW THE PROPOSAL SATISFIES EACH ITEM. C RESPONSE REQUIREMENTS: QUALIFICATIONS M = MANDATORY MEETS UNDERSTAND & WILL COMPLY? 1 COMPANY HISTORY. Responders must provide a brief history and description of their company detailing how they will support this Master Agreement: Facilities. Responders must indicate number and location of manufacturing plants, distribution outlets, and support centers, as appropriate. Provide information on facility production volume in Calendar Year 2012. Please indicate which facilities have been ISO 14001 certified. Personnel. Responders must include a map or other documentation that indicates by state the number and type of sales, support personnel, or other resources that are employed to service purchase orders and/or equipment for non-federal governmental customers. Organization. Responders must include an organization chart and a thorough narrative describing how the Master Agreement will be supported from senior management down to field technicians including the use of any wholly owned subsidiaries or subcontractors. M YES NO 2 CONTRACT VENDOR RESPONSIBILITY. Contract Vendors shall be responsible for successful performance of the Master Agreement and also for the successful performance of any and all of their partners. The Contract Vendor is to be the sole point of contact as applicable by Master Agreement with regard to contractual matters, payment of any and all charges resulting from the purchase of the equipment and maintenance of the equipment for the term of the Master Agreement unless otherwise specified by a Participating State in a Participating Addendum and/or the Master Agreement. The Contract Vendor must be able to receive, process, and invoice orders unless the Participating State has agreed to assign these functions to a partner. The Contract Vendors will be responsible for compliance with requirements under the Master Agreement, even if requirements are delegated to partners. The Contract Vendors and partners must not in any way represent themselves in the name of the Lead State, WSCA-NASPO or Participating States. M YES NO 3 PARTNER UTILIZATION. If utilizing partners, the Contract Vendor is responsible for the partners providing products and services, as well as warranty service and maintenance for equipment the partner provides. Each state represented by WSCA-NASPO that chooses to participate in this Master Agreement independently YES NO 64 SECTION 3: RESPONSE REQUIREMENTS | 2014_0122 C RESPONSE REQUIREMENTS: QUALIFICATIONS M = MANDATORY MEETS UNDERSTAND & WILL COMPLY? has the option of utilizing partners. Only partners approved by the Participating State may be deployed. The participating State will define the process to add and remove partners in their participating addendum. If partners are proposed, describe:  process to qualify partners and sales personnel to represent the product.  business relationship between partners and the manufacturer and services to be performed; for example, if partners will only be used for assistance in locating products/services; or if partners will be used to accept orders and payments (with the agreement of the Participating State).  how partners are certified  how partners are contractually bound to the Master Agreement terms and conditions; and  how partner sales will be accurately tracked and reported.  Remedy plan if the partner or sales personnel are not in compliance. 4 EQUIPMENT AND SERVICES OVERVIEW. Describe ability to provide computer equipment and the services related to supporting the equipment. Include an overview of how the equipment is delivered and serviced. Thoroughly describe offerings and the ability to provide these services (not all services may be applicable to each band):  Warranty - Break Fix – Non-Warranty  Standard non customized Training  Installation/de-installation  Support  Migration  Asset Tagging  Staging/Deployment  Image loading  Image Consulting  System and Server Configuration  Rack and Stack Configuration  Maintenance  Custom service solutions  Asset Management  Recycling/disposal  Training and Certification  Other services available as allowed in the solicitation M YES NO 65 SECTION 3: RESPONSE REQUIREMENTS | 2014_0122 C RESPONSE REQUIREMENTS: QUALIFICATIONS M = MANDATORY MEETS UNDERSTAND & WILL COMPLY? 5 REFERENCES. Submit five (5) examples of current or previous states or other larger governmental entities and/or large educational institutions that have or are currently receiving similar products and services to those proposed by the Responder for this solicitation. List any contracts where the responder has been awarded a statewide price agreement for computer equipment by a central purchasing au thority. These must be for Contracts that have been in place during the past three years. The information required in response to this specification should include the name and telephone number of the Contract Administrator, the dollar value of the Contract, plus the effective dates of the contract(s). The State reserves the right to contact these entities. M YES NO 6 CUSTOMER SATISFACTION. Describe success in customer satisfaction. This could include current customer satisfaction statistics or survey results concerning the quality of the Products and services offered. YES NO 66 SECTION 3: RESPONSE REQUIREMENTS | 2014_0122 D. RESPONSE REQUIREMENTS: CUSTOMER SUPPORT AND MASTER AGREEMENT MANAGEMENT Confirm the responder meets, understands and will comply with the requirement by checking YES. Mandatory Requirements are indicated with “M” need to be checked yes. DESCRIBE FULLY AND PROVIDE DETAIL HOW THE PROPOSAL SATISFIES EACH ITEM. D RESPONSE REQUIREMENTS: CUSTOMER SUPPORT AND MASTER AGREEMENT MANAGEMENT M = MANDATORY MEETS UNDERSTAND & WILL COMPLY? 1 ORDERING AND PAYMENT PROCESS. The ordering and payment process for Products or Services is to be defined in the Participating Addendum. This process may be unique to each State. YES NO 2 SALES SUPPORT TRAINING. Detail how the responder will train sales staff and partners to ensure they are well versed in the terms and conditions of the WSCA-NASPO Master Agreement. Detail a remedy plan for sales staff and partners who do not comply with Master Agreement terms and conditions. M YES NO 3 CONTRACTING PERSONNEL. Responder must provide contracting personnel to assist states with the completing and processing Participating Addenda. Experience has shown that an adequate number of trained contracting personnel are key to the success of a Master Agreement. Detail how many personnel will be dedicated to provide support to States in securing Participating Addendums with contracting personnel who understand the cooperative purchasing concepts and challenges of signing participating addendums with States who have a variety of additional terms and conditions. Detail how the Contract personnel are chosen and provi ded training. M YES NO 4 PRIMARY ACCOUNT REPRESENTATIVE. Responders must provide a Primary Account Representative to work with the WSCA-NASPO Master Agreement Administrator on all aspects of the Master Agreement. This account representative is responsible for the performance of the Master Agreement and must provide timely response to all requests from WSCA-NASPO Master Agreement Administrator and Participating State. Detail how the account representative is chosen and provided training. NAME: TELEPHONE #: EMAIL ADDRESS: M YES NO 5 COMPLAINT RESOLUTION. Responders must thoroughly describe their procedures for addressing and resolving customer problems and complaints regarding service, equipment, or billing. Include timelines and escalation process. M YES NO 6 REPORTING. Describe how Contract Vendor adheres to reporting requirements as stated in the Terms and Conditions and ensure accurate reporting to each State. The goals of reporting include: 1) Summary Reporting to calculate Administrative Fees to WSCA-NASPO and as required by Participating Entities 2) Detailed Product Reporting to manage contract to WSCA-NASPO and as required by Participating Entities Participating States may require additional reporting requirements and will address through their Participating Addendum. Responders must identify below a primary contact responsible for providing the mandatory usage reports NAME: M YES NO 67 SECTION 3: RESPONSE REQUIREMENTS | 2014_0122 D RESPONSE REQUIREMENTS: CUSTOMER SUPPORT AND MASTER AGREEMENT MANAGEMENT M = MANDATORY MEETS UNDERSTAND & WILL COMPLY? TELEPHONE #: EMAIL ADDRESS: 7 COMMERCIAL OFF THE SHELF AND OPERATING SYSTEM SOFTWARE. Upon request the Software License Agreement is to be presented to the ordering agency at the time of quote. Provide updated releases of licenses originally purchased through the entire contract term if applicable. Provide details regarding operating system and maintenance updates on products sold and detail process to communicate updates to users. M YES NO 8 WEBSITE. Describe commitment to maintaining a website in adherence to the items provided below.Contract Vendors shall develop and maintain a URL to a web site specific to the awarded Master Agreement that MAY provide:  Copy of Solicitation & Response  Signed Master Agreement  Signed Participating Addendums  Designated Baseline price list (MSRP, List, Education)  Product and Service Schedule (PSS)  Product specifications, pricing, and configuration aids for the major product categories proposed that can be used to obtain an on-line quote,  Online ordering capability with the ability to remember multiple ship to locations if applicable to product  Service options, service agreements  Contact information for order placement, service concerns (warranty and maintenance), problem reporting, and billing concerns  Sales representatives for participating entities  Purchase order tracking  Links to environmental certification, including but not limited to take-back/recycling programs, EPEAT, Energy Star, etc.  Information on accessibility and accessible products If elements of the website require a secure log-in, Responder to provide listing of item that would require a secure sign-in option e.g. reprinting of invoices, or purchase order tracking. THE REQUESTED WCAG VPAT APPLIES TO THE RESPONDER’S WEBSITE TO BE OFFERED UNDER THE CONTRACT. Responder to provide completed VPAT forms found in the FORMS section of the RFP. The Master Agreement website shall offer twenty-four (24) hours per day, seven (7) days per week availability, except for regularly scheduled maintenance times. The website must be separate from the Contract Vendor’s commercially available (i.e., public) on-line catalog and ordering systems. No other items or pricing may be shown on the website without written approval from the Lead State M YES NO 68 SECTION 3: RESPONSE REQUIREMENTS | 2014_0122 D RESPONSE REQUIREMENTS: CUSTOMER SUPPORT AND MASTER AGREEMENT MANAGEMENT M = MANDATORY MEETS UNDERSTAND & WILL COMPLY? Within 30 calendar days of Master Agreement award, the Contract Vendor must provide a sample URL of the Master Agreement webpage to the Lead State for review and approval. The Lead State will review and determine acceptability of the website format and data. If the information is determined to be unacceptable or incorrect, the Contract Vendor will have 15 calendar days to provide revisions to the Lead State. Once the website is approved, the Contract Vendor may not make material changes to the website without notifying the Lead State and receiving written approval of the changes. 9 EMARKETCENTER. The Contractor agrees to cooperate with WSCA-NASPO and SciQuest (and any authorized agent or successor entity to SciQuest) with uploading a hosted catalog or integrating a punchout site. Review the eMarket Center requirements provided on next page and confirm adherence. M YES NO 10 IMPLEMENTATION PLAN AND MARKETING METHODOLOGY. Describe a thorough implementation rollout plan for the first year as part of the proposal. At a minimum, the response should include a description of the methodology (mailings, meetings, seminars, press releases, personal contacts) proposed, estimated dates and location of activities, including tasks to be performed and the timeframe for the completion of each task. Include sample rollout and follow-up marketing materials with their proposals. Responders are reminded that once a statewide participating addendum is in place, nearly every governmental entity, public school and university within the state may u se the Contract Vendor’s Master Agreement. YES NO 11 ECOMMERCE. Thoroughly describe the ability or commitment to accept and process purchase orders electronically, as well as online payment via a purchase card. The ability to provide electronic funds transfer and/or a seamless electronic interface to governmental accounting systems should be thoroughly described . YES NO 12 EMPLOYEE PURCHASE PROGRAM: Employee purchase program s are within the scope of this procurement. If provided for by an Entity's Participating Addendum, the Contractor may offer discounted products, within the scope of the contract, to employees of that WSCA participating entity as Individual Liable (IL) accounts ("Employee Purchase Program"). This may include, but not lim ited to Bring Your Own Devise (BYOD) programs. All terms and conditions, related to the Employee Purchase Program will be detailed in the entities Participating Addendum. YES NO 69 | 2014_0122 EMARKETCENTER REQUIREMENTS In July 2011, WSCA-NASPO entered into a multi-year agreement with SciQuest, Inc. whereby SciQuest will provide certain electronic catalog hosting and management services to enable eligible WSCA-NASPO entity’s customers to access a central online website to view and/or shop the goods and services available from existing WSCA-NASPO Cooperative Contracts. The central online website is referred to as the WSCA-NASPO eMarket Center Contractor shall either upload a hosted catalog into the eMarket Center or integrate a punchout site with the eMarket Center. Supplier’s Interface with the eMarket Center There is no cost charged by SciQuest to the Contractor for loading a hosted catalog or integrating a punchout site. At a minimum, the Contractor agrees to the following: 1. Implementation Timeline: WSCA-NASPO eMarket Center Site Admin shall provide a written request to the Contractor to begin enablement process. The Contractor shall have fifteen (15) days from receipt of written request to work with WSCA-NASPO and SciQuest to set up an enablement schedule, at which time SciQuest’s technical documentation shall be provided to the Contractor. The schedule will include future calls and milestone dates related to test and go live dates. The contractor shall have a total of Ninety (90) days to deliver either a (1) hosted catalog or (2) punch-out catalog, from date of receipt of written request. 2. Definition of Hosted and Punchout: WSCA-NASPO and SciQuest will work with the Contractor, to decide which of the catalog structures (either hosted or punch-out as further described below) shall be provided by the Contractor. Whether hosted or punch-out, the catalog must be strictly limited to the Contractor’s awarded contract offering (e.g. products and/or services not authorized through the resulting cooperative contract should not be viewable by WSCA-NASPO Participating Entity users). a. Hosted Catalog. By providing a hosted catalog, the Contractor is providing a list of its awarded products/services and pricing in an electronic data file in a format acceptable to SciQuest, such as Tab Delimited Text files. In this scenario, the Contractor must submit updated electronic data quarterly to the the eMarket Center for Lead State’s approval to maintain the most up-to-date version of its product/service offering under the cooperative contract in the eMarket Center. b. Punch-Out Catalog. By providing a punch-out catalog, the Contractor is providing its own online catalog, which must be capable of being integrated with the eMarket Center as a. Standard punch-in via Commerce eXtensible Markup Language (cXML). In this scenario, the Contractor shall validate that its online catalog is up-to-date by providing a written update quarterly to the Contract Administrator stating they have audited the offered products/services and pricing listed on its online catalog. The site must also return detailed UNSPSC codes (as outlined in line 3) for each line item. Contractor also agrees to provide e-Quote functionality to facilitate volume discounts. 3. Revising Pricing and Product Offerings: Any revisions (whether an increase or decrease) to pricing or product/service offerings (new products, altered SKUs, etc.) must be pre-approved by the Lead State and shall be subject to any other applicable restrictions with respect to the frequency or amount of such revisions. However, no cooperative contract enabled in the eMarket Center may include price changes on a more frequent basis than once per quarter. The following conditions apply with respect to hosted catalogs: a. Updated pricing files are required by the 1st of the month and shall go into effect in the eMarket Center on the 1st day of the following month (i.e. file received on 1/01/13 would be effective in the eMarket Center on 2/01/13). Files received after the 1st of the month may be delayed up to a month (i.e. file received on 11/06/09 would be effect in the eMarket Center on 1/01/10). b. Contract Administrator-approved price changes are not effective until implemented within the eMarket Center. Errors in the Contractor’s submitted pricing files will delay the implementation of the price changes in eMarket Center. 4. Supplier Network Requirements: Contractor shall join the SciQuest Supplier Network (SQSN) and shall use the SciQuest’s Supplier Portal to import the Contractor’s catalog and pricing, into the SciQuest system, and view reports on catalog spend and product/pricing freshness. The Contractor can receive orders through electronic delivery (cXML) or through low-tech options such as fax. More information about the SQSN can be found at: www.sciquest.com or call the SciQuest Supplier Network Services team at 800-233-1121. 70 | 2014_0122 5. Minimum Requirements: Whether the Contractor is providing a hosted catalog or a punch-out catalog, the Contractor agrees to meet the following requirements: a. Catalog must contain the most current pricing, including all applicable administrative fees and/or discounts, as well as the most up-to-date product/service offering the Contractor is authorized to provide in accordance with the cooperative contract; and b. The accuracy of the catalog must be maintained by Contractor throughout the duration of the cooperative contract between the Contractor and the Contract Administrator; and c. The Catalog must include a Lead State contract identification number; and d. The Catalog must include detailed product line item descriptions; and e. The Catalog must include pictures when possible; and f. The Catalog must include any additional WSCA-NASPO and Participating Addendum requirements.* 6. Order Acceptance Requirements: Contractor must be able to accept Purchase Orders via fax or cXML. a. The Contractor shall provide positive confirmation via phone or email within 24 hours of the Contractor’s receipt of the Purchase Order. If the Purchasing Order is received after 3pm EST on the day before a weekend or holiday, the Contractor must provide positive confirmation via phone or email on the next business day. 7. UNSPSC Requirements: Contractor shall support use of the United Nations Standard Product and Services Code (UNSPSC). UNSPSC versions that must be adhered to are driven by SciQuest for the suppliers and are upgraded every year. WSCA-NASPO reserves the right to migrate to future versions of the UNSPSC and the Contractor shall be required to support the migration effort. All line items, goods or services provided under the resulting statewide contract must be associated to a UNSPSC code. All line items must be identified at the most detailed UNSPSC level indicated by segment, family, class and commodity. More information about the UNSPSC is available at: http://www.unspsc.com and http://www.unspsc.com/FAQs.asp#howdoesunspscwork . 8. Applicability: Contractor agrees that WSCA-NASPO controls which contracts appear in the eMarket Center and that WSCA-NASPO may elect at any time to remove any supplier’s offering from the eMarket Center. 9. The Lead State reserves the right to approve the pricing on the eMarket Center. This catalog review right is solely for the benefit of the WSCA-NASPO Contract Adminstrator and Participating Entities, and the review and approval shall not waive the requirement that products and services be offered at prices (and approved fees) required by the Master Agreement. * Although suppliers in the SQSN normally submit one (1) catalog, it is possible to have multiple contracts applicable to different WSCA-NASPO Participating Entities. For example, a supplier may have different pricing for state government agencies and Board of Regents institutions. Suppliers have the ability and responsibility to submit separate contract pricing for the same catalog if applicable. The system will deliver the appropriate contract pricing to the user viewing the catalog. Several WSCA-NASPO Participating Entities currently maintain separate SciQuest eMarketplaces, these Participating Entities do enable certain WSCA-NASPO Cooperative Contracts. In the event one of these entities elects to use this WSCA-NASPO Cooperative Contract (available through the eMarket Center) but publish to their own eMarketplace, the Contractor agrees to work in good faith with the entity and WSCA-NASPO to implement the catalog. WSCA-NASPO does not anticipate that this will require substantial additional efforts by the Contractor; however, the supplier agrees to take commercially reasonable efforts to enable such separate SciQuest catalogs. 71 SECTION 4: COST PROPOSAL | 2014_0122 SECTION 4: COST PROPOSAL SUBMIT IN A SEPARATE SEALED ENVELOPE COST PROPOSAL M = MANDATORY MEETS UNDERSTAND & WILL COMPLY? 1 PRICE STRUCTURE. This RFP will employ a MINIMUM discount-off list price structure with categorized exceptions for each band. It is understood there may be categories within a band which carry a differ ent discount than the minimum stated. For example, the minimum discount for the laptop band could be 50%. The responder may name an additional category of laptops “Laptop Brand X” at 45% and “Laptop Brand Y” at 60%. Responder may categorize these exception s by naming as categories and identifying the associated discounts in the price workbook. These discounts must remain firm, or the discount may be increased, during the term of the Master Agreement. This minimum discount and categorized exceptions will be applied to all “quantity one” procurements. It will also serve as verification for the WSCA Master Agreement Administrator upon submittals of product additions. An end user will be able to verify pricing using the base line price list and the minimum discounts with the categorized exceptions provided. The responder must designate a “Base Line Price List e.g. MSRP, education price list. The price list submitted must be dated: November 15, 2013. A discount schedule is to be provided for each band in the Price Workbook. Responders may define additional categories within a band. The category discounts may be higher or lower than the than the band discount. Responder must describe all available options for pricing services in the Price Workbooks such as discount off list, hourly fees, per unit fees, etc. The worksheet allows for up to seven categories, however the responder may edit their submission to include additional categories if needed. M YES NO 2 PRICE WORKBOOKS. Price Workbooks will be used to evaluate. Responders will be evaluated on the Price Workbook which includes a market basket for each band. For each band proposed, the Responder must complete the Price Workbook which includes several worksheets. The market basket includes selected configurations, services, peripherals , third party products to fairly evaluate discounted pricing. In evaluation the State reserves the right to: a. Eliminate an item from consideration from all responses. b. Enter the highest price item of all responses received when an item has not been provided by a responder. c. Request additional pricing items for consideration. d. Clarify pricing responses with responder(s). e. Include options, quantity discounts and/or services for basis of calculating the cost utilized in evaluation. The Contract Vendor will maintain the discount structure as bid throughout the term of the Master Agreement. For the purpose of comparing pricing across a standard group of products, the prices provided by the re sponder in the M YES NO 72 SECTION 4: COST PROPOSAL | 2014_0122 COST PROPOSAL M = MANDATORY MEETS UNDERSTAND & WILL COMPLY? Price Workbooks will be utilized to calculate cost points. Vendors must use the minimum percentage discount stated from a published or base line price listing for a “quantity one” purchase in the Pricing Workbook. Minimum specifications are provided in the Price Workbooks. Manufacturer specific items may be substituted for the minimum specification if the manufacturer is able to provide an approved equal. The lead state reserves the right to reject any or all responses that are not an approved equal. SAMPLE Price Workbooks are located in Section 6: Attachments for responders review and comment. FINAL EXCEL PRICE WORKBOOKS WILL BE PUBLISHED VIA AN ADDENDUM. There are a total of six workbooks: Band 1: Desktop: Band 2: Laptop Band 3: Tablets Band 4: Server: Band 5: Storage Band 6: Ruggedized: INSTRUCTIONS: 1. Each workbook contains several tabs. Responder is to fill in the yellow highlighted areas. Once filled in the yellow highlight disappears. 2. The workbooks are locked, however there is not a password and responder may revise as needed ensuring they supply yellow highlighted fields. 3. It is understood that different components may make up a total configuration for the market basket item. The responder may provide additional detail to how the discount provided in the market basket was calculated. The Lead State reserves the right to request additional pricing, if in the best interest of the state or to clarify pricing responses. 3 BASELINE PRICING VERIFICATION. The responder must designate a Base Line Price e.g. MSRP, education price list in the price workbook. The price list submitted is to be dated: November 15, 2013. Per Addendum 6: The Baseline Price List submitted may be dated an alternate date. However, the market basket pricing must be representative of the pricing for an YES NO 73 SECTION 4: COST PROPOSAL | 2014_0122 COST PROPOSAL M = MANDATORY MEETS UNDERSTAND & WILL COMPLY? order placed on November 15, 2013 for purposes of evaluation. Describe how the designated Base Line Price List will be accessed and verified by potential end users, contract administrators, etc. All historic versions of the Baseline Price List must be made available upon request pursuant to the audit provisions. The responder must provide ONE HARD COPY and ONE ELECTRONIC COPY (USB DRIVE OR CD) of the dated Baseline Price List with the response. The dated Baseline Price List provided shall be used for completing the price workbook when “List/MSRP” price is requested. M 4 MINIMUM DISCOUNTS. The Contract Vendor will provide a MINIMUM discount off base line price list for each band with categorized exceptions. It is understood there may be categories within a band which carry a different discount than the minimum stated. For example, the minimum discount for the laptop band could be 50%. The responder may name an additional category of laptops “Laptop Brand X” at 45% and “Laptop Brand Y” at 60%. Responder may categorize these exceptions by naming as categories and identifying the associated discounts in the price workbook. Th ese discounts must remain firm, or the discount may be increased, during the term of the Master Agreement. This minimum discount and categorized exceptions will be applied to all “quantity one” procurements. It will also serve as verification for the WSCA Master Agreement Administrator upon submittals of product additions. An end user will be able to verify pricing using the base line price list and the minimum discounts with the categorized exceptions provided . The named category exception discounts may be higher or lower than the than the minimum band discount. These discounts must remain firm, or the discount may be increased, during the term of the Master Agreement. This minimum discount and categorized exceptions will be applied to all “quantity one” procurements. It will also serve as verification for the WSCA Master Agreement Administrator upon submittals of product additions. An end user will be able to verify pricing using the base line pricing and minimum discounts and categorized exceptions provided. M YES NO 5 THIRD PARTY PRODUCTS. Third party products may be offered as peripherals and options in the Price Workbook. Third Party products will be approved upon finalization of the PSS. Contract Vendors are not able to offer another Contract Vendor’s product as a third party without approval. If third party products are offered, a third part y product minimum discount will be stated in the price workbook. YES NO 6 REFRESH STRATEGY. Describe your recommended refresh strategy for your product line. YES NO 7 MAINTAINING COMPETITIVE PRICING. Proposers will provide an initial MINIMUM discount with categorized exceptions off baseline price list for a quantity of one unit. Proposers are to base discounts on the collective volume of potential purchases by the participating entities. Further bulk/quantity savings may be obtained when additional quantities are requested. In order to maintain competitive pricing throughout the full life of the Master Agreement, Contract Vendor and Participating entities must understand it is the expectation to provide competitive pricing at the quantity one level. Additional savings are expected whenrecompeting the awarded vendors for volume pricing. M YES NO 8 PRODUCTS AND SERVICES SCHEDULE (PSS). Responders must submit with their COST proposal a proposed Product and Services Schedule including all the products and services offered within each band for this YES NO 74 SECTION 4: COST PROPOSAL | 2014_0122 COST PROPOSAL M = MANDATORY MEETS UNDERSTAND & WILL COMPLY? solicitation. The PSS should be submitted in Excel format. A sample has been provided in the attachments for reference, but is only an example. Other formats are acceptable. Submission of a product and/or service on the sample PSS does not guarantee that it will automatically be approved as being included in the resulting Master Agreement. The products, services and format for the final PSS will be finalized during negotiations. M 9 BULK PRICING. Utilize the Price W orkbook to provide additional volume based pricing for consideration. These will allow for deeper discounts for per transaction and cumulative volume purchases. Examples of bulk pricing models are included in Section 6. Responders must propose how they will provide deeper discount including, but not limited to: 1. Per Transaction Multiple Unit Discount. Responders may propose a contractual volume discount program or plan based on dollars in a single purchase order or combination of purchase orders submitted at one time by a Participating Entity or multiple entities conducting a cooperative purchase. Include a table indicating the additional discount percentage to be earned by volume purchased at one tim e. 2. Cumulative. Responders may propose a cumulative volume discount based on dollars resulting from the cumulative purchases by all governmental purchasers for the duration of their Master Agreement. Include a table indicating the additional discount percentage to be earned by cumulative volume purchased. 3. Other Discounts Describe additional discounts available to States or Participating Entities. M YES NO 10 PREMIUM SAVINGS PACKAGE PROGRAM. Contract Vendors are encouraged to participate in the Premium Savings Package (PSP) Program. If intending to participate, propose and describe commitment to offer and maintain deeply discounted standard configurations. Participants in the PSP program will commit to maintain and upgrade (keep pace with the advance of technology) the standard configurations for a stated period of time or intervals, as determined by the Participating Entities. The standards currently are refreshed every six months (May and November). Refre sh schedule is subject to change. See current configurations: http://www.wnpsp.com/index.html. States and other Participating Entities can choose to purchase these packages without any signing additional documents. Contract Vendors may provide Premium Savings & Packages in the bands awarded and comply with the following: a. Provide a WSCA-NASPO Premium Savings Packages-specific SKU for each proposed product. Discount must be provided on Contract Vendor related SKU as well. b. Standard configurations cannot change or be upgraded during the entire refresh period for any reason other than end-of-life issues (e.g., swapping of processor, motherboard, etc. is prohibited). c. Prices offered must be offered at a better than the quantity one Master Agreement discount. d. Pricing increases are generally not allowed unless there is documentation and justification provided . e. Provide marketing plan of the PSP Program including lead with PSP Program and display prominently on websites to market aggressively to all States. YES NO n/a for server storage vendors 75 SECTION 4: COST PROPOSAL | 2014_0122 COST PROPOSAL M = MANDATORY MEETS UNDERSTAND & WILL COMPLY? f. Submit quarterly usage reports broken out by State to the WSCA-NASPO Premium Savings Packages team lead and to the WSCA-NASPO PC Master Agreement Administrator. Individual reports to each State may also be required. The format for the reports must follow the current WSCA-NASPO PC reporting format. 11 PROMOTIONAL OFFERS: Contract Vendors will be allowed to provide promotions for deeply discounted products based on their inventory and sales. Promotions will also provide increased savings to States and other Participating Entities. The Contract Vendors will be responsible to market these offers. Describe what kind of promotions will be available and how marketing will be conducted. YES NO 12 Describe the Prompt Payment Terms (if available) to be offered: __% 30;__% 15/Net 30;__% 10/Net 30, Other (specify): _____________ YES NO 13 ADDED VALUE. Responders may propose suggestions on improvements and/or alternatives for doing business with your company that will make this contract more cost effective for your company and participating public agencies. YES NO 14 TRADE-IN. The Participating Addendum by each State will identify if and how trade-in or takeback terms will be conducted. If trade in program will be offered, provide pricing. YES NO 15 SERVICES. Services are at the option of the Participating Entity. The Participating Addendum by each State will address service agreement terms and related travel. Responder must describe all available options for pricing services in the Price Workbooks such as discount off list, hourly fees, per unit fees, etc. YES NO 16 LEASING. Responders are not required to provide leasing. Individual Participating States and Participating Entities may enter in to lease agreements for the products covered in the Master Agreements resulting from the RFP, if they have the legal authority to enter into these types of agreements. The Participating Addendum by each State will identify if and how leasing agreement terms will be conducted. Leasing will be at the option of each participating addendum. If leasing will be offered, provide rates. Do not submit lease documents or corresponding lease terms as these documents should be addressed in a State’s Participating addendum if applicable. YES NO 76 SECTION 5: EVALUATION PROCESS | 2014_0122 SECTION 5: EVALUATION PROCESS Except at the invitation of the Master Agreement Administrator, no activity or comments from responders regarding this RFP shall be discussed with any of the sourcing team during the solicitation and the evaluation of the responses. A responder who contacts a sourcing team member may, as a result, have its response rejected. Non-selection of any response will mean that either another response was determined to be more advantageous to the Lead State or that the Lead State exercised its right to reject all responses. At its discretion, the Lead State may perform an appropriate cost and pricing analysis of a vendor’s response, including an audit of the reasonableness of any response. During the evaluation process, all information concerning the responses submitted will remain private and will not be disclosed to anyone whose official duties do not require such knowledge. At any time during the evaluation, the Lead State may request that a responder provide explicit written clarification to any part of its response. Responses are private or nonpublic data until the completion of the evaluation process as defined by Minn. Stat. § 13.591. The completion of the evaluation process is defined as the Lead State having completed negotiating the Master Agreement with the selected vendor. If no award is made the responses are not made public. The State will notify all responders in writing of the evaluation results. If only one response is submitted to the solicitation, the Lead State reserves the right to review the response submitted for compliance and to award without assigning points or to reject the offer and re-issue the solicitation, whatever is in the Lead State’s best interest. Per the contract terms and conditions: Notwithstanding anything to the contrary, the Lead State reserves the right to: a. reject any and all responses received; b. select, for Master Agreements or for negotiations, a response other than that with the lowest cost; c. waive or modify any informalities, irregularities, or inconsistencies in the responses received; d. negotiate any aspect of the proposal with any responder and negotiate with more than one responder; e. request a BEST and FINAL OFFER, if the Lead State deems it necessary and desirable; and f. Suspend and/or terminate negotiations for the State, prepare and release a new RFP, or take such other action as the State deems appropriate if negotiations fail to result in a successful Master Agreement. g. Eliminate an item from consideration from all responses. h. Enter the highest price item of all responses received when an item has not been provided by a responder. i. Request additional pricing items for consideration. j. Clarify pricing responses with responder(s). k. Include options, quantity discounts and/or services for basis of calculating the cost utilized in evaluation. Preferences and prompt pay discount will be applied when evaluating cost as detailed in the Terms and Conditions or as otherwise specified in the solicitation PHASES. The State shall conduct an evaluation of responses to this RFP. The evaluations will be conducted in four phases: Phase I - Review and select responsive, compliant responses Phase II - Evaluate responses Phase III - Select finalists Phase IV - Sign Master Agreements Phase I - Review and Select Responsive, Compliant Responses. The purpose of this phase is to determine if each response complies with the mandatory terms, conditions, and specifications in the RFP. A pass/fail criteria will be used. A response must comply with all instructions listed in this RFP. The Lead State reserves the right to reject any and all responses, to modify these RFP specifications, or to waive any informalities in the RFP. Any response found to be non-responsive will be eliminated from further evaluation. 77 SECTION 5: EVALUATION PROCESS | 2014_0122 Phase II - Evaluate Responses. Only those responses found to be responsive under Phase I will be considered in Phase II. The Lead State may request clarification from one or more responders. The responses must be made in writing as the Lead State will only use what is in writing for evaluation purposes. The response to the request for clarification may be considered along with the original response for the evaluation. However, the Lead State reserves the right to make an award without further clarification of the responses received. Therefore, it is important that each response be submitted in the most complete manner possible. Responses will be rated as follows: Acceptance of Terms & Conditions 50 Points Accessibility 50 Points Environmental 50 Points Qualifications 75 Points Business 125 Points Customer Support 150 Points Cost Component 500 Points TOTAL 1000 Points As indicated above, points will be awarded based on the level of acceptance of the Terms and Conditions as specified in this RFP. Acceptance of all terms and conditions will result in the award of the maximum points available. Responders should note that the State reserves the right to pursue negotiations on any exception taken in Phase III. Responders should also note that the awarding of points does not automatically mean that the State has accepted the Responder’s proposed language. Phase III - Select Finalists. Only those responses that are found to be responsive under Phases I and II will be considered in Phase III. The Lead State reserves the right to request oral presentations, and/or Best & Final offers by the responders and the opportunity to interview key personnel during Phase II and/or III. The Lead State reserves the right to select the number of responders for the Best & Final offer, oral presentations, and/or to enter into negotiations. The evaluation scores may be revised as a result of the responses to the oral presentations, Best & Final Offer, and/or negotiations. The award of this solicitation will be based upon the total accumulated points as established in the RFP, for separate items, by grouping items, or by total lot, and where at its sole discretion the State believes it will receive the best value. The Lead State reserves the right to award this solicitation to a single responder, or to multiple responders, whichever is in the best interest of the Lead State. The Lead State reserves the right to accept all or part of an offer, to reject all offers, to cancel the solicitation, or to re-issue the solicitation, whichever is in the best interest of the Lead State. The Sourcing Team will make recommendations on the award of this RFP. The commissioner of Administration or designee may accept or reject the recommendation of the Sourcing Team. The final award decision will be made by the Commissioner of Administration and provided to the WSCA-NASPO Management Board for approval. Phase IV. Sign Master Agreement with Awarded Vendor. 78 SECTION 6: ATTACHMENTS | 2014_0122 SECTION 6: ATTACHMENTS A. Participating States Terms & Conditions B. Model Participating Addendum C. Model Master Agreement D. Action Request Form Sample E. Product and Service Schedule Sample F. Bulk/Volume Pricing Examples G. Detail Sales Report Template H. Price Workbooks I. Solicitation Summary 79 SECTION 6: ATTACHMENTS | 2014_0122 A. PARTICIPATING STATES SAMPLE TERMS & CONDITIONS Terms and Conditions will be negotiated with individual State after award of the Master Agreement. All States reserve the right to add additional terms and conditions to participating addendums. The following States have provided samples: 1. Minnesota 2. California 3. Connecticut 4. Massachusetts 5. New Jersey 6. Oregon 7. Utah 80 SECTION 6: ATTACHMENTS | 2014_0122 MINNESOTA SAMPLE PARTICIPATING ADDENDUM This SAMPLE is for informational purposes only and will be negotiated with individual State after award of the Master Agreement. All States reserve the right to add additional terms and conditions to a participating addendums. 1. ADMINISTRATIVE FEE. On a quarterly basis, the Contract Vendor shall return to the Department of Administration, Materials Management Division, a fee of 1% (.01) multiplication factor) of the total sales during that quarter, to assist with the cost of administering the Participating Addendum. The fee shall be remitted to the State within 30 days of the end of the quarter. The quarter periods are January 1 to March 31, April 1 to June 30, July 1 to September 30, and October 1 to December 31 of any given year. The Contract Vendor must provide a report detailing the total sales to State agencies and CPV members. The report must be submitted with the check on or before the required 30 days after the end of the quarter. The State reserves the right, at any time during the Participating Addendum period, to amend the Participating Addendum to change or add fees. This may include fees directed to the Department of Administration, Materials Management Division, Office of Enterprise Technology or other state entities. The reporting requirements and amount of the fee will be specified in the Participating Addendum amendment. The Contract Vendor will be allowed to adjust the Participating Addendum pricing up to the percentage of any additional fee(s). 2. DATA SECURITY. The Contract Vendor is required to recognize that on the performance of the Participating Addendum the Contract Vendor will become a holder of and have access to private data on individuals and nonpublic data as defined in the Minnesota Government Data Practices Act, Minnesota Statutes Chapter 13 and Minnesota Statutes Section 270B.02. In performance of the contract, the Successful Vendor agrees that it will comply with the laws under Minnesota Statute Chapters 325E.64, 270B and 13, relating to confidentiality of information received as a result of the contract. The Contract Vendor agrees that it, its officers, employees and agents will be bound by the above confidentiality laws and that it will establish procedures for safeguarding the informatio n. The Contract Vendor agrees to notify its officers, employees and agents of the requirements of confidentiality and of the possible penalties imposed by violation of these laws. The Contract Vendor agrees that neither it, nor its officers, employees or agents will disclose or make public any information received by the Contract Vendor on behalf of the State of Minnesota. The Contract Vendor shall recognize the State of Minnesota’s sole and exclusive right to control the use of this information. The Contract Vendor further agrees that it shall make no use of any of the described information, for either internal or external purposes, other than that which is directly related to the performance of the Participating Addendum. The Contract Vendor shall recognize that if it becomes aware of a privacy or security incident regarding the content of any State of Minnesota information, the Contract Vendor agrees to immediately report the event to the Minnesota Office of Enterprise Technology (OET) (d/b/a MN.IT). The Contract Vendor agrees to indemnify and hold harmless the State of Minnesota from any and all liabilities and claims resulting from the unauthorized disclosure by the Contract Vendor, its officers, employees or agents of any information required to be held confidential under the provisions of the Participating Addendum. The Contract Vendor must return all source data to the State’s project manager. 3. BUYING “OFF” CONTRACT. This Participating Addendum does not prohibit State agencies from using their delegated local purchasing authority to procure similar goods and services from other vendors. 4. DEFAULT. All commodities and services furnished will be subject to inspection and acceptance by the Ordering Entity after delivery. No substitutions or cancellations are permitted without written approval of the Ordering Entity. Back orders, failure to meet delivery requirements, or failures to meet specifications in the purchase 81 SECTION 6: ATTACHMENTS | 2014_0122 order and/or the Contract authorizes the Ordering Entity to cancel the purchase order, or any portion of it, purchase elsewhere, and charge the full increase in cost and administrative handling to the defaulting Contract Vendor. In the event of default, the State reserves the right to pursue any other remedy available by law. A Contract Vendor may be including but not limited to; removed from the vendor’s list, suspended or debarred from receiving a Master Agreement for failure to comply with the terms and conditions of the Master Agreement, or for failure to pay the State for the cost incurred on the defaulted Master Agreement 5. DEFINITIONS. CPV Members.The Cooperative Purchasing Venture (CPV) program was established by Minn. Stat. § 16C.03, subd. 10, which authorizes the commissioner of the Minnesota Department of Administration (Commissioner of Administration) through its Materials Management Division (MMD) to enter into a cooperative purchasing agreement for the provision of goods, services, and utilities” with one or more governmental units and other entities as described in Minn. Stat. § 471.59, subd. 1 and Minn. Stat. § 16C.03, subd. 10. Based on this authority, the Commissioner of Administration enters into a joint powers agreement that designates MMD as the authorized purchasing agent for the governmental unit or other entity. Governmental units and other entities joining the program are given an access code which identifies them as CPV members and permits them to access the MMD website to get information about commodities and/or services available on the State of Minnesota (State) contracts. Governmental units and other entities who are not members of the CPV program are not authorized to use the contract prices. The Contract Vendor agrees to provide the contract to CPV members at the same prices, terms, conditions, and specifications. For additional information, visit the MMD website at www.mmd.admin.state.mn.us. a. State Agencies. This term applies only to State agencies and departments, as defined in Minn. Stat. §§ 15.01 and 15.021. b. Ordering Entity. This term applies to any State Agency or CPV Member when allowed in the Participating Addendum. c. State and State of Minnesota. These two terms apply to the Minnesota Department of Administration, Materials Management Division (MMD), representing the State of Minnesota as the contracting agency for the Participating Addendum. d. Contract Vendor and Contractor. These two terms apply to the awarded vendor from the WSCA-NASPO Master Price Agreement that MMD selects to receive a Participating Addendum. e. Contract. Contract is defined as the WSCA-NASPO Master Price Agreement and the Minnesota Participating Addendum. 6. EFFECTIVE DATE and CONTRACT PERIOD. The Contract shall be effective upon the date of final execution by the State of Minnesota. The Contract term will begin on the date of Participating Addendum execution, to [Enter Specific Date], with the option to extend up to [Enter Numeric #] months, upon agreement by all parties. 7. ELECTRONIC FUNDS TRANSFER (EFT) PAYMENT METHOD AND STRUCTURE. In accordance with Minn. Stat. § 16A.40 the Contract Vendor is required to provide their bank routing information to the Minnesota Department of Finance to enable payments to be made through EFT. 8. E-VERIFY CERTIFICATION. For services in excess of $50,000, the Contract Vendor certifies that as of the date of services performed on behalf of the State, the Contract Vendor and all its subcontractors will have implemented or be in the process of implementing the federal E-Verify program for all newly hired employees in the United States who will perform work on behalf of the State. This is required by Minnesota Statutes Section 16C.075. The Contract Vendor shall be responsible for collecting all subcontractor certifications and may do so utilizing the E-Verify Subcontractor Certification Form available on MMD website www.mmd.admin.state.mn.us. All subcontractor certifications must be kept on file with the Contract Vendor and made available to the State upon request. 9. FUNDING OUT CLAUSE. Notwithstanding any other cancellation clauses, the State may immediately terminate this Contract if it does not obtain funding from the Minnesota Legislature beyond June 30, or from another funding source, or if funding cannot be continued at a level sufficient to allow for the payment of the goods or services in the Contract, whether due to a lack of direct funding or agency reallocation of funding, or if operations 82 SECTION 6: ATTACHMENTS | 2014_0122 of any paying entity are being discontinued. The State must provide the Contract Vendor with notice within a reasonable time after the decision is made to terminate the Contract. Termination will be by written or fax notice to the Contract Vendor. The State is not obligated to pay for any goods or service accepted or provided after notice and effective date of termination. However, the Contract Vendor will be entitled to payment for goods or services accepted or satisfactorily performed up until the effective date of the termination. The State will not be assessed any penalty if the Contract is terminated in accordance with this section. 10. GENERAL INSURANCE REQUIREMENTS. The Contractor/Contract Vendor (Contract Vendor) shall maintain insurance to cover claims which may arise from operations under this Contract, The Contract Vendor shall not commence work under the Contract until they have obtained all the insurance described below and the State of Minnesota has approved such insurance. The Contract Vendor shall maintain such insurance in force and effect throughout the term of the Contract. All coverages and limits shall remain in force and effect throughout the term of the Contract. NOTICE TO THE CONTRACT VENDOR: The failure of the State of Minnesota to obtain a Certificate of Insurance, for the policies required under this Contract or renewals thereof, or failure of the insurance company to notify the State of the cancellation of policies required under this Contract shall not constitute a waiver by the Owner to the Contract Vendor to provide such insurance. The Owner reserves the right to immediately terminate the Contract if the Contract Vendor is not in compliance with the insurance requirements and the Owner retains all rights to pursue any legal remedies against the Contract Vendor. All insurance policies must be open to inspection by the State, and copies of policies must be submitted to the State’s authorized representative upon written request. NOTICE TO INSURER: The Contract Vendor’s insurance company(ies) waives its right to assert the immunity of the State as a defense to any claims made under said insurance. REQUIREMENTS FOR THE CONTRACT VENDOR: The Contract Vendor’s policy(ies) shall be primary insurance to any other valid and collectible insurance available to the State of Minnesota with respect to any claim arising out of Contract Vendor’s performance under this Contract. If Contract Vendor receives a cancellation notice from an insurance carrier affording coverage herein, Contract Vendor agrees to notify the State of Minnesota within five (5) business days with a copy of the cancellation notice, unless Contract Vendor’s policy(ies) contain a provision that coverage afforded under the policy(ies) will not be cancelled without at least thirty (30) days advance written notice to the State of Minnesota. The Contract Vendor is responsible for payment of Contract related insurance premiums and deductibles. If the Contract Vendor is self-insured, a Certificate of Self-Insurance must be attached. Insurance companies must either (1) have an AM Best rating of A- (minus) and a Financial Size Category of VII or better, and be authorized to do business in the State of Minnesota or (2) be domiciled in the State of Minnesota and have a Certificate of Authority/Compliance from the MN Department of Commerce if they are not rated by AM Best. The Contract Vendor’s Umbrella or Excess Liability insurance policy may be used to supplement the Contract Vendor’s policy limits to satisfy the full policy limits required by the Contract. POLICY REQUIREMENTS: 1. Workers’ Compensation Insurance: Statutory Compensation Coverage. Except as provided below, Contract Vendor must provide Workers’ Compensation insurance for all its employees and in case any work is subcontracted, Contract Vendor will require the subcontractor to provide Workers’ Compensation insurance in accordance with the statutory requirements of the State of Minnesota, including Coverage B, Employer’s Liability. Minimum limits of liability: Coverage B – Employer’s Liability $100,000 Bodily Injury by Disease per Employee $500,000 Bodily Injury by Disease Aggregate 83 SECTION 6: ATTACHMENTS | 2014_0122 $100,000 Bodily Injury by Accident If Minn. Stat. § 176.041 exempts the Contract Vendor from Workers’ Compensation insurance or if the Contract Vendor has no employees in the State of Minnesota, the Contract Vendor must provide a written statement, signed by the authorized signer of the Contract, stating the qualifying exemption that excludes the Contract Vendor from MN Workers’ Compensation requirements. If during the course of the Contract the Contract Vendor becomes eligible for Workers’ Compensation, the Contract Vendor must comply with the Workers’ Compensation Insurance requirements included herein and provide the State of Minnesota with a certificate of insurance. Evidence of Subcontractor insurance shall be filed with the Contract Vendor. 2. Automobile Liability Insurance: The Contract Vendor shall maintain insurance to cover liability arising out of the ownership, operation, use or maintenance of all owned, hired and non-owned autos, and in case any work is subcontracted the Contract Vendor will require the subcontractor to maintain Automobile Liability insurance. A. Minimum Limits of Liability: $2,000,000 - Per Occurrence – Bodily Injury and Property Damage Combined Single Limit B. Coverages: X Owned Automobile X Non-owned Automobile X Hired Automobile Evidence of Subcontractor insurance shall be filed with the Contract Vendor. 3. General Liability Insurance: The Contract Vendor shall maintain insurance protecting it from claims for damages for bodily injury, including sickness or disease, death, and for care and loss of services as well as from claims for property damage, including loss of use which may arise from operations under the Contract whether the operations are by the Contract Vendor or by a subcontractor or by anyone directly or indirectly employed by the Contract Vendor under the Contract. A. Minimum Limits of Liability: $2,000,000 - Per Occurrence $2,000,000 - Annual Aggregate $2,000,000 - Annual Aggregate applying to Products/Completed Operations B. Coverages X Premises and Operations Bodily Injury and Property Damage X Personal & Advertising Injury X Blanket Contractual X Products and Completed Operations X State of Minnesota named as an Additional Insured 4. Professional/Technical, Errors and Omissions, including Network Security and Privacy Liability Insurance (or equivalent Network Security and Privacy Liability coverage endorsed on another form of liability coverage or written as a standalone policy): This policy will provide coverage for all claims the contractor may become legally obligated to pay resulting from any actual or alleged negligent act, error, or omission related to Contractor’s professional services required under the contract. Contractor is required to carry the following minimum limits:  $2,000,000 – per claim or event  $2,000,000 – annual aggregate Any deductible will be the sole responsibility of the Contractor and may not exceed $50,000 without the written approval of the State. If the Contractor desires authority from the State to have a deductible in a higher amount, the Contractor shall so request in writing, specifying the amount of the desired deductible and providing financial 84 SECTION 6: ATTACHMENTS | 2014_0122 documentation by submitting the most current audited financial statements so that the State can ascertain the ability of the Contractor to cover the deductible from its own resources. The retroactive or prior acts date of such coverage shall not be after the effective date of this Contract and Contractor shall maintain such insurance for a period of at least three (3) years, following completion of the work. If such insurance is discontinued, extended reporting period coverage must be obtained by Contractor to fulfill this requirement. Upon notification of award, and within seven (7) days of notification, the awarded vendor(s) must provide a Certificate of Insurance with the coverage and amounts called for in the solicitation. Any Contract awarded will not be executed until the Certificate of Insurance has been received and approved by the State. The State reserves the right to rescind the Contract award if the vendor does not provide the Certificate of Insurance within the required time. 11. INDEMNIFICATION. For clarification and not as a limitation, the Contract Vendor hereby expressly extends, in addition to the other terms, conditions and specifications of the Contract, the foregoing defense and indemnification obligations to Cooperative Purchasing Venture (CPV) Members, including Board of Trustees of the Minnesota State Colleges and Universities, in addition to Agency as defined in Minn. Stat. 16.C.02, in addition to the legislative and judicial branches and constitutional offices of state government. 12. PAYMENT. Minn. Stat. § 16A.124 requires payment within 30 days following receipt of an undisputed invoice, merchandise or service, whichever is later. Terms requesting payment in less than 30 days will be changed to read “Net 30 days.” The Ordering Entity is not required to pay the Contract Vendor for any goods and/or services provided without a written purchase order or other approved ordering document from the appropriate Ordering Entity. In addition, all goods and/or services provided must meet all terms, conditions and specifications of the Contract and the ordering document and be accepted as satisfactory by the Ordering Entity before payment will be issued. Conditions of Payment. The Contract Vendor under the Contract must be in accordance with the Contract as determined by the sole discretion of the State’s Authorized Representative and be in accordance with all applicable federal, state, and local laws, ordinances, rules, and regulations including business registration requirements of the Office of the Minnesota Secretary of State. 13. PRODUCTS CONTAINING CERTAIN TYPES OF POLYBROMINATED DIPHENYL ETHER BANNED. By signing the Contract, Contract Vendor certifies that they have read and will comply with Minn. Stat. §§ 325E.385- 325E.388. 14. PURCHASING CARDS. Contract Vendor will accept a purchasing card for order placement in addition to accepting a purchase order, without adding a surcharge or passing the processing fees or for the purchasing card back to the State. The State’s per transaction limit is currently $2,500 and is subject to change. 15. PROFESSIONAL/TECHNICAL (P/T) SERVICES. For state agencies, Professional/Technical Services must be related to the equipment and/or software purchased from this Contract and is limited to $50,000 per project and must be in the scope of the Master Agreement and the Participating Agreement. Based on the size, scope and complexity of the project, the State (Department of Administration, Materials Management Division) reserves the right, on a case by case basis, to approve dollar limits exceeding $50,000 per project. Professional/Technical Services above the $50,000 dollar limit must be related to said project. State agencies must request, in writing, and obtain prior written approval from the MMD - Professional/Technical Contracts Section, before proceeding with projects exceeding the $50,000 limit. 16. PRINTERS AND MULTI-FUNCTIONAL DEVICES. The Contract Vendor must indicate in the catalog or other marketing materials if the product will not operate, is not intended to operate, or will not operate under full manufacturer’s warranty, using paper with a post-consumer recycled content. If any descriptive marketing materials are silent as to functions utilizing recycled content paper, the Contract Vendor agrees that the customer can assume the product meets or exceeds the State requirements. 17. RETAINAGE. For Professional/Technical Services ten percent (10%) of the cost of each deliverable will be withheld by the State. The retainage will be held by the State until the deliverable has been reviewed by the head 85 SECTION 6: ATTACHMENTS | 2014_0122 of the agency entering into the Contract and the head of the agency has certified that the Contract Vendor has satisfactorily fulfilled the terms of the Contract. 18. SUBCONTRACTOR PAYMENT (When Applicable). In accordance with Minn. Stat. § 16A.1245, the Contract Vendor shall, within 10 days of receipt of payment from the State, pay all subcontractors and suppliers having an interest in the Contract their share of the payment for undisputed services provided by the subcontractors or suppliers. The Contract Vendor is required to pay interest of 1-1/2 percent per month or any part of a month to the subcontractor on any undisputed amount not paid on time to the subcontractor. The minimum monthly interest penalty payment for an unpaid, undisputed balance of $100 or more will be $10. For an unpaid balance of less than $100, the amount will be the actual penalty due. A subcontractor that takes civil action against the Contract Vendor to collect interest penalties and prevails will be entitled to its costs and disbursements, including attorney’s fees that were incurred in bringing the action. The Contract Vendor agrees to take all steps necessary to comply with said statute. A consultant is a subcontractor under the Contract. In the event the Contract Vendor fails to make timely payments to a subcontractor or supplier, the State may, at its sole option and discretion, pay a subcontractor or supplier any amounts due from the Contract Vendor and deduct said payment from any remaining amounts due the Contract Vendor. Before any such payment is made to a subcontractor or supplier, the State shall provide the Contract Vendor written notice that payment will be made directly to a subcontractor or supplier for undisputed services. If there are no remaining outstanding payments to the Contract Vendor, the State shall have no obligation to pay or to see to the payment of money to a subcontractor except as may otherwise be required by law. 19. SUPPLY CHAIN SECURITY. The Contract Vendor must ensure that the Contract Vendor and any subcontractors or third parties involved in assembling, manufacturing, packaging, distributing, handling, warehousing, transporting or shipping State of Minnesota goods, including goods intended to be but not yet delivered to the State of Minnesota, meet all applicable security standards and all applicable local, state, federal, and international laws, rules and regulations (hereinafter “supply chain security”). Contract Vendor must maintain certification in an official supply chain security program (ISO 28000, Customs- Trade Partnership Against Terrorism (C-TPAT), Authorized Economic Operator (AEO), or other program accepted in writing by the State of Minnesota, Office of Enterprise Technology (OET d/b/a MN.IT Services or MN.IT and the State of Minnesota, Department of Administration’s Materials Management Division (MMD)) and comply with the program’s security standards for all orders sourced from the Contract/Agreement. To demonstrate certification, Contract Vendor must provide to MMD and OET within one month following the effective date of this Contract/Agreement or amendment adding this Section, whichever is later, a letter verifying its certification status in an official supply chain security program and, if available, supporting documentation of its certification. Contract Vendor must immediately notify MMD and OET of any change to its certification status. Alternatively, if Contract Vendor is not certified or loses certification, Contract Vendor must complete an OET security form to confirm that it complies with supply chain security. The form will require supporting documentation of any responses and must be completed to OET’s satisfaction. Notification of Supply Chain Security Breach. Contract Vendor and its subcontractors must immediately notify MMD, OET, and the Purchasing Entity, if different from OET, of any breach of supply chain security involving State of Minnesota goods, including goods intended to be but not yet delivered to the State of Minnesota. Breach of supply chain security includes, but is not limited to, cargo theft, tampering, unauthorized access, or other activities that involve suspicious actions or circumstances. Goods received with viruses, malware or similar security deficiencies constitute breach of supply chain security. Return/Rejection of Goods. If a breach of supply chain security has occurred or the State of Minnesota in good faith suspects a breach may have occurred, including evidence that packaging or goods were tampered with or damaged, the State may reject delivery of those goods and/or return any goods already delivered. Breach of supply chain security has the meaning described in the preceding Subsection “Notification of Supply Chain Security Breach.” Rejection of delivery or return of goods shall be solely at the expense and responsibility of the Contract Vendor. The State of Minnesota may instruct Contract Vendor, at Contract Vendor’s expense, to sanitize or destroy returned goods and, upon completing sanitization or destruction, Contract Vendor must provide a Certificate of Data Destruction that meets the requirements of the then current version of NIST Special Publication 800- 86 SECTION 6: ATTACHMENTS | 2014_0122 88. The Certificate of Data Destruction must be provided to OET within one month following the completion of sanitization or destruction. At no additional expense to the State of Minnesota, Contract Vendor must provide within a reasonable time frame replacement goods for any goods that were rejected at delivery or returned due to a supply chain security breach. 20. TAXES. State Agencies are subject to paying Minnesota sales and use taxes. Taxes will be paid directly to the Department of Revenue using Direct Pay Permit #1114, unless otherwise instructed in the Contract. If orders are issued by CPV Members, the Contract Vendor should confirm all of the tax requirements with the Ordering Entity. 21. TERMINATION OF THE PARTICIPATING ADDENDUM. The Participating Addendum may be canceled by the State or the Commissioner of Administration at any time, with or without cause, upon 30 days written notice to the Contract Vendor. In the event the Contract Vendor is in default, the Participating Addendum is subject to immediate cancellation to the extent allowable by applicable law. In the event of such a cancellation, the Contract Vendor shall be entitled to payment, determined on a pro rata basis, for work or services satisfactorily performed and accepted. The Contract Vendor may request to cancel the Participating Addendum but must receive written approval from the State. 22. ACCEPTANCE TESTING. The Parties may agree upon an Acceptance Test that demonstrates to the satisfaction of the State that the product meets the representations set forth in the Responder’s Contract. The State shall have the right to add to, modify, or replace the Contract Vendor’s proposed Acceptance Test with equivalent tests which, in the State’s opinion, more adequately demonstrate system capabilities for proposed State applications. The Acceptance Test will be performed at the site using the actual products, software, and interfaces stated as necessary for performance. No payment for deliverables will be authorized by the State until this Acceptance Test is satisfactorily completed and the State notifies the Contract Vendor of such acceptance in writing. Product shall be required to pass acceptance testing and system performance testing before final acceptance. Acceptance testing will take place over a period of 30 days starting with the first day of actual service, unless otherwise mutually agreed. Contract Vendor shall be available to assist with operation of the installed product during the Acceptance Test period. The Contract Vendor and the State shall work together to develop the final testing criteria. 87 SECTION 6: ATTACHMENTS | 2014_0122 CALIFORNIA ADDITIONAL TERMS A. California Participating Addendum Eligibility Requirements (for use by State Departments) The State of California will only consider entering into a Participating Addendum with a successful Responder for a specific band when the following conditions are met: 1. At least three Responders were awarded Master Agreements for the band; and 2. Responder’s point total in Phase II of the RFP Evaluation was within 25% of the highest point total for the Band. Note: California will only be able to execute Participating Addenda for bands where at least three (3) successful Responders, meeting the criteria outlined above, sign Participating Addenda. B. California Participating Addendum Eligibility Requirements (for use by Political Subdivisions) The State of California reserves the right to decide on Participating Addendum eligibility requirements after award of Master Agreement(s). C. Terms and Conditions Terms and conditions listed below will be incorporated and made a part of California Participating Addenda: 1. State Information Technology (IT) General Provisions – GSPD401IT, effective 06/08/10. The ten page document can be viewed at: http://www.documents.dgs.ca.gov/pd/modellang/GPIT060810.pdf. 2. State Information Technology (IT) Purchase Special Provisions, effective 02/08/07. The two page document can be viewed at: http://www.documents.dgs.ca.gov/pd/modellang/Purchsespecial020807.pdf . 3. State Information Technology (IT) Maintenance Special Provisions, effective 1/21/03. The five page document can be viewed at: http://www.documents.dgs.ca.gov/pd/modellang/maintenancespecial12103.pdf . 4. State Information Technology (IT) Software License Special Provisions, effective 1/21/03. The three page document can be viewed at: http://www.documents.dgs.ca.gov/pd/modellang/softwarespecial012103.pdf . 5. American Recovery and Reinvestment Act (ARRA) Supplemental Terms and Conditions, revised 08/10/09. The two page document can be viewed at: http://www.documents.dgs.ca.gov/pd/poliproc/ARRATand%20C081009final.pdf. The State of California reserves the right to add additional terms and conditions to the Participating Addendum. 88 SECTION 6: ATTACHMENTS | 2014_0122 CONNECTICUT Terms and Conditions Whistleblowing. This Contract may be subject to the provisions of Section 4-61dd of the Connecticut General Statutes. In accordance with this statute, if an officer, employee or appointing authority of the Contractor takes or threatens to take any personnel action against any employee of the Contractor in retaliation for such employee's disclosure of information to any employee of the contracting state or quasi-public agency or the Auditors of Public Accounts or the Attorney General under the provisions of subsection (a) of such statute, the Contractor shall be liable for a civil penalty of not more than five thousand dollars for each offense, up to a maximum of twenty per cent of the value of this Contract. Each violation shall be a separate and distinct offense and in the case of a continuing violation, each calendar day's continuance of the violation shall be deemed to be a separate and distinct offense. The State may request that the Attorney General bring a civil action in the Superior Court for the Judicial District of Hartford to seek imposition and recovery of such civil penalty. In accordance with subsection (f) of such statute, each large state contractor, as defined in the statute, shall post a notice of the provisions of the statute relating to large state contractors in a conspicuous place which is readily available for viewing by the employees of the Contractor. Forum and Choice of Law. The parties deem the Contract to have been made in the City of Hartford, State of Connecticut. Both parties agree that it is fair and reasonable for the validity and construction of the Contract to be, and it shall be, governed by the laws and court decisions of the State of Connecticut, without giving effect to its principles of conflicts of laws. To the extent that any immunities provided by Federal law or the laws of the State of Connecticut do not bar an action against the State, and to the extent that these courts are courts of competent jurisdiction, for the purpose of venue, the complaint shall be made returnable to the Judicial District of Hartford only or shall be brought in the United States District Court for the District of Connecticut only, and shall not be transferred to any other court, provided, however, that nothing here constitutes a waiver or compromise of the sovereign immunity of the State of Connecticut. The Contractor waives any objection which it may now have or will have to the laying of venue of any Claims in any forum and further irrevocably submits to such jurisdiction in any suit, action or proceeding. Sovereign Immunity. The parties acknowledge and agree that nothing in the solicitation or the Contract shall be construed as a modification, compromise or waiver by the State of any rights or defenses of any immunities provided by Federal law or the laws of the State of Connecticut to the State or any of its officers and employees, which they may have had, now have or will have with respect to all matters arising out of the Contract. To the extent that this section conflicts with any other section, this section shall govern. Summary of State Ethics Laws. Pursuant to the requirements of section 1-101qq of the Connecticut General Statutes, the summary of State ethics laws developed by the State Ethics Commission pursuant to section 1-81b of the Connecticut General Statutes is incorporated by reference into and made a part of the Contract as if the summary had been fully set forth in the Contract. Campaign Contribution Restriction. For all State contracts, defined in Conn. Gen. Stat. §9-612(g)(1) as having a value in a calendar year of $50,000 or more, or a combination or series of such agreements or contracts having a value of $100,000 or more, the authorized signatory to this Contract expressly acknowledges receipt of the State Elections Enforcement Commission’s notice advising state contractors of state campaign contribution and solicitation prohibitions, and will inform its principals of the contents of the notice, as set forth in "Notice to Executive Branch State Contractors and Prospective State Contractors of Campaign Contribution and Solicitation Limitations,” attached to this Participating Addendum. 89 SECTION 6: ATTACHMENTS | 2014_0122 Executive Orders. This Contract is subject to the provisions of Executive Order No. Three of Governor Thomas J. Meskill, promulgated June 16, 1971, concerning labor employment practices, Executive Order No. Seventeen of Governor Thomas J. Meskill, promulgated February 15, 1973, concerning the listing of employment openings and Executive Order No. Sixteen of Governor John G. Rowland promulgated August 4, 1999, concerning violence in the workplace, all of which are incorporated into and are made a part of the Contract as if they had been fully set forth in it. The Contract may also be subject to the applicable parts of Executive Order No. 7C of Governor M. Jodi Rell, promulgated July 13, 2006, concerning contracting reforms and Executive Order No. 14 of Governor M. Jodi Rell, promulgated April 17, 2006, concerning procurement of cleaning products and services, in accordance with their respective terms and conditions. If Executive Orders 7C and 14 are applicable, they are deemed to be incorporated into and are made a part of the Contract as if they had been fully set forth in it. At the Contractor’s request, the Department shall provide a copy of these orders to the Contractor. Nondiscrimination (a) For purposes of this Section, the following terms are defined as follows: i. "Commission" means the Commission on Human Rights and Opportunities; ii. "Contract" and “contract” include any extension or modification of the Contract or contract; iii. "Contractor" and “contractor” include any successors or assigns of the Contractor or contractor; iv. "Gender identity or expression" means a person's gender-related identity, appearance or behavior, whether or not that gender-related identity, appearance or behavior is different from that traditionally associated with the person's physiology or assigned sex at birth, which gender-related identity can be shown by providing evidence including, but not limited to, medical history, care or treatment of the gender-related identity, consistent and uniform assertion of the gender-related identity or any other evidence that the gender-related identity is sincerely held, part of a person's core identity or not being asserted for an improper purpose; v. “good faith" means that degree of diligence which a reasonable person would exercise in the performance of legal duties and obligations; vi. "good faith efforts" shall include, but not be limited to, those reasonable initial efforts necessary to comply with statutory or regulatory requirements and additional or substituted efforts when it is determined that such initial efforts will not be sufficient to comply with such requirements; vii. "marital status" means being single, married as recognized by the state of Connecticut, widowed, separated or divorced; viii. "mental disability" means one or more mental disorders, as defined in the most recent edition of the American Psychiatric Association's "Diagnostic and Statistical Manual of Mental Disorders", or a record of or regarding a person as having one or more such disorders; ix. "minority business enterprise" means any small contractor or supplier of materials fifty-one percent or more of the capital stock, if any, or assets of which is owned by a person or persons: (1) who are active in the daily affairs of the enterprise, (2) who have the power to direct the management and policies of the enterprise, and (3) who are members of a minority, as such term is defined in subsection (a) of Connecticut General Statutes § 32-9n; and x. "public works contract" means any agreement between any individual, firm or corporation and the State or any political subdivision of the State other than a municipality for construction, rehabilitation, conversion, extension, demolition or repair of a public building, highway or other changes or improvements in real property, or which is financed in whole or in part by the State, including, but not limited to, matching expenditures, grants, loans, insurance or guarantees. For purposes of this Section, the terms "Contract" and “contract” do not include a contract where each contractor is (1) a political subdivision of the state, including, but not limited to, a municipality, (2) a quasi-public agency, as defined in Conn. Gen. Stat. Section 1-120, (3) any other state, including but not limited to any federally recognized Indian tribal governments, as defined in Conn. Gen. Stat. Section 1-267, (4) the federal government, (5) a foreign government, or (6) an agency of a subdivision, agency, state or government described in the immediately preceding enumerated items (1), (2), (3), (4) or (5). (b) (1) The Contractor agrees and warrants that in the performance of the Contract such Contractor will not discriminate or permit discrimination against any person or group of persons on the grounds of race, color, religious creed, age, marital status, national origin, ancestry, sex, gender identity or expression, mental retardation, mental disability or physical disability, including, but not limited to, blindness, unless it is shown by such Contractor that such disability prevents performance of the work involved, in any manner prohibited by the laws of the United States or of the State of Connecticut; and the Contractor further agrees to take affirmative action to insure that applicants with job-related qualifications are employed and that employees are treated when employed without 90 SECTION 6: ATTACHMENTS | 2014_0122 regard to their race, color, religious creed, age, marital status, national origin, ancestry, sex, gender identity or expression, mental retardation, mental disability or physical disability, including, but not limited to, blindness, unless it is shown by the Contractor that such disability prevents performance of the work involved; (2) the Contractor agrees, in all solicitations or advertisements for employees placed by or on behalf of the Contractor, to state that it is an "affirmative action-equal opportunity employer" in accordance with regulations adopted by the Commission; (3) the Contractor agrees to provide each labor union or representative of workers with which the Contractor has a collective bargaining Agreement or other contract or understanding and each vendor with which the Contractor has a contract or understanding, a notice to be provided by the Commission, advising the labor union or workers’ representative of the Contractor's commitments under this section and to post copies of the notice in conspicuous places available to employees and applicants for employment; (4) the Contractor agrees to comply with each provision of this Section and Connecticut General Statutes §§ 46a-68e and 46a-68f and with each regulation or relevant order issued by said Commission pursuant to Connecticut General Statutes §§ 46a-56, 46a-68e and 46a-68f; and (5) the Contractor agrees to provide the Commission on Human Rights and Opportunities with such information requested by the Commission, and permit access to pertinent books, records and accounts, concerning the employment practices and procedures of the Contractor as relate to the provisions of this Section an d Connecticut General Statutes § 46a-56. If the contract is a public works contract, the Contractor agrees and warrants that he will make good faith efforts to employ minority business enterprises as subcontractors and suppliers of materials on such public works projects. (c) Determination of the Contractor's good faith efforts shall include, but shall not be limited to, the following factors: The Contractor's employment and subcontracting policies, patterns and practices; affirmative advertising, recruitment and training; technical assistance activities and such other reasonable activities or efforts as the Commission may prescribe that are designed to ensure the participation of minority business enterprises in public works projects. (d) The Contractor shall develop and maintain adequate documentation, in a manner prescribed by the Commission, of its good faith efforts. (e) The Contractor shall include the provisions of subsection (b) of this Section in every subcontract or purchase order entered into in order to fulfill any obligation of a contract with the State and such provisions shall be binding on a subcontractor, vendor or manufacturer unless exempted by regulations or orders of the Commission. The Contractor shall take such action with respect to any such subcontract or purchase order as the Commission may direct as a means of enforcing such provisions including sanctions for noncompliance in accordance with Connecticut General Statutes §46a-56; provided if such Contractor becomes involved in, or is threatened with, litigation with a subcontractor or vendor as a result of such direction by the Commission, the Contractor may request the State of Connecticut to enter into any such litigation or negotiation prior thereto to protect the interests of the State and the State may so enter. (f) The Contractor agrees to comply with the regulations referred to in this Section as they exist on the date of this Contract and as they may be adopted or amended from time to time during the term of this Contract and any amendments thereto. (g) (1) The Contractor agrees and warrants that in the performance of the Contract such Contractor will not discriminate or permit discrimination against any person or group of persons on the grounds of sexual orientation, in any manner prohibited by the laws of the United States or the State of Connecticut, and that employees are treated when employed without regard to their sexual orientation; (2) the Contractor agrees to provide each labor union or representative of workers with which such Contractor has a collective bargaining Agreement or other contract or understanding and each vendor with which such Contractor has a contract or understanding, a notice to be provided by the Commission on Human Rights and Opportunities advising the labor union or workers' representative of the Contractor's commitments under this section, and to post copies of the notice in conspicuous places available to employees and applicants for employment; (3) the Contractor agrees to comply with each provision of this section and with each regulation or relevant order issued by said Commission pursuant to Connecticut General Statutes § 46a-56; and (4) the Contractor agrees to provide the Commission on Human Rights and Opportunities with such information requested by the Commission, and permit access to pertinent books, records and accounts, concerning the employment practices and procedures of the Contractor which relate to the provisions of this Section and Connecticut General Statutes § 46a-56. (h) The Contractor shall include the provisions of the foregoing paragraph in every subcontract or purchase order entered into in order to fulfill any obligation of a contract with the State and such provisions shall be binding on a subcontractor, vendor or manufacturer unless exempted by regulations or orders of the Commission. The Contractor shall take such action with respect to any such subcontract or purchase order as the Commission may direct as a means of enforcing such provisions including sanctions for noncompliance in accordance with Connecticut General Statutes § 46a-56; provided, if such Contractor becomes involved in, or is threatened with, litigation with a subcontractor or vendor as a result of such direction by the Commission, the Contractor may request the State of Connecticut to enter into any such litigation or negotiation prior thereto to protect the interests of the State and the State may so enter. 91 SECTION 6: ATTACHMENTS | 2014_0122 Tangible Personal Property (a) The Contractor on its behalf and on behalf of its Affiliates, as defined below, shall comply with the provisions of Conn. Gen. Stat. §12-411b, as follows: (1) For the term of the Contract, the Contractor and its Affiliates shall collect and remit to the State of Connecticut, Department of Revenue Services, any Connecticut use tax due under the provisions of Chapter 219 of the Connecticut General Statutes for items of tangible personal property sold by the Contractor or by any of its Affiliates in the same manner as if the Contractor and such Affiliates were engaged in the business of selling tangible personal property for use in Connecticut and had sufficient nexus under the provisions of Chapter 219 to be required to collect Connecticut use tax; (2) A customer’s payment of a use tax to the Contractor or its Affiliates relieves the customer of liability for the use tax; (3) The Contractor and its Affiliates shall remit all use taxes they collect from customers on or before the due date specified in the Contract, which may not be later than the last day of the month next succeeding the end of a calendar quarter or other tax collection period during which the tax was collected; (4) The Contractor and its Affiliates are not liable for use tax billed by them but not paid to them by a customer; and (5) Any Contractor or Affiliate who fails to remit use taxes collected on behalf of its customers by the due date specified in the Contract shall be subject to the interest and penalties provided for persons required to collect sales tax under chapter 219 of the general statutes. (b) For purposes of this section of the Contract, the word “Affiliate” means any person, as defined in section 12-1 of the general statutes, that controls, is controlled by, or is under common control with another person. A person controls another person if the person owns, directly or indirectly, more than ten per cent of the voting securities of the other person. The word “voting security” means a security that confers upon the holder the right to vote for the election of members of the board of directors or similar governing body of the business, or that is convertible into, or entitles the holder to receive, upon its exercise, a security that confers such a right to vote. “Voting security” includes a general partnership interest. (c) The Contractor represents and warrants that each of its Affiliates has vested in the Contractor plenary authority to so bind the Affiliates in any agreement with the State of Connecticut. The Contractor on its own behalf and on behalf of its Affiliates shall also provide, no later than 30 days after receiving a request by the State’s contracting authority, such information as the State may require to ensure, in the State’s sole determination, compliance with the provisions of Chapter 219 of the Connecticut Genera l Statutes, including, but not limited to, §12-411b. Audit and Inspection of Plants, Places of Business and Records (a) The State and its agents, including, but not limited to, the Connecticut Auditors of Public Accounts, Attorney General and State’s Attorney and their respective agents, may, at reasonable hours, inspect and examine all of the parts of the Contractor’s and Contractor Parties’ plants and places of business which, in any way, are related to, or involved in, the performance of this Contract. (b) The Contractor shall maintain, and shall require each of the Contractor Parties to maintain, accurate and complete Records. The Contractor shall make all of its and the Contractor Parties’ Records available at all reasonable hours for audit and inspection by the State and its agents. (c) The State shall make all requests for any audit or inspection in writing and shall provide the Contractor with at least twenty- four (24) hours’ notice prior to the requested audit and inspection date. If the State suspects fraud or other abuse, or in the event of an emergency, the State is not obligated to provide any prior notice. (d) All audits and inspections shall be at the State’s expense. (e) The Contractor shall keep and preserve or cause to be kept and preserved all of its and Contractor Parties’ Records until thr ee (3) years after the latter of (i) final payment under this Contract, or (ii) the expiration or earlier termination of this Contract, as the same may be modified for any reason. The State may request an audit or inspection at any time during this period. If 92 SECTION 6: ATTACHMENTS | 2014_0122 any Claim or audit is started before the expiration of this period, the Contractor shall retain or cause to be retained all Records until all Claims or audit findings have been resolved. (f) The Contractor shall cooperate fully with the State and its agents in connection with an audit or inspection. Following any audit or inspection, the State may conduct and the Contractor shall cooperate with an exit conference. (g) The Contractor shall incorporate this entire Section verbatim into any contract or other agreement that it enters into with any Contractor Party. Protection of Confidential Information (a) Contractor and Contractor Parties, at their own expense, have a duty to and shall protect from a Confidential Information Breach any and all Confidential Information which they come to possess or control, wherever and however stored or maintained, in a commercially reasonable manner in accordance with current industry standards. (b) Each Contractor or Contractor Party shall develop, implement and maintain a comprehensive data - security program for the protection of Confidential Information. The safeguards contained in such program shall be consistent with and comply with the safeguards for protection of Confidential Information, and information of a similar character, as set forth in all applicable federal and state law and written policy of the Department or State concerning the confidentiality of Confidential Information. Such data-security program shall include, but not be limited to, the following: (1) A security policy for employees related to the storage, access and transportation of data containing Confidential Information; (2) Reasonable restrictions on access to records containing Confidential Information, including access to any locked storage where such records are kept; (3) A process for reviewing policies and security measures at least annually; (4) Creating secure access controls to Confidential Information, including but not limited to passwords; and (5) Encrypting of Confidential Information that is stored on laptops, portable devices or being transmitted electronically. (c) The Contractor and Contractor Parties shall notify the Department and the Connecticut Office of the Attorney General as soon as practical, but no later than twenty-four (24) hours, after they become aware of or suspect that any Confidential Information which Contractor or Contractor Parties have come to possess or control has been subject to a Confidential Information Breach. If a Confidential Information Breach has occurred, the Contractor shall, within three (3) business days after the notification, present a credit monitoring and protection plan to the Commissioner of Administrative Services, the Department and the Connecticut Office of the Attorney General, for review and approval. Such credit monitoring or protection plan shall be made available by the Contractor at its own cost and expense to all individuals affected by the Confidential Information Breach. Such credit monitoring or protection plan shall include, but is not limited to reimbursement for the cost of placing and lifting one (1) security freeze per credit file pursuant to Connecticut General Statutes § 36a-701a. Such credit monitoring or protection plans shall be approved by the State in accordance with this Section and shall cover a length of time commensurate with the circumstances of the Confidential Information Breach. The Contractors’ costs and expenses for the credit monitoring and protection plan shall not be recoverable from the Department, any State of Connecticut entity or any affected individuals. (d) The Contractor shall incorporate the requirements of this Section in all subcontracts requiring each Contractor Party to safeguard Confidential Information in the same manner as provided for in this Section. (e) Nothing in this Section shall supersede in any manner Contractor’s or Contractor Party’s obligations pursuant to HIPAA or the provisions of this Contract concerning the obligations of the Contractor as a Business Associate of the Department. 93 SECTION 6: ATTACHMENTS | 2014_0122 Financial Audit for State Grants For purposes of this paragraph, the word "contractor" shall be deemed to mean "nonstate entity," as that term is defined in Section 4- 230 of the Connecticut General Statutes. The contractor shall provide for an annual financial audit acceptable to the Department for any expenditure of state-awarded funds made by the contractor. Such audit shall include management letters and audit recommendations. The State Auditors of Public Accounts shall have access to all records and accounts for the fiscal year(s) in which the award was made. The contractor will comply with federal and state single audit standards as applicable. 94 SECTION 6: ATTACHMENTS | 2014_0122 MASSACHUSETTS This Commonwealth Terms and Conditions form is jointly issued by the Executive Office for Administration and Finance (ANF), the Office of the Comptroller (CTR) and the Operational Services Division (OSD) for use by all Commonwealth of Massachusetts (“State”) Departments and Contractors. Any changes or electronic alterations by either the Department or the Contractor to the official version of this form, as jointly published by ANF, CTR and OSD, shall be void. Upon execution of these Commonwealth Terms and Conditions by the Contractor and filing as prescribed by the Office of the Comptroller, these Commonwealth Terms and Conditions will be incorporated by reference into any Contract for Commodities and Services executed by the Contractor and any State Department, in the absence of a superseding law or regulation requiring a different Contract form. Performance shall include services rendered, obligations due, costs incurred, commodities and deliverables provided and accepted by the Department, programs provided or other commitments authorized under a Contract. A deliverable shall include any tangible product to be delivered as an element of performance under a Contract. The Commonwealth is entitled to ownership and possession of all deliverables purchased or developed with State funds. Contract shall mean the Standard Contract Form issued jointly by ANF, CTR and OSD. 1. Contract Effective Start Date. Notwithstanding verbal or other representations by the parties, or an earlier start date indicated in a Contract, the effective start date of performance under a Contract shall be the date a Contract has been executed by an authorized signatory of the Contractor, the Department, a later date specified in the Contract or the date of any approvals required by law or regulation, whichever is later. 2. Payments And Compensation. The Contractor shall only be compensated for performance delivered and accepted by the Department in accordance with the specific terms and conditions of a Contract. All Contract payments are subject to appropriation pursuant to M.G.L. C. 29, §26, or the availability of sufficient non-appropriated funds for the purposes of a Contract, and shall be subject to intercept pursuant to M.G.L. C. 7A, §3 and 815 CMR 9.00. Overpayments shall be reimbursed by the Contractor or may be offset by the Department from future payments in accordance with state finance law. Acceptance by the Contractor of any payment or partial payment, without any written objection by the Contractor, shall in each instance operate as a release and discharge of the State from all claims, liabilities or other obligations relating to the performance of a Contract. 3. Contractor Payment Mechanism. All Contractors will be paid using the Payment Voucher System unless a different payment mechanism is required. The Contractor shall timely submit invoices (Payment Vouchers - Form PV) and supporting documentation as prescribed in a Contract. The Department shall review and return rejected invoices within fifteen (15) days of receipt with a written explanation for rejection. Payments shall be made in accordance with the bill paying policy issued by the Office of the Comptroller and 815 CMR 4.00, provided that payment periods listed in a Contract of less than forty-five (45) days from the date of receipt of an invoice shall be effective only to enable a Department to take advantage of early payment incentives and shall not subject any payment made within the forty-five (45) day period to a penalty. The Contractor Payroll System, shall be used only for "Individual Contractors" who have been determined to be "Contract Employees" as a result of the Department's completion of an Internal Revenue Service SS-8 form in accordance with the Omnibus Budget Reconciliation Act (OBRA) 1990, and shall automatically process all state and federal mandated payroll, tax and retirement deductions. 4. Contract Termination Or Suspension. A Contract shall terminate on the date specified in a Contract, unless this date is properly amended in accordance with all applicable laws and regulations prior to this date, or unless terminated or suspended under this Section upon prior written notice to the Contractor. The Department may terminate a Contract without cause and without penalty, or may terminate or suspend a Contract if the Contractor breaches any material term or condition or fails to perform or fulfill any material obligation required by a Contract, or in the event of an elimination of an appropriation or availability of sufficient funds for the purposes of a Contract, or in the event of an unforeseen public emergency mandating immediate Department action. Upon immediate notification to the other party, neither the Department nor the Contractor shall be deemed to be in breach for failure or delay in performance due to Acts of God or other causes factually beyond their control and without their fault or negligence. Subcontractor failure to perform or price increases due to market fluctuations or product availability will not be deemed factually beyond the Contractor's control. 5. Written Notice. Any notice shall be deemed delivered and received when submitted in writing in person or when delivered by any other appropriate method evidencing actual receipt by the Department or the Contractor. Any written notice of termination or suspension delivered to the Contractor shall state the effective date and period of the notice, the reasons for the termination or suspension, if applicable, any alleged breach or failure to perform, a reasonable period to cure any allege d breach or failure to perform, if applicable, and any instructions or restrictions concerning allowable activities, costs or expenditures by the Contractor during the notice period. 6. Confidentiality. The Contractor shall comply with M.G.L. C. 66A if the Contractor becomes a "holder" of "personal data". The Contractor shall also protect the physical security and restrict any access to personal or other Department data in the Contractor's possession, or used by the Contractor in the performance of a Contract, which shall include, but is not limited to the Department's public records, documents, files, software, equipment or systems. 7. Record-keeping And Retention, Inspection Of Records. The Contractor shall maintain records, books, files and other data as specified in a Contract and in such detail as shall properly substantiate claims for payment under a Contract, for a minimum retention period of seven (7) years beginning on the first day after the final payment under a Contract, or such longer period as is necessary for the resolution of any litigation, claim, negotiation, audit or other inquiry involving a Contract. The Department shall have access, as well as any parties identified under Executive Order 195, during the Contractor’s regular business hours and upon reasonable prior notice, to such records, including on-site reviews and reproduction of such records at a reasonable expense. 8. Assignment. The Contractor may not assign or delegate, in whole or in part, or otherwise transfer any liability, responsibility, obligation, duty or interest under a Contract, with the exception that the Contractor shall be authorized to assign present and prospective claims for money due to the Contractor pursuant to a Contract in accordance with M.G.L. C. 106, §9-318. The Contractor must provide sufficient notice of assignment and supporting documentation to enable the Department to verify and implement the assignment. Payments to third party assignees will be processed as if such payments were being made directly to the Contractor and these payments will be subject to intercept, offset, counter claims or any other Department rights which are available to the Department or the State against the Contractor. 9. Subcontracting By Contractor. Any subcontract entered into by the Contractor for the purposes of fulfilling the obligations under a Contract must be in writing, authorized in advance by the Department and shall be consistent with and subject to the provisions of these Commonwealth Terms and Conditions and a Contract. Subcontracts will not relieve or discharge the Contractor from any duty, obligation, responsibility or liability arising under a Contract. The Department is entitled to copies of all subcontracts and shall not be bound by any provisions contained in a subcontract to which it is not a party. 10. Affirmative Action, Non-Discrimination In Hiring And Employment. The Contractor shall comply with all federal and state laws, rules and regulations promoting fair employment practices or prohibiting employment discrimination and unfair labor practices and shall not discriminate in the hiring of any applicant for employment nor shall any qualified employee be demoted, discharged or otherwise subject to discrimination in the tenure, position, promotional opportunities, wages, benefits or terms and conditions of their employment because of race, color, national origin, ancestry, age, sex, religion, disability, handicap, sexual orientation or for exercising any rights afforded by law. The Contractor commits to purchasing supplies and services from certified minority or women-owned businesses, small businesses or businesses owned by socially or economically disadvantaged persons or persons with disabilities. 11. Indemnification. Unless otherwise exempted by law, the Contractor shall indemnify and hold harmless the State, including the Department, its agents, officers and employees against any and all claims, liabilities and costs for any personal injury or property damages, patent or copyright infringement or other damages that the State may sustain which arise out of or in connection with the Contractor's performance of a Contract, including but not limited to the negligence, reckless or intentional conduct of the Contractor, its agents, officers, employees or subcontractors. The Contractor shall at no time be considered an agent or representative of the Department or the State. After prompt notification of a claim by the State, the Contractor shall have an opportunity to participate in the defense of such claim and any negotiated settlement agreement or judgment. The State shall not be liable for any costs incurred by the Contractor arising under this paragraph. Any indemnification of the Contractor shall be subject to appropriation and applicable law. 95 SECTION 6: ATTACHMENTS | 2014_0122 12. Waivers. Forbearance or indulgence in any form or manner by a party shall not be construed as a waiver, nor in any way limit the legal or equitable remedies avail- able to that party. No waiver by either party of any default or breach shall constitute a waiver of any subsequent default or breach. 13. Risk Of Loss. The Contractor shall bear the risk of loss for any Contractor materials used for a Contract and for all deliverables, Department personal or other data which is in the possession of the Contractor or used by the Contractor in the performance of a Contract until possession, ownership and full legal title to the deliverables are transferred to and accepted by the Department. 14. Forum, Choice of Law And Mediation. Any actions arising out of a Contract shall be governed by the laws of Massachusetts, and shall be brought and maintained in a State or federal court in Massachusetts which shall have exclusive jurisdiction thereof. The Department, with the approval of the Attorney General's Office, and the Contractor may agree to voluntary mediation through the Massachusetts Office of Dispute Resolution (MODR) of any Contract dispute and will share the costs of such mediation. No legal or equitable rights of the parties shall be limited by this Section. 15. Contract Boilerplate Interpretation, Severability, Conflicts With Law, Integration. Any amendment or attachment to any Contract which contains conflicting language or has the affect of a deleting, replacing or modifying any printed language of these Commonwealth Terms and Conditions, as officially published by ANF, CTR and OSD, shall be interpreted as superseded by the official printed language. If any provision of a Contract is found to be superseded by state or federal law or regulation, in whole or in part, then both parties shall be relieved of all obligations under that provision only to the extent necessary to comply with the superseding law, provided however, that the remaining provisions of the Contract, or portions thereof, shall be enforced to the fullest extent permitted by law. All amendments must be executed by the parties in accordance with Section 1. of these Commonwealth Terms and Conditions and filed with the original record copy of a Contract as prescribed by CTR. The printed language of the Standard Contract Form, as officially published by ANF, CTR and OSD, which incorporates by reference these Commonwealth Terms and Conditions, shall supersede any conflicting verbal or written agreements relating to the performance of a Contract, or attached thereto, including contract forms, purchase orders or invoices of the Contractor. The order of priority of documents to interpret a Contract shall be as follows: the printed language of the Commonwealth Terms and Conditions, the Standard Contract Form, the Department's Request for Response (RFR) solicitation document and the Contractor’s Response to the RFR solicitation, excluding any language stricken by a Department as unacceptable and including any negotiated terms and conditions allowable pursuant to law or regulation. IN WITNESS WHEREOF, The Contractor certify under the pains and penalties of perjury that it shall comply with these Commonwealth Terms and Conditions for any applicable Contract executed with the Commonwealth as certified by their authorized signatory below: CONTRACTOR AUTHORIZED SIGNATORY: _________________________________________________________________________ (signature) Print Name: _____________________________________________________ Title: __________________________________________________________ Date: __________________________________________________________ (Check One): _______ Organization ________ Individual Full Legal Organization or Individual Name: ____________________________________________________________________________ Doing Business As: Name (If Different): _______________________________________________________________________________ Tax Identification Number: ____ ____ ____ ____ ____ ____ ____ ____ ____ Address: ________________________________________________________________________________________________________ Telephone: _______________________________________ FAX: _______________________________________________________ INSTRUCTIONS FOR FILING THE COMMONWEALTH TERMS AND CONDITIONS A “Request for Verification of Taxation Reporting Information” form (Massachusetts Substitute W-9 Format), that contains the Contractor's correct TIN, name and legal address information, must be on file with the Office of the Comptroller. If the Contractor has not previously filed this form with the Comptroller, or if the information contained on a previously filed form has changed, please fill out a W-9 form and return it attached to the executed COMMONWEALTH TERMS AND CONDITIONS. If the Contractor is responding to a Request for Response (RFR), the COMMONWEALTH TERMS AND CONDITIONS must be submitted with the Response to RFR or as specified in the RFR. Otherwise, Departments or Contractors must timely submit the completed and properly executed COMMONWEALTH TERMS AND CONDITIONS (and the W-9 form if applicable) to the: Payee and Payments Unit, Office of the Comptroller, 9th Floor, One Ashburton Place, Boston, MA 02108 in order to record the filing of this form on the MMARS Vendor File. Contractors are required to execute and file this form only once. 96 SECTION 6: ATTACHMENTS | 2014_0122 Massachusetts Statewide Contract Administration Fee Introduction: This Statewide Contract is subject to a 1% Contract Administration Fee, which is created pursuant to MGL c. 7, § 3B, 801 CMR 4.02 and the Transaction Fee section in this solicitation and/or incorporated by reference into Statewide Contracts with the Operational Services Division (OSD). The price stated in any Bidder’s bid price and any Contractor’s Statewide Contract shall be inclusive of this fee and Contractors shall not reflect this fee as a separate line item on customer invoices. This fee will be based on 1% of the total dollar amounts, adjusted for credits or refunds, paid by Eligible Entities to the Statewide Contractor based on your statewide contract. Eligible entities include, but are not limited to: a) Cities, towns, districts, counties and other political subdivisions; b) Executive, Legislative and Judicial Branches, including all departments and elected offices therein; c) Independent public authorities, commissions, and quasi-public agencies; d) Local public libraries, public school districts, and charter schools; e) Public hospitals owned by the Commonwealth; f) Public institutions of higher education; g) Public purchasing cooperatives; h) Non-profit, UFR-certified organizations that are doing business with the Commonwealth; i) Other states and territories with no prior approval by the State Purchasing Agent required; and j) Other entities when designated in writing by the State Purchasing Agent. For a list of other entities that are eligible to use your specific Statewide Contract, please check the Issuers Tab for each Solicitation or Contract on Comm-PASS at www.comm-pass.com. Note that if the 1% Administration Fee is deductible as a business expense for federal income tax purposes, it is also deductible as an expense for Massachusetts tax purposes. Quarterly Fee Payment: For each Payment Period, Contractor shall pay to OSD a Fee equal to one percent (1%) of the total payments (adjusted for credits or refunds) received from all Eligible Entities that have purchased from the Contractor pursuant to this Agreement. All payments will be based on full calendar quarters (Payment Periods) and must be received by OSD on or before 45 days after the last day of the Payment Period (as specified below) or a contractor will be considered in breach of contract: Quarter Payment Period Quarterly Payment Due Date First Quarter January 1st – March 31st May 15th Second Quarter April 1st – June 30th August 15th Third Quarter July 1st – September 30th November 15th Fourth Quarter October 1 – December 31st February 15th Quarterly payment will include any periods less than a full calendar quarter if a contract does not start at the first day of a quarter or end on the last day of the quarter. Payments are to be made by check made payable to the “Operational Services Division, Comm. of Mass.” and mailed to: Operational Services Division, Attn: Contract Admin. Fee, One Ashburton Place, Room 1017, Boston, MA, 02108. Please include the following information in the memo field of each check: 1) “Contract Administration Fee”, 2) the Statewide Contract Number and 3) your Commonwealth of Massachusetts Vendor Code (VC) number. Please do not list social security numbers on the check. If the total Administration Fees due for the Payment and Reporting Period (see section III below) are less than $50, a Statewide Contractor may carryover that balance to the next Payment and Reporting Period until the cumulative amount owed is $50 or greater. Quarterly Reporting: Contractor shall submit one Statewide Contractor Administration Fee Report for each Statewide Contract for each Payment Period, even if no payment is due for the Payment Period. The Statewide Contractor Administration Fee Report for the applicable payment period must be completely filled out and signed by the Statewide Contractor under pains and penalties of perjury. Audit: During the term of this Agreement and for a period of six years thereafter, the Operational Services Division, its auditors, the Office of the Inspector General or other authorized representatives shall be afforded access at reasonable times to Contractor's accounting records, including sales information on any system, reports or files, in order to audit all records relating to goods sold or services performed pursuant to this Agreement. If such an audit indicates that Contractor has materially underpaid OSD, then the Contractor shall remit the underpayment and be responsible for payment of any costs associated with the audit. Other Terms: a. Contractors are responsible for compliance with all other contract reporting requirements including, but not limited to, contract detailed spend, Supplier Diversity Program (SDP) and other contract reports, as required by this contract. b. All amounts payable by the Contractor to OSD under this Agreement that are late and not received by the due date specified shall bear simple interest from the date due until paid. The Late Payment Interest Rate is set by the Office of the State Comptroller on an annual basis and can be found by clicking on the fiscal year in question on the Comptroller’s Fiscal Year Updates webpage. c. In the event of the Contractor’s breach of this policy including, but not limited to, non-reporting, non-payment, late reporting/payment, under- reporting/payment, the Commonwealth reserves the right to pursue any and all recourse and penalties available including, but not limited to, imposing of penalties of up to 10% of the amount in question or $500, whichever is greater, contract suspension, payment intercept and contract termination. The Commonwealth is allowed to suspend, terminate or debar pursuant to Massachusetts General Laws Chapter 29, Section 29F, as amended, and pursuant to Section 4 of the Commonwealth Terms and Conditions. In addition, in the event the Contractor fails to make any payment when due, the Contractor shall be liable to the Commonwealth for all expenses, court costs, and attorneys' fees (including inside counsel) incurred in enforcing the terms and conditions of this Agreement. 97 SECTION 6: ATTACHMENTS | 2014_0122 NEW JERSEY State of New Jersey Standard Terms and Conditions Rev: 10/21/2011 ST&C 1. STANDARD TERMS AND CONDITIONS APPLICABLE TO THE CONTRACT- Unless the bidder/offeror is specifically instructed otherwise in the Request for Proposals (RFP), the following terms and conditions shall apply to all contracts or purchase agreements made with the State of New Jersey. These terms are in addition to the terms and conditions set forth in the RFP and should be read in conjunction with same unless the RFP specifically indicates otherwise. In the event that the bidder/offeror would like to present terms and conditions that are in conflict with either these terms and conditions or those set forth in the RFP, the bidder/offeror must present those conflicts during the Question and Answer period for the State to consider. Any conflicting terms and conditions that the State is willing to accept will be reflected in an addendum to the RFP. The State's terms and conditions shall prevail over any conflicts set forth in a bidder/offeror's proposal that were not submitted through the question and answer process and approved by the State. Nothing in these terms and conditions shall prohibit the Director of the Division of Purchase and Property (Director) from amending a contract when the Director determines it is in the best interests of the State. 2. STATE LAW REQUIRING MANDATORY COMPLIANCE BY ALL CONTRACTORS - The statutes, laws or codes cited herein are available for review at the New Jersey State Library, 185 West State Street, Trenton, New Jersey 08625. 2.1 BUSINESS REGISTRATION – Pursuant to N.J.S.A. 52:32-44, the State is prohibited from entering into a contract with an entity unless the bidder and each subcontractor named in the proposal have a valid Business Registration Certificate on file with the Division of Revenue. The contractor and any subcontractor providing goods or performing services under the contract, and each of their affiliates, shall, during the term of the contract, collect and remit to the Director of the Division of Taxation in the Department of the Treasury the use tax due pursuant to the “Sales and Use Tax Act, P.L. 1966, c. 30 (http://www.state.nj.us/treasury/revenue/busregcert.shtml. N.J.S.A. 54:32B-1 et seq.) on all their sales of tangible personal property delivered into the State. Any questions in this regard can be directed to the Division of Revenue at (609) 292-1730. Form NJ-REG can be filed online at 2.2 ANTI-DISCRIMINATION - All parties to any contract with the State agree not to discriminate in employment and agree to abide by all anti-discrimination laws including those contained within N.J.S.A. 10:2-1 through N.J.S.A. 10:2-4, N.J.S.A. l0:5-1 et seq. and N.J.S.A. l0:5-31 through 10:5-38, and all rules and regulations issued thereunder are hereby incorporated by reference. 2.3 PREVAILING WAGE ACT - The New Jersey Prevailing Wage Act, N.J.S.A. 34: 11-56.26 et seq. is hereby made part of every contract entered into on behalf of the State of New Jersey through the Division of Purchase and Property, except those contracts which are not within the contemplation of the Act. The bidder's signature on [this proposal] is his guarantee that neither he nor any subcontractors he might employ to perform the work covered by [this proposal] has been suspended or debarred by the Commissioner, Department of Labor for violation of the provisions of the Prevailing Wage Act and/or the Public Works Contractor Registration Acts; the bidder’s signature on the proposal is also his guarantee that he and any subcontractors he might employ to perform the work covered by [this proposal] shall comply with the provisions of the Prevailing Wage and Public Works Contractor Registration Acts, where required. 2.4 AMERICANS WITH DISABILITIES ACT - The contractor must comply with all provisions of the Americans with Disabilities Act (ADA), P.L 101-336, in accordance with 42 U.S.C. 12101, et seq. 2.5 MACBRIDE PRINCIPLES – The bidder must certify pursuant to N.J.S.A. 52:34-12.2 that it either has no ongoing business activities in Northern Ireland and does not maintain a physical presence therein or that it will take lawful steps in good faith to conduct any business operations it has in Northern Ireland in accordance with the MacBride principles of nondiscrimination in employment as set forth in N.J.S.A. 52:18A-89.5 and in conformance with the United Kingdom’s Fair Employment (Northern Ireland) Act of 1989, and permit independent monitoring of their compliance with those principles. 2.6 PAY TO PLAY PROHIBITIONS – Pursuant to N.J.S.A. 19:44A-20.13 et seq (L.2005, c. 51), and specifically, N.J.S.A. 19:44A- 20.21, it shall be a breach of the terms of the contract for the business entity to: a. make or solicit a contribution in violation of the statute; b. knowingly conceal or misrepresent a contribution given or received; c. make or solicit contributions through intermediaries for the purpose of concealing or misrepresenting the source of the contribution; d. make or solicit any contribution on the condition or with the agreement that it will be contributed to a campaign committee or any candidate of holder of the public office of Governor, or to any State or county party committee; e. engage or employ a lobbyist or consultant with the intent or understanding that such lobbyist or consultant would make or solicit any contribution, which if made or solicited by the business entity itself, would subject that entity to the restrictions of the Legislation; f. fund contributions made by third parties, including consultants, attorneys, family members, and employees; g. engage in any exchange of contributions to circumvent the intent of the Legislation; or h. directly or indirectly through or by any other person or means, do any act which would subject that entity to the restrictions of the Legislation. 2.7 http://www.elec.state.nj.us/. POLITICAL CONTRIBUTION DISCLOSURE – The contractor is advised of its responsibility to file an annual disclosure statement on political contributions with the New Jersey Election Law Enforcement Commission (ELEC), pursuant to N.J.S.A.19:44A-20.27 (L. 2005, c. 271, §3 as amended) if in a calendar year the contractor receives one or more contracts valued at $50,000.00 or more. It is the contractor’s responsibility to determine if filing is necessary. Failure to file can result in the imposition of penalties by ELEC. Additional information about this requirement is available from ELEC by calling 1(888) 313-3532 or on the internet at 98 SECTION 6: ATTACHMENTS | 2014_0122 2.8 STANDARDS PROHIBITING CONFLICTS OF INTEREST - The following prohibitions on contractor activities shall apply to all contracts or purchase agreements made with the State of New Jersey, pursuant to Executive Order No. 189 (1988). a. No vendor shall pay, offer to pay, or agree to pay, either directly or indirectly, any fee, commission, compensation, gift, gratuity, or other thing of value of any kind to any State officer or employee or special State officer or employee, as defined by N.J.S.A. 52:13D- 13b. and e., in the Department of the Treasury or any other agency with which such vendor transacts or offers or proposes to transact business, or to any member of the immediate family, as defined by N.J.S.A. 52:13D-13i., of any such officer or employee, or partnership, firm or corporation with which they are employed or associated, or in which such officer or employee has an interest within the meaning of N.J.S.A. 52: 13D-13g. b. The solicitation of any fee, commission, compensation, gift, gratuity or other thing of value by any State officer or employee or special State officer or employee from any State vendor shall be reported in writing forthwith by the vendor to the Attorney General and the Executive Commission on Ethical Standards. c. No vendor may, directly or indirectly, undertake any private business, commercial or entrepreneurial relationship with, whether or not pursuant to employment, contract or other agreement, express or implied, or sell any interest in such vendor to, any State officer or employee or special State officer or employee having any duties or responsibilities in connection with the purchase, acquisition or sale of any property or services by or to any State agency or any instrumentality thereof, or with any person, firm or entity with which he is employed or associated or in which he has an interest within the meaning of N.J.S.A. 52: 130-13g. Any relationships subject to this provision shall be reported in writing forthwith to the Executive Commission on Ethical Standards, which may grant a waiver of this restriction upon application of the State officer or employee or special State officer or employee upon a finding that the present or proposed relationship does not present the potential, actuality or appearance of a conflict of interest. d. No vendor shall influence, or attempt to influence or cause to be influenced, any State officer or employee or special State officer or employee in his official capacity in any manner which might tend to impair the objectivity or independence of judgment of said officer or employee. e. No vendor shall cause or influence, or attempt to cause or influence, any State officer or employee or special State officer or employee to use, or attempt to use, his official position to secure unwarranted privileges or advantages for the vendor or any other person. f. The provisions cited above in paragraphs 2.8a through 2.8e shall not be construed to prohibit a State officer or employee or Special State officer or employee from receiving gifts from or contracting with vendors under the same terms and conditions as are offered or made available to members of the general public subject to any guidelines the Executive Commission on Ethical Standards may promulgate under paragraph 3c of Executive Order No. 189. 2.9 NOTICE TO ALL CONTRACTORS SET-OFF FOR STATE TAX NOTICE - Pursuant to L 1995, c. 159, effective January 1, 1996, and notwithstanding any provision of the law to the contrary, whenever any taxpayer, partnership or S corporation under contract to provide goods or services or construction projects to the State of New Jersey or its agencies or instrumentalities, including the legislative and judicial branches of State government, is entitled to payment for those goods or services at the same time a taxpayer, partner or shareholder of that entity is indebted for any State tax, the Director of the Division of Taxation shall seek to set off that taxpayer’s or shareholder’s share of the payment due the taxpayer, partnership, or S corporation. The amount set off shall not allow for the deduction of any expenses or other deductions which might be attributable to the taxpayer, partner or shareholder subject to set-off under this act. The Director of the Division of Taxation shall give notice to the set-off to the taxpayer and provide an opportunity for a hearing within thirty (30) days of such notice under the procedures for protests established under R.S. 54:49-18. No requests for conference, protest, or subsequent appeal to the Tax Court from any protest under this section shall stay the collection of the indebtedness. Interest that may be payable by the State, pursuant to P.L. 1987, c.184 (c.52:32-32 et seq.), to the taxpayer shall be stayed. 2.10 COMPLIANCE - LAWS - The contractor must comply with all local, State and Federal laws, rules and regulations applicable to this contract and to the goods delivered and/or services performed hereunder. 2.11 COMPLIANCE - STATE LAWS - It is agreed and understood that any contracts and/or orders placed as a result of [this proposal] shall be governed and construed and the rights and obligations of the parties hereto shall be determined in accordance with the laws of the STATE OF NEW JERSEY. 3. STATE LAW REQUIRING MANDATORY COMPLIANCE BY CONTRACTORS UNDER CIRCUMSTANCES SET FORTH IN LAW OR BASED ON THE TYPE OF CONTRACT 3.1 COMPLIANCE - CODES – The contractor must comply with NJUCC and the latest NEC70, B.O.C.A. Basic Building code, OSHA and all applicable codes for this requirement. The contractor shall be responsible for securing and paying all necessary permits, where applicable. 3.2 PUBLIC WORKS CONTRACTOR REGISTRATION ACT - The New Jersey Public Works Contractor Registration Act requires all contractors, subcontractors and lower tier subcontractor(s) who engage in any contract for public work as defined in N.J.S.A. 34:11- 56.26 be first registered with the New Jersey Department of Labor and Workforce Development. Any questions regarding the registration process should be directed to the Division of Wage and Hour Compliance at (609) 292-9464. 3.3 PUBLIC WORKS CONTRACT - ADDITIONAL AFFIRMATIVE ACTION REQUIREMENTS - N.J.S.A. 10:5-33 and N.J.A.C. 17:27-3.5 require that during the performance of this contract, the contractor must agree as follows: a) The contractor or subcontractor, where applicable, will not discriminate against any employee or applicant for employment because of age, race, creed, color, national origin, ancestry, marital status, affectional or sexual orientation, gender identity or expression, disability, nationality or sex. Except with respect to affectional or sexual orientation and gender identity or expression, the contractor will take affirmative action to ensure that such applicants are recruited and employed, and that employees are treated during employment, without regard to their age, race, creed, color, national origin, ancestry, marital status, affectional or sexual orientation, gender identity or expression, disability, nationality or sex. Such action shall include, but not be limited to the following: employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and 99 SECTION 6: ATTACHMENTS | 2014_0122 selection for training, including apprenticeship. The contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided by the contracting officer setting forth the provisions of this nondiscrimination clause ; b) The contractor or subcontractor, where applicable will, in all solicitations or advertisements for employees placed by or on behalf of the contractor, state that all qualified applicants will receive consideration for employment without regard to age, race, creed, color, national origin, ancestry, marital status, affectional or sexual orientation, gender identity or expression, disability, nationality or sex; c) The contractor or subcontractor where applicable, will send to each labor union or representative of workers with which it has a collective bargaining agreement or other contract or understanding, a notice, to be provided by the agency contracting officer, advising the labor union or workers' representative of the contractor's commitments under this act and shall post copies of the notice in conspicuous places available to employees and applicants for employment. N.J.A.C. 17:27-3.7 requires all contractors and subcontractors, if any, to further agree as follows; 1. The contractor or subcontractor agrees to make good faith efforts to meet targeted county employment goals established in accordance with N.J.A.C. 17:27-5.2. 2. The contractor or subcontractor agrees to inform in writing its appropriate recruitment agencies including, but not limited to, employment agencies, placement bureaus, colleges, universities, and labor unions, that it does not discriminate on the basis of age, race, creed, color, national origin, ancestry, marital status, affectional or sexual orientation, gender identity or expression, disability, nationality or sex, and that it will discontinue the use of any recruitment agency which engages in direct or indirect discriminatory practices. 3. The contractor or subcontractor agrees to revise any of its testing procedures, if necessary, to assure that all personnel testing conforms with the principles of job-related testing, as established by the statutes and court decisions of the State of New Jersey and as established by applicable Federal law and applicable Federal court decisions. 4. In conforming with the targeted employment goals, the contractor or subcontractor agrees to review all procedures relating to transfer, upgrading, downgrading and layoff to ensure that all such actions are taken without regard to age, race, creed, color, national origin, ancestry, marital status, affectional or sexual orientation, gender identity or expression, disability, nationality or sex, consistent with the statutes and court decisions of the State of New Jersey, and applicable Federal law and applicable Federal court decisions. 3.4 BUILDING SERVICE – Pursuant to N.J.S.A. 34:11-56.58 et seq., in any contract for building services, as defined in N.J.S.A. 34:11- 56.59, the employees of the contractor or subcontractors shall be paid prevailing wage for building services rates, as defined in N.J.S.A. 34:11.56.59. The prevailing wage shall be adjusted annually during the term of the contract. 3.5 THE WORKER AND COMMUNITY RIGHT TO KNOW ACT - The provisions of N.J.S.A. 34:5A-l et seq. which require the labeling of all containers of hazardous substances are applicable to this contract. Therefore, all goods offered for purchase to the State must be labeled by the contractor in compliance with the provisions of the statute. 3.6 SERVICE PERFORMANCE WITHIN U.S. – Under N.J.S.A. 52:34-13.2, all contracts primarily for services awarded by the Director shall be performed within the United States, except when the Director certifies in writing a finding that a required service cannot be provided by a contractor or subcontractor within the United States and the certification is approved by the State Treasurer. A shift to performance of services outside the United States during the term of the contract shall be deemed a breach of contract. If, during the term of the contract, the contractor or subcontractor, proceeds to shift the performance of any of the services outside the United States, the contractor shall be deemed to be in breach of its contract, which contract shall be subject to termination for cause pursuant to Section 5.7(b)(1) of the Standard Terms and Conditions, unless previously approved by the Director and the Treasurer. 3.7 BUY AMERICAN – Pursuant to N.J.S.A. 52:32-1, if manufactured items or farm products will be provided under this contract to be used in a public work, they shall be manufactured or produced in the United States and the contractor shall be required to so certify. 4. INDEMNIFICATION AND INSURANCE 4.1 INDEMNIFICATION - The contractor’s liability to the State and its employees in third party suits shall be as follows: (a) Indemnification for Third Party Claims - The contractor shall assume all risk of and responsibility for, and agrees to indemnify, defend, and save harmless the State of New Jersey and its employees from and against any and all claims, demands, suits, actions, recoveries, judgments and costs and expenses in connection therewith which shall arise from or result directly or indirectly from the work and/or materials supplied under this contract, including liability of any nature or kind for or on account of the use of any copyrighted or uncopyrighted composition, secret process, patented or unpatented invention, article or appliance furnished or used in the performance of this contract. (b) The contractor’s indemnification and liability under subsection (a) is not limited by, but is in addition to the insurance obligations contained in Section 4.2 of these Terms and Conditions. (c) In the event of a patent and copyright claim or suit, the contractor, at its option, may: (1) procure for the State of New Jersey the legal right to continue the use of the product; (2) replace or modify the product to provide a non-infringing product that is the functional equivalent; or (3) refund the purchase price less a reasonable allowance for use that is agreed to by both parties. 4.2 INSURANCE - The contractor shall secure and maintain in force for the term of the contract insurance as provided herein. All required insurance shall be provided by insurance companies with an A- VIII or better rating by A.M. Best & Company. The contractor shall provide the State with current certificates of insurance for all coverages and renewals thereof, and the certificates shall reflect that the insurance policies shall not be canceled for any reason except after sixty (60) days written notice to the State. Certificates of renewals shall be provided within thirty (30) days of the expiration of the insurance. The contractor shall not begin to provide services or goods to the State until evidence of the required insurance is provided. The certificates of insurance shall indicate the contract number or purchase order number and title of the contract in the Description of Operations box and shall list the State of New Jersey, Department of the Treasury, Division of Purchase & Property, Contract Compliance & Audit Unit, PO Box 236, Trenton, New Jerse y 08625 in the Certificate Holder box. The certificates and any notice of cancelation shall be emailed to the State at: ccau.certificate@treas.state.nj.us The insurance to be provided by the contractor shall be as follows: 100 SECTION 6: ATTACHMENTS | 2014_0122 a. Occurrence Form Comprehensive General Liability Insurance or its equivalent: The minimum limit of liability shall be $1,000,000 per occurrence as a combined single limit for bodily injury and property damage. The above required Comprehensive General Liability Insurance policy or its equivalent shall name the State, its officers, and employees as “Additional Insureds” and include the blanket additional insured endorsement or its equivalent. The coverage to be provided under these policies shall be at least as broad as that provided by the standard basic, unamended, and unendorsed Comprehensive General Liability Insurance occurrence coverage forms or its equivalent currently in use in the State of New Jersey, which shall not be circumscribed by any endorsement limiting the breadth of coverage. b. Automobile Liability Insurance which shall be written to cover any automobile used by the insured. Limits of liability for bodily injury and property damage shall not be less than $1 million per occurrence as a combined single limit. The State must be named as a n “Additional Insured” and a blanket additional insured endorsement or its equivalent must be provided when the services being procured involve vehicle use on the State’s behalf or on State controlled property. c. Worker’s Compensation Insurance applicable to the laws of the State of New Jersey and Employers Liability Insurance with limits not less than: $1,000,000 BODILY INJURY, EACH OCCURRENCE $1,000,000 DISEASE EACH EMPLOYEE $1,000,000 DISEASE AGGREGATE LIMIT d. This $1 million amount may have been raised by the RFP when deemed necessary by the Director. e. In the case of a contract entered into pursuant to N.J.S.A. 52:32-17, et.seq., (small business set asides) the minimum amount of insurance coverage in subsections a., b., and c. above may have been lowered in the RFP for certain commodities when deemed in the best interests of the State by the Director. 5. TERMS GOVERNING ALL CONTRACTS 5.1 CONTRACTOR IS INDEPENDENT CONTRACTOR – The contractor's status shall be that of any independent contractor and not as an employee of the State. 5.2 CONTRACT AMOUNT - The estimated amount of the contract(s), when stated on the RFP form, shall not be construed as either the maximum or minimum amount which the State shall be obliged to order as the result of the RFP or any contract entered into as a result of the RFP. 5.3 CONTRACT TERM AND EXTENSION OPTION - If, in the opinion of the Director, it is in the best interest of the State to extend a contract, the contractor shall be so notified of the Director’s Intent at least thirty (30) days prior to the expiration date of the existing contract. The contractor shall have fifteen (15) calendar days to respond to the Director's request to extend the term and period of performance of the contract. If the contractor agrees to the extension, all terms and conditions including pricing of the original contract shall apply unless more favorable terms for the State have been negotiated. 5.4 STATE’S OPTION TO REDUCE SCOPE OF WORK – The State has the option, in its sole discretion, to reduce the scope of work for any deliverable, task or subtask called for under this contract. In such an event, the Director shall provide to the contractor advance written notice of the change in scope of work and what the Director believes should be the corresponding adjusted contract price. Within five (5) business days of receipt of such written notice, if either is applicable: (a) If the contractor does not agree with the Director’s proposed adjusted contract price, the contractor shall submit to the Director any additional information that the contractor believes impacts the adjusted contract price with a request that the Director reconsider the proposed adjusted contract price. The parties shall negotiate the adjusted contract price. If the parties are unable to agree on an adjusted contract price, the Director shall make a prompt decision taking all such information into account, and shall notify the contractor of the final adjusted contract price. (b) If the contractor has undertaken any work effort toward a deliverable, task or subtask that is being changed or eliminated such that it would not be compensated under the adjusted contract, the contractor shall be compensated for such work effort according to t he applicable portions of its price schedule and the contractor shall submit to the Director an itemization of the work effort already completed by deliverable, task or subtask within the scope of work, and any additional information the Director may request. The Director shall make a prompt decision taking all such information into account, and shall notify the contractor of the compensation to be paid for such work effort. 5.5 CHANGE IN LAW– Whenever a change in applicable law or regulation affects the scope of work, the Director shall provide written notice to the contractor of the change and the Director’s determination as to the corresponding adjusted change in the scope of work and corresponding adjusted contract price. Within five (5) business days of receipt of such written notice, if either is applicable: (a) If the contractor does not agree with the adjusted contract price, the contractor shall submit to the Director any additional information that the contractor believes impacts the adjusted contract price with a request that the Director reconsider the adjusted contract price. The Director shall make a prompt decision taking all such information into account, and shall notify the contractor of the final adjusted contract price. (b) If the contractor has undertaken any work effort toward a deliverable, task or subtask that is being changed or eliminated such that it would not be compensated under the adjusted contract, the contractor shall be compensated for such work effort according to t he applicable portions of its price schedule and the contractor shall submit to the Director an itemization of the work effort already completed by deliverable, task or subtask within the scope of work, and any additional information the Director may request. The Director shall make a prompt decision taking all such information into account, and shall notify the contractor of the compensation to be paid for such work effort. 5.6 SUSPENSION OF WORK - The State may, for valid reason, issue a stop order directing the contractor to suspend work under the contract for a specific time. The contractor shall be paid for goods ordered, goods delivered, or services requested and performed until the effective date of the stop order. The contractor shall resume work upon the date specified in the stop order, or upon such other date 101 SECTION 6: ATTACHMENTS | 2014_0122 as the State Contract Manager may thereafter direct in writing. The period of suspension shall be deemed added to the contractor's approved schedule of performance. The Director shall make an equitable adjustment, if any is required, to the contract price. The contractor shall provide whatever information that Director may require related to the equitable adjustment. 5.7 TERMINATION OF CONTRACT a. For Convenience Notwithstanding any provision or language in this contract to the contrary, the Director may terminate this contract at any time, in whole or in part, for the convenience of the State, upon no less than thirty (30) days written notice to the contractor. b. For Cause 1. Where a contractor fails to perform or comply with a contract or a portion thereof, and/or fails to comply with the complaints procedure in N.J.A.C. 17: 12-4.2 et seq., the Director may terminate the contract, in whole or in part, upon ten (10) days notice to the contractor with an opportunity to respond. 2. Where in the reasonable opinion of the Director, a contractor continues to perform a contract poorly as demonstrated by e.g., formal complaints, late delivery, poor performance of service, short-shipping, so that the Director is required to use the complaints procedure in N.J.A.C. 17:12-4.2 et seq., and there has been a failure on the part of the contractor to make progress towards ameliorating the issue(s) or problem(s) set forth in the complaint, the Director may terminate the contract, in whole or in part, upon ten (10) days notice to the contractor with an opportunity to respond. c. In cases of emergency the Director may shorten the time periods of notification and may dispense with an opportunity to respond. d. In the event of termination under this section, the contractor shall be compensated for work performed in accordance with the contract, up to the date of termination. Such compensation may be subject to adjustments. 5.8 SUBCONTRACTING OR ASSIGNMENT – a. Subcontracting : The contractor may not subcontract other than as identified in the contractor’s proposal without the prior written consent of the Director. Such consent, if granted in part, shall not relieve the contractor of any of his responsibilities under the contract, nor shall it create privity of contract between the State and any subcontractor. If the contractor uses a subcontractor to fulfill any of its obligations, the contractor shall be responsible for the subcontractor’s: (a) performance; (b) compliance with all of the terms and conditions of the contract; and (c) compliance with the requirements of all applicable laws. b. Assignment: The contractor may not assign its responsibilities under the contract, in whole or in part, without the prior written consent of the Director. 5.9 NO CONTRACTUAL RELATIONSHIP BETWEEN SUBCONTRACTORS AND STATE - Nothing contained in any of the contract documents, including the RFP and vendor’s bid or proposal shall be construed as creating any contractual relationship between any subcontractor and the State. 5.10 MERGERS, ACQUISITIONS - If, during the term of this contract, the contractor shall merge with or be acquired by another firm, the contractor shall give notice to the Director as soon as practicable and in no event longer than thirty (30) days after sa id merger or acquisition. The contractor shall provide such documents as may be requested by the Director, which may include but need not be limited to the following: corporate resolutions prepared by the awarded contractor and new entity ratifying acceptance of the original contract, terms, conditions and prices; updated information including ownership disclosure and Federal Employer Identification Number. The documents must be submitted within thirty (30) days of the request. Failure to do so may result in termination of the contract for cause. If, at any time during the term of the contract, the contractor's partnership, limited liability company, limited liability partnership, professional corporation, or corporation shall dissolve, the Director must be so notified. All responsible parties of the dissolved business entity must submit to the Director in writing, the names of the parties proposed to perform the contract, and the names of the parties to whom payment should be made. No payment shall be made until all parties to the dissolved business entity submit the required documents to the Director. 5.11 PERFORMANCE GUARANTEE OF CONTRACTOR - The contractor hereby certifies that: a. The equipment offered is standard new equipment, and is the manufacturer's latest model in production, with parts regularly used for the type of equipment offered; that such parts are all in production and not likely to be discontinued; and that no attachment or part has been substituted or applied contrary to manufacturer's recommendations and standard practice. b. All equipment supplied to the State and operated by electrical current is UL listed where applicable. c. All new machines are to be guaranteed as fully operational for the period stated in the contract from time of written acceptance by the State. The contractor shall render prompt service without charge, regardless of geographic location. d. Sufficient quantities of parts necessary for proper service to equipment shall be maintained at distribution points and service headquarters. e. Trained mechanics are regularly employed to make necessary repairs to equipment in the territory from which the service request might emanate within a 48-hour period or within the time accepted as industry practice. f. During the warranty period the contractor shall replace immediately any material which is rejected for failure to meet the requirements of the contract. g. All services rendered to the State shall be performed in strict and full accordance with the specifications stated in the contract. The contract shall not be considered complete until final approval by the State's using agency is rendered. 5.12 DELIVERY REQUIREMENTS- a. Deliveries shall be made at such time and in such quantities as ordered in strict accordance with conditions contained in the contract. b. The contractor shall be responsible for the delivery of material in first class condition to the State's using agency or the purchaser under this contract and in accordance with good commercial practice. c. Items delivered must be strictly in accordance with the contract. 102 SECTION 6: ATTACHMENTS | 2014_0122 d. In the event delivery of goods or services is not made within the number of days stipulated or under the schedule defined in the contract, the using agency shall be authorized to obtain the material or service from any available source, the difference in price, if any, to be paid by the contractor. 5.13 APPLICABLE LAW AND JURISDICTION - This contract and any and all litigation arising therefrom or related thereto shall be governed by the applicable laws, regulations and rules of evidence of the State of New Jersey without reference to conflict of laws principles and shall be filed in the appropriate Division of the New Jersey Superior Court. 5.14. CONTRACT AMENDMENT – Except as provided herein, the contract may only be amended by written agreement of the State and the contractor. 5.15 MAINTENANCE OF RECORDS - The contractor shall maintain records for products and/or services delivered against the contract for a period of five (5) years from the date of final payment unless otherwise specified in the RFP. Such records shall be made available to the State, including the Comptroller, for audit and review. 5.16 ASSIGNMENT OF ANTITRUST CLAIM(S) - The contractor recognizes that in actual economic practice, overcharges resulting from antitrust violations are in fact usually borne by the ultimate purchaser. Therefore, and as consideration for executing this contract, the contractor, acting herein by and through its duly authorized agent, hereby conveys, sells, assigns, and transfers to the State of New Jersey, for itself and on behalf of its political subdivisions and public agencies, all right, title and interest to all claims and causes of action it may now or hereafter acquire under the antitrust laws of the United States or the State of New Jersey, relating to the particular goods and services purchased or acquired by the State of New Jersey or any of its political subdivisions or public agencies pursuant to this contract. In connection with this assignment, the following are the express obligations of the contractor: a. It shall take no action that will in any way diminish the value of the rights conveyed or assigned hereunder. b. It shall advise the Attorney General of New Jersey: 1. in advance of its intention to commence any action on its own behalf regarding any such claim or cause(s) of action; 2. immediately upon becoming aware of the fact that an action has been commenced on its behalf by some other person(s) of the pendency of such action. c. It shall notify the defendants in any antitrust suit of the within assignment at the earliest practicable opportunity after the contractor has initiated an action on its own behalf or becomes aware that such an action has been filed on its behalf by another person. A copy of such notice shall be sent to the Attorney General of New Jersey. d. It is understood and agreed that in the event any payment under any such claim or cause of action is made to the contractor, it shall promptly pay over to the State of New Jersey the allotted share thereof, if any, assigned to the State hereunder. 6. TERMS RELATING TO PRICE AND PAYMENT 6.1 PRICE FLUCTUATION DURING CONTRACT - Unless otherwise agreed to in writing by the State, all prices quoted shall be firm through issuance of contract or purchase order and shall not be subject to increase during the period of the contract. In the event of a manufacturer's or contractor's price decrease during the contract period, the State shall receive the full benefit of such price reduction on any undelivered purchase order and on any subsequent order placed during the contract period. The Director must be notified, in writing, of any price reduction within five (5) days of the effective date. Failure to report price reductions may result in cancellation of contract for cause, pursuant to provision 5.7(b)1. 6.2 TAX CHARGES - The State of New Jersey is exempt from State sales or use taxes and Federal excise taxes. Therefore, price quotations must not include such taxes. The State's Federal Excise Tax Exemption number is 22-75-0050K. 6.3 PAYMENT TO VENDORS - a. The using agency(ies) is (are) authorized to order and the contractor is authorized to ship only those items covered by the contract resulting from the RFP. If a review of orders placed by the using agency(ies) reveals that goods and/or services other than that covered by the contract have been ordered and delivered, such delivery shall be a violation of the terms of the contract and may be considered by the Director as a basis to terminate the contract and/or not award the contractor a subsequent contract. The Director may take such steps as are necessary to have the items returned by the agency, regardless of the time between the date of delivery and discovery of the violation. In such event, the contractor shall reimburse the State the full purchase price. b. The contractor must submit invoices to the using agency with supporting documentation evidencing that work or goods for which payment is sought has been satisfactorily completed or delivered. For commodity contracts, the invoice, together with the original Bill of Lading, express receipt and other related papers must be sent to the State Contract Manager or using agency on the date of each delivery. For contracts featuring services, invoices must reference the tasks or subtasks detailed in the Scope of Work section of the RFP and must be in strict accordance with the firm, fixed prices submitted for each task or subtask on the RFP pricing sheets. When applicable, invoices should reference the appropriate RFP price sheet line number from the contractor’s bid proposal. All invoices must be approved by the State Contract Manager or using agency before payment will be authorized. c. In all time and materials contracts, the State Contract Manager or designee shall monitor and approve the hours of work and the work accomplished by contractor and shall document both the work and the approval. Payment shall not be made without such documentation. A form of timekeeping record that should be adapted as appropriate for the Scope of Work being performed can be found at www.nj.gov/treasury/purchase/forms/Vendor_Timesheet.xls. d The contractor shall provide, on a monthly and cumulative basis, a breakdown in accordance with the budget submitted, of all monies paid to any small business, minority or woman-owned subcontractor(s). This breakdown shall be sent to the Chief of Operations, Division of Revenue, P.O. Box 628, Trenton, NJ 08646. 6.4 OPTIONAL PAYMENT METHOD: P-CARD - The State offers contractors the opportunity to be paid through the MasterCard procurement card (p-card). A contractor’s acceptance and a State agency’s use of the p-card are optional. P-card transactions do not require the submission of a contractor invoice; purchasing transactions using the p-card will usually result in payment to a contractor in three (3) days. A contractor should take note that there will be a transaction-processing fee for each p-card transaction. To participate, a contractor must be capable of accepting the MasterCard. Additional information can be obtained from banks or merchant service companies. 103 SECTION 6: ATTACHMENTS | 2014_0122 6.5 NEW JERSEY PROMPT PAYMENT ACT - The New Jersey Prompt Payment Act, N.J.S.A. 52:32-32 et seq., requires state agencies to pay for goods and services within sixty (60) days of the agency's receipt of a properly executed State Payment Voucher or within sixty (60) days of receipt and acceptance of goods and services, whichever is later. Properly executed performance security, when required, must be received by the State prior to processing any payments for goods and services accepted by state agencies. Interest will be paid on delinquent accounts at a rate established by the State Treasurer. Interest shall not be paid until it exceeds $5.00 per properly executed invoice. Cash discounts and other payment terms included as part of the original agreement are not affected by the Prompt Payment Act. 6.6 AVAILABILITY OF FUNDS – The State’s obligation to make payment under this contract is contingent upon the availability of appropriated funds and receipt of revenues from which payment for contract purposes can be made. No legal liability on the part of the State for payment of any money shall arise unless and until funds are appropriated each fiscal year to the using agency by the State Legislature and made available through receipt of revenues. 104 SECTION 6: ATTACHMENTS | 2014_0122 OREGON Participating Addendum between [insert Contractor] and State of Oregon acting by and through the Department of Administrative Services under the WSCA-NASPO Procurement for Computer Equipment State of Minnesota master contract number: ________ (Oregon contract number for this Participating Addendum: _____) 1. Introduction. This Participating Addendum (this “Addendum”) between __________________________, a _______ corporation which is authorized to do business in Oregon (“Contractor”) and the State of Oregon acting by and through the Department of Administrative Services, DAS Procurement Services (“Oregon DPS”) is entered into effective as of ____________, 2013. 2. Scope. This Addendum allows Oregon DPS and the Purchasers (defined below) to make purchases under the State of Minnesota’s contract number ______ with Contractor dated effective _________. Minnesota (the “Lead State”) is the lead state under a WSCA-NASPO cooperative procurement for computer equipment, maintenance services, and related services. WSCA-NASPO members like Oregon DPS who enter into participating addenda such as this Addendum may purchase goods and services under the Minnesota procurement. 3. Governed by Addendum. The terms of this Addendum govern the relationship between Oregon DPS and Contractor. As modified by this Addendum, Oregon DPS and Contractor are also bound by the terms of the Minnesota Agreement, as that term is defined in Section 8.3. Purchasers are responsible for payment obligations arising from Purchase Orders under this Addendum. Contractor will only seek payment from a Purchaser which submits a Purchase Order. 4. Primary contacts. The primary contacts for this Addendum are the following individuals (or their named successors): Contractor Name ____________________ Street address ____________________ ____________________ Email address ____________________ Office telephone ____________________ Cell number ____________________ Fax ____________________ Oregon DPS Street address 1225 Ferry Street SE Salem, Oregon 97301 Email address _____________@state.or.us Office telephone ____________________ Cell number ___________________ Fax 503-373-1626 Lead State Name ____________________ Street address ____________________ ____________________ Email address ____________________ Office telephone ____________________ 105 SECTION 6: ATTACHMENTS | 2014_0122 Cell number ____________________ Fax ____________________ 5. Role of chief procurement official. Use of WSCA-NASPO contracts by agencies authorized by Oregon statutes to use state contracts are subject to the approval of Oregon’s chief procurement official (“CPO”). Issues of interpretation and eligibility for participation are solely within the authority of the CPO. 6. Subcontractors. Contractor’s subcontractors who receive the prior written consent of Oregon DPS may provide goods and services under this Addendum. Participation by subcontractors must be in accordance with, and is expressly subject to, the terms of this Addendum. 7. [Reserved.] 8. Definitions. The following terms have the meanings set forth below. 8.1 “Confidential Information” is defined in Section 20. 8.2 “Independent Agency” means an agency, board, commission, department, or subdivision of the State of Oregon with independent procurement authority under ORS 279A.050, 279A.140, or other provisions of applicable Oregon law. 8.3 “Minnesota Agreement” means State of Minnesota’s contract number _________ with Contractor dated effective _________. For purposes of this Addendum, the Minnesota Agreement consists of only the following documents: (a) The “WSCA-NASPO Terms and Conditions” on pages 22 to 29 of the state of Minnesota request for proposals (“RFP”). (b) The list of “bands” of computer equipment, maintenance and warranty services, and related services to be sold by Contractor under the Minnesota Agreement which are Exhibits ___ and ___ to the Minnesota Agreement. (c) [Possible other Lead State documents.] For purposes of this Addendum, no other terms are part of the Minnesota Agreement. For example but not in limitation, any other documents issued by or entered into by the Lead State and Contractor (or posted on websites of the Lead State, WSCA-NASPO, Contractor, or elsewhere) are expressly not adopted by Oregon DPS and Contractor, and will not govern this Addendum. Also, the “configuration dollars limits” on page 9 of the Lead State RFP do not apply to this Addendum. Further, no amendments to the Minnesota Agreement govern this Addendum unless expressly entered into by Oregon DPS. As noted in Section 2 of the WSCA- NASPO Terms and Conditions (listed on page 22 of the Minnesota RFP), in case of any conflict between the terms of this Participating Addendum, the Minnesota Agreement, the Minnesota RFP solicitation, and Contractor’s proposal in response to the Minnesota RFP solicitation, the terms of this Participating Addendum will control. 8.4 “ORCPP” means the Oregon Cooperative Procurement Program, under which members including local governments, agencies, and organizations in the state of Oregon are authorized to purchase goods and services available under an agreement, like this Addendum, entered into by Oregon DPS, and which are listed in the following online document: http://www.oregon.gov/DAS/EGS/PS/docs/orcpp/orcppmemberlist.pdf 8.5 “Purchaser” means an entity that submits a Purchase Order to Contractor under this Addendum. A Purchaser may be either (1) Oregon DPS, (2) an agency submitting a Purchase Order under Oregon DPS purchasing authority and direction, (3) an Independent Agency, or (4) an ORCPP member with its own purchasing authority. 8.6 “Purchase Order” means a document submitted by a Purchaser to Contractor under this Addendum that specifies a quantity and type of goods and services that Purchaser is purchasing and which Contractor will provide to Purchaser under the terms of this Addendum. 8.7 “Services” means installation, configuration, implementation, and training regarding the computer equipment (including software) provided by Contractor under this Addendum. The Services include but are not limited to the items identified in Exhibits ___ and ___ to the Minnesota Agreement. 106 SECTION 6: ATTACHMENTS | 2014_0122 9. Use of Purchase Orders. 9.1 Purchase Order forms. Purchasers may use their own Purchase Order (“PO”) forms, and may also use Oregon DPS’s Purchase Order form. If a Purchaser received a price quote, the quote number should also be included on the PO. If the terms of any PO form differ from the terms of this Addendum, the terms of this Addendum supersede the inconsistent terms. 9.2 PO language. Each Purchase Order should contain the language below on the first page. “This Purchase Order is issued under the Minnesota Agreement and the Participating Addendum entered into by Oregon DPS and _____________, contract number _____. The terms of the Participating Addendum govern this purchase and supersede any inconsistent terms.” 9.3 Liability for Purchase Orders. Only a Purchaser issuing a Purchase Order is liable for obligations arising under the order. The State of Oregon expressly disclaims any liability for purchases made by entities that are not Oregon state agencies. Contractor acknowledges that the State of Oregon is only responsible for PO that it issues. 9.4 Verification of Purchasers. Contractor is responsible for verifying that it provides goods and services under this Addendum only to Purchasers. (Contractor can verify that a particular entity is an ORCPP member at the website listed in the ORCPP definition.) 10. Exhibits. This Addendum includes the following exhibits which are incorporated by this reference. 10.1 Exhibit A Contractor insurance requirements. 10.2 Exhibit B Approved Resellers of Contractor Products and Services related to the Products 10.3 Exhibit C . [Reserved] 10.4 Exhibit D Format for Volume Sales Report. 11. Payment terms. 11.1 A Purchaser will pay Contractor for goods and services at the rates set forth in a Purchase Order. All payments to Contractor are subject to ORS 293.462. Purchasers may make payments under this Addendum by check or credit card. 11.2 Invoices. A Purchaser will pay Contractor no more than once each month for undisputed amounts due upon Contractor’s submission of detailed invoices that describe the goods and services delivered by Contractor and accepted by the Purchaser. Contractor shall request payment only for goods and services accepted by a Purchaser. Contractor must submit invoices electronically to Purchaser’s representative as designated on a Purchase Order. 11.3 Contractor’s invoices must include the following information: (a) The number of this Addendum. (b) The Purchase Order number. (c) The goods and services ordered. (d) The date of Contractor’s delivery. (e) The quantity of goods and services delivered. (f) The price per item of delivered goods and services. (g) The total amount due. (h) The address to which payment is to be sent. 11.4 Invoice disputes. Purchasers may review invoices for compliance with the requirements of this Addendum, and in the event of a discrepancy may dispute an invoice. Purchasers will not pay disputed claims until the dispute is resolved. Purchasers will pay undisputed portions of disputed or incorrect invoices where the undisputed portion can be easily identified by Purchaser. Payment of an amount less than the total amount due on an unpaid invoice must be credited by Contractor as directed by Purchaser. In no event may Contractor apply any payment or portion thereof to any particular amount or item that is subject to any claim of error or dispute between the parties. Contractor shall have three months from the date of any disputed billing item to give notice and initiate a dispute against Purchaser. Once either party has notified the other of an invoice or payment dispute, the parties shall attempt to resolve the dispute within 6 months. Purchasers have two years from the date of any disputed invoice to give notice and initiate a dispute against Contractor. 11.5 No additional fees. The cost for products listed in this Addendum is the only allowable charge. Contractor may not 107 SECTION 6: ATTACHMENTS | 2014_0122 add any other fees or charges irrespective of the payment method used by a Purchaser. 12. Funds available and non-appropriation. A Purchaser’s payment obligations under this Addendum are conditioned upon Purchaser receiving funding, appropriations, limitations, allotments, or other expenditure authority sufficient to allow Purchaser, in the exercise of its reasonable administrative discretion, to meet its payment obligations under any Purchaser Order. Nothing in this Addendum or Purchaser Order is to be construed as permitting any violation of Article XI, Section 7 of the Oregon Constitution or any other law governing liabilities or financial obligations of the State of Oregon. 13. Volume sales reports and vendor collected administrative fees. 13.1 Volume sales reports. Contractor shall submit to Oregon DPS a volume sales report (“VSR”) no later than thirty (30) calendar days from the end of each calendar quarter, whether or not there are sales under this Addendum. When no sales have been recorded for a quarter, Contractor’s VSR will state “No sales for the quarter.” The calendar quarters end on March 31, June 30, September 30, and December 31. 13.2 Content of VSRs. Contractor’s VSR must include the following information: (a) Complete and accurate details of all receipts (sales and refunds) for the reported period. (b) The information listed in Exhibit D to this Addendum. (Exhibit D is the Volume Sales Report Template which Contractor is required to submit to Oregon DPS.) (c) Such other information as Oregon DPS may reasonably request. 13.3 VSR delivery requirements. Contractor must deliver VSRs by email with the VSR in the form of a Microsoft Excel (.xlsx) spreadsheet attached to the email. Print outs of VSRs are not acceptable. Electronic copies of VSRs on compact disks are only acceptable if the size of the file precludes transmission by email. Approval from the Oregon DPS representative must be obtained for deviations from these requirements. 13.4 Delivery of VSRs. The first VSR submitted by Contractor must be submitted to the Oregon DPS representative for review and approval. The first VSR and all subsequent VSRs must be submitted by email to: vcaf.reporting@state.or.us. The Oregon DPS representative’s receipt of VSRs does not preclude Oregon DPS from challenging the accuracy of VSRs at any time. 13.5 Vendor collected administrative fee. (a) Vendor collected administrative fee (VCAF) definition. VCAF means one percent (1%) of Contractor’s gross total sales, less any credits, made to Purchasers under this Addendum during each calendar quarter. (b) VCAF payments. During the term of this Addendum, Contractor shall pay the VCAF amount to Oregon DPS within forty-five (45) calendar days after the end of each calendar quarter. (c) Contractor must not reflect the VCAF fee as a separate line item charge to Purchasers. Contractor’s prices must reflect all Contractor’s charges to Purchasers, including the VCAF amount. Oregon DPS will invoice Contractor for the VCAF on invoices based on Contractor’s VSR. Contractor is responsible for submitting timely VSR reports and making timely VCAF payment to Oregon DPS. (d) Payment format. Contractor’s VCAF payment shall be made in the form of a check sent to the address below (or to such other address designated by the Oregon DPS representative). Any form of VCAF payment other than a check must be specifically approved in writing by the Oregon DPS representative. State of Oregon Department of Administrative Services Attn: VCAF payment to DPS 1225 Ferry Street SE, U140 Salem, Oregon 97301-4285 (e) Interest on payments. Any payments owed by Contractor to Oregon DPS which are made after the due date indicated on the invoice shall accrue interest at a rate of 18% per annum or the maximum rate permitted by law, whichever is less, until the overdue amount has been paid in full. Oregon DPS’s right to interest on late payments shall not preclude Oregon DPS from 108 SECTION 6: ATTACHMENTS | 2014_0122 exercising any available rights or remedies. 13.6 Audit rights. Oregon DPS shall have the right during regular business hours and upon reasonable notice, at Contractor’s premises, by itself or by a person authorized by it, to audit Contractor’s books and records to determine and verify the information reported in any VSRs. In the event that any such audit reveals underpayment of VCAF fee, Contractor shall immediately pay the amount of deficiency, together with interest thereon at the rate provided in Section 6.2.3.2. At Oregon DPS’S request, Contractor shall pay the reasonable cost of an audit, but only if such audit reveals that an underpayment may exist as determined by Oregon DPS. 14. Contractor warranties. 14.1 Contractor makes the representations and warranties in this section for the benefit of Purchasers. Purchasers are entitled to the warranties, rights, remedies, and benefits under this Addendum. Contractor represents and warrants to Purchasers that: (a) Contractor has the power and authority to enter into and perform this Addendum and that this Addendum, when executed and delivered, will be a valid and binding obligation of Contractor enforceable in accordance with its terms. (b) Contractor will, at all times during the term of this Addendum, be qualified to do business in the State of Oregon, professionally competent and duly licensed to perform services under this Addendum. (c) All goods delivered by Contractor under this Addendum will be new, unused, current versions and models, and will be free from defects in materials, design and manufacture for the longer of Contractor’s or the publisher’s warranty period, through the expiration of the longer warranty period. (d) All goods and services delivered by Contractor will materially conform to, and meet or exceed, the specifications and acceptance criteria set forth in a Purchase Order, this Addendum, or any documentation provided by Contractor. (e) All services performed by Contractor will be performed in accordance with the highest applicable professional or industry standards, and that only workmanship of the first quality is acceptable. (f) Contractor’s performance creates no potential or actual conflict of interest, as defined by ORS chapter 244, for Contractor, any Contractor personnel, or any approved subcontractors who perform services for Purchasers. (g) All goods provided by Contractor are free and clear of any liens and encumbrances, and that Contractor has full legal title to the goods, and no other person has any right, title or interest in the goods which is superior to or infringe upon the rights transferred to a Purchaser. Title to goods delivered is subject to the provisions of ORS chapter 72. (h) When used as suggested by Contractor in product documentation and otherwise, no good or service delivered by Contractor infringes any copyright, patent, trade secret, trademark, or other proprietary right of any third party, nor will Purchaser’s use, duplication, or transfer of the goods or services infringe any such rights. (i) All goods and services provided by Contractor comply with all applicable federal and state health and safety standards. (j) Any approved subcontractors providing goods or performing services under this Addendum have assigned all of their rights in the goods and services to Purchaser. No third party has any right, title or interest in any goods or services supplied to Purchaser. 14.2 Contractor must transfer to Purchaser all manufacturer warranties covering goods at time of delivery at no charge. 14.3 Contactor shall transfer all goods and services to Purchasers free and clear of any and all restrictions on or conditions of transfer, modification, licensing, sublicensing, direct or indirect distribution, or assignment, and free and clear of any and all liens, claims, mortgages, security interests, liabilities, and encumbrances of any kind. 14.4 The warranties set forth in this Addendum are in addition to, and not in lieu of, any other warranties provided in Contractor’s product and service documentation. All warranties provided in this Addendum and in Contractor’s product and service documentation are cumulative and should be interpreted expansively so as to afford Purchaser the broadest protection available. 15. Indemnities and Liability. 109 SECTION 6: ATTACHMENTS | 2014_0122 15.1 General indemnity. Contractor will defend and indemnify Purchaser and the State of Oregon and their agencies, officers, employees, and agents (together, the “Indemnified Parties”) from and against all claims, suits, actions, losses, damages, liabilities, costs, expenses, and attorney fees of any nature whatsoever including the activities of Contractor and its officers, employees, subcontractors, resellers, and agents without limitation claims for personal injury, death, and property damage (together, “Claims”) resulting from, arising out of, and relating to goods and services provided by Contractor under this Addendum. 15.2 Infringement indemnity. Contractor will defend and indemnify the Indemnified Parties from and against Claims resulting from, arising out of, or relating to a claim that any aspect of the goods or services furnished under a Purchase Order infringes a copyright, patent, trademark, trade dress, utility model, industrial design, mask work, or any other intellectual property right of any third party (“Infringement Claim”). 15.3 Defense of indemnity claims. Contractor’s obligation to defend and indemnify a Purchaser is conditioned on Purchaser providing to Contractor notice of a Claim or potential Claim of which Purchaser becomes aware that may be the subject of those sections. However, to the extent Purchaser’s notice is delayed, Contractor’s obligation to defend and indemnify is only foregone only to the extent it is prejudiced by delay. Contractor may control the defense and settlement of Claims. However, neither Contractor nor any attorney engaged by Contractor may defend a claim nor purport to act as legal representative in the name of the State of Oregon or the Indemnified Parties which are state agencies without the approval of the Oregon Attorney General. Contractor may not settle any claim on behalf of the State of Oregon without the approval of the Attorney General. The State of Oregon may, at its election, assume its own defense by providing notice to Contractor. Contractor may not settle any indemnity claim on the State of Oregon’s behalf without the prior written consent of the Oregon Attorney General. The participation of the State of Oregon under this section will not relieve Contractor of its obligation to indemnify the State of Oregon. 15.4 Remedies for Infringement Claims. If any goods or services furnished by Contractor are, in Contractor’s opinion, likely to become the subject of an Infringement Claim, or if an Purchaser is prevented from exercising its rights under this Addendum based on any Infringement Claim or court order arising from any Infringement Claim, then Contractor may, at its option and expense, (1) procure for the Purchaser the right to continue using the allegedly infringing goods and services, or (2) replace or modify the goods or services so that they become non-infringing, provided that the replacement or modified product or service meets the specifications in the applicable Purchase Order to the satisfaction of Purchaser. If the foregoing remedies are not available, then Purchaser may return the allegedly infringing goods or terminate the allegedly infringing services, and Contractor must refund Purchaser’s payments in full, for the allegedly infringing goods or services, in additional to any other remedies available to Purchaser. 15.5 Limitation of liability. Except for indemnity and defense liability or confidentiality violations, or claims for personal injury, including death, or damage to property arising from the negligence, reckless conduct, or intentional acts of Contractor, its officers, employees, and agents, Contractor’s liability for damages to the State of Oregon for individual claims is limited to the greater of one million dollars or two times the aggregate value of all payments made by Purchasers under this Addendum over the two year period prior to notice of a claim. Neither party is liable to the other party for any consequential or incidental damages. 16. Term and termination of Addendum. 16.1 Term of Addendum. The initial term of this Addendum will be _______ years beginning on the date that Oregon DPS signs the Addendum. Oregon DPS may extend the term of the Addendum for additional periods not to exceed a cumulative total of _______ years, unless terminated earlier in accordance with the termination provisions in this Addendum. Irrespective of any termination, a Purchaser’s rights this Addendum continues in force for any goods and services accepted by a Purchaser. 16.2 Termination of Addendum. In addition to any termination rights in the Minnesota Agreement, Oregon DPS may terminate this Addendum, in whole or in part, immediately upon notice to Contractor, or at such later date as Oregon DPS may establish in such notice, for no reason or for any reason. Oregon DPS may also terminate this Addendum for the following reasons: (a) Contractor is in default under this Addendum and breaches any term of this Addendum. (b) Oregon DPS fails to receive funding, appropriations, limitations, allotments, or other expenditure authority at levels sufficient to allow Oregon DPS, in the exercise of its reasonable administrative discretion, to meet its payment obligations under this Addendum. (c) Federal, state, or local laws, regulations or guidelines are modified or interpreted in such a way that either the purchase of goods or services under this Addendum is prohibited or a Purchaser is prohibited from paying for such goods or services from the planned funding source. 110 SECTION 6: ATTACHMENTS | 2014_0122 16.3 Upon receipt of written notice of termination, Contractor shall stop performance under all Purchase Orders under this Addendum as directed by Oregon DPS. Contractor must notify Oregon DPS and effected Purchasers regarding the status of Purchase Orders which have not been fully performed by Contractor at the time of the termination. 16.4 Termination of this Addendum or the Minnesota Agreement does not extinguish or prejudice Oregon DPS’s or a Purchaser’s right to enforce this Addendum or a Purchase Order, including without limitation any right of the Oregon DPS or a Purchaser to indemnification by Contractor. If this Addendum or a Purchase Order is so terminated, the Purchaser will pay Contractor in accordance with the terms of a Purchase Order for goods and services which are accepted by the Purchaser. 17. Termination of individual Purchase Orders. 17.1 A Purchaser may, at its sole discretion, terminate individual Purchase Orders, in whole or in part, immediately upon notice to Contractor, or at such later date as Purchaser may establish in such notice, for no reason or for any reason. A Purchaser may also terminate this Purchase Orders on the occurrence of any of the following events: (a) Contractor is in default of or breaches any term of a Purchase Order. (b) A Purchaser fails to receive funding, appropriations, limitations, allotments, or other expenditure authority at levels sufficient to allow a Purchaser, in the exercise of its reasonable administrative discretion, to meet its payment obligations under a Purchase Order. (c) Federal, state, or local laws, regulations or guidelines are modified or interpreted in such a way that either the purchase of goods or services is prohibited, or a Purchaser is prohibited from paying for such goods or services from the planned funding source. 17.2 Upon receipt of written notice of termination, Contractor will stop performance under the Purchase Order as directed by Purchaser. 17.3 Termination of a Purchase Order does not extinguish or prejudice a Purchaser’s right to enforce the Purchase Order, including without limitation any right of Purchaser to indemnification from Contractor. In addition, termination of a Purchase Order does not extinguish or prejudice Purchaser’s right to enforce the any provisions of this Addendum. If a Purchase Order is terminated, Purchaser will pay Contractor in accordance with the terms of this Addendum for goods and services accepted by Purchaser. 18. Compliance with law. 18.1 Contractor will comply with all federal, state, and local laws, rules, regulations, executive orders, and ordinances applicable to Contractor’s performance under this Addendum and to the goods and services purchased. 18.2 Without limitation, a Purchaser’s performance under this Addendum and Purchase Orders is conditioned on Contractor’s compliance with the provisions of ORS 279B.220, 279B.230, 279B.235, and 279B.270. In addition, Contractor warrants the goods and services provided under this Addendum will comply with all federal Occupational Safety and Health Administration (OSHA) requirements and with all Oregon safety and health requirements, including those of the Oregon Workers’ Compensation Division. Contractor must comply with (a) Title VI of the Civil Rights Act of 1964, (b) Section v of the Rehabilitation Act of 1973, (c) the Americans with Disabilities Act of 1990 and ORS 659.425, (d) all regulations and administrative rules established pursuant to the foregoing laws, and (e) all other applicable requirements of federal and state civil rights and rehabilitation statutes, rules and regulations. 18.3 In addition, if Contractor is notified by a Purchaser that a specific purchase is being made with American Recovery and Reinvestment Act of 2009 (“ARRA”) funds, Contractor agrees to comply with the data element and reporting requirements as defined in Federal Register Volume 74 #61, Pages 14824-14829 (or subsequent changes or modifications to these requirements as published by the Federal OMB). Purchaser will inform Contractor when Purchaser becomes aware that ARRA funds are being used for a purchase. Contractor will provide the required report to Purchaser with the invoice presented to Purchaser for payment . Contractor, as it relates to purchases under this Addendum, is not a subcontractor or subgrantee, but simply a provider of goods and related services. 18.4 Application of public records law . Contractor acknowledges that any disclosures Contractor makes to Purchaser under this Addendum are subject to application of the Oregon Public Records Law, including but not limited to ORS 192.410 to 192.505, the provisions for the custody and maintenance of public records, ORS 192.005 to 192.710, and of ORS 646.461 to 646.475. The non-disclosure of documents or of any portion of a document submitted by Contractor to Purchaser may depend upon official or 111 SECTION 6: ATTACHMENTS | 2014_0122 judicial determinations made pursuant to the foregoing laws. Contractor will be notified prior to Purchaser’s release of documents to entities other than participating agencies or other State agencies. Contractor shall be exclusively responsible for defendin g Contractor’s position concerning the confidentiality of the requested documents, at its own expense. 18.5 Recycled products. Contractor must use, to the maximum extent economically feasible in the performance of this Contract, recycled paper (as defined in ORS 279A.010(1)(gg)), recycled PETE products (as defined in ORS 279A.010(1)(hh), and other recycled plastic resin products and recycled products (as “recycled product” is defined in ORS 279A.010(1)(ii). 19. Notices. Except as otherwise provided in a Purchase Order, any notices to be given under this Addendum or under a Purchase Order must be given in writing by personal delivery, by facsimile, or by mailing the notice, postage prepaid, to the address or phone number set forth on the Purchase Order. Any communication so addressed and mailed will be deemed to have been received five calendar days after mailing. Any communication delivered by facsimile will be deemed to be given when a confirming report for the transmission is generated by the transmitting fax machine. To be effective against the receiving party, a fax transmission or mailed notice must be confirmed by telephone notice and email notice to the receiving party’s authorized representative. Any notice by personal delivery will be deemed to be given when actually received by the appropriate authorized representative. For notices given under this Addendum, the contact information for representatives of Contractor and Oregon DPS are set forth in Section 5 of the Addendum. 20. Confidential Information and non-disclosure. 20.1 In the course of performing under this Addendum, Contractor may be exposed to or acquire information that is confidential to Oregon DPS and Purchasers. Any information of any form obtained by Contractor and its employees, agents, and approved subcontractors (together, “Contractor Personnel”) in the performance of this Addendum and Purchase Orders is confidential information of Oregon DPS and Purchasers (“Confidential Information”). Contractor must treat any reports or other documents or items which result from the use of the Confidential Information in the same manner as Confidential Information. 20.2 Non-disclosure obligation. Contractor must hold Confidential Information in confidence, using at least the same degree of care that Contractor uses in maintaining its own confidential information, and must not transfer, copy, reproduce, sell, assign, license, market, or otherwise disclose Confidential Information to third parties (other than Contractor Personnel who have a need to know such information). Contractor must not use Confidential Information for any purpose whatsoever other than in performing under this Addendum. Contractor must advise Contractor Personnel in writing of their obligations to keep the Confidential Information confidential. Contractor must use commercially reasonable efforts to assist Purchasers in identifying and preventing any unauthorized use or disclosure of any Confidential Information. Without limiting the foregoing, Contractor mus t advise Purchasers immediately if Contractor learns or has reason to believe that any person who has had access to Confidential Information has violated or intends to violate the non-disclosure obligations of this Addendum. Contractor will at its expense cooperate with Purchasers in seeking injunctive or other equitable relief in the name of Purchasers or Contractor against any such person. Contractor agrees that, except as directed by Purchasers, Contractor will not at any time during or after the term of this Addendum disclose, directly or indirectly, any Confidential Information to any person, except in accordance with this Addendum, and that upon termination of this Addendum or at a Purchaser’s request, Contractor will provide to the Purchaser all documents, papers, and all other materials in Contractor’s possession that contain Confidential Information of that Purchaser. 20.3 Confidential Information does not to include information that (a) is or becomes (other than by disclosure by Contractor) publicly known or is contained in a publicly available document, (b) is furnished by Purchaser to others without restrictions similar to those imposed by this Addendum, (c) is rightfully in Contractor’s possession without the obligation of nondisclosure prior to the time of its disclosure under this Addendum, (d) is obtained from a source other than Purchaser without the obligation of confidentiality, (e) is disclosed with the written consent of a Purchaser, or (f) is independently developed by Contractor Personnel who have had no access to the Confidential Information. 21. Dispute resolution. In the event that there is any disagreement, dispute, breach, or claim of breach, non-performance, or repudiation arising from, related to or in connection with the Addendum or any Purchase Order, including without limitation to any party’s failure or alleged failure to comply with any of the provisions of the Addendum (collectively, a “Dispute”), other than one related to the release of Confidential Information, Oregon DPS and Contractor shall first conduct the following procedure in an attempt to resolve the Dispute: (a) Oregon DPS and Contractor must make every effort to settle any dispute through their respective managers within five calendar days of one party notifying the other party of a dispute. (b) If the dispute is not resolved between the managers, then either party may initiate formal dispute resolution discussions by advising the other party in writing. The contacts for these discussions will be Oregon DPS’s and Contractor’s 112 SECTION 6: ATTACHMENTS | 2014_0122 representatives listed in Section 4 of this Addendum. Oregon DPS and Contractor must attempt in good faith to resolve the dispute within five calendar days of the notice from the other party that they are initiating this second level of dispute resolution. If Oregon DPS and Contractor agree in writing that there has been substantial progress toward resolution of the dispute, this second level may be extended for an additional five business day period which shall commence at the conclusion of the first five day period. (c) Nothing in this section (1) will in any way limit a party’s rights to seek injunctive relief of any kind, at any time, with respect to any matter, nor (2) will in any way limit a party’s right to suspend or terminate the Addendum or pursue othe r remedies available under the Minnesota Agreement, Addendum, law or otherwise, nor (c) will remove the requirement to provide notices or filings to meet deadlines otherwise required by law, nor (d) will constitute a waiver of the any form of immunity available to the State of Oregon. (d) Purchasers and Contractor must attempt to resolve all disputes related to Purchase Orders under the procedures described in this section. 22. Governing law. This Addendum and Purchase Orders are governed by and construed in accordance with the laws of the State of Oregon, without regard to principles of conflicts of laws. 23. Jurisdiction and venue. (a) Oregon state agencies. Any claim, action, suit, or proceeding (collectively, “Claim”) between Contractor and Oregon DPS, or a Purchaser other than an ORCPP member, that arises from or relates to this Addendum or a Purchase Order, must be brought and conducted exclusively in the Circuit Court of Marion County for the State of Oregon. (b) ORCPP members. Any Claims between Contractor and an ORCPP member that arise from or are related to Purchase Orders must be brought and conducted exclusively within the Circuit Court of the Oregon county in which the ORCPP member has its principal office, or at Purchaser’s option, within such other county as Purchaser will be entitled to proceed under the venue laws of Oregon to bring or defend Claims. (c) This section is not a waiver by the State of Oregon or any Purchaser of any form of immunity, including but not limited to sovereign immunity or immunity based on the Eleventh Amendment to the Constitution of the United States. If a Claim must be brought in a federal court, then it must be brought and conducted exclusively in the United States District Court of the District of Oregon. BY EXECUTION OF THIS ADDENDUM OR ACCEPTANCE OF A PURCHASE ORDER, CONTRACTOR HEREBY CONSENTS TO THE PERSONAL JURISDICTION PROVISIONS OF THIS ADDENDUM. 24. Entire agreement. 24.1 This Addendum constitutes the entire agreement between the parties on the subject matter hereof, and supersedes all prior agreements, oral or written. The terms of this Addendum prevail and govern in the case of inconsistent terms of any other document. There are no understandings, agreements, or representations, oral or written, between these parties that are not specified in this Addendum. No waiver, consent, modification, or change of terms of this Addendum binds either party unless in writing and signed by both parties and all necessary state approvals have been obtained. Such waiver, consent, modification or change, if made is effective only in the specific instance and for the specific purpose given. The failure of Oregon DPS or a Purchaser to enforce any provision of this Addendum does not constitute a waiver of that or any other provision. 24.2 This Addendum does not govern or modify any terms under existing contracts that Oregon DPS or Purchasers may have in place with Contractor. Such existing contracts, if any, are governed by and to be performed according to the terms of their own terms. 25. Foreign contractor. If Contractor is not domiciled in, or registered to do business in, the State of Oregon as of the effective date of this Addendum, Contractor will promptly provide to the Oregon Department of Revenue all information required by that department. A Purchaser may withhold final payment under a Purchase Order until Contractor has provided the Oregon Department of Revenue with the required information. 26. Independent contractor. Contractor is an independent contractor and is not an officer, employee, or agent (as those terms are used in ORS 30.265) of Oregon DPS or Purchasers. Contractor has no authority to bind Oregon DPS or Purchasers in any way. Contractor must not hold itself out as an officer, employee, or agent of Oregon DPS or Purchasers. Neither party shall make any statements, representations, or commitments of any kind or to take any action binding on the other except as provided for herein or authorized in writing by the party to be bound. 27. Access to records. Contractor will maintain all fiscal records relating to this Addendum and to Purchase Orders in accordance with generally accepted accounting principles and will maintain any other records relating to this Addendum and Purchase Orders in such a manner as to clearly document Contractor’s performance. Contractor must provide access to Purchasers, Oregon 113 SECTION 6: ATTACHMENTS | 2014_0122 DPS, and the State of Oregon, and their representatives to all records including without limitation to all books, documents, papers, plans and writings of Contractor which relate to this Addendum and Purchase Orders to perform examination and audits and make copies. Contractor will retain and keep accessible all such records for a minimum of six years following final payment or termination of this Addendum, or such longer period as may be required by applicable law, or until the conclusion of any audit, controversy or litigation arising out of or related to this Addendum or a Purchase Order, whichever date is later. 28. Severability. If any term of this Addendum is declared by a court of competent jurisdiction to be illegal or in conflict with any law, the validity of the remaining terms will not be affected, and the rights and obligations of the parties will be construed and enforced as if the Addendum did not contain the particular term held to be invalid. 29. Survival of terms. Any terms of this Addendum, which by their nature are intended to survive termination or expiration including but not limited to warranties, indemnification, access to records, governing law, venue, consent to jurisdiction, termination, and remedies will survive the termination of this Addendum. 30. Insurance requirements. Contractor must obtain the insurance coverage as set forth in Exhibit 1. Contractor may not transact business under Addendum or a Purchase Order until it has provided certificates of insurance to Oregon DPS demonstrating that it has complied with the insurance requirements. 31. Amendments. (a) The parties may amend this Addendum from time to time. An amendment must be in writing and signed by the parties. (b) Oregon DPS, in its sole discretion, may add goods and services to this Addendum on an as-needed basis from time to time as determined by Oregon DPS with input from Purchasers. 32. Tax certification. The individual signing on behalf of Contractor hereby certifies under penalty of perjury: (a) Contractor’s federal tax identification number is correctly shown on this Addendum. (b) Contractor is not subject to backup withholding because either (1) Contractor is exempt from backup withholding, (2) Contractor has not been notified by the IRS that Contractor is subject to backup withholding as a result of a failure to report all interest or dividends, or (3) the IRS has notified Contractor that Contractor is no longer subject to backup withholding. (c) He or she is authorized to act on behalf of Contractor, has authority and knowledge regarding Contractor. And (d) Contractor is not in violation of any Oregon Tax Laws. “Oregon Tax Laws” means a state tax imposed by ORS 320.005 to 320.150, 403.200 to 403.250, or ORS chapters 118, 314, 316, 317, 318, 321 or 323, or the elderly rental assistance program under ORS 310.630 to 310.706, or a local taxes administered by the Department of Revenue under ORS 305.620. Contractor: ________________, a ___________ corporation Signature: ______________________________________ Title: _____________________________________ Date: ______________________________________ Federal tax #: ______________________________________ State of Oregon acting by and through the Department of Administrative Services Signature: _________________________________ Title: ________________________________ Date: _________________________________ 114 SECTION 6: ATTACHMENTS | 2014_0122 Exhibit A to Participating Addendum Contractor’s insurance requirements A. REQUIRED INSURANCE. Contractor shall obtain the insurance specified in this exhibit prior to performing under this Addendum and shall maintain it in full force and at its own expense throughout the duration of this Addendum and all warranty periods. Contractor shall obtain the following insurance from insurance companies or entities that are authorized to transact the business of insurance and issue coverage in Oregon and that are acceptable to Oregon DPS. i. WORKERS COMPENSATION. All employers, including Contractor, that employ subject workers who work under this Addendum shall comply with ORS 656.017 and provide the required workers' compensation coverage, unless the employers are exempt under ORS 656.126(2). Contractor shall require each of its subcontractors, if any, to comply with, and shall ensure that each of its subcontractors, if any, complies with, these requirements. ii. PROFESSIONAL LIABILITY Required. Professional Liability Insurance with a combined single limit, or the equivalent, of not less than $ 1 million each claim, incident or occurrence This is to cover damages caused by error, omission or negligent acts related to the professional services to be provided under this Addendum. iii. COMMERCIAL GENERAL LIABILITY. Required. Commercial General Liability Insurance covering bodily injury and property damage in a form and with coverage that is satisfactory to Oregon DPS. This insurance shall include personal and advertising injury liability, products liability and completed operations liability. Coverage may be written in combination with Automobile Liability Insurance (with separate limits). Combined single limit per occurrence shall not be less than $1 million for each job site or location. Each annual aggregate limit shall not be less than $ 2 million. iv. Automobile Liability Insurance. Required. Automobile Liability Insurance covering all owned, non-owned, and hired vehicles including MCS-90 endorsement. This coverage may be written in combination with the Commercial General Liability Insurance. The policy shall insure against bodily injury, property damage, or environmental damage arising out of the use (including loading, transporting and unloading) by or on behalf of Contractor, its agents and employees of owned, non-owned or hired vehicles. Combined single limit per occurrence shall not be less than $1 million each accident for bodily injury and property damage. v. EMPLOYERS' LIABILITY. Required. If Contractor is a subject employer, as defined in ORS 656.023, Contractor shall obtain employers' liability insurance coverage with combined single limit per occurrence of not less than $1 million and annual aggregate limits of not less than $2 million. B. ADDITIONAL INSURED. The commercial general liability insurance and automobile liability insurance required under this Addendum shall include State, and its agencies, departments, divisions, commissions, branches, officers and employees as Additional Insureds with respect to Contractor’s performance obligations under this Addendum. Contractor shall ensure that coverage is primary and non-contributory with any other insurance and self-insurance. 115 SECTION 6: ATTACHMENTS | 2014_0122 C. “TAIL” COVERAGE. If any of the required liability insurance is on a “claims made” basis, Contractor shall either maintain either “tail” coverage or continuous “claims made” liability coverage, provided the effective date of the continuous “claims made” coverage is on or before the effective date of this Participating Addendum, for a minimum of 24 months following the later of (i) Contractor’s delivery of all goods and completion of all services required under this Addendum, or (iii) the expiration of all warranty periods provided under this Addendum. Notwithstanding the foregoing 24-month requirement, if Contractor elects to maintain “tail” coverage and if the maximum time period “tail” coverage reasonably available in the marketplace is less than the 24-month period described above, then Contractor shall maintain “tail” coverage for the maximum time period that “tail” coverage is reasonably available in the marketplace for the coverage required under this Addendum. Contractor shall provide to Oregon DPS upon a Purchaser’s request certification of the coverage required under this exhibit. D. NOTICE OF CANCELLATION OR CHANGE. Contractor shall immediately notify Oregon DPS of any change in insurance coverage. E. CERTIFICATES OF INSURANCE. Contractor shall provide to Oregon DPS certificates of insurance for all required insurance before delivering any goods or performing any services under this Addendum. The insurance certificates must specify all entities and individuals who are endorsed on the policy as additional insured (or loss payees). Contractor shall pay for all deductibles, self-insured retention and self-insurance, if any. 116 SECTION 6: ATTACHMENTS | 2014_0122 Exhibit B to Participating Addendum Approved Resellers of Contractor Products and Services related to the Products 117 SECTION 6: ATTACHMENTS | 2014_0122 Exhibit C to Participating Addendum [Reserved] 118 SECTION 6: ATTACHMENTS | 2014_0122 Exhibit D to Participating Addendum Format for Volume Sales Report VSR-Template.xlsx 119 SECTION 6: ATTACHMENTS | 2014_0122 UTAH Additional Terms and Conditions For WSCA Participating Addendums The following terms and conditions will be added to the Participating Addendum for the State of Utah: 1) AUTHORITY: Provisions of this Addendum are pursuant to the authority set forth in 63G-6, Utah Code Annotated, 1953, as amended, Utah State Procurement Rules (Utah Administrative Code Section R33), and related statutes which permit the STATE to purchase certain specified services, and other approved purchases for the STATE. 2) LAWS AND REGULATIONS: Any and all supplies, services and equipment furnished will comply fully with all applicable Federal and State laws and regulations, including applicable licensure and certification requirements. 3) RECORDS ADMINISTRATION: The Contractor will maintain, or supervise the maintenance of all records necessary to properly account for the payments made to the Contractor for costs authorized by this contract. These records will be retained by the Contractor for at least four years after the contract terminates, or until all audits initiated within the four years have been completed, whichever is later. The Contractor agrees to allow the State and Federal auditors, and State agency staff, access to all the records to this contract, for audit and inspection, and monitoring of services. Such access will be during normal business hours, or by appointment. 4) CERTIFY REGISTRATION AND USE OF EMPLOYMENT "STATUS VERIFICATION SYSTEM”: The Status Verification System, also referred to as “E-verify”, only applies to contracts issued through a Request for Proposal process, and to sole sources that are included within a Request for Proposal. It does not apply to Invitation to Bids nor to the Multiple Stage Process. 4.1 Status Verification System A. Each offeror and each person signing on behalf of any offeror certifies as to its own entity, under penalty of perjury, that the named Contractor has registered and is participating in the Status Verification System to verify the work eligibility status of the contractor’s new employees that are employed in the State of Utah in accordance with applicable immigration laws including UCA Section 63G-12-302. B. The Contractor shall require that the following provision be placed in each subcontract at every tier: “The subcontractor shall certify to the main (prime or general) contractor by affidavit that the subcontractor has verified through the Status Verification System the employment status of each new employee of the respective subcontractor, all in accordance with applicable immigration laws including Section 63G-12-302 and to comply with all applicable employee status verification laws. Such affidavit must be provided prior to the notice to proceed for the subcontractor to perform the work.” C. The State will not consider a proposal for award, nor will it make any award where there has not been compliance with this Section. D. Manually or electronically signing the Proposal is deemed the Contractor’s certification of compliance with all provisions of this employment status verification certification required by all applicable status verification laws including UCA Section 63G-12-302. 4.2 Indemnity Clause for Status Verification System A. Contractor (includes, but is not limited to any Contractor, Design Professional, Designer or Consultant) shall protect, indemnify and hold harmless, the State and its officers, employees, agents, representatives and anyone that the State may be liable for, against any claim, damages or liability arising out of or resulting from violations of the above Status Verification System Section whether violated by employees, agents, or contractors of the following: (a) Contractor; (b) Subcontractor at any tier; and/or (c) any entity or person for whom the Contractor or Subcontractor may be liable. B. Notwithstanding Section 1. above, Design Professionals or Designers under direct contract with the State shall only be required to indemnify the State for a liability claim that arises out of the design professional's services, unless the liability claim arises from the Design Professional's negligent act, wrongful act, error or omission, or other liability imposed by law except that the design professional shall be required to indemnify the State in regard to subcontractors or subconsultants at any tier that are under the direct or indirect control or responsibility of the Design Professional, and includes all independent contractors, agents, employees or anyone else for whom the Design Professional may be liable at any tier. 5) INDEMNITY CLAUSE: The Contractor will release, protect, indemnify and hold the STATE and the respective political subdivisions and their officers, agencies, employees, harmless from and against any damage, cost or liability, including reasonable attorney's fees for any or all injuries to persons, property or claims for money damages arising from acts or omissions of the Contractor, his employees or subcontractors or volunteers. The parties agree that if there are any Limitations of the Contractor’s Liability, including a limitation of liability for anyone for whom the Contractor is responsible, such Limitations of Liability will not apply to injuries to persons, including death, or to damages to property. 6) EMPLOYMENT PRACTICES CLAUSE: The Contractor agrees to abide by the provisions of Title VI and VII of the Civil Rights Act of 1964 (42USC 2000e) which prohibits discrimination against any employee or applicant for employment or any applicant or recipient of services, on the basis of race, religion, color, or national origin; and further agrees to abide by Executive Order No. 11246, as amended, which prohibits discrimination on the basis of sex; 45 CFR 90 which prohibits discrimination on the basis of age; and Section 504 of the Rehabilitation Act of 1973, or the Americans with Disabilities Act of 1990 which prohibits discrimination on the basis of disabilities. Also, the Contractor agrees to abide by Utah's Executive Order, dated March 17, 1993, which prohibits sexual harassment 120 SECTION 6: ATTACHMENTS | 2014_0122 in the work place. 7) DEBARMENT: The Contractor certifies that neither it nor its principals are presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation in this transaction (contract), by any governmental department or agency. If the Contractor cannot certify this statement, attach a written explanation for review by the STATE. The Contractor must notify the State Director of Purchasing within 30 days if debarred by any governmental entity during the Contract period. 8) TERMINATION: Unless otherwise stated in the Special Terms and Conditions, this contract may be terminated, with cause by either party, in advance of the specified termination date, upon written notice being given by the other party. The party in violation will be given ten (10) working days after notification to correct and cease the violations, after which the contract may be terminated for cause. This contract may be terminated without cause, in advance of the specified expiration date, by either party, upon thirty (30) days prior written notice being given the other party. On termination of this contract, all accounts and payments will be processed according to the financial arrangements set forth herein for approved services rendered to date of termination. 9) NONAPPROPRIATION OF FUNDS: The Contractor acknowledges that the State cannot contract for the payment of funds not yet appropriated by the Utah State Legislature. If funding to the State is reduced due to an order by the Legislature or the Governor, or is required by State law, or if federal funding (when applicable) is not provided, the State may terminate this contract or proportionately reduce the services and purchase obligations from the State upon 30 days written notice. In the case that funds are not appropriated or are reduced, the State will reimburse Contractor for products delivered or services performed through the date of cancellation or reduction, and the State will not be liable for any future commitments, penalties, or liquidated damages. 10) TAXES: Bid/proposal prices will be exclusive of state sales, use and federal excise taxes. The State of Utah’s sales and use tax exemption number is 11736850-010-STC, located at http://purchasing.utah.gov/contract/documents/salestaxexemptionformsigned.pdf . The tangible personal property or services being purchased are being paid from STATE funds and used in the exercise of that entity’s essential functions. If the items being purchased are construction materials, they will be converted into real property by employees of this government entity, unless otherwise stated in the contract, or contract orders. The State of Utah’s Federal excise exemption number is 87-780019K. 11) INSURANCE: Contractor must carry insurance with policy limits no less than one million per incident and three million in the aggregate. Contractor must provide proof of insurance to State and must add State as an additional insured with notice of cancellation. 12) PARTICIPANTS: This is a contract to provide the State of Utah government departments, institutions, agencies and political subdivisions (i.e., colleges, school districts, counties, cities, etc.) with the goods and/or services described in the bid/proposal. 13) POLITICAL SUBDIVISION PARTICIPATION: Participation under this contract by political subdivisions (i.e., colleges, school districts, counties, cities, etc.) will be voluntarily determined by the political subdivision. The Contractor agrees to supply the political subdivisions based upon the same terms, conditions and prices. 14) REPORTS AND FEES: The Contractor agrees to provide a quarterly administrative fee to the State of Utah in the form of a Check or EFT payment. The fee will be payable to the “State of Utah Division of Purchasing” for an amount equal to 1% of the net sales (net of any returns, credits, or adjustments) under this Addendum for the period. The Contractors WSCA pricing to the Participating Entity may be adjusted to offset for the equivalent fee amount. Payment(s) shall be made in accordance with the following schedule: Period End Fee Due March 31 April 30 June 30 July 31 September 30 October 31 December 31 January 31 The Contractor agrees to provide a quarterly utilization report, reflecting net sales to the Participating Entity during the associated fee period. The report will show the quantities and dollar volume of purchases by each agency and political subdivision. The report will be provided in secure electronic format and/or submitted electronically to the Purchasing Agent in the Division of Purchasing over in this Addendum and a copy to the Utah reports email address salesreports@utah.gov. 15) PAYMENT: Payments are normally made within 30 days following the date the order is delivered or the date a correct invoice is received, whichever is later. After 60 days from the date a correct invoice is received by the appropriate State official, the Contractor may assess interest on overdue, undisputed account charges up to a maximum of the interest rate paid by the IRS on taxpayer refund claims, plus two percent, computed similarly as the requirements of Utah Code Annotated Section 15-6-3. The IRS interest rate is adjusted quarterly, and is applied on a per annum basis, on the invoice amount that is overdue. Payments may be made via a State of Utah (or political subdivision) “Purchasing Card” (major credit card). All payments to the Contractor will be remitted by mail, electronic funds transfer, or Purchasing Card. 16) HAZARDOUS CHEMICAL INFORMATION: The Contractor will provide one set of the appropriate material safety data sheet(s) and container label(s) upon delivery of a hazardous material to the user agency. All safety data sheets and labels will be in accordance with each participating state's requirements. 121 SECTION 6: ATTACHMENTS | 2014_0122 17) PUBLIC INFORMATION: Contractor agrees that the contract, related Sales Orders, and Invoices will be public documents, as far as distribution of copies. Contractor gives the STATE express permission to make copies of the contract, related Sales Orders, and Invoices in accordance with the State of Utah Government Records Access and Management Act (GRAMA). Except for sections identified in writing and expressly approved by the State Division of Purchasing, Contractor agrees that the Contractor’s response to the solicitation will be a public document, and copies may be given to the public under GRAMA laws. The permission to make copies as noted will take precedence over any statements of confidentiality, proprietary information, or copyright information. 18) PROCUREMENT ETHICS: The Contractor understands that a person who is interested in any way in the sale of any supplies, services, construction, or insurance to the State of Utah is violating the law if the person gives or offers to give any compensation, gratuity, contribution, loan or reward, or any promise thereof to any person acting as a procurement officer on behalf of the State, or who in any official capacity participates in the procurement of such supplies, services, construction, or insurance, whether it is given for their own use or for the use or benefit of any other person or organization (63G-6-1002, Utah Code Annotated, 1953, as amended). 19) ENERGY CONSERVATION AND RECYCLED PRODUCTS: The contractor is encouraged to offer Energy Star certified products or products that meet FEMP (Federal Energy Management Program) standards for energy consumption. The State of Utah also encourages contractors to offer products that are produced with recycled materials, where appropriate, unless otherwise requested in the solicitation. 20) INDIVIDUAL CUSTOMERS: Each State agency and each political subdivision, as a State Entity, that uses this contract will be treated as if they were individual Customers. Each agency and each political subdivision will be responsible for their own charges, fees, and liabilities. The Contractor will apply the charges to each State Entity individually. Rev 8-20-13 122 SECTION 6: ATTACHMENTS | 2014_0122 B. MODEL PARTICIPATING ADDENDUM 1. Scope: This addendum covers the WSCA-NASPO COMPUTER EQUIPMENT CONTRACT lead by the State of Minnesota for use by state agencies and other entities located in the Participating State/Entity authorized by that state’s statutes to utilize state/entity contracts with the prior approval of the state’s chief procurement official. 2. Participation: Use of specific WSCA/NASPO cooperative contracts by agencies, political subdivisions and other entities (including cooperatives) authorized by an individual state’s statutes to use state/entity contracts are subject to the prior approval of the respective State Chief Procurement Official. Issues of interpretation and eligibility for participation are solely within the authority of the State Chief Procurement Official. 3. Participating State Modifications or Additions to Master Agreement: These modifications or additions apply only to actions and relationships within the Participating Entity. Utilize this section with specific changes or a statement that No Changes Are Required Items to consider for inclusion in the Participating Addendum: a. State Administrative Fees b. Additional Restrictions c. Configuration Limits d. Service- allowance of, travel associated with and limits e. Restrictions/Configuration Limits waiver process f. Partner utilization & approval Process g. Lease/Rental Allowance h. Ordering and Payment Process i. State Reporting Requirements j. Chief Procurement Officer approval for Participating Addendums for political subdivisions k. Additional State Terms and conditions l. Bring Your Own Device Option 4. Primary Contacts: The primary contact individuals for this participating addendum are as follows (or their named successors): LEAD STATE Name Sue Kahle Address 50 Sherburne Avenue, Room 112 Telephone 651-201-2434 E-mail Susan.kahle@state.mn.su WSCA-NASPO Name Tim Hay Address 201 East Main Street, Suite 1405, Lexington, Kentucky 40607 Telepho ne 503-428-5705 E-mail thay@wsca-naspo.org 123 SECTION 6: ATTACHMENTS | 2014_0122 CONTRACTOR Name Address Telepho ne E-mail PARTICIPATING ENTITY Name Address Telepho ne E-mail 5. Purchase Order Instructions: All orders should contain the following: (1) Mandatory Language “PO is subject to WSCA-NASPO Contract # XXXXX” (2) Your Name, Address, Contact, & Phone-Number (3) Purchase order amount. (4) Orders can be made out to either (a) [CONTRACTOR] or (b) to an AUTHORIZED reseller depending upon the preference of the Participating State or other participating legal entity. 6. Price Agreement Number: All purchase orders issued by Purchasing Entities within the jurisdiction of this participating addendum shall include the Participating State contract number: [insert appropriate number] and the Lead State price agreement number: xxxxx. 7. Individual Customer: Each State agency and political subdivision, as a Participating Entity, that purchases products/services will be treated as if they were Individual Customers. Except to the extent modified by a Participating Addendum, each agency and political subdivision will be responsible to follow the terms and conditions of the Master Agreement; and they will have the same rights and responsibilities for their purchases as the Lead State has in the Master Agreement. Each agency and political subdivision will be responsible for their own charges, fees, and liabilities. Each agency and political subdivision will have the same rights to any indemnity or to recover any costs allowed in the contract for their purchases. The Contractor will apply the charges to each Participating Entity individually. This Participating Addendum and the Master Agreement number xxx (administered by the State of xxxxxxxx) together with its exhibits, set forth the entire agreement between the parties with respect to the subject matter of all previous communications, representations or agreements, whether oral or written, with respect to the subject matter hereof. Terms and conditions inconsistent with, contrary or in addition to the terms and conditions of this Addendum and the Master Agreement, together with its exhibits, shall not be added to or incorporated into this Addendum or the Master Agreement and its exhibits, by any subsequent purchase order or otherwise, and any such attempts to add or incorporate such terms and conditions are hereby rejected. The terms and conditions of this Addendum and the Master Agreement and its exhibits shall prevail and govern in the case of any such inconsistent or additional terms within the Participating State. IN WITNESS WHEREOF, the parties have executed this Addendum as of the date of execution by both parties below. 124 SECTION 6: ATTACHMENTS | 2014_0122 Participating State: Contractor: By: By: Name: Name: Title: Title: Date: Date: [Additional signatures as required by Participating State] 125 SECTION 6: ATTACHMENTS | 2014_0122 C. MODEL MASTER AGREEMENT Date [Type Name] [Company Name] [Street Address] [Address2] [City State Zip] Dear [Type Name]: The following documents are enclosed for you to complete and return:  Notification of Contract MASTER AGREEMENT Award [Contract No.] for: MN WSCA-NASPOT COMPUTER EQUIPMENT  Exhibit XX, Negotiated Terms & Conditions  Exhibit XX, Pricing Discounts  Minnesota New Hire Reporting Form. Minn. Stat 256.998 requires employers to report to the Department of Human Services when they hire a sole proprietorship to perform work for them.   A certificate of insurance from your insurer, in the amounts called for in the solicitation, is required now. In accordance with Minn. Stat. § 16A.40 the responder receiving the award of a Contract will be required to provide their bank routing information to the Department of Minnesota Management & Budget to enable payments to be made through Electronic Funds Transfer (EFT). According to our records, you are not currently enrolled and participating in EFT with the State of Minnesota. Please complete the enclosed EFT Authorization form and fax it to the Minnesota Management and Budget Office at Fax: 651.797.1305. Instructions for properly completing the Contract documents are enclosed. Documents that are not properly executed will be returned to you. Failure to submit executed forms in the time required may result in cancellation of the award. Upon receipt of the properly executed forms, and after signatures are obtained from the appropriate State authorities, a copy of the completed Contract documents will be sent to your company. Sincerely, AMS Name Acquisition Management Specialist Enclosures Materials Management Division 112 Administration Building 50 Sherburne Avenue St. Paul, MN 55155 Voice: 651.296.2600 Fax: 651.297.3996 Please sign and return all sets of documents, VIA MAIL, to Nancy Rafftery at the above address by Date . 126 SECTION 6: ATTACHMENTS | 2014_0122 INSTRUCTIONS Return the signed sets of documents to the MMD office. REQUIRED SIGNATURES:  The documents must be signed by an officer of your company, e.g., president, vice president, assistant vice president, corporate secretary, assistant corporate secretary, treasurer, or assistant treasurer.  If your company is a corporation, the signature of one corporate officer is binding. If your company is a partnership, the signature of one partner is binding. If someone other than the corporate officers listed above signs the document (e.g., manager, sales manager, executive assistant, etc.), evidence of his or her authority to do so must accompany the document. The evidence can be either:  A corporate power of attorney, or  A certified copy of a board resolution authorizing the alternate signature with a letter attached and signed by a corporate officer stating the resolution is in force and effective 127 SECTION 6: ATTACHMENTS | 2014_0122 NOTIFICATION OF CONTRACT MASTER AGREEMENT AWARD To: [Type Name] [Company Name] [Street Address] [Address 2] [City State Zip] CONTRACT NO: [Contract No.] RELEASE NO: [Release No.] CONTRACT PERIOD: Through EXTENSION OPTION: [Ext. Option] You are hereby notified that your response to our solicitation, which opened xxxxx, is accepted. The following documents, in order of precedence, are incorporated herein by reference and constitute the entire Contract between you and the State: (1) this Notification of Contract Award, together any attachments or subsequent purchase orders, amendments or similar documents; (2) the State's solicitation; and (3) your response. In the event of a conflict in language among any of these documents, the terms and conditions set forth and/or referenced in this Notification and any later executed documents shall prevail over conflicting terms and conditions contained in the earlier documents, in their original form or as amended. 1. COMPANY NAME The Contractor certifies that the appropriate person(s) have executed this Contract on behalf of the Contractor as required by applicable articles, bylaws, resolutions, or ordinances. By: Signature Printed Name Title: Date: By: Signature Printed Name Title: Date: 2. MATERIALS MANAGEMENT DIVISION In accordance with Minn. Stat. § 16C.03, subd. 3. By: Title: Acquisition Management Specialist Date: 3. COMMISSIONER OF ADMINISTRATION Or delegated representative. By: Date: Materials Management Division 112 Administration Building 50 Sherburne Avenue St. Paul, MN 55155 Voice: 651.296.2600 Fax: 651.297.3996 128 SECTION 6: ATTACHMENTS | 2014_0122 Contract No. [Contract No.] STATE OF MINNESOTA MATERIALS MANAGEMENT DIVISION EXHIBIT xx MODIFIED TERMS & CONDITIONS As stated in the Notification of Contract Award, this Contract incorporates the terms, conditions and Specifications of the solicitation and response. The following terms and conditions have been modified by negotiation. These replace or are in addition (as indicated) the original solicitation Terms and Conditions. Any terms NOT modified or replaced are agreed to by both parties from the original solicitation. 129 SECTION 6: ATTACHMENTS | 2014_0122 Contract No. [Contract No.] STATE OF MINNESOTA MATERIALS MANAGEMENT DIVISION EXHIBIT xx PRICING DISCOUNT SCHEDULE PRICING WILL NOT BE HELD CONFIDENTIAL BAND(S) AWARDED: INSERT FINAL NEGOTIATED DISCOUNT STRUCTURES AND VOLUME DISCOUNTS HERE 130 SECTION 6: ATTACHMENTS | 2014_0122 131 SECTION 6: ATTACHMENTS | 2014_0122 132 SECTION 6: ATTACHMENTS | 2014_0122 D. ACTION REQUEST FORM SAMPLE DATE: _________ Materials Management Division 112 Administration Building 50 Sherburne Avenue St. Paul, MN 55155 ATTN: Ms. Susan Kahle, CPPB Acquisitions Management Specialist WSCA Master Agreement Administrator RE: Master Agreement #_____ with ______(Contract Vendor) Dear Ms. Kahle: ____________ (Contract Vendor) is requesting the action noted below. If needed, a Product and Service Schedule has been submitted online via SciQuest or is attached for WSCA approval. Action Requested: ________________________ Action Log: _____Verify Log is attached SELECT ACTION BELOW AND PROVIDE REQUIRED INFORMATION: ___Product Addition: ________________________ Band: _____ Original Discount: _____ Proposed Discount _____(must meet or exceed) ___Product & Service Schedule Change Describe - Include File ___Third Party Product Addition Provide warranty Guarantee ___Marketing Approval Attach Materials ___Website Change Review Describe and attach ___Miscellaneous Inquiry Provide detail The Contract Vendor assures Products and Services provided meet the terms and conditions of the original Master Agreement and understands WSCA may audit the Contract Vendor for compliance. Additional information may be requested upon submission. WSCA also reserves the right to remove previously approved items throughout the life of the Master Agreement if in the best interest of the State. Contract Vendor:__________________________ Name of Signer: __________________________ Title of Signer:__________________________ Signature: __________________________ Date:_________________ 133 SECTION 6: ATTACHMENTS | 2014_0122 ACTION REQUEST LOG Submit updated Action Log with each Request. Log must provide history of previous requests. CONTRACT VENDOR:__________________________ Contact Name and Email (for questions):__________________________________ DATE:__________________ DATE SUBMITTED ACTION REQUESTED: DATE APPROVED Include SciQuest File Name when applicable 134 SECTION 6: ATTACHMENTS | 2014_0122 E. PRODUCT AND SERVICE SCHEDULE SAMPLE MANUFACTURER NAME:____ABC__________________ DATE: ____09/01/14________ Part # BAND CATEGORY MANUFACTURER DESCRIPTION BASE LIST PRICE www.ABCpr icelist.com WSCA PRICE WSCA MINIMUM DISCOUNT ACTUAL DISCOUNT PROVIDED ADD = A DELETE= D PRICE REDUCED=R XYZ 1 Value Desktops ABC DESKTOP $100 $25 60% 75% A 550 2 Third Party Products ZZZZZZZ LAPTOP CART $50 $25 10% 50% D 123A 3 Services ABC INSTALLATION $100 $50 25% 50% R 135 SECTION 6: ATTACHMENTS | 2014_0122 F. BULK/VOLUME PRICING EXAMPLES CUMULATIVE $ Threshold Frequency Discount $1,000,000-$2,000,000 Annually add'l 1% $2,000,000-$3,000,000 Annually add'l 1.5% $3,000,000-$4,000,000 Annually add'l 2% $5,000,000 on up Annually add'l 2.5% PER TRANS MULTI UNIT $75,000-$100,000 - add'l 1% $100,000-$200,000 - add'l 1.5% $200,000-$300,000 - add'l 2% $300,000-$400,000 - add'l 2.5% $400,000-$500,000 - add'l 3% $500,000 on up - add'l 3.5% Additional .5% for online orders CUMULATIVE $ Threshold Frequency $2,000,000,000 & up Every $2 Billion 'gate' additional .5% on band 1-6A PER TRANS MULTI UNIT $50,000-$99,999 - add'l 1% $100,000-$199,999 - add'l 2% $200,000-$499,999 - add'l 4% $500,000-$999,999 - add'l 6% $1,000,000-No Max - add'l 8% CUMULATIVE $ Threshold Frequency Discount $5,000,001-$10,000,000 Duration of Master Agreement add'l 1% $10,000,001-$20,000,000 Duration of Master Agreement add'l 1% $20,000,001-$40,000,000 Duration of Master Agreement add'l 1% $40,000,001-$80,000,000 Duration of Master Agreement add'l 1% $80,000,001 TO 160,000000 Duration of Master Agreement ADDL 2% 106,000,001 - 220,000,000 Duration of Master Agreement ADDL 1.5 ABOVE $220,000,000 Duration of Master Agreement ADDL .5% WSCA Volume Pricing (per order) for Desktops and Notebooks Minimum Discount 1-99 Units XX% 100-500 Units XX% 500+ Units XX% 136 SECTION 6: ATTACHMENTS | 2014_0122 G. DETAILED REPORTING SAMPLE Click to download: Detail Sales Report Template 137 SECTION 6: ATTACHMENTS | 2014_0122 H. PRICE WORKBOOKS PDF Samples provided in original solicitation. Addenda released revised versions of Price Workbooks. Band 1 - Desktop Price Workbook v3 Band 2 - Laptop Price Workbook V3 Band 3 - Tablet Price Workbook v3 Band 4 - Server Price Workbook v6 Band 5 - Storage Price Workbook v4 Band 6 - Ruggedized Price Workbook v3 138 SECTION 6: ATTACHMENTS | 2014_0122 I. SOLICITATION HISTORY WEBINAR INVITATION: 05/16/2013 Issued advanced notice of webinar to review Draft Solicitation DRAFT SOLICITATION ISSUED: 05/20/2013 WEBINAR: 05/22/13 COMMENTS DUE: 06/10/2013 DRAFT TO WSCA-NASPO DIRECTORS FOR REVIEW: 08/07/2013 REFERENCE #: 19512 FINAL SOLICITATION ISSUED: 09/16/2013 PRE-PROPOSAL MEETING: 10/01/2013 PROPOSALS DUE: ORIGINAL: November 18, 2013 AMENDED: January 29, 2014 ADDENDUM 1: 10/30/2013 Announced an addendum would be issued soon to 1) provide answers to questions, provide pricing, extend due date. ADDENDUM 2: 11/07/2013 Extended the due date to December 6, 2013 ADDENDUM 3: 11/15/2013 1) Provided responses to questions, 2) Issued revised RFP – redline and clean version 3) Issued Pricing Workbooks, Allow for additional questions by November 22. ADDENDUM 4: 12/03/2013 Extend to 12/18/2103 ADDENDUM 5: 12/11/2013 Extend to January 7, 2014. Provide 1) Responses to questions due November 22 2) Issued revised RFP – redline and clean version 3) Issued updated Pricing Workbooks. ADDENDUM 6: 12/13/2013 1) The link provided for Band 1 in Addendum 5 was incorrect and has been corrected. 2. Clarification regarding the Baseline Price List Date: The Baseline Price List submitted may be dated an alternate date. However, the market basket pricing submitted must be representative of the pricing for an order placed on November 15, 2013 for purposes of evaluation. ADDENDUM 7: 12/19/2013 Provide Version 3 of Band 4: Server Pricing Workbook. Revisions include: a. The Processor in Base Equipment Spec 2 has been changed to “Xeon E5-2600 series” b. The option and upgrades in the Equipment pricing tab have been synced with the upgrade on the Spec 1 tab. c. The upgrade on Spec 2 tab has been deleted. ADDENDUM 8: 12/27/2013 1) provide version 4 of band 4: server pricing workbook. Revision includes: The Processor in Base Equipment TAB Specs 2, cell D12 has been changed to “Four Xeon E5-4640 series (2.4Ghz, 8-core)”. This processor supports the minimum requirement of 4 sockets. 2) Clarification on warranty pricing: It is understood that responders may have varying base warranties. For example, in Band 3 – Tablet Price Workbook, Services Tab – a warranty upgrade is listed for accidental damage. If a responder includes accidental damage in their base warranty they should indicate this on the pricing workbook in their offer. 3) Provide version 3 of band 5: storage pricing workbook. Revision includes: Added Line 20 to the equipment pricing tab (ST20-1). To clarify: Responders are to provide capacity and drives based on the upgraded configuration to Spec 1- 12TB total raw and Spec 2 - 16TB raw. ADDENDUM 9: 01/02/2014 Extend the due date of the solicitation to January 14, 2014, 3:00 p.m. C.T. ADDENDUM 10: 01/09/2014 1) Extend the due date of the solicitation to January 21, 2014, 3:00 p.m. CT. 2) Instruct responders that may have already postmarked a response that additional “MUST” addenda are to be postmarked and sent as a separate package. Addenda will state “MUST” be returned or “MAY” be returned as the final statement of each addenda. 3) If an addendum requires the responder to change the response, additional materials may be sent. These are to be clearly marked and detailed regarding the changes to the response. 4) Clarify that the minimum specifications are provided in the Price Workbooks. Manufacturer specific items may be substituted for the minimum specification if the manufacturer is able to provide an approved equal. This is stated in Section 4: Cost Proposal; Item 2. 5) Inform responders that an addendum is forthcoming to further clarify pricing workbooks. ADDENDUM 11: 01/16/2014 1) Extend the due date to January 28, 2014, 3:00 p.m. CT 2) Inform responders the printer pricing for printers in ALL Pricing Workbooks was transposed on the pricing pages. To be specific: The black and white printer price entered populated the color printer pricing. The color printer pricing entered populated the black and white pricing. To ensure the State has the correct printer pricing responders are given one of the following options 139 SECTION 6: ATTACHMENTS | 2014_0122 ___Acknowledge the pricing workbook(s) has already been submitted. Responder recognizes, as detailed above, that the printer pricing has been transposed on the pricing pages. Responder is authorizing the State of Minnesota to correct pricing pages. ___Acknowledge the pricing workbook(s) has already been submitted. The printer pricing issue was recognized by the responder previous to submitting and printer pricing is correct. ___Resubmit applicable pricing workbooks provided in this addendum 3) Provide clarification regarding the specifications on the Band 5: Storage Price Workbook: a) Responder is to determine drive size based on minimum requirement for Raw Disk Capacity – Base (Row D12) on Spec 1 of 4 TB and Spec 2 of 8TB. The drive size must also be sufficient to meet the upgraded configuration (Row C39) on Spec 1 to 12TB installed raw and Spec 2 to 16TB installed raw. The response must meet or exceed the minimum specifications. b) RAID options changed to “Specify” allowing the responder to specify the RAID number. (Specs-Item 1 TAB, Cell D16 and Specs-Item 2 TAB, Cell D16). 4) Provide revised Pricing Workbooks reflecting corrections to populate the printer pricing correctly and modification to the Band 5: Storage Price Workbook detailed in 2.b. above. ADDENDUM 12: 01/22/2014 1) Extend the opening date to: January 29, 2014; 3:00 p.m. C.T. 2) Issue revised RFP dated 01/22/2014. This version includes revisions resulting from addenda. 3) Issue Band 4 – Server Price Workbook Version 6. Past version did not populate entries on the Server 1 Spec Tab to the Equipment Pricing Tab. Responder may resubmit new version. The State reserves the right to transfer the amounts from the Server 1 Spec Tab to the Equipment Pricing Tab if the submitted version is not populated. 4) Clarify: A password is NOT needed to unprotect worksheets. ADDENDUM 13: 1) To Clarify: The RFP version 01/22/2014 provided in Addendum 12 does not need to be submitted with the response. This version was provided as courtesy to responders to clarify and confirm addenda changes. 2) Provide summary of addenda and allow responders to acknowledge receipt of all addenda provided in relation to the solicitation by submitting addendum 13. ADDENDUM 14: Extend the due date of the solicitation to January 31, 2014, 3:00 p.m. CT. City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID 23-1503 Agenda Date:10/19/2023 Agenda #: 1.-K. REPORT TO THE CITY COUNCIL FROM:BRYON HORN, Chief Information Officer BY:DENNIS JONES, Systems & Applications Manager Information Services Department SUBJECT Approve Amendment 4 to the Software as a Service Agreement with Tyler Technologies,Inc. reallocating funds within the project from unspent Software as a Service (SaaS)fees.No additional funding is requested. RECOMMENDATION Staff recommends the City Council approve Amendment 4 to the agreement with Tyler Technologies, Inc.(Tyler)reallocating funding within the project from unspent SaaS fees and authorize the Chief Information Officer, or designee, to execute the Amendment. No additional funding is requested. EXECUTIVE SUMMARY Amendment 4 reallocates project funds to be used toward additional implementation consultant hours and travel expenses for continued work on the Financials and Human Capital Management phases. Amendment 4 reallocates funding originally budgeted in the project for yearly hosting (SaaS) fees. The hosting fees paid over the first two years of the project were lower than budgeted due to a negotiated increase in fees as the various modules became available for use. Due to the scope of and complexities of the project, additional time is required to ensure successful implementation. The reallocation of funds will be used toward additional implementation consultant hours which includes travel expenses for on-site continued work on the Human Capital Management phase. BACKGROUND On January 28,2021,Council approved an agreement with Tyler Technologies.The first amendment was approved on April 29,2021.A project change request was approved by Council on February 9, 2023,which reallocated project funds from unneeded services.On April 27,2023,Council approved amendments 2 &3 to the agreement which reallocated project funds from unused services toward additional implementation hours and travel expenses. ENVIRONMENTAL FINDINGS City of Fresno Printed on 10/30/2023Page 1 of 2 powered by Legistar™ File #:ID 23-1503 Agenda Date:10/19/2023 Agenda #: 1.-K. The approval of this agreement is not a project for the purposes of the California Environmental Quality Act. LOCAL PREFERENCE Local preference is not applicable as this is a change to an existing agreement. FISCAL IMPACT There is no additional cost or monetary impact due to this amendment to the agreement. Attachments: Amendment 4 City of Fresno Printed on 10/30/2023Page 2 of 2 powered by Legistar™ City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID 23-1466 Agenda Date:10/19/2023 Agenda #: 1.-L. REPORT TO THE CITY COUNCIL FROM:GEORGEANNE A. WHITE, City Manager Office of the Mayor & City Manager TJ MILLER, Interim Director Personnel Services Department BY:SCOTT MOZIER, Director Public Works Department SUBJECT Actions pertaining to the FY24 Position Authorization Resolution No. 2023-184: 1:***RESOLUTION -Adopt the 5th Amendment to Position Authorization Resolution (PAR)No.2023- 184, adding three (3) full-time positions in the Public Works Department (Subject to Mayor’s Veto). RECOMMENDATION Staff recommends that Council authorize the adoption of the 5th Amendment to Position Authorization Resolution (PAR)No.2023-184,adding a total of three (3)full-time positions to the Public Works Department. EXECUTIVE SUMMARY The proposed amendment will add three (3)full-time positions citywide to improve service delivery and project delivery throughout the City. BACKGROUND During the FY24 Budget build,departments were asked to be conservative in their requests for new positions in order to maintain a steady approach to staffing growth and balance available resources to the most important needs.As the City is currently three months into the new fiscal year,the Public Works Department staff have identified the necessity for additional personnel in order to adequately administer and manage the current and future needs. The Public Works Department is requesting the approval of additional positions in the Street Maintenance Division. Three (3) Concrete Finishers are needed in order to deliver the concrete repair program. In City of Fresno Printed on 10/19/2023Page 1 of 2 powered by Legistar™ File #:ID 23-1466 Agenda Date:10/19/2023 Agenda #: 1.-L. FY2023, the Street Maintenance Division missed 127 concrete pour days due to not having enough Concrete Finishers to perform the work. By having these three additional Concrete Finishers, the Department can eliminate the lost production of missed pour days and will be able to meet the increased demands of the additional projects funded by SB1 Gas Tax and other funding sources in FY2024 and beyond. The recommended action will be accommodated by the current Fiscal Year 2024 PERS appropriations in the Public Works Department. There is no requirement to meet and confer with bargaining unit over this PAR amendment as this is only increasing the number of employees in existing classifications. ENVIRONMENTAL FINDINGS This is not a “project”for the purpose of the California Environmental Quality Act (“CEQA”)Guidelines Section 15378 and is therefore exempt from the CEQA requirements. LOCAL PREFERENCE Local preference is not implicated because this item does not involve public contracting or bidding with the City of Fresno. FISCAL IMPACT There will be no impact to the General Fund in FY24.The Public Works Department positions will be funded by salary savings in the current Fiscal Year 2024 appropriations. In FY25,the Public Works Department’s three (3)positions would be funded by the SB1 Gas Tax Revenue for the Concrete Repair Program and would result in a cost of $299,741 (salary and fringe). Attachment: Resolution - Fifth Amendment to Position Authorization Resolution No. 2023-184 City of Fresno Printed on 10/19/2023Page 2 of 2 powered by Legistar™ 1 of 2 Date Adopted: Date Approved: Effective Date: October 19, 2023 City Attorney Approval: ______ Resolution No. ____________ RESOLUTION NO. ____________ A RESOLUTION OF THE COUNCIL OF THE CITY OF FRESNO, CALIFORNIA ADOPTING THE FIFTH AMENDMENT TO RESOLUTION NO 2023-184 ENTITLED “A RESOLUTION OF THE COUNCIL OF THE CITY OF FRESNO ESTABLISHING THE NUMBER OF POSITIONS AUTHORIZED IN THE VARIOUS DEPARTMENTS AND OFFICES OF THE CITY FOR FISCAL YEAR 2024” NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Fresno, as follows: SECTION 1. Part V. Section 25.1 of Resolution No. 2023 -184 is hereby amended to read: PUBLIC WORKS DEPARTMENT Section 25.1 Administration Division; Engineering Services Division; Capital Management Division; Traffic Operations & Planning Division; Sustainable Fresno Division; Graffiti Abatement; Street Maintenance Division; Landscape Maintenance; Fulton Street Maintenance; and, Traffic Signal and Streetlights Division FROM TO FULL YEAR 342 342 OCT - JUNE 50 53 392 395 SECTION 2. Upon final legislative approval, this Resolution shall become effective October 19, 2023. 2 of 2 * * * * * * * * * * * * * * CLERK’S CERTIFICATION STATE OF CALIFORNIA ) COUNTY OF FRESNO ) ss. CITY OF FRESNO ) I, TODD STERMER, City Clerk of the City of Fresno, certify that the foregoing Resolution was adopted by the Council of the City of Fresno, at a regular meeting held on the day of 2023. AYES : NOES : ABSENT : ABSTAIN : Mayor Approval: , 2023 Mayor Approval/No Return: , 2023 Mayor Veto: , 2023 Council Override Veto: , 2023 TODD STERMER, CMC City Clerk By: Deputy Date APPROVED AS TO FORM: ANDREW JANZ City Attorney By: Mao Lee Date Deputy City Attorney City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID 23-1525 Agenda Date:10/19/2023 Agenda #: 1.-M. REPORT TO THE CITY COUNCIL FROM:TJ MILLER, Interim Director Personnel Services Department BY:VANESSA PERALES, Human Resources Manager Personnel Services Department SUBJECT ***RESOLUTION:Adopt the Fifth Amendment to Fiscal Year 2024 Salary Resolution No.2023-183, amending Exhibit 3,Unit 3,Non-Supervisory White Collar (FCEA)by adding the new classification and providing a monthly salary step plan range for Animal Care Specialist I,Animal Care Specialist II, Senior Animal Care Specialist and Animal Services Representative I,Animal Services Representative II,Senior Animal Services Representative;and amending Exhibit 13-1,Unit 13,Exempt Supervisory and Professional (CFPEA)by adding the new classification and providing a salary step plan range for Animal Center Supervisor, effective October 23, 2023 (Subject to Mayor’s Veto) RECOMMENDATION It is recommended that Council adopt the Fifth Amendment to the Fiscal Year 2024 Salary Resolution No.2023-183 effective October 23,2023 to amend Exhibit 3,Unit 3,Non-Supervisory White Collar (FCEA)and Exhibit 13-1,Unit 13,Exempt Supervisory and Professional (CFPEA)by adding seven (7)new classifications and the respective monthly salary step plan ranges for Animal Care Specialist I/II/Senior,Animal Services Representative I/II/Senior and Animal Center Supervisor to create focused classifications in the new Animal Center Department. EXECUTIVE SUMMARY On September 14,2023,Council approved actions pertaining to the creation of the Animal Center within the City of Fresno,including adding 77 positions to staff the center.At that time,the City advised Council that Personnel Services Staff in collaboration with the Animal Center would continue to return to Council to recommend the addition of new Animal Center focused job classifications, positions,and respective salary ranges in order to adequately recruit and fill positions at the Center. Subsequently,Council approved the addition of two new classifications for Animal Programs Coordinator and Registered Veterinary Technician on September 28, 2023. Adopting the Fifth Amendment to the Salary Resolution will create the new classifications and monthly salary step plan ranges for Animal Care Specialist I/II/Senior,Animal Services Representative I/II/Senior and Animal Center Supervisor. This action will not require additional funding or an increase in total positions to the Animal Center City of Fresno Printed on 10/30/2023Page 1 of 3 powered by Legistar™ File #:ID 23-1525 Agenda Date:10/19/2023 Agenda #: 1.-M. This action will not require additional funding or an increase in total positions to the Animal Center Department.The City has provided notice to the respective bargaining units and will follow the meet and confer process where applicable. BACKGROUND On September 14,2023,Council approved actions pertaining to the creation of the Animal Center within the City of Fresno,including adding 77 positions to staff the center.At that time,the City advised Council that Personnel Services Staff in collaboration with the Animal Center would continue to return to Council to recommend the addition of new Animal Center focused job classifications, positions,and respective salary ranges in order to adequately recruit and fill positions at the Center. On September 28,2023,Council approved the addition of two new classifications recommended for Animal Programs Coordinator and Registered Veterinary Technician. In continued collaboration with the Animal Center Department,an additional seven new classifications are recommended as follows. Exhibit 3, Unit 3, Non-Supervisory White Collar (FCEA) ·Add the new classification series of Animal Care Specialist I,Animal Care Specialist II and Senior Animal Care Specialist.These new classifications will be focused on intake and processing animals as they arrive at the Animal Center;feeding animals and administering vaccinations,medications and basic first aid;monitoring and documenting animal behavior, temperament and health;ensuring that kennels,cages and equipment remain clean and sanitized;assisting the public with meet and greet with adoptable animals;assisting with animal enrichment activities including social and mental stimulation and physical exercise consistent with the animal care plan; and performing related work as required. o Animal Care Specialist I monthly salary will be set at Step A - Step E: $3,293 - $4,003. o Animal Care Specialist II monthly salary will be set at Step A - Step E: $3,623 - $4,404. o Senior Animal Care Specialist monthly salary will be set at Step A -Step E:$3,985 - $4,844. ·Add the new classification series of Animal Services Representative I,Animal Services Representative II and Senior Animal Services Representative.These new classifications will be focused on providing clerical and administrative support;greeting clients and directing the completion of appropriate forms;responding to inquiries and evaluating calls to determine appropriate routing and response;providing information on Animal Center procedures and programs such as the intake process,adoptions,licensing,spay/neuter,vaccines,foster, volunteers,owner surrender,rescue and special events;processing payments and issuing receipts for services;entering information into the kennel management software system and maintaining logs and records of activity; and performing related work as required. o Animal Services Representative I monthly salary will be set at Step A -Step E:$3,346 - $4,006. o Animal Services Representative II monthly salary will be set at Step A -Step E:$3,665 - $4,391. o Senior Animal Services Representative monthly salary will be set at Step A -Step E: $4,188 - $5,019. City of Fresno Printed on 10/30/2023Page 2 of 3 powered by Legistar™ File #:ID 23-1525 Agenda Date:10/19/2023 Agenda #: 1.-M. Exhibit 13-1, Unit 13, Exempt Supervisory and Professional (CFPEA) ·Add the new classification of Animal Center Supervisor.This classification will supervise staff and coordinate associated activities in all areas of the Animal Center including animal resource and control,animal care,program coordination and/or customer service operations; engage and partner with the community regarding awareness and education on animal laws and resources; and perform related work as required. o Animal Center Supervisor monthly salary will be set at Step A - Step E: $5,687 - $6,913. The City has provided notice to the respective bargaining units and will follow the meet and confer process where applicable. The City Attorney’s Office has approved the Fifth Amendment to Fiscal Year 2024 Salary Resolution No. 2023-183 as to form. ENVIRONMENTAL FINDINGS By the definition provided in the California Environmental Quality Act Guidelines Section 15378 this item does not qualify as a “project”and is therefore exempt from the California Environmental Quality Act requirements. LOCAL PREFERENCE Local preference is not implicated because this item does not involve public contracting or bidding with the City of Fresno. FISCAL IMPACT Amending Exhibit 3 and Exhibit 13-1 will not require additional appropriations. Attachments: Resolution: Fifth Amendment to FY24 Salary Resolution No. 2023-183 Salary Tables: Fifth Amendment to FY24 Salary Resolution No. 2023-183 - Redline Salary Tables: Fifth Amendment to FY24 Salary Resolution No. 2023-183 - Final City of Fresno Printed on 10/30/2023Page 3 of 3 powered by Legistar™ City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID 23-1369 Agenda Date:10/19/2023 Agenda #: 1.-N. REPORT TO THE CITY COUNCIL FROM:JENNIFER CLARK, Director Planning & Development Department BY:DALTON BENNETT, Projects Administrator Planning & Development Department SUBJECT Actions pertaining to the demolition of a city owned building located at 735-741 H Street, Fresno CA 93721- Parcel Number 467-040-23 (District 3). 1.***RESOLUTION - Approve an Interfund Loan Agreement between the General Fund and the Brownfields Revolving Loan Fund. (Requires 5 Affirmative votes) (Subject to Mayor’s veto) 2.***RESOLUTION -Declaring an Urgent Necessity for the Preservation of Life,Health, Property;and Authorizing the Planning &Development Director or Designee to Enter Into and Administer Contracts for the Demolition of Dangerous Structures,and Removal of Hazardous Materials Without Advertised Competitive Bidding;and Approve the Following Contracts: David Knott Incorporated tor Demolition Services In An Amount Not To Exceed $589,972 And Centec Construction For The Removal Of Hazardous Materials in an Amount Not To Exceed $99,360;and Authorize the Planning &Development Director to Sign Such Contracts (Requires 5 Affirmative Votes) (Subject to Mayor’s Veto) 3.**RESOLUTION -Adopt the 25TH Amendment to the Annual Appropriation Resolution (AAR) No.2023-185 to appropriate $540,000.00 in the General Fund for demolition of a city owned building located at 735-741 H Street,Fresno,CA 93721 (Requires 5 Affirmative Votes) (Subject to Mayor’s Veto) 4.Approve an agreement with JSA Environmental Consulting in the amount of $50,160.00 for remediation of any hazardous materials. RECOMMENDATION Staff recommends the City Council approve actions pertaining to the demolition of the city owned building located at 735-741 H Street, Fresno CA 93721. EXECUTIVE SUMMARY The Property located at 735-741 H Street is vacant and has been subject to continuous break-ins, illegal occupancy and was subject to a fire in the basement on June 14,2023.This fire added damage to the already compromised structure.The building in its current condition has been inspected by licensed engineers and is considered to represent a public and first responder safety hazard.The city wishes to demolish the building and assess the site for possible future development. City of Fresno Printed on 10/30/2023Page 1 of 4 powered by Legistar™ File #:ID 23-1369 Agenda Date:10/19/2023 Agenda #: 1.-N. hazard.The city wishes to demolish the building and assess the site for possible future development. An Analysis of Brownfield Cleanup Alternatives (ABCA)report was prepared to meet the requirements for funding the abatement and demolition through the EPA Revolving Loan Fund Grant. BACKGROUND This action will approve an Interfund Loan Agreement between the General Fund and the Brownfields Revolving Loan Fund.On December 3,2009,Council adopted the Taxpayer Protection Act, amended on February 10,2010,which provides in Article IV that borrowing between City funds requires a loan agreement. The funding for these actions will come from two sources.The current Brownfield’s Revolving Loan Fund Grant (RLF)that was awarded to the City of Fresno by the Environmental Protection Agency (EPA)in 2021 and General Funds as required for grant match and non-eligible expenses.General Funds appropriated in the FY24 budget account for $210,000 of the budget.The remaining $540,000 will be appropriated in this action from the EPA Brownfield’s RLF Grant.The term of the loan shall begin on the Effective Date and shall be repaid in full as of October 19,2028.This action will adopt the 25th Amendment to the Annual Appropriate Resolution (AAR)No.2023-185 to appropriate $540,000.00 in the General Fund for the demolition of the building. This action will approve a Resolution declaring an Urgent Necessity for the Preservation of Life, Health,Property.On March 23,2023,Stantec Consulting Services,Inc.prepared an ABCA for the City (Attachment H).Based on this analysis and currently worsening structural conditions,the demolition of the building located at 735-741 H Street is an Urgent Necessity. The latest evaluation is based on a site visit that took place on July 12,2023,due to the fire in the basement.The fire caused charring to the first-floor wood framing and extinguishing the fire caused significant flooding of the basement (i.e.,there was at least two feet of water in the basement).The main goal of the visit was to re-evaluate the risk that building could cause to the public (i.e.,collapse potential). Timeline of site visits and building evaluations: i.The first site evaluation occurred two years ago.Present for this initial visit were representatives from Parrish Hansen Structural Engineers,consultant,Eric Frampton (Supervising Professional Engineer,City of Fresno)and Robert Kern (Professional/Structural Engineer, City of Fresno). ii.Preliminary Structural Assessment Report by Parrish Hansen Structural Engineers dated February 16, 2022. iii.Structural evaluation based on most recent site visit on July 12,2023.Present for the evaluation were Lupe Perez (Project Liaison/Program Administrator,City of Fresno),Dalton Bennett (Project Administrator,City of Fresno),Eric Frampton (Supervising Professional Engineer,City of Fresno),Richard Trimble (Professional Engineer,City of Fresno),and Robert City of Fresno Printed on 10/30/2023Page 2 of 4 powered by Legistar™ File #:ID 23-1369 Agenda Date:10/19/2023 Agenda #: 1.-N. Engineer,City of Fresno),Richard Trimble (Professional Engineer,City of Fresno),and Robert Kern (Professional/Structural Engineer, City of Fresno). The main findings from the latest site visit can be summarized as follows: The flooding is adding to the deterioration of the basement walls and foundations.It should be noted that the report by Parrish Hansen already flags the basement walls as critical for a potential failure for gravity loading alone. A potential failure during a moderate seismic event could be even more catastrophic.The charring of the first-floor framing also further reduces the vertical load carrying capacity of the first floor. For reference, below is a summary of the most critical aspects from Parrish Hansen’s report: ·Brick and mortar deterioration of walls and foundations. ·Diaphragm weaknesses: i.Weak/non-existent in-plane shear connections. ii.Weak/non-existent out-of-plane connection. iii.Limited diaphragm strength. ·Wall weaknesses: i.Minimal wall piers at south wall. ·Deficient capacity of roof framing. Based on these recent events (fire damage on June 14,2023 as well as two other fires within the last two years),the earlier finding and recommendations by Parrish Hansen outlined in their report (dated February 16,2022),along with the evaluation of City Staff,the building is a danger to the public and should be demolished as soon as possible. This action will approve an agreement with Environmental Consulting for remediation of any hazardous materials from the site. ENVIRONMENTAL FINDINGS This approval is statutorily exempt from the requirements of CEQA pursuant to CEQA Guidelines Section 15268 because the City has determined that issuance of a demolition permit is a ministerial action. The property has been assessed and is not eligible for the local Historic Register. LOCAL PREFERENCE City of Fresno Printed on 10/30/2023Page 3 of 4 powered by Legistar™ File #:ID 23-1369 Agenda Date:10/19/2023 Agenda #: 1.-N. David Knott Inc.,CENTEC Environmental Construction and JSA Environmental Consulting are all local businesses, as defined by the Fresno Municipal Code. FISCAL IMPACT Total cost including demolition,monitoring,hauling,and dump fees is $739,492.00.Work will be performed according to Davis/Bacon requirements /General Decision Number CA20230018 dated 08/25/2023. Funding will be from two sources: 1.The current Brownfield’s Revolving Loan Fund Grant (RLF)that was awarded to the City of Fresno by the Environmental Protection Agency (EPA) in 2021 2.General funds as required for grant match and non-eligible expenses General Funds appropriated in the FY24 budget account for $210,000 of the budget.The remaining $540,000 will be appropriated in this action from the EPA Brownfield’s RLF Grant.The term of the loan shall begin on the Effective Date and shall be repaid in full as of October 19, 2028. Attachments: A.Interfund Loan Resolution with Agreement B.Urgent Necessity Resolution with Contracts C.25TH Amendment to the Annual Appropriation Resolution No. 2023-185 D.Consultant Services Agreement JSA - Environmental Consulting Proposal E.Analysis of Brownfields Cleanup Alternatives (ABCA) City of Fresno Printed on 10/30/2023Page 4 of 4 powered by Legistar™ INTERFUND LOAN AGREEMENT This Loan Agreement (Agreement) is executed as of October 19, 2023 (Effective Date), between the City of Fresno, EPA Brownfields Revolving Loan Grant (Fund No. ____) (Lender) and the City of Fresno General Fund (Fund No. ____) (Borrower). Lender agrees to lend to Borrower, and Borrower agrees to repay Lender, an amount not to exceed the Principal Amount and interest accrued on the unpaid loan balance, in accordance with the following: 1.Purpose of the Loan: To provide funds for use by the Borrower or its designee to Demolish the City owned building located at 735-741 H Street, Fresno CA 93721 – Parcel Number 467-040-23. This loan is required by the Environmental Protection Agency when using the Brownfields Revolving Loan Fund. Grant number 98T08001 awarded to the City of Fresno on August 18, 2020. 2.Principal Loan Amount: Not to exceed $539,972.00. The loan will be recorded as receivable to the Lender and payable to the Borrower. 3.Term of the Loan: The term of this loan shall begin on the Effective Date and shall be repaid in full as of October 19, 2028. 4.Scheduled Payments. Borrower shall make payments against principal and interest twice a year on _________ and _________. Each payment shall be credited first to interest then due, and then to principal. Immediately after that, interest will cease on the principal so credited. 5.Rate of Interest. Any interest not paid when due shall bear interest from its due date at the rate specified; provided, however, that in no event shall the interest rate, as calculated and accrued, exceed the maximum legal rate applicable to loans by public entities to public agencies in similar transactions. The interest rate shall be a rate equal to the City’s Pooled Investment Rate, fixed monthly, calculated and accrued in the same manner that the City would otherwise earn interest on the funds if deposited and earning interest as a pooled investment. The rate for August 2023 was 2.6%. Loan interest will be recorded as revenue to the Lender and expenditure to the Borrower. 6.General Provisions. This Agreement constitutes the full Agreement by and between the parties and no other representations have been made regarding the contents of this Agreement. This Agreement shall not be amended, modified, or altered in any respect unless such amendment, modification, or alteration has been reduced to writing and executed by both parties. LENDER Georgeanne A. White, City Manager City of Fresno BORROWER Georgeanne A. White, City Manager City of Fresno 2 of 4 and at risk of collapsing due to significant damage to the structural integrity as a result of fire, natural dilapidation, faulty wiring, or other elements causing the structure to be uninhabitable; and WHEREAS, this severely damaged vacant structure also become a public nuisance, resulting in material annoyance, inconvenience, discomfort, or injury to another person or the public; and WHEREAS, qualified staff from the Planning & Development Department conducted field assessments to determine current conditions of the property posing an imminent danger to life, health, and safety, and makes a determination whether an demolition is necessary to prevent collapse, further collapse, and to remove hazards to the general public; and WHEREAS, once Planning & Development Department staff determined a demolition is necessary, the pre-approved agreements will allow authorized contractors to perform the services of demolition, testing for hazardous materials, and the removal of hazardous materials/debris without delay; and WHEREAS, the City of Fresno desires to authorize contracting authority to the Planning & Development to enter these agreements with the proposed contractors; and NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Fresno as follows: 1.The foregoing facts constitute an urgent necessity for the preservation of life, health, or property. 2.The requirement of advertising for bids is hereby waived pursuant to Charter section 1208(a). 3 of 4 3.The Planning & Development Department is authorized to enter a requirements contract with David Knott Incorporated (DKI) for demolition services for a term of up to six months, with an amount not to exceed $589,972. 4. The Planning & Development Department is authorized to enter a requirements contract with Centec Construction for the removal of hazardous materials from the demolition site, for a term of up to six months, with an amount not to exceed $99,360. 5.This resolution shall be effective upon final approval. * * * * * * * * * * * * * * Attachments: David Knott Incorporated contract Centec Construction contract 4 of 4 STATE OF CALIFORNIA ) COUNTY OF FRESNO ) ss. CITY OF FRESNO ) I, TODD STERMER, City Clerk of the City of Fresno, certify that the foregoing resolution was adopted by the Council of the City of Fresno, at a regular meeting held on the day of 2023. AYES : NOES : ABSENT : ABSTAIN : Mayor Approval: , 2023 Mayor Approval/No Return: , 2023 Mayor Veto: , 2023 Council Override Vote: , 2023 TODD STERMER, CMC City Clerk By: Date Deputy APPROVED AS TO FORM: ANDREW JANZ City Attorney By: Brandon M. Collet Date Supervising Deputy City Attorney Date Adopted: 1 of 2 Date Approved: Effective Date: Resolution No. RESOLUTION NO. ___________ A RESOLUTION OF THE COUNCIL OF THE CITY OF FRESNO ADOPTING THE 25th AMENDMENT TO THE ANNUAL APPROPRIATION RESOLUTION NO. 2023-185 TO APPROPRIATE $540,000 IN THE GENERAL FUND FOR THE DEMOLITION OF A CITY OWNED BUILDING LOCATED AT 735- 741 H STREET BE IT RESOLVED BY THE COUNCIL OF THE CITY OF FRESNO: THAT PART III of the Annual Appropriation Resolution No. 2023-185 be and is hereby amended as follows: Increase/(Decrease) TO: PLANNING AND DEVELOPMENT DEPARTMENT General Fund $ 540,000 THAT account titles and numbers requiring adjustment by this Resolution are as follows: General Fund Revenues: Account String: 1000-1001-1901-431-439303-19-6-0000-0000- $ 540,000 Total Revenues $ 540,000 Appropriations: Account String: 1000-1001-1901-431-658004-19-6-0000-0000- $ 540,000 Total Appropriations $ 540,000 THAT the purpose is to appropriate $540,000 for the demolition of a city owned building located at 735-741 H Street. The demolition will be funded by an Interfund Loan Agreement between the General Fund and the Brownfields Revolving Loan Fund. 2 of 2 CLERK’S CERTIFICATION STATE OF CALIFORNIA} COUNTY OF FRESNO } ss. CITY OF FRESNO } I, TODD STERMER, City Clerk of the City of Fresno, certify that the foregoing Resolution was adopted by the Council of the City of Fresno, California, at a regular meeting thereof, held on the Day of , 2023 AYES: NOES: ABSENT: ABSTAIN: Mayor Approval: , 2023 Mayor Approval/No Return: , 2023 Mayor Veto: , 2023 Council Override Veto: , 2023 TODD STERMER, CMC City Clerk BY: ____________________________ Deputy Projects Administrator 735, 739, and 741 H Street, Fresno, California Analysis of Brownfield Cleanup Alternatives March 23, 2023 Prepared for: City of Fresno 2600 Fresno Street, Room 3076 Fresno, California 93721 Prepared by: Stantec Consulting Services Inc. 3875 Atherton Road Rocklin, CA 95765 Project No.: 185755542 USEPA Brownfields Revolving Loan Fund Grant Cooperative Agreement No. BF98T08001 ACRES No. 253445 Sign-off Sheet This document entitled 735, 739, and 741 H Street, Fresno, California – Analysis of Brownfield Cleanup Alternatives was prepared by Stantec Consulting Services Inc. (“Stantec”) for the account of City of Fresno (the “Client”). Any reliance on this document by any third party is strictly prohibited without the written consent of Stantec, which may be granted at Stantec’s sole discretion. The material in it reflects Stantec’s professional judgment in light of the scope, schedule and other limitations stated in the document and in the contract between Stantec and the Client. The opinions in the document are based on conditions and information existing at the time the document was published and do not take into account any subsequent changes. In preparing the document, Stantec did not verify information supplied to it by others. Any third party use of this document is wholly the responsibility of such third party. Any reliance granted to a third party will require the use and acceptance of Stantec’s form of reliance letter. Author: David B. Holmes, Principal Scientist Quality Reviewer: Jacqueline Brenner, Associate Scientist Independent Reviewer: Neil Doran, P.G., Principal ANALYSIS OF BROWNFIELD CLEANUP ALTERNATIVES 735, 739, AND 741 H STREET, FRESNO, CALIFORNIA i Table of Contents ABBREVIATIONS AND ACRONYMS ...................................................................................... III EXECUTIVE SUMMARY .......................................................................................................... IV 1.0 INTRODUCTION AND BACKGROUND ........................................................................ 1 1.1 GENERAL SITE INFORMATION .................................................................................... 1 1.2 SITE HISTORY AND PREVIOUS USE ........................................................................... 1 1.3 HYDROGEOLOGIC SETTING ....................................................................................... 3 1.4 PREVIOUS ENVIRONMENTAL STUDIES AND REMEDIAL ACTIVITIES ..................... 4 1.5 SUMMARY OF KEY ENVIRONMENTAL, SAFETY, AND OTHER CONCERNS RELEVANT TO ASSESSMENT OF CLEANUP ALTERNATIVES .................................12 2.0 REDEVELOPMENT PLAN ........................................................................................... 14 3.0 APPLICABLE REGULATIONS AND CLEANUP STANDARDS .................................. 15 3.1 CLEANUP OVERSIGHT RESPONSIBILITY ..................................................................15 3.2 APPLICABLE CLEANUP STANDARDS FOR KEY CONTAMINANTS ..........................15 3.3 LAWS AND REGULATIONS APPLICABLE TO CLEANUP ...........................................15 3.4 GENERAL BROWNFIELDS REDEVELOPMENT BEST PRACTICES APPLICABLE TO CLEANUP .........................................................................................16 4.0 EVALUATION OF BROWNFIELDS CLEANUP ALTERNATIVES ............................... 18 4.1 CLEANUP ACTION OBJECTIVES ................................................................................18 4.2 CLEANUP ALTERNATIVES CONSIDERED .................................................................18 4.2.1 Alternative 1 – No Action .............................................................................. 19 4.2.2 Alternative 2 – Partial Abatement and Demolition ......................................... 19 4.2.3 Alternative 3 – Full Abatement and Demolition ............................................. 19 4.3 EVALUATION OF CLEANUP ALTERNATIVES .............................................................20 4.3.1 Effectiveness ................................................................................................ 20 4.3.2 Implementability ........................................................................................... 21 4.3.3 Costs ............................................................................................................ 22 4.3.4 Consideration of Climate Change Impacts ................................................... 24 4.3.5 Consideration of Equity and Environmental Justice Concerns ...................... 25 4.3.6 Consideration of Green and Sustainable Remediation Guidance ................. 25 4.4 RECOMMENDED REMEDIAL ALTERNATIVE .............................................................25 5.0 DISCLAIMER AND LIMITATIONS ............................................................................... 27 6.0 REFERENCES ............................................................................................................. 28 LIST OF FIGURES FIGURE 1 PROPERTY LOCATION MAP FIGURE 2 PROPERTY VICINTY MAP ANALYSIS OF BROWNFIELD CLEANUP ALTERNATIVES 735, 739, AND 741 H STREET, FRESNO, CALIFORNIA ii LIST OF TABLES TABLE 1 CHRONOLOGY OF PROPERTY OWNERSHIP AND LAND USES (1885-2022) LIST OF APPENDICES APPENDIX A ASBESTOS SURVEY AND LEAD BASED PAINT INSPECTION REPORT (2014) APPENDIX B ASBESTOS SURVEY REPORT (2022) APPENDIX C PRELIMINARY STRUCTURAL ASSESSMENT REPORT APPENDIX D FEMA FLOOD HAZARD AREAS MAP ANALYSIS OF BROWNFIELD CLEANUP ALTERNATIVES 735, 739, AND 741 H STREET, FRESNO, CALIFORNIA iii ABBREVIATIONS AND ACRONYMS ABCA Analysis of Brownfield Cleanup Alternatives ACM asbestos-containing material ACRES Assessment, Cleanup, and Redevelopment Exchange System AHERA Asbestos Hazard Emergency Response Act AME Alan Mok Engineering APN assessor parcel number BER business environmental risk CAL/OSHA California Division of Occupational Safety and Health C&D construction & demolition CFR Code of Federal Regulations DWR Department of Water Resources ESA environmental site assessment FACS Forensic Analytical Consulting Services FEMA Federal Emergency Management Agency HAZWOPER Hazardous Waste Operations and Emergency Response HUD Housing and Urban Development LBP lead-based paint Mg/cm2 Milligrams per cubic centimeter NESHAP National Emissions Standards for Hazardous Air Pollutants OSHA Occupational Safety and Health Administration PCBs Polychlorinated biphenyls PHSE Parrish Hansen Structural Engineers PPCG Provost & Pritchard Consulting Group RBMs regulated building materials REC recognized environmental condition RLF revolving loan fund RRP Renovation, Repair, and Painting SF square foot or feet Stantec Stantec Consulting Services, Inc. TAMA Temple Anderson Moore Architects TBAI T. Brooks & Associates, Inc. USEPA United States Environmental Protection Agency USGS United States Geological Survey VFT Vinyl floor tile ANALYSIS OF BROWNFIELD CLEANUP ALTERNATIVES 735, 739, AND 741 H STREET, FRESNO, CALIFORNIA iv EXECUTIVE SUMMARY Stantec Consulting Services, Inc. (Stantec) prepared this Analysis of Brownfield Cleanup Alternatives (ABCA) for a parcel of land nearly fully occupied by a vacant warehouse building located at 735, 739, and 741 H Street, Fresno, California (the “Property”), on behalf of City of Fresno (City or the “Client”). The 0.54- acre parcel is located at the west corner of the intersection of H Street and Mono Street in the downtown area of the City. The 0.54-acre parcel has dimensions of 59 feet by 400 feet and is nearly fully occupied by a 50-foot by 400- foot one-story vacant warehouse building formerly used for commercial purposes. The building was historically divided into four areas (referenced within this report as Areas A-D), each of which has separate assigned addresses, historical uses, and former occupants. The surrounding areas are comprised of vacant commercial structures, parking lots, retail businesses, the Chukchansi Park baseball stadium, and a railroad right-of-way. The Property is currently owned by the City. Until recently, it was anticipated that the building might be renovated for adaptive reuse as a retail marketplace, but a building inspection/study completed by a structural engineer in 2022 documented significant structural problems with the walls and foundation of the building and concluded that the cost to renovate the building would significantly exceed the cost of demolishing the building and constructing a new building of similar architectural design. The building has been subject to break-ins and illegal occupancy by homeless residents and is considered to represent a public safety hazard in its current condition. The City wishes to demolish the building and use the Property for future development of affordable housing. The ABCA was prepared in order to meet the requirements for funding the abatement and demolition through a loan from funding available through a United States Environmental Protection Agency (USEPA) Revolving Loan Fund (RLF) Grant awarded to the City in 2020. A Phase I ESA completed by Stantec in 2022 identified one recognized environmental condition (REC) associated with the former use of Area C by the California Spray Chemical Company from 1931 through 1946 for storage and distribution of a wide range of pesticides, poisons, and other hazardous materials. Due to the toxicity of these materials, there is potential for even minor releases (such as through cracks in the floor) to have resulted in significant releases to the environment. In addition, surveys for regulated building materials (RBM) performed on the building in 2014 and 2022 identified significant quantities of asbestos-containing materials (ACMs) and lead-based paint (LBP) within the building. The surveys did not include assessment of other types of hazardous building materials and equipment that Stantec believes may be present within the building, including but not limited to polychlorinated biphenyls (PCBs) in caulk, fluorescent light ballasts, elevators and other hydraulic equipment, fire alarms, and mercury thermostat switches. Therefore, this ABCA is focused on evaluating three remedial alternatives to address the current status of the building as a threat to public health and safety, and to support the desired redevelopment of the Property for affordable housing: Alternative 1 – No Action; Alternative 2 – Partial Abatement and Demolition; and Alternative 3 – Full Abatement and Demolition. The three alternatives are evaluated based on their effectiveness, implementability, and cost. Consideration is also given to climate change impacts, equity and environmental justice concerns, and green and sustainable remediation guidance. No Action ANALYSIS OF BROWNFIELD CLEANUP ALTERNATIVES 735, 739, AND 741 H STREET, FRESNO, CALIFORNIA v (Alternative 1) was considered but is not feasible as it would not allow the primary project goal of assessing the underlying soil to be achieved. Alternatives 2 and 3 include common elements, but the primary difference is that for Alternative 2, the roof and roof support structure would be demolished without first abating roofing materials presumed to contain asbestos, whereas for Alternative 3, all ACMs and other RBMs would be fully removed or otherwise abated prior to demolition of the roof support structure, walls, and other components of the building. Alternative 3 is the recommended remedial alternative and includes the following sequence of activities: 1. Development of bid specifications, solicitation of bids, execution of a contract for abatement/removal of hazardous building materials (including roofing materials presumed to contain asbestos), and subsequent demolition of the building and disposal of building debris. 2. Abatement of asbestos, lead based paint, and other hazardous building materials as necessary to minimize overall costs for abatement, demolition, and disposal of materials. 3. Demolition of the walls and floors of the building, and disposal/recycling of the materials. 4. Drilling and collection of soil samples through the floor slab of the building, and screening and analysis of the soil samples for potential contaminants of concern. 5. Removal of concrete floor and basement slabs/walls and either on-site crushing and stockpiling of materials for future use, or off-site disposal at a concrete recycling facility. 6. Removal and off-site disposal of the brick foundations. 7. Excavation and disposal of contaminated soil, if present. 8. Backfilling of former basement or excavation areas with clean compacted fill to match surrounding grade. Although assessment activities and soil remediation are anticipated to be part of the sequence of activities, the cost for these is not included as part of the scope of work to be funded by the RLF. The estimated cost for Alternative 3 is $753,430. Alternative 1 (no action) is the most easily implementable and has the lowest direct cost but is the least effective and will have the greatest long-term cost (considering “opportunity costs”). Alternatives 2 and 3 are similar in their effectiveness and implementability, but Alternative 3 is likely to be more cost effective as well as greener and more sustainable. . 735, 739, AND 741 H STREET, FRESNO, CALIFORNIA – ANALYSIS OF BROWNFIELD CLEANUP ALTERNATIVES INTRODUCTION AND BACKGROUND March 23, 2023 1 1.0 INTRODUCTION AND BACKGROUND Stantec Consulting Services, Inc. (Stantec) prepared this Analysis of Brownfield Cleanup Alternatives (ABCA) for a vacant warehouse building located at 735 H Street, Fresno, California (the “Property”), on behalf of City of Fresno (City or the “Client”). The ABCA was prepared by Stantec in accordance with the Consultant Services Agreement between Stantec and the City dated December 14, 2018, as amended on June 10, 2021, and is being funded through a Revolving Loan Fund (RLF) Grant awarded to the City by the United States Environmental Protection Agency (USEPA) in 2020 (Grant No. BF98T08001). 1.1 GENERAL SITE INFORMATION The Property is a 0.54-acre single parcel located at the west corner of the intersection of H Street and Mono Street, with current associated addresses of 735, 739, and 741 H Street in the downtown area of the City of Fresno, California. The parcel is identified by the Fresno County Assessor’s Office as Assessor Parcel Number (APN) 467-040-23, with reported dimensions of 59 feet by 400 feet. The Property is nearly fully occupied by a single-story elongated warehouse building with reported dimensions of 50 feet by 405 feet. The reported dimensions suggest that the building may encroach upon neighboring properties at its southeast or northwest ends. A 9-foot-wide concrete loading dock is present on the southwest side of the building and extends to the property boundary. This dock apparently served a railroad spur line that formerly extended along this side of the building. A 14-foot concrete loading dock is present on the northeast side of the building and appears to be within the right-of-way for H Street. Since its construction sometime between 1906 and 1918, the building has been divided into four areas, each with separate assigned addresses, historical uses, and occupants, as summarized below. Area General Location Approximate Dimensions Basement Area Present? Historical Addresses A Southeast end of the building (at the corner of H Street and Mono Street) 50 feet by 50 feet Yes 701, 705, and 707 H Street, and 1745 Mono Street B Northwest of Area A 50 feet by 150 feet No 719, 733, and 735 H Street C Northwest of Area B 50 feet by 100 feet No 737, 739 and 741 H Street D Northwest end of the Property 50 feet by 100 feet Yes 741 and 755 H Street The Property and adjacent properties to the northeast are vacant commercial structures. A general site location map is provided as Figure 1, and a site vicinity map is provided as Figure 2. 1.2 SITE HISTORY AND PREVIOUS USE The Property is currently owned by the City of Fresno. Historical uses of the Property were investigated by Stantec as part of a Phase I environmental site assessment (ESA) completed in 2022 (Stantec, 2022a). 735, 739, AND 741 H STREET, FRESNO, CALIFORNIA – ANALYSIS OF BROWNFIELD CLEANUP ALTERNATIVES INTRODUCTION AND BACKGROUND March 23, 2023 2 Based on research completed for the Phase I ESA, the Site appears to have been vacant land prior to 1898, with the first documented use being a lumber yard shown on a Sanborn fire insurance map dated 1906. Records suggest that the current building was constructed circa 1910-1912. As shown on Table 1, the earliest records for businesses at the primary addresses associated with the existing building date from 1910, 1912, 1913, and 1918. By 1918, the existing building was present and divided into four main areas with separate street addresses, ownership, and/or uses. Sometime during 1950-1970, the walls of the building were extended in height by 6-8 feet (resulting in the current uniform wall height of approximately 22 feet) and a new roof constructed. This renovation is suspected to have been partly in response to a major fire that destroyed a large portion of the original roof. The last documented occupant of an area within the building was Falcon Enterprises of Fresno, and Fresno Tire Disposal listed at addresses of 733- 735 H Street in the 1999 city directory. The City of Fresno reportedly owns the Subject Property, but records documenting the date it was acquired were not obtained as part of the Phase I ESA. The building as a whole has been vacant since approximately 2000, although Area A appears to have been vacant since at least 1975. Documented historical uses of the four sections of the building (Areas A to D) are summarized below: Area A (701-707 H Street; 1745 Mono Street) • 1910-1959: Valley Lumber Co. office (701, 705, 707) • 1932-1958: United Warehouse Company (701) • 1932-1958: Fowler Lumber Co (701, 707) • 1932: Alta District Lumber Co. (701) • 1937: Valley Lumber Co. – Johns Manville Inc. division – roofing supply warehouse (701) • 1958: Sequoia Lumber Co, Valco Lumber Distributors, Sequoia Lumber Co. (707) • 1955: The Feed Barn – livestock and poultry feed supplier • 1960: Fresno Chamber of Commerce • 1962-1970: Avernell & Arioto (A & A) Florists Inc. – wholesale florist supplies (1745) • 1975-2022: Vacant Area B (719-735 H Street) • Circa 1911-1912: H. Graff Co. – grocery warehouse • 1912-1926: Mark Lally Company (later Walworth-Lally Plumbing Supplies) – plumbing supply warehouse (735) • 1927-1932: Valley Lumber Co. – Johns Manville Inc. division – roofing supply warehouse (735) • 1948-1950: Valley Lumber Co. – hardwood and building material warehouse (719/735) • 1958: Zellerbach Paper Co. – warehouse (735) • 1963-1970: Butler Johnson Corp. – floor tile warehouse and/or wholesale floor covering business (735) • 1975-1990: Slater Furniture Co – furniture warehouse (735) • 1999: Falcon Enterprises of Fresno/Fresno Tire Disposal – tire recycling business (735) • 2002-2022: Vacant Area C (737-739 H Street) (Area C is labeled on the Sanborn fire insurance map dated 1918 as 741 H Street, but on subsequent maps dated 1948, 1950, and 1970 as 739 H Street. The association of the address of 741 H Street with Area C appears to have ended in the early 1920s.) 735, 739, AND 741 H STREET, FRESNO, CALIFORNIA – ANALYSIS OF BROWNFIELD CLEANUP ALTERNATIVES INTRODUCTION AND BACKGROUND March 23, 2023 3 • 1913-1914: Angelo & Son – fruit basket manufacturing and sales (741) • 1918: Wholesale produce business (741) • 1929-1941: Germain Seed & Plant Co. (737) • 1931-1946: California Spray Chemical Company (737, 739) – Ads dated 1931-33 for California Spray Chemical Company at this address identify the storage distribution of pesticides and other hazardous materials, including VAPO-DUST No. 2e (described as an oil-pyrethrum insecticide), CYANOGAS (which utilized calcium cyanide as its active ingredient, a variety of Ortho Sulphurs, dusting lime, caustic soda, and a “complete line of pesticides”). • 1932: Eagle Transfer Co. (737) • 1947: Mid Valley Distributing Company (739) – beer distributor • 1958: Fresno Macaroni Co. (1937) • 1965: Zellerbach Paper Co. – warehouse (739) • 1970: Floor tile warehouse (739) • 1975-2022: Vacant (737, 739) Area D (741 H Street) • 1918: Wholesale produce business (755) • 1924-1942: Armour & Company – wholesale meat supplier (741) • 1943-1948: United Fairway Produce Company (741) • 1948-1959: Brentwood Egg Company – egg warehouse (741) • 1970: Formica sink top warehouse (741) • 1975-2022: Vacant (741) 1.3 HYDROGEOLOGIC SETTING The following summary of hydrogeologic conditions is adapted from the Phase I ESA report by Stantec (2022a). Topography and Surface Water Flow: The Property is located at an elevation of approximately 292 feet above mean sea level (amsl). Topography at the Property is generally flat, with a slight gradient down to the northwest. Stormwater runs to the street gutters along H Street and Mono Street along the Property boundary. Regional Geology: The Property is located within the Great Valley geomorphic province of California, consisting of an alluvial plain about 50 miles wide and 400 miles long in the central part of California. Its northern portion consists of the Sacramento Valley, drained by the Sacramento River and its southern portion consists of the San Joaquin Valley drained by the San Joaquin River. The Great Valley is a trough into which sediments have been deposited almost continuously since the Jurassic Period (about 160 million years ago). Large oil fields have been found in southernmost San Joaquin Valley and along anticlinal uplifts on its southwestern margin. Regional and Site Hydrogeology: The Property is located within the Kings Sub-basin of the San Joaquin Valley Groundwater Basin (Department of Water Resources [DWR], 2006). The Kings Sub-basin is bounded to the north by the San Joaquin River, to the west by the Delta-Mendota and Westside Sub-basins, and to the south Empire West Side Irrigation District, the southern fork of the Kings River, and the boundaries of the Laguna, Kings County, Consolidated, Alta, and Stone Corral Irrigation Districts. The 735, 739, AND 741 H STREET, FRESNO, CALIFORNIA – ANALYSIS OF BROWNFIELD CLEANUP ALTERNATIVES INTRODUCTION AND BACKGROUND March 23, 2023 4 alluvium-granitic rock interface of the Sierra Nevada foothills comprises the eastern boundary of the Kings Sub-basin. Water-bearing formations in the Kings Sub-basin consist of unconsolidated continental deposits comprised of Tertiary and Quaternary age materials (DWR, 2006). According to groundwater information available for a nearby site (located at 603 Broadway Street, approximately 541 ft southeast of the Property), the depth to groundwater in the vicinity of the Property was approximately 95 ft below grade during in 2016, and groundwater flow direction was generally toward the northwest. Based on groundwater information available for a nearby site located at 655 G Street (approximately 600 feet south southwest of the Property) the groundwater flow directions observed during the three monitoring events in 2015 and 2016 was variable (south-southwest during two events, and north during one event). 1.4 PREVIOUS ENVIRONMENTAL STUDIES AND REMEDIAL ACTIVITIES Asbestos Survey & Lead-Based Paint Inspection Report (T. Brooks & Associates, Inc. [TBAI], 2014). In 2014, T. Brooks & Associates, Inc. (TBAI) completed an “Asbestos Survey & Lead-Based Paint Inspection Report” of the Property (TBAI, 2014). ACM and LBP were found throughout the Property structure. Materials documented to contain ACM include dry wall taping mud and surface texture, plastic roof cement, wall paneling, vinyl floor tile and associated mastic, and a vibration damper. For LBP, 47 interior and 4 exterior samples contained lead in excess of 1.0 milligram per square centimeter (mg/cm2) and would be classified as “Lead-Based Paint” (LBP) under state and federal regulations. Most of the materials with LBP were doors, windows, and door or window casings. No LBP was detected in 8 of the 13 interior rooms/areas that were tested. Of 21 areas for which the substrate was brick, only two samples contained lead in excess of 1.0 mg/cm2. Testing was performed using a Niton™ Corporation Model XLp- 300 x-ray fluorescence (XRF) analyzer. The California Division of Occupational Safety and Health (Cal/OSHA) regulates all activities involving the disturbance of paint which contains “any detectable” amount of lead. Any construction related work which will disturb building elements which include paint or surface coatings determined to contain lead must be conducted in accordance with applicable local state and federal regulations governing disturbance of lead. Lead waste characterization is required under state and federal requirements prior to disposing of lead- containing waste. A detailed summary of regulations, requirements, and recommendations related to the LBP is provided on pages 13-20 of the TBAI report (which is provided as Appendix A of this ABCA). Warehouse Feasibility Study, 2022 H Street & Inyo Street (Temple Andersen Moore Architects, 2022) A “Feasibility Study” for the Property which was referenced as the “H Street and Inyo Street” warehouse was completed by Temple Anderson Moore Architects (TAMA) in June 2022 (TAMA, 2022a). The feasibility study included: 1) an executive summary, 2) a Phase I ESA report completed by Provost & Pritchard Consulting Group (PPCG) dated December 23, 2021 (PPCG, 2021), 3) a site topographical survey by Alan Mok Engineering (AME) dated January 18, 2022 (AME, 2022), 4) an Asbestos Survey Report completed 735, 739, AND 741 H STREET, FRESNO, CALIFORNIA – ANALYSIS OF BROWNFIELD CLEANUP ALTERNATIVES INTRODUCTION AND BACKGROUND March 23, 2023 5 by Forensic Analytical Consulting Services (FACS) dated January 14, 2022 (FACS, 2022), 5) a preliminary structural assessment report by Parrish Hansen Structural Engineers (PHSE) dated February 16, 2022 (PHSE, 2022), and 6) a proposal and cost estimates prepared by TAMA for architectural and engineering services and contractor costs for demolition of the building (TAMA, 2022b, 2022c). The following sub- sections briefly summarize relevant findings from these reports. • Phase I ESA, PPCG, December 2021: No recognized environmental conditions (RECs) were revealed in connection with the Property, however LBP and ACM were observed on the Property. Several generations of fluorescent lighting fixtures were also noted to be present. Some ballasts that may contain PCBs were noted as well as the need to further evaluate and dispose of them in accordance with State regulations. An elevator was noted and described as appearing to be in good condition considering the age, with a motor and pump that did not appear to have obvious leaks. The report stated that the base of the elevator was not visible for observations to evaluate if the apparatus including pistons had leaked. • Topographic Survey Map, AMK, January 2022: The map documents a topographic survey of the Property completed on January 5, 2022. The map documents the location of the building and surrounding areas covered by concrete or pavement. Elevations of the ground surface surrounding the Property range from about 287 to 291 feet amsl. The map identifies six features within the concrete loading dock on the northeast side of the building as “unknown vaults.” The locations of doors on the outside of the building are shown. No detail is shown for the interior of the building. • Asbestos Survey Report, FASC, January 2022: The survey was focused solely on asbestos, and documented the following suspect materials that were sampled and confirmed by laboratory analyses to contain asbestos: 12" vinyl floor tile (VFT) – Marble, 12" VFT – Pink, 3'x3' Floor Tile – Black, 9" VFT – Tan Oatmeal, Aircell Insulation, Drywall – Skip Trowel Texture, Drywall – Smooth Texture, Flooring Material - Black Vinyl, Transite Panels, Vibration Dampener, and 9” VFT – Black. The report noted that while lab results do not reflect all drywall materials as containing asbestos, it was recommended that all drywall containing a paint or texture finish be handled as asbestos- containing. This was due to the random nature of the drywall systems in the building and determining exactly where one system that contains asbestos may stop or start. The report noted that handling all drywall as asbestos-containing would remove the potential for an improper disturbance of the material during renovation activities. A copy of this report is included as Appendix B of this ABCA. • Preliminary Structural Assessment Report, PHSE, February 2022: The report provides a preliminary structural assessment of the building for future occupancy options. A copy of this report is included as Appendix C of this ABCA. The report noted the following regarding the building construction: o The building outer dimensions are approximately 50.5 feet by 405 feet. o The building contains two basement areas, with one at the south end of the building having dimensions of approximately 47 feet by 47 feet, and the other beneath the center of the building having dimensions of 47 feet by 100 feet. 735, 739, AND 741 H STREET, FRESNO, CALIFORNIA – ANALYSIS OF BROWNFIELD CLEANUP ALTERNATIVES INTRODUCTION AND BACKGROUND March 23, 2023 6 o The lower (and original) portion of the building’s walls are constructed of brick, approximately 13-inches thick, and 14 to 16 feet tall. On top of the original wall, an extension of what was believed to be unreinforced concrete was added extending 6 to 8 feet above the original wall height, resulting in a current uniform wall height of 22 feet. o The report noted that the wall extension may have been constructed following a major fire that damaged the roof, but that the 38% to 60% increase in the original wall height resulted in a 90 to 150% increase in the stress level of the original wall when subjected to out-of- plane wind or seismic loads, and an “extreme increase in seismic/wind risk from the original intended construction.” o The two basement areas are constructed with brick walls and concrete floors. The report noted extreme deterioration to the bricks and mortar forming the walls. o The surface of the loading dock on the northeast side of the building is equal in elevation to the floor inside the building. o The structural engineer’s opinion was that the building could experience significant damage at a Richter level 4 event and catastrophic damage at a Richter level 5 event. o It was the opinion of the engineer that the remediation and upgrades required by the building code due solely to the existing structural deficiencies and deteriorations – without consideration of voluntary upgrades to enhance public safety – would cost considerably more than the replacement of this building with a new, similar type of construction. • Proposal and Cost Estimates for Demolition, TAMA, June 2022: TAMA provided the City with a proposal to prepare detailed drawings and specifications for demolition of the building for a fee of $12,500 (TAMA, 2022b). TAMA also provided a budgetary estimate of $509,000 for demolition of the building, with the assumption that the wood roof frame structure and concrete could be recycled (TAMA, 2022c). Phase I Environmental Site Assessment, 735, 739, and 741 H Street, Fresno, California (Stantec, 2022a) Stantec completed a Phase I ESA report for the Property on behalf of the City (Stantec, 2022a). The findings and opinions summary from the report is reproduced below. 1 Hydrogeologic Conditions Finding: The surface soil at the Subject Property reportedly consists of sandy loam soil types derived from either eolian (former dune) deposits or from alluvial fan remnants. Site specific groundwater measurement and quality data are not available, but regional groundwater studies and mapping tools suggest that the depth to groundwater at the Subject Property is approximately 95 feet below ground surface and the predominant flow direction is variable. Opinion: Based on the significant depth to groundwater, groundwater is unlikely to be encountered during future construction activities. In addition, there is reduced likelihood for future structures to be impacted by vapors emanating from any contaminated plumes of groundwater emanating from potential upgradient off-site contamination sources, wherever they may be located. 735, 739, AND 741 H STREET, FRESNO, CALIFORNIA – ANALYSIS OF BROWNFIELD CLEANUP ALTERNATIVES INTRODUCTION AND BACKGROUND March 23, 2023 7 2 Previous Phase I ESA for the Subject Property Finding: A previous Phase I ESA for the Subject Property was completed by PPCG in December 2021, on behalf of TAMA which in turn had the report prepared as part of a feasibility study for the Subject Property. The report identified two RECs, as follows: • “Based on the age of the building and a previous investigation for Lead Based Paint and Asbestos Containing Materials in 2014, an updated investigation report should be completed.” • “Several generations of fluorescent lighting fixtures are present. Some ballasts may contain PCB’s and should be evaluated and disposed in accordance with State regulations.” The report also identified the following non-scope consideration: • “The elevator appears to be in good condition considering the age, the motor and pump did not appear to have obvious leaks, but the base of the elevator was not visible for observations to evaluate if the apparatus including pistons had leaked.” Opinion: Stantec generally concurs with the ACM, LBP, fluorescent light ballasts, and elevator equipment being identified as concerns, but would classify all as business environmental risks (BERs) rather than RECs or unspecified concerns. In addition, Stantec identified additional concerns as detailed in Finding/Opinion 7 related to historical use of Area C as a pesticide storage and distribution warehouse by the California Spray Chemical Corporation between 1931 and 1947. 3 Previous Hazardous Building Materials Surveys for the Subject Property Building Finding: An initial ACM and LBP survey for the building was completed in 2014 by TBAI and identified lead concentrations in excess of 1.0 mg/cm2 in 47 of 199 interior samples, and 4 of 14 exterior samples. The survey identified the following estimated quantities of materials containing ACMs: • Drywall taping mud and texture (5491 ft2); vibration dampeners (16 ft2) • Vinyl floor tiles and mastic (1,740 ft2) • Wall panels (264 ft2); Plastic roof cement (15 ft2) The report included an estimate of $26,500 to abate these ACMs. A survey for ACMs only was completed in 2022 by FACS, and identified the following estimated quantities of materials containing ACMs: • Friable/ACM: Aircell insulation (240 linear feet); drywall – skip trowel or smooth texture with tape & joint (14,240 ft2); vibration dampeners (4) • Category I Non-Friable: Vinyl floor tile (11,687 ft2); Non-vinyl floor tile (135 ft2); • Category II Non-Friable: Transite panel (120 ft2) Neither study included assessment or sampling for other types of hazardous building materials and equipment that may be present within the building, including but not limited to PCBs in caulk, fluorescent light ballasts, elevators and other hydraulic equipment, fire alarms, and mercury thermostat switches. Opinion: There are significant differences in the quantities of ACMs identified in the two reports, with greater quantities identified in 2022. In addition, the study 735, 739, AND 741 H STREET, FRESNO, CALIFORNIA – ANALYSIS OF BROWNFIELD CLEANUP ALTERNATIVES INTRODUCTION AND BACKGROUND March 23, 2023 8 completed in 2014 identified significant areas of lead-based paint. These materials should be appropriately managed in conjunction with future building renovation or demolition activities. Additional sampling may be warranted to identify and quantify other types of hazardous materials or equipment that may be present in the building, including, but not limited to PCBs in caulk, fluorescent light ballasts, elevators and other hydraulic equipment, fire alarms, and mercury thermostat switches. The documented and/or potential presence of ACM, lead based paint, and other hazardous building materials and equipment is considered a BER. 4 Historical Uses of the Subject Property as a Whole Finding: The Property was shown as being vacant land on Sanborn fire insurance maps dated 1885, 1888, and 1898. On the map dated 1906, the Property was occupied by Madary’s Lumber Yard. An article in the Fresno newspaper dated 11/18/1909 referenced plans by the City to install an 18-inch diameter storm sewer beneath the sidewalk on H Street from Mono Street to Inyo Street to address repeated flooding occurring in this area every winter with heavy rains, flooding two businesses documented on Sanborn maps to have been present on the opposite (northeast) side of H Street. The article does not reference flooding of a building on the Property. By 1918, the existing building was present, divided into four main areas with separate street addresses, ownership, and/or uses. As shown on Table 1, the earliest records for businesses at the primary addresses associated with the existing building date from 1910, 1912, 1913, and 1918. Sometime during 1950-1970, the walls of the building were extended in height by 6-8 feet (resulting in the current uniform wall height of approximately 22 feet) and a new roof constructed. This renovation is suspected to have been partly in response to a major fire that destroyed a large portion of the original roof. The last documented occupant of an area within the building was Falcon Enterprises of Fresno, and Fresno Tire Disposal listed at addresses of 733-735 H Street in the 1999 city directory. The building as a whole appears to have been vacant since approximately 2000. The City of Fresno reportedly owns the Subject Property, but records documenting the date or year it was acquired were not obtained as part of the Phase I ESA. Opinion: The historical records reviewed suggest that the building was likely constructed circa 1910-1912. The only documented uses prior to 1910 appear to be the use as a lumber yard in 1906, and this use likely does not date beyond 1898 when the Property appears to have been vacant land. The use of the Property prior to construction of the existing building is not considered a REC. 5 Historical Uses of Area A (701- 707 H Street; 1745 Mono Street) Finding: As shown on Table 1, documented historical occupants and uses of Area A include (see note 1 below): • 1910-1959: Valley Lumber Co. office (701, 705, 707) – see note 2 below. • 1932-1958: United Warehouse Company (701) • 1932-1958: Fowler Lumber Co (701, 707) • 1932: Alta District Lumber Co. (701) • 1937: Valley Lumber Co. – Johns Manville Inc. division – roofing supply warehouse (701) • 1958: Sequoia Lumber Co, Valco Lumber Distributors, Sequoia Lumber Co. (707) 735, 739, AND 741 H STREET, FRESNO, CALIFORNIA – ANALYSIS OF BROWNFIELD CLEANUP ALTERNATIVES INTRODUCTION AND BACKGROUND March 23, 2023 9 • 1955: The Feed Barn – livestock and poultry feed supplier • 1960: Fresno Chamber of Commerce • 1962-1970: Avernell & Arioto (A & A) Florists Inc. – wholesale florist supplies (1745) • 1975--2022: Vacant Note 1: See Finding/Opinion 4 for use of the Property as a whole (including Area A) before 1910. For the occupants/uses listed above, the numbers in parentheses are the street numbers identified with this occupant or uses in the historical records reviewed. Note 2: An ad dated 1910 identified the Valley Lumber Co. office as being located at the corner of H Street and Mono Street, but it is possible that this ad was referencing a former Valley Lumber Co. office shown on historic maps as located on the opposite (south) side of the intersection. Opinion: Long-term use of Area A has been primarily as a lumber company office and a warehouse for various businesses. One of the documented uses (by Johns Manville) is of potential environmental concern, due to Johns Manville’s historical status as the world’s largest manufacturer of asbestos containing shingles and roofing materials. However, due to the apparent use of the building by Johns Manville and other businesses as an office or warehouse, the presence of a concrete floor, and the absence of any exposed outdoor areas, there is low likelihood of these uses would have resulted in contaminant releases to the environment. Therefore, the documented historical uses of Area A are not considered to be a REC. 6 Historical Uses of Area B (719- 735 H Street) Finding: As shown on Table 1, documented historical occupants and uses of Area B include (see note 1 below): • Circa 1911-1912: H. Graff Co. – grocery warehouse. • 1912-1926: Mark Lally Company (later Walworth-Lally Plumbing Supplies) – plumbing supply warehouse (735) • 1927-1932: Valley Lumber Co. – Johns Manville Inc. division – roofing supply warehouse (735) • 1948-1950: Valley Lumber Co. – hardwood and building material warehouse (719/735) • 1958: Zellerbach Paper Co. – warehouse (735) • 1963-1970: Butler Johnson Corp. – floor tile warehouse and/or wholesale floor covering business (735) • 1975-1990: Slater Furniture Co – furniture warehouse (735) • 1999: Falcon Enterprises of Fresno/Fresno Tire Disposal – tire recycling business (735) • 2002-2022: Vacant Note 1: See Finding/Opinion 4 for use of the Property as a whole (including Area B) before 1910. For the occupants/uses listed above, the numbers in parentheses are the street numbers identified with this occupant or uses in the historical records reviewed. Opinion: Long-term use of Area B has been primarily as a warehouse. Two of the documented uses (as a Johns Manville roofing supply warehouse and by a tire recycling business) are uses of potential environmental concern at certain sites. 735, 739, AND 741 H STREET, FRESNO, CALIFORNIA – ANALYSIS OF BROWNFIELD CLEANUP ALTERNATIVES INTRODUCTION AND BACKGROUND March 23, 2023 10 However, due to the apparent use of the building by these businesses as a warehouse, the presence of a concrete floor, and the absence of any exposed outdoor areas, there is low likelihood of these uses would have resulted in contaminant releases to the environment. Therefore, documented historical uses of Area B are not considered to be a REC. 7 Historical Uses of Area C (737- 739 H Street) Finding: As shown on Table 1, documented historical occupants and uses of Area C include: • 1913-1914: Angelo & Son – fruit basket manufacturing and sales (741) – see notes 1 and 2 below • 1918: Wholesale produce business (741) – see note 2 below • 1929-1941: Germain Seed & Plant Co. (737) • 1931-1946: California Spray Chemical Company (737, 739) – see note 3 below. • 1932: Eagle Transfer Co.(737) • 1947: Mid Valley Distributing Company (739) – beer distributor • 1958: Fresno Macaroni Co. (1937) • 1965: Zellerbach Paper Co. – warehouse (739) • 1970: Floor tile warehouse (739) • 1975-2022: Vacant (737, 739) Note 1: See Finding/Opinion 4 for use of the Property as a whole (including Area C) before 1910. For the occupants/uses listed above, the numbers in parentheses are the street numbers identified with this occupant or uses in the historical records reviewed. Note 2: Area C is labeled on the Sanborn fire insurance map dated 1918 as 741 H Street, but on subsequent maps dated 1948, 1950, and 1970 as 739 H Street. The association of the address of 741 H Street with Area C appears to have ended in the early 1920s. Note 3: Ads dated 1931-33 for California Spray Chemical Company at this address identify the storage distribution of pesticides and other hazardous materials, including VAPO-DUST No. 2e (described as an oil-pyrethrum insecticide), CYANOGAS (which utilized calcium cyanide as its active ingredient, a variety of Ortho Sulphurs, dusting lime, caustic soda, and a “complete line of pesticides”). Opinion: Long-term use of Area C has been primarily as a warehouse, by businesses that are generally not associated with high potential for contaminant releases to the environment. The exception is California Spray Chemical Company, which occupied all or portions of Area C for at least 16 years, and which stored and distributed a wide range of pesticides, poisons, and other hazardous materials. Due to the toxicity of these materials, there is potential for even minor releases (such as through cracks in the floor) to have resulted in significant releases to the environment. Therefore, the historical use of Area C by the California Spray Chemical Corporation is considered to be a REC. 8 Historical Uses of Area D (741 H Street) Finding: As shown on Table 1, documented historical occupants and uses of Area D include (see note 1 below): • 1918: Wholesale produce business (755) – see note 2 below • 1924-1942: Armour & Company – wholesale meat supplier (741) • 1943-1948: United Fairway Produce Company (741) • 1948-1959: Brentwood Egg Company – egg warehouse (741) • 1970: Formica sink top warehouse (741) 735, 739, AND 741 H STREET, FRESNO, CALIFORNIA – ANALYSIS OF BROWNFIELD CLEANUP ALTERNATIVES INTRODUCTION AND BACKGROUND March 23, 2023 11 • 1975-2022: Vacant (741) Note 1: See Finding/Opinion 4 for use of the Property as a whole (including Area D) before 1910. For the occupants/uses listed above, the numbers in parentheses are the street numbers identified with this occupant or uses in the historical records reviewed. Note 2: Area D is labeled on the Sanborn fire insurance map dated 1918 as 755 H Street, but on subsequent maps dated 1948, 1950, and 1970 as 741 H Street. The association of the address of 755 H Street with Area D appears to have ended in the early 1920s. Opinion: Long-term use of Area D has been primarily as a warehouse for wholesale food product businesses, and these documented historic uses are not considered to be a REC. 9 Historical Uses of Neighboring Properties Finding: Long-term commercial and/or industrial uses of note on adjacent or neighboring properties include: • 755 H Street (adjacent to northwest): This property was occupied until approximately 1997 by a warehouse building of similar design and age as the building on the Subject Property. The portion of the building adjacent to the Subject Property was identified with the address of 771 H Street in 1918 (when it was a produce warehouse) and with the address of 755 H Street beginning in 1924. Documented occupants of this portion of the building include the Los Angeles Soap Company (1924-1932), the American Cyanamid & Chemical Corporation (1936-1942), and the Zellerbach Paper Company (1948-1950). • 631-653 H Street/1728-1748 Mono Street (neighboring property to southeast – across Mono Street): Valley Lumber Co (from before 1898, 1918, 1948, 1950) Not shown on 1970 map. • Neighboring property to southwest: Railroad yard and freight warehouse (1898-1948, 1950, 1970). • 702-732 H Street (neighboring property to northeast – across H Street): Valley Foundry & Machine Works (1904-1951). • 754-764 H Street (neighboring property to northeast – across H Street): Fresno Steam Laundry Co (1903, 1906), Thomas Parisian Dyeing & Cleaning Works (1909), Kohler’s Steam Laundry (1918, 1927, 1948), Fresno Steam Laundry (1951), Fresno Liberty Laundry (1954), Fresno Linen Service (1963, 1964). Building was demolished in 1964. Opinion: Due to the presence of a building on the Property since 1910-12, and the lack of outdoor areas, there is significantly reduced potential for air-borne pollutants associated with historical industrial or commercial activities on these neighboring properties to impact the Property. The significant depth to groundwater makes it unlikely that undocumented hazardous substance or petroleum releases on these neighboring properties could impact indoor air at the Property due to off-gassing of contaminants from groundwater. There are no records suggesting that the steam laundry present for >60 years at 754-764 H Street included significant use of dry- cleaning chemicals. Therefore, the historical uses of these neighboring properties are not considered a REC for the Subject Property. 10 Environmental Listings for Finding: There are listings for 20 or more sites within a 0.5-mile radius of the Property within one or more of the environmental databases searched. 735, 739, AND 741 H STREET, FRESNO, CALIFORNIA – ANALYSIS OF BROWNFIELD CLEANUP ALTERNATIVES INTRODUCTION AND BACKGROUND March 23, 2023 12 Neighboring Properties Opinion: Based on the type of listings, the distance, and locations of these sites relative to the Property, and other factors, none of the sites are considered to represent a REC for the Property. 11 Site Visit Observations Finding: During the site reconnaissance, Stantec observed a 5-gallon bucket that had been tipped over and was leaking oil on the floor of the building. Opinion: The spill of a small amount of oil onto a concrete floor on the interior floor of the building does not represent a significant environmental concern to the Property and is considered a de minimis condition. A copy of Table 1 from the Phase I ESA is included in this ABCA report. 735, 739, and 741 H Street Section 106 Inventory and Evaluation Report (Stantec, 2022b) Stantec completed a cultural resource assessment of the Property on behalf of the City of Fresno in 2022. The study reaffirmed the findings of previous studies which determined that the Property was ineligible for listing on the National Register of Historic Places, and an overall finding of No Adverse Effects for the proposed project to abate hazardous building materials and perform demolition of the building. 1.5 SUMMARY OF KEY ENVIRONMENTAL, SAFETY, AND OTHER CONCERNS RELEVANT TO ASSESSMENT OF CLEANUP ALTERNATIVES The key environmental concerns identified at the Property include one REC associated with the former use of Area C by the California Spray Chemical Company from 1931 through 1946 for storage and distribution of a wide-range pesticides, poisons, and other hazardous materials. Due to the toxicity of these materials, there is potential for even minor releases (such as through cracks in the floor) to have resulted in significant releases to the environment. In addition, surveys for regulated building materials performed on the building in 2014 and 2022 identified significant quantities of ACMs and LBP within the building. The surveys did not include assessment of other types of hazardous building materials and equipment that Stantec believes may be present within the building, including but not limited to PCBs in caulk, fluorescent light ballasts, elevators and other hydraulic equipment, fire alarms, and mercury thermostat switches. At the time the Phase I ESA was performed by Stantec, plans for redevelopment of the Property for affordable housing had not been identified by the City. Based on these plans, an additional business environmental risk for the Property should include the potential for undocumented contamination to be present in the subsurface throughout the Property. Redevelopment of the Property for affordable housing will require removal of the existing building, foundations, and floor slabs, exposing soil throughout the Property. The change from industrial/commercial use to residential use warrants a greater level of environmental testing, beyond just areas where RECs have been identified. Due to the poor structural condition of the walls and foundations of the Property, the City has concluded that the building in its current condition is a public safety hazard and would cost significantly more to renovate than to demolish and replace with a new fully code compliant structure of similar design. In 735, 739, AND 741 H STREET, FRESNO, CALIFORNIA – ANALYSIS OF BROWNFIELD CLEANUP ALTERNATIVES INTRODUCTION AND BACKGROUND March 23, 2023 13 addition to being a general safety hazard, the building represents a potential hazard to workers or the users of heavy equipment inside the building. This is relevant to whether additional assessment activities (such as drilling and sampling soil beneath the floor slab) can be safely performed without the building first being removed. The poor structural condition of the building could also result in challenges for safely abating hazardous building materials prior to demolition. However, if these materials are not removed or otherwise abated prior to demolition, the demolition debris could potentially become a commingled hazardous waste subject to far greater handling and disposal costs than if these materials are first abated, in which case a significant portion of the structure could potentially be salvaged, recycled, or disposed of as a solid waste. 735, 739, AND 741 H STREET, FRESNO, CALIFORNIA – ANALYSIS OF BROWNFIELD CLEANUP ALTERNATIVES REDEVELOPMENT PLAN March 23, 2023 14 2.0 REDEVELOPMENT PLAN The Property was proposed until recently for rehabilitation and reuse as a retail complex in conjunction with a multi-unit housing development on the adjoining lot to the west. This redevelopment proposal is no longer active. According to City Planning Department representatives, the Site is now planned for redevelopment for affordable housing. 735, 739, AND 741 H STREET, FRESNO, CALIFORNIA – ANALYSIS OF BROWNFIELD CLEANUP ALTERNATIVES Applicable Regulations and Cleanup Standards March 23, 2023 15 3.0 APPLICABLE REGULATIONS AND CLEANUP STANDARDS 3.1 CLEANUP OVERSIGHT RESPONSIBILITY Site cleanup and redevelopment should be conducted in compliance with applicable laws, regulations, and procedures outlined below. 3.2 APPLICABLE CLEANUP STANDARDS FOR KEY CONTAMINANTS Cleanup standards for the key hazardous materials confirmed to be present at the Property are summarized below. LBP – Building materials containing lead in paint or other surface coating material containing lead are defined by the U.S. Department of Housing and Urban Development (HUD) and USEPA as greater than or equal to 5,000 parts per million or 0.5% by weight (HUD, 1997). The cleanup standards are assumed to equal this level. Asbestos – Cleanup standards for asbestos are based on the USEPA Asbestos-Containing Materials in Schools, Final Rule and Notice (USEPA, 1987). Although this rule is in place primarily to protect children in schools, following the guidelines within the rule is encouraged for all building renovations for the overall protection of human health. 3.3 LAWS AND REGULATIONS APPLICABLE TO CLEANUP This section is provided for informational purposes only and the Property owner (or contractor implementing the cleanup) is responsible for ensuring compliance with all applicable laws and regulations. Cleanup activities at the Property should be conducted by contractors operating in accordance with the U.S. Department of Labor Occupational Safety & Health Administration (OSHA) Hazardous Waste Operations and Emergency Response (HAZWOPER) standard codified at 29 Code of Federal Regulations 1910.120. The HAZWOPER standard applies to cleanup operations required by federal, state, local, or other governmental body involving hazardous substances. Additionally, the California OSHA “Lead in Construction Standard” codified in Title 8 California Code of Regulations Section 1532.1, is applicable to construction work where an employee may be exposed to lead. National Emission Standards for Hazardous Air Pollutants (NESHAP) are outlined in the Code of Federal Regulations (CFR) Title 40 Chapter I Subchapter C Part 61 Subpart M. OSHA regulations regarding asbestos exposure during construction activities (i.e., renovation and demolition) are outlined in CFR Title 29 Subtitle B Chapter XVII Part 1926.1101, whereas OSHA regulations regarding respiratory protection are outlined in CFR Title 29 Subtitle B Chapter XVII Part 1910.134. A NESHAP notification form must be submitted at least 10 working days prior to the beginning of renovation or demolition activities involving ACMs. This notification form must include information regarding the company that performed the ACM 735, 739, AND 741 H STREET, FRESNO, CALIFORNIA – ANALYSIS OF BROWNFIELD CLEANUP ALTERNATIVES Applicable Regulations and Cleanup Standards March 23, 2023 16 survey, the analytical laboratory, the company performing the demolition or renovation activities, the company transporting waste that contains asbestos, and the landfill where the waste that contains asbestos will be disposed. The Asbestos Hazard Emergency Response Act (AHERA) was designed to address the presence of asbestos in school buildings. AHERA also tasked the USEPA with developing a plan for accrediting individuals responsible for performing asbestos surveys and remediation. AHERA protocols are considered the best industry practice for asbestos surveys and remediation, and these protocols are typically applied to non-school buildings. Although no school buildings are located at the Property, it is recommended that remediation be performed by a company that utilizes AHERA-certified personnel for asbestos demolition and remediation activities. AHERA is outlined in CFR Title 40 Chapter I Subchapter R Part 763 Subpart E. Permitting for abatement of asbestos in Fresno County is subject to the requirements of the San Joaquin Valley Air Pollution Control District. The USEPA has adopted the Renovation, Repair, and Painting (RRP) Rule (40 CFR 745.80) to minimize exposure from LBP dust by training contractors to make sure they follow lead-safe work practices during renovation of a structure. Although this rule is in place primarily to protect child-occupied facilities, following the guidelines within the rule is encouraged for all building renovations for the overall protection of human health. In addition to this rule, contractors are required to follow the HUD Lead Safe House Rule and all local and state specific requirements. The RRP Rule requires that renovators be USEPA-certified, accredited, and follow specific work practices. The RRP Rule does not apply to the total demolition of structures. It is recommended that a certified lead inspector be on-site to oversee demolition activities and appropriate disposal of materials. Demolition work should be conducted by a lead-certified company and individuals trained/licensed to handle and dispose of LBP materials. The California Green Building Code requires that 65% of construction and demolition (C&D) debris be diverted from landfills on each covered project. Before a building permit can be issued, a Waste Management Plan must be approved that identifies both (1) a waste hauler and (2) a C&D sorting facility. Before a project can be finalized, a Waste Log documenting the 65% diversion requirement must be approved. Waste Logs should be submitted prior to calling for a final inspection. Federal laws and regulations applicable to this cleanup include the Small Business Liability Relief and Brownfields Revitalization Act and the Davis-Bacon Act. Federal, state, and local laws regarding procurement of contractors to conduct the cleanup are also applicable. 3.4 GENERAL BROWNFIELDS REDEVELOPMENT BEST PRACTICES APPLICABLE TO CLEANUP There are several general brownfields redevelopment “best practices” that can be incorporated into redevelopment plans that help to mitigate risks associated with potential or probable undocumented areas of impacts that may be present. These may or may not be relevant to the Property, depending on the specific redevelopment plans: 735, 739, AND 741 H STREET, FRESNO, CALIFORNIA – ANALYSIS OF BROWNFIELD CLEANUP ALTERNATIVES Applicable Regulations and Cleanup Standards March 23, 2023 17 1. Designing site grading plans in a manner that minimizes or eliminates the need to remove soil from the Property. 2. Avoiding building designs that include construction of basements or underground parking structures, which, if included in the design, would typically result in: (a) the need to manage much greater quantities of soil, (b) an increase in the potential for needing to take excess soil off-site, (c) an increase in the potential for on-site workers to come into contact with impacted soil at depth, and (d) an increase in the potential for migration of contaminated soil vapors into the building. 3. Avoiding building designs that will require use of basement sumps (which could unknowingly draw contaminated groundwater towards the building). 4. Designing building and parking/driveway area layouts to maximize the extent to which the pavement for these can serve as a long-term engineered barrier that will prevent direct contact with both documented and undocumented areas of impacted soil. 5. Assuming that any soil in areas or depth intervals that have not specifically been tested may be impacted, and either landfilling this soil, or conducting additional sampling and screening of the soil for contaminants, before disposing of the soil at a site other than a landfill. 6. Avoiding the siting of buildings directly on top of former known or suspected areas impacted by volatile organic compounds (to help further reduce potential future concerns with contaminated vapors migrating into enclosed occupied spaces). 7. Siting stormwater ponds in areas least likely to have undocumented soil or groundwater impacts. 8. Planning for the potential presence of: (a) poorly consolidated fill materials within the footprints of former buildings, (b) concrete foundations associated with former buildings, and (c) abandoned sewer lines or other undocumented former underground utility lines. 735, 739, AND 741 H STREET, FRESNO, CALIFORNIA – ANALYSIS OF BROWNFIELD CLEANUP ALTERNATIVES EVALUATION OF BROWNFIELDS CLEANUP ALTERNATIVES March 23, 2023 18 4.0 EVALUATION OF BROWNFIELDS CLEANUP ALTERNATIVES 4.1 CLEANUP ACTION OBJECTIVES The general cleanup action objective is to mitigate the identified contaminants (i.e., ACM, LBP, and possible other hazardous materials present within the building) to enable the building to be cost effectively demolished as necessary to support redevelopment of the Property, and to provide safe access for environmental testing of the underlying soil. 4.2 CLEANUP ALTERNATIVES CONSIDERED The evaluation of cleanup alternatives in this section is focused on addressing ACM, LBP, and possible other hazardous building materials or equipment present within the building. This evaluation does not address potential contamination beneath the building beyond the need to enable testing to be safely performed prior to redevelopment of the Property. Lead concentrations in excess of 1.0 mg/cm2 were identified in 47 of 199 interior samples, and 4 of 14 exterior samples, analyzed as part of the LBP survey completed in 2014. The 2014 survey identified the following estimated quantities of materials containing ACMs: • Drywall taping mud and texture (5,491 ft2); • Vibration dampeners (16 ft2); • Vinyl floor tiles and mastic (1,740 ft2); and • Wall panels (264 ft2); Plastic roof cement (15 ft2). The more recent ACM survey completed in 2022 by FACS identified the following estimated quantities of materials containing ACMs: • Friable/ACM: Aircell insulation (240 linear feet); drywall – skip trowel or smooth texture with tape & joint (14,240 ft2); vibration dampeners (4); • Category I Non-Friable: Vinyl floor tile (11,687 ft2); non-vinyl floor tile (135 ft2); and • Category II Non-Friable: Transite panel (120 ft2). The cost estimates presented in this document should be independently verified. A description of each alternative and the results of the comparative analysis are presented below. 735, 739, AND 741 H STREET, FRESNO, CALIFORNIA – ANALYSIS OF BROWNFIELD CLEANUP ALTERNATIVES EVALUATION OF BROWNFIELDS CLEANUP ALTERNATIVES March 23, 2023 19 4.2.1 Alternative 1 – No Action The No Action Alternative is included as a baseline for comparison to the other proposed alternatives. The No-Action Alternative assumes: 1) all ACM, LBP, and other hazardous building materials and equipment remain in the building, and 2) the building is not demolished. 4.2.2 Alternative 2 – Partial Abatement and Demolition Under Alternative 2, it is assumed that the roof materials cannot be safely abated prior to demolishing the roof substructure, and that both the roofing and substructure will need to be demolished for removal, and will result in a commingled asbestos containing waste. It is assumed that other hazardous building materials can be fully and safely abated prior to demolition. Alternative 2 includes the following sequence of activities: 1. Development of bid specifications, solicitation of bids and execution of a contract for demolition of the building and disposal of building debris. 2. Abatement and removal of ACM, LBP, universal wastes, and other hazardous building materials within the interior of the building that do not require removal or significant disturbance of structural components of the building. 3. Demolition of the roof and wooden roof support structure. 4. Disposal of the commingled roofing and roof support structure materials as a commingled California asbestos hazardous waste. 5. Drilling and collection of soil samples through the floor slab of the building, and screening and analysis of the soil samples for potential contaminants of concern. 6. Removal of the concrete floor and basement slabs/walls and either on-site crushing and stockpiling of materials for future use, or off-site disposal at a concrete recycling facility. 7. Removal and off-site disposal of the brick foundations. 8. Excavation and disposal of contaminated soil, if present. 9. Backfilling of former basement or excavation areas with clean compacted fill to match surrounding grade. Note: Although soil assessment and/or remediation activities are anticipated to be part of the sequence of activities under Alternative 2, the cost for these is not included as part of the scope of work to be funded by the RLF. 4.2.3 Alternative 3 – Full Abatement and Demolition Alternative 3 differs from Alternative 2 in that all hazardous materials in the will be abated prior to demolition. Alternative 3 includes the following sequence of activities: 1. Development of bid specifications, solicitation of bids and execution of a contract for abatement/removal of hazardous building materials (including roofing materials presumed to contain asbestos), and subsequent demolition of the building and disposal of building debris. 735, 739, AND 741 H STREET, FRESNO, CALIFORNIA – ANALYSIS OF BROWNFIELD CLEANUP ALTERNATIVES EVALUATION OF BROWNFIELDS CLEANUP ALTERNATIVES March 23, 2023 20 2. Abatement of ACM, LBP, and other hazardous building materials as necessary to minimize overall costs for abatement, demolition, and disposal of materials. 3. Demolition of the walls and floors of the building, and disposal/recycling of the materials. 4. Drilling and collection of soil samples through the floor slab of the building, and screening and analysis of the soil samples for potential contaminants of concern. 5. Removal of concrete floor and basement slabs/walls and either on-site crushing and stockpiling of materials for future use, or off-site disposal at a concrete recycling facility. 6. Removal and off-site disposal of the brick foundations. 7. Excavation and disposal of contaminated soil, if present. 8. Backfilling of former basement or excavation areas with clean compacted fill to match surrounding grade. Note: The key difference with Alternatives 2 and 3 is that Alternative 3 would assumes that the roofing materials can be safety abated and removed. Alternative 2 could be implemented if the structural condition of the building is such that abatement of the roofing materials cannot be safety performed. Contractors will be responsible for making this determination. 4.3 EVALUATION OF CLEANUP ALTERNATIVES The following criteria were used to evaluate the three cleanup alternatives: • Effectiveness; • Implementability; and • Cost. In addition, consideration was given to climate change impacts, equity and environmental justice concerns, and green and sustainable remediation guidance. 4.3.1 Effectiveness Effectiveness has both short-term and long-term components. The short-term effectiveness of a remedial alternative is evaluated relative to its effect on human health and the environment during the implementation of the remedial action. Potential risks to the community, potential impacts on workers, the effectiveness and reliability of protective measures, potential environmental impact of the remedial action and the effectiveness/reliability of the mitigation measures during implementation, etc. are some of the factors that are typically considered. Long-term effectiveness and permanence of a remedial alternative are evaluated with respect to the following factors: magnitude of residual risk to human health and environment from the untreated or residual waste at the completion of remedial activities; an assessment of type, degree, and adequacy of long-term management (engineering controls, monitoring, maintenance, etc.) required for untreated or residual waste; an assessment of the long-term reliability of long-term management practices to provide continued protection from the untreated/residual waste; and the potential need for replacement of the remedy and continuing need for repairs to maintain the performance of the remedy. 735, 739, AND 741 H STREET, FRESNO, CALIFORNIA – ANALYSIS OF BROWNFIELD CLEANUP ALTERNATIVES EVALUATION OF BROWNFIELDS CLEANUP ALTERNATIVES March 23, 2023 21 4.3.1.1 Effectiveness – Alternative 1 (No Action) No action is considered the least effective option as it would not address the threats to human health posed by the hazardous materials and would not make it possible to demolish or redevelopment the Property for the desired future use (affordable housing). 4.3.1.2 Effectiveness – Alternative 2 (Partial Abatement and Demolition) Demolition of the roof and roof wooden support structure without prior abatement of roofing materials (presumed to contain asbestos) would be an effective method for: a) removing the building, b) removing hazardous building materials from the Property, and c) providing safe access for testing of underlying soil. It would reduce the potential physical safety hazards related to abating roofing materials within the structurally unsound building, but would complicate handling and removal of the resulting roofing and roof support structure commingled demolition debris – which would potentially be subject to management and disposal requirements as a commingled California hazardous waste. 4.3.1.3 Effectiveness – Alternative 3 (Full Abatement and Demolition) This alternative assumes that it will be safe to abate ACMs and other hazardous building materials (including roofing materials) within the building in its current condition, and that abatement would therefore be conducted prior to demolition of the roof support structure and walls of the building. This alternative would be effective in a) removing the building, b) removing hazardous building materials from the Property, and c) providing safe access for testing of underlying soil. 4.3.2 Implementability Implementability refers to the technical and administrative feasibility of implementing an alternative, and the various materials and services required during its implementation. Examples of such factors for implementation of an alternative include ability to construct, operate and monitor; time required to obtain necessary permits and approval; and availability of equipment, materials, contractors, etc. 4.3.2.1 Implementability – Alternative 1 (No Action) No action is the most easily implementable alternative because it involves no activities. 4.3.2.2 Implementability – Alternative 2 (Partial Abatement and Demolition) Demolition and disposal would also be easy to implement. However, demolition could be complicated by the need for additional measures to control dust. Handling and disposal of materials would also be complicated. 4.3.2.3 Implementability – Alternative 3 (Full Abatement and Demolition) Alternative 3 would likely be the most complicated alternative to implement, but this will depend on whether the abatement/demolition contractors conclude that the hazardous building materials (including roofing 735, 739, AND 741 H STREET, FRESNO, CALIFORNIA – ANALYSIS OF BROWNFIELD CLEANUP ALTERNATIVES EVALUATION OF BROWNFIELDS CLEANUP ALTERNATIVES March 23, 2023 22 materials) can safely be abated prior to demolition given the building’s structural condition. Abating the material prior to demolition would likely simplify the demolition and disposal process, enhancing this alternative’s implementability. 4.3.3 Costs Cost estimates are presented in this section based on estimates obtained from qualified contractors for this type of work. 4.3.3.1 Costs – Alternative 1 (No Action) There is no direct cost associated with this alternative. However, it carries a significant opportunity cost given that it would preclude redevelopment of the Property for affordable housing. 4.3.3.2 Costs – Alternative 2 (Partial Abatement and Demolition) A cost estimate for Alternative 2 is presented below, based primarily on previous cost estimates obtained by the City in 2014 and 2022. Item Number and Description Cost 1) Engineering Services – Preparation of Demolition Specification/Bid Documents $12,500 2) Asbestos Abatement (building interior, excluding roof) $66,245 3) Demolition, Handling, and Disposal of Roofing and Roof Support Structure $67,600 4) Handling and Disposal of Other Universal Wastes $15,000 5) Building Demolition $484,000 SUBTOTAL $645,345 6) Contingency (25% of Subtotal) $161,335 TOTAL $806,680 Notes/Assumptions: 1) Based on proposal by TAMA dated 6/15/2022 (TAMA, 2022b). 2) Based on a cost estimate of $26,850 prepared by TBAI in May 2014 (TBAI, 2014) adjusted to include $25,850 in costs for abatement of an additional 5,170 square feet of non-friable flooring material containing 2% asbestos identified by FACS in 2022. The total of $52,700 was then increased by 25.7% to account for inflation between May 2014 and March 2023. 3) The roofing is assumed to have an area of approximately 60 feet by 405 feet (= 24,300 ft2), a thickness of 1-inch, a volume of 2,205 ft3 (= 75 cubic yards), an average density of 40 pounds/ft3, and a total weight of 40.5 tons. The roof support structure is assumed to include 10,000 linear feet of 2-inch X 4-inch wood boards, 1,620 linear feet of 4-inch X 14-inch wood beams, and 800 linear feet of 6-inch by 30-inch beams. These are estimated to have a total volume of 2,230 ft3 (= 82.5 cubic yards), an average density of 40 pounds/ft3, and a total weight of 44.5 tons. It is assumed that the roof and roof support structure will become commingled asbestos waste when demolished, and that demolition, handling, trucking, and disposal of this material will have a combined unit cost of $800/ton. 735, 739, AND 741 H STREET, FRESNO, CALIFORNIA – ANALYSIS OF BROWNFIELD CLEANUP ALTERNATIVES EVALUATION OF BROWNFIELDS CLEANUP ALTERNATIVES March 23, 2023 23 4) Budgetary estimate by Stantec (2023). 5) Budgetary estimate by TAMA dated 6/15/2022 (TAMA, 2022c). The estimate assumed that the roofing materials are abated and removed prior to demolition of the underlying wood framed roof support structures. The estimate assumed that the roof structure can be recycled as well as the concrete but that the brick cannot be recycled as road base due to changes in Caltrans specifications. The estimate assumed that the basement areas would be backfilled with clean fill. The estimate of $509,000 by TAMA has been reduced by $25,000 to account for the costs for demolition and disposal of the roof support structure being included under Item #3. 6) A contingency of 25% has been added to reflect the significant variability in contractor pricing for this type of work, further exacerbated by on-going high inflation rates and impacts on construction costs. 4.3.3.3 Costs – Alternative 3 (Full Abatement and Demolition) A cost estimate for Alternative 3 is presented below, based primarily on previous cost estimates obtained by the City in 2014 and 2022 (TBAI, 2014; TAMA, 2022b, 2022c). Item Number and Description Cost 1) Engineering Services – Preparation of Demolition Specification/Bid Documents $12,500 2) Asbestos Abatement (building interior, excluding roof) $66,245 4) Handling and Disposal of Other Universal Wastes $15,000 4 Building Demolition $509,000 SUBTOTAL $602,745 5) Contingency (25% of Subtotal) $150,865 TOTAL $753,430 Notes/Assumptions: 1) Based on proposal by TAMA dated 6/15/2022 (TAMA, 2022b). 2) Based on a cost estimate of $26,580 prepared by TBAI in May 2014 (TBAI, 2014) adjusted to include $25,580 in costs for abatement of an additional 5,170 square feet of non-friable flooring material containing 2% asbestos identified by FACS in 2022. The total of $52,700 was then increased by 25.7% to account for inflation between May 2014 and March 2023. 3) Budgetary estimate by Stantec (2023). 4) Budgetary estimate by TAMA dated 6/15/2022 (TAMA, 2022c). The estimate assumed that the roofing materials are abated and removed prior to demolition of the underlying wood framed roof support structures. The estimate assumed that the roof structure can be recycled as well as the concrete but that the brick cannot be recycled as road base due to changes in Caltrans specifications. The estimate assumed that the basement areas would be backfilled with clean fill. 5) A contingency of 25% has been added to reflect the significant variability in contractor pricing for this type of work, further exacerbated by on-going high inflation rates and impacts on construction costs. 735, 739, AND 741 H STREET, FRESNO, CALIFORNIA – ANALYSIS OF BROWNFIELD CLEANUP ALTERNATIVES EVALUATION OF BROWNFIELDS CLEANUP ALTERNATIVES March 23, 2023 24 4.3.4 Consideration of Climate Change Impacts Scientific evidence demonstrates that the climate is changing at an increasingly rapid rate, outside the range to which society has adapted in the past. These changes can pose significant challenges to USEPA’s ability to fulfill its mission. USEPA must adapt to climate change if it is to continue fulfilling its statutory, regulatory, and programmatic requirements. USEPA is therefore anticipating and planning for future climate changes to ensure it continues to fulfill its mission of protecting human health and the environment even as the climate changes. In 2014, USEPA released its Climate Change Adaptation Plan to the public (USEPA, 2014a). The plan relies on peer-reviewed scientific information and expert judgment to identify vulnerabilities to USEPA’s mission and goals from climate change. The Region 9 Climate Change Adaption Implementation Plan (USEPA, 2014b) identifies vulnerabilities in three different “regions” within Region 9. Fresno is located within the “Southwest Region” for which identified vulnerabilities included: 1. Warmer temperatures will reduce mountain snowpacks, and peak spring runoff from snow melt will shift to earlier in the season, leading to and increasing the shortage of fresh water during the summer. A longer and hotter warm season will likely result in longer periods of extremely low flow and lower minimum flows in late summer. Water supply systems that have no storage or limited storage (e.g., small municipal reservoirs) may suffer seasonal shortages in summer. 2. The magnitude of projected temperature increases for the Southwest, particularly when combined with urban heat island effects for major cities such as Phoenix, Albuquerque, Las Vegas, and many California cities, represents significant stresses to health, energy, and water supply in a region that already experiences very high summer temperatures. 3. Reduced ground water supply due to a lack of recharge will be of concern. 4. Warmer ocean temperatures may decrease productivity by stopping entrainment of deep supplies of nutrients. The resulting reductions in commercial species will need to be addressed to support continued production of fisheries and aquatic life. 5. Increased frequency and altered timing of flooding will increase risks to people, ecosystems, and infrastructure. Increased flood risk is likely to result from a combination of decreased snow cover on the lower slopes of high mountains, and an increased percentage of winter precipitation falling as rain and therefore running off more rapidly. 6. Sea levels are rising and contributing to the loss of wetlands and infrastructure located along coastal corridors. 7. The magnitude and frequency of wildfires have increased over the last 30 years which severely impacts water quality in streams, creeks, rivers, lakes, and estuaries. Based on its location and hydrogeologic setting, the vulnerabilities related to temperature increases and urban heat island effects (item #2 above) and Increased frequency and altered timing of flooding (item #5) are potentially relevant to planning for the Property. The north 60% of the Property is within the 0.2% annual probability flood hazard zone and could be at increased risk of future flooding in response to 735, 739, AND 741 H STREET, FRESNO, CALIFORNIA – ANALYSIS OF BROWNFIELD CLEANUP ALTERNATIVES EVALUATION OF BROWNFIELDS CLEANUP ALTERNATIVES March 23, 2023 25 increases in extreme rainfall events. The building and outdoor paved areas cover an estimated 95% or more of the Property with impermeable surfaces. Redevelopment of the Site for affordable housing (as would be facilitated by both Alternatives 2 and 3) would likely include stormwater management measures, and landscaping that would help to mitigate stormwater runoff and urban heat island effects. 4.3.5 Consideration of Equity and Environmental Justice Concerns Alternative 3 (the recommended cleanup option) is considered the most favorable in terms of environmental justice concerns. It will safely and fully remove the hazardous building materials present within the building and facilitate safe and comprehensive testing of soil beneath the concrete slab prior to its removal, which is appropriate and necessary given plans to convert the Site from industrial/commercial to residential use. 4.3.6 Consideration of Green and Sustainable Remediation Guidance When implemented effectively, green, and sustainable remediation practices enhance the environmental benefits offered by federal cleanup and redevelopment programs such as the USEPA Brownfields Program. The principles governing green and sustainable remediation for USEPA cleanup programs have been outlined in greater detail in USEPA’s Principles for Greener Cleanups (USEPA, 2009), but generally seek to “evaluate cleanup actions comprehensively to ensure the protection of human health and the environment and to reduce the environmental footprint of cleanup activities, to the maximum extent possible.” The following five general elements were identified by USEPA as principles to be considered in designing the cleanup process:  Minimize total energy use and maximize use of renewable energy.  Minimize air pollutants and greenhouse gas emissions.  Minimize water use and impacts to water resources.  Reduce, reuse, and recycle material and waste.  Protect land and ecosystems. USEPA also references the ASTM International Standard Practice E2893-16 “Standard Guide for Greener Cleanups” as a guide to be considered in designing greener cleanups. Although a total of 155 best management practices are referenced in the guide – none are focused on abatement of ACMs. Alternative 2 would increase the project costs, and also result in the need to dispose of roof wooden support materials as a commingled hazardous waste that might otherwise be recycled and reused. These materials are less likely to be disposable at a Fresno area facility, and potentially would be disposed of out of state, which would result in additional greenhouse gas emissions related to trucking of materials. 4.4 RECOMMENDED REMEDIAL ALTERNATIVE The recommended remedial alternative is full abatement and demolition disposal (Alternative 3). Alternative 1 (no action) is the most easily implementable and has the lowest direct cost, but is the least effective and will have the greatest long-term cost (considering “opportunity costs”). Alternatives 2 and 3 735, 739, AND 741 H STREET, FRESNO, CALIFORNIA – ANALYSIS OF BROWNFIELD CLEANUP ALTERNATIVES EVALUATION OF BROWNFIELDS CLEANUP ALTERNATIVES March 23, 2023 26 are similar in their effectiveness and implementability, but Alternative 3 is likely to be more cost effective as well as greener and more sustainable. 735, 739, AND 741 H STREET, FRESNO, CALIFORNIA – ANALYSIS OF BROWNFIELD CLEANUP ALTERNATIVES Disclaimer and Limitations March 23, 2023 27 5.0 DISCLAIMER AND LIMITATIONS This ABCA was completed in accordance with generally accepted practices of the profession for performing similar studies at the same time and in the same geographical area. Stantec observed that degree of care and skill generally exercised by the profession under similar circumstances and conditions. No other warranty is expressed or implied. Stantec observations, findings, and opinions must not be considered as scientific certainties, but only an opinion based on our professional judgment concerning the significance of the data gathered during the investigation. Specifically, Stantec does not and cannot represent that the Site contains no hazardous or toxic materials or other latent condition beyond that observed by Stantec. Stantec does not warrant that this submittal represents an exhaustive study of all possible environmental concerns at the project area. The items investigated as part of this study represent likely sources of environmental concerns at the project area and are consequently believed to adequately address the public at risk at the present time. All costs presented as estimated, and actual costs may vary significantly from these estimates based on the availability of local contractors and numerous other factors. 28 6.0 REFERENCES Alan Mok Engineering (AME) 2022. Site Improvements at Farmer’s Market Warehouse. January 18. (Included within TAMA [2022]). California Department of Water Resources (DWR). 2006. Bulletin 118, San Joaquin Valley Groundwater Basin, Kings Subbasin Number: 5-22.08. January. Federal Emergency Management Agency (FEMA). 2009. Flood Insurance Rate Map, Fresno County, California and Incorporated Areas, Panel 2110 of 3525, Map number 06019C2110H. February 18. Forensic Analytical Consulting Services (FACS) 2022. Asbestos Survey Report, City of Fresno Warehouse, Asbestos Renovation Survey, 735 H Street, Fresno, CA 93721. January 14. (Included within TAMA [2022a]). Parrish Hansen Structural Engineers (PHSE) 2022. Preliminary Structural Assessment Report. February 16. (Included within TAMA [2022a]). Provost & Pritchard Consulting Group (PPCG) 2021. 735 H Street Phase I ESA. December 23. (Included within TAMA [2022a]). Stantec Consulting Services, Inc., 2022a. Phase I Environmental Site Assessment, 735, 739, and 741 H Street, Fresno, California. August 30. Stantec Consulting Services, Inc., 2022b. 735, 739, and 741 H Street Section 2106 Inventory and Evaluation Report. December 27. T. Brooks & Associates, Inc. (TBAI) 2014. Asbestos Survey & Lead-Based Paint Inspection Report, Commercial Structure 735, 739, 741 “H” Street, Fresno CA, May 28. Temple Anderson Moore Architects (TAMA) 2022a. H Street & Inyo Street Warehouse Feasibility Study, June 13. Temple Anderson Moore Architects (TAMA) 2022b. Letter of Proposal and Agreement, City of Fresno, 735 H Street Farmer’s Market, June 15. Temple Anderson Moore Architects (TAMA) 2022c. Demolition Estimates for 735 H Street Market, June 15. U.S. Environmental Protection Agency (USEPA). 1987. 40 Code of Federal Regulations (CFR) Part 763; Asbestos-Containing Materials in Schools; Final Rule. October. USEPA. 2009. Office of Solid Waste and Emergency Response. Principles for Greener Cleanups. August 27. USEPA. 2014a. Climate Change Adaption Plan. Publication No. EPA 100-K-14-001. June. USEPA. 2014b. EPA Region 9 Climate Change Adaption Implementation Plan. Publication No. EPA 100- K-14-001P. May. U.S. Department of Housing and Urban Development. 1997. Guidelines for the Evaluation and Control of Lead-Based Paint Hazards in Housing. Chapter 7: Lead-Based Paint Inspection. U.S. Geological Survey (USGS). 1972. Croft, M.G., Subsurface Geology of the Late Tertiary and Quaternary Water-Bearing Deposits of the Southern Part of the San Joaquin Valley, California, Geological Survey Water Supply Paper 1999-H. FIGURES CHECKED BY: CEA DATE: June 30, 2022 NOT TO SCALE FOR: 735 H Street FRESNO, CALIFORNIA DRAWN BY: AMH APPROVED BY: NHD PROJECT NUMBER: 185704673 PROPERTY LOCATION MAP FIGURE: 1 TABLE TABLE 1 ‐ CHRONOLOGY OF PROPERTY OWNERSHIP AND LAND USES (1885‐2022)Year, Key Historic Reference, and Site/Parcel Information188518861887188818891890189118921893189418951896189718981899190019011902190319041905190619071908190919101911191219131914191519161917191819191920192119221923192419251926Sanborn Map Sanborn Map Sanborn Map Sanborn MapNewspaper ArticleNewspaper ArticleNewspaper ArticleNewspaper ArticleNewspaper ArticleNewspaper ArticleNewspaper ArticleSanborn MapCity DirectoryNewspaper ArticleNewspaper ArticleSubject Property: Area A (701‐705 H Street; 1745 Mono Street)707 H StreetVacant lot Vacant lot Vacant lotMadary's Lumber YardArticle noting flooding problems on H Street in this areaAd for Valley Lumber Co ‐ yards corner of Mono and H StreetValley Lumber Co. office (705)No listing (701, 705, 707, 1745)Subject Property: Area B (719‐735 H Street)733 H StreetVacant lot Vacant lot Vacant lotMadary's Lumber YardArticle noting flooding problems on H Street in this area5/29/1912 article reg Mark Lally Co. remodeling warehouse on H St. previously occupied by H. Graff Co.2/10/1917 Article reg alterations to Mark Lally Company warehouse (735)Plumbing Supplies Storage (719/735)No listing (719, 733, 735)Article on 2/16/1926 reg burglary at Walworth‐Lally Plumbing Supplies company store (735)Subject Property: Area C (739 H Street)737 & 741 H StreetVacant lot Vacant lot Vacant lotMadary's Lumber YardArticle noting flooding problems on H Street in this area6/22/1913 Ad referencing berry baskets for sale by Angelo & Son (741)3/31/1914 Ad for Angelo & Son for girls to make fruit baskets (741)Wholesale Produce (741)No listing (737, 739, 741)Subject Property: Area D (741 H Street)755 H StreetVacant lot Vacant lot Vacant lotMadary's Lumber YardArticle noting flooding problems on H Street in this areaWholesale Produce (755)No listing (741, 755)8/5/1924 Ad for Armour and Co. (741)Adjacent Property to NW (nearest portion of building): 755 H St771 H St.Vacant lot Vacant lot Vacant lot Vacant lotProduce Ware Ho. (771)No listing (755, 771)Select Long‐Term Occupants or TenantsA & A Wholesale FloristsAmerican CyanamidArmour and CoBrentwood Egg CoButler JohnsonCalifornia Chemical Spray CoGermain SeedJohns Manville roofingLos Angeles Soap CoLumber Yards or CompaniesSlater Furniture CoUnited Fairway Produce CoZellerbach Paper Co5‐year or longer periods without historic referencesFinal period of vacancy with no documented tenantsVacant lot or parking lot (previously developed)Property, Building Area and Current AddressHistoric AddressPage 1 of 4 TABLE 1 ‐ CHRONOLOGY OF PROPERTY OWNERSHIP AND LAND USES (1885‐2022)Subject Property: Area A (701‐705 H Street; 1745 Mono Street)707 H StreetSubject Property: Area B (719‐735 H Street)733 H StreetSubject Property: Area C (739 H Street)737 & 741 H StreetSubject Property: Area D (741 H Street)755 H StreetAdjacent Property to NW (nearest portion of building): 755 H St771 H St.Select Long‐Term Occupants or TenantsA & A Wholesale FloristsAmerican CyanamidArmour and CoBrentwood Egg CoButler JohnsonCalifornia Chemical Spray CoGermain SeedJohns Manville roofingLos Angeles Soap CoLumber Yards or CompaniesSlater Furniture CoUnited Fairway Produce CoZellerbach Paper Co5‐year or longer periods without historic referencesFinal period of vacancy with no documented tenantsVacant lot or parking lot (previously developed)Property, Building Area and Current AddressHistoric AddressYear, Key Historic Reference, and Site/Parcel Information19271928192919301931193219331934193519361937193819391940194119421943194419451946194719481949195019511952195319541955City DirectoryNewspaper ArticleNewspaper ArticleNewspaper ArticleCity DirectoryNewspaper ArticleNewspaper ArticleCity Directory; Aerial Photo; Newspaper ArticleNewspaper ArticleNewspaper ArticleCity Directory; Aerial PhotoNewspaper ArticleAerial PhotoCity Directory; Newspaper ArticleSanborn MapSanborn Map; NewspaperCity DirectoryCity Directory; Newspaper ArticleNo listing (701, 705, 707, 1745)Alta District Lumber Co (701); United Warehouse Co (701); Fowler Lumber Co. (701); Valley Lumber Co (701); No listing 705, 707, 1745)Johns‐Manville Inc. roofing mat (701); No listing (705, 707, 1745)No listing (701, 705, 707, 1745)Current building presentNo listing (701, 705, 707, 1745)Valley Lumber Co. office (705/1745); Ad referencing Fowler Lumber Co at 1745 Mono (11/15/48)Valley Lumber Co. office (705/1745)No listing (701, 705, 707, 1745)No listing (701, 705, 1745); 10/30/1955 Ad reg The Feed Barn (livestock and poultry feed supplier)No listing (719); Valley Lumber Co roof dept (733); Johns Manville Inc. roofing supplies (735)No listing (719, 733); Johns Manville Inc. roofing matls (735)No listing (719, 733, 735)No listing (719, 733, 735)Current building presentNo listing (719, 733, 735)Valley Lumber Co. hardwood & bldg. material warehouse (719/735)Valley Lumber Co. hardwood & bldg. material warehouse (719/735)No listing (719, 733, 735)No listing (719, 733, 735)No listing (737, 739)9/24/1929 Ad for Germain Seed & Plant Co (737 )2/14/31 Ad for California Spray Chemical Co (737)California Spray Chemical Co (737); Eagle Transfer Co whse (737); Germain Seed & Plant (737); No listing (739)Germain Seed & Plant Co (737); California Spray Chemical Corp (739)2/17/1938 Ad for Germain Seed (737)7/20/1941 article noting move of Germain Seed to a new locationVacant (737); Cal Spray Chemical Corp (739)Current building presentNo listing (737, 739); Ad dated 2/2/1947 references move of Cal. Spray Chemical to new locationUse not labeled (except for office area) (739)Warehouse (739); 4/3/1950 Ad listing warehouse and office for lease (w/ 2000 ft2 basement) (739)No listing (737); Vacant (739)No listing (737); Vacant (739)Armour & Co whol meats (741)12/31/1928 Ad for Armour and Co. (741)Armour & Co whol meats (741)Armour & Co whol meats (741)Armour & Co whol meats (741)1943 Ad welcoming United Fairway Produce Co (741)Current building presentUnited Fairway Produce Co (741)Produce warehouse (741).  6/26/48 Ad for United Fairway Produce Co (741). 12/26/48 Ad for Brentwood Egg Co (741).Egg warehouse (741); 9/1/1950 Ad for Brentwood Egg Co (741)Brentwood Egg Co (741)Brentwood Egg Co (741)Los Angeles Soap Co (755)Los Angeles Soap Co (755)7/5/1936 Ad for American Cyanamid (755)American Cynanamid Chemical Corp (755)6/8/1941 Ad for American Cyanamid & Chemical Corp (755)Vacant (755); 8/23/1942 Ad for American Cyanamid (755)Warehouse building presentNo listing (755)Zellerbach Paper Co. (area labeled as paper warehouse) (755)Zellerbach Paper Co. (area labeled as paper warehouse) (755)No listing (755) No listing (755)Page 2 of 4 TABLE 1 ‐ CHRONOLOGY OF PROPERTY OWNERSHIP AND LAND USES (1885‐2022)Subject Property: Area A (701‐705 H Street; 1745 Mono Street)707 H StreetSubject Property: Area B (719‐735 H Street)733 H StreetSubject Property: Area C (739 H Street)737 & 741 H StreetSubject Property: Area D (741 H Street)755 H StreetAdjacent Property to NW (nearest portion of building): 755 H St771 H St.Select Long‐Term Occupants or TenantsA & A Wholesale FloristsAmerican CyanamidArmour and CoBrentwood Egg CoButler JohnsonCalifornia Chemical Spray CoGermain SeedJohns Manville roofingLos Angeles Soap CoLumber Yards or CompaniesSlater Furniture CoUnited Fairway Produce CoZellerbach Paper Co5‐year or longer periods without historic referencesFinal period of vacancy with no documented tenantsVacant lot or parking lot (previously developed)Property, Building Area and Current AddressHistoric AddressYear, Key Historic Reference, and Site/Parcel Information195619571958195919601961196219631964196519661967196819691970197119721973197419751976197719781979198019811982198319841985198619871988198919901991199219931994Newspaper ArticleAerial Photo City DirectoryNewspaper ArticleCity DirectoryCity Directory; Aerial PhotoNewspaper ArticleCity DirectorySanborn Map; City DirectoryAerial PhotoCity Directory; Aerial PhotoCity DirectoryAerial PhotoCity Directory; Newspaper ArticleCity DirectoryCity DirectoryCity Directory; Aerial Photo5/31/1956 ‐ Ad referencing office space for lease (1745)Current building presentNo listing (701); Sequoia Lbr Co whol ad (707), Premier Investors Inc. ad (707), United Warehouse Co (707); Fowler Lumber Co. whol (707); Valco Lumber Distrs who lbr ad (707)No listing (701, 705, 707); Fresno Chamber of Commerce (1745)No listing (701, 705, 707); Avenell Arioto whol florists (1745)No Listing (701, 705, 707); A & A Wholesale Florists Inc. (1745)No listing (701, 705, 707); Wholesale florist supplies (1745); A & A Wholesale Florists Inc. (1745)Current builing resent ‐ appears to have new roofNo listing (701, 705, 707, 1745)No listing (701, 705, 707); Vacant (1745)Current building presentNo listing (701, 705, 707, 1745)No listing (701, 705, 707); Vacant (1745)No listing (701, 705, 707); Vacant (1745)No listing (701, 705, 707, 1745); current building presentCurrent building presentNo listing (719, 733); Zellerbach Paper Co. whse (735); No listing (719, 733, 735)No listing (719, 733, 735)7/14/63 Article referencing Butler‐Johnson Corp as a new business to Fresno area (735)No listing (719, 733); Butler Johnson Corp Fresno floor cov (735)Floor tile warehouse (719‐735); No listing (719, 733); Butler Johnson Corp whol floor cov (735)Current builing resent ‐ appears to have new roofNo listing (719, 733); Slater Furniture Co Whse (735); Slater Annex Store (735)No listing (719, 733); Slater Furniture Co Whse (735); Slater Annex Store (735)Current building presentNo listing (717, 733); Vacant (735); 11/2/1985 ‐ Ad for Slater's Warehouse (735)No listing (719, 733); Slater Furniture Co Whse (735‐Polk)No listing (719, 733); Slater Furniture Co Whse (735); Vacant (735)No listing (719, 733, 735); current building presentCurrent building presentFresno Macaroni Mfg Co (737); No listing (739)No listing (737, 739)No listing (737, 739)No listing (737); Zellerbach Paper Co whse (739‐Polk)Floor tile warehouse (739); No listing (737); Vacant (739)Current builing resent ‐ appears to have new roofNo listing (737); Vacant (739)No listing (737); Vacant (739)Current building presentNo listing (737); Vacant (739)No listing (737); Vacant (739)No listing (737); Vacant (739)No listing (737, 739); current building presentCurrent building presentBrentwood Egg Co whol (741)No listing (741) No listing (741)No listing (741)Formica sink top warehouse (741); No listing (741)Current builing resent ‐ appears to have new roofNo listing (741)No listing (741)Current building presentVacant (741) No listing (741)Vacant (741)No listing (741); current building presentWarehouse building presentNo listing (755)No listing (755) No listing (755)No listing (755)Product warehouse (755); No listing (755)Warehouse building presentNo listing (755)No listing (755)Warehouse building presentNo listing (755) No listing (755)Vacant (755)No listing (755); building no longer presentPage 3 of 4 TABLE 1 ‐ CHRONOLOGY OF PROPERTY OWNERSHIP AND LAND USES (1885‐2022)Subject Property: Area A (701‐705 H Street; 1745 Mono Street)707 H StreetSubject Property: Area B (719‐735 H Street)733 H StreetSubject Property: Area C (739 H Street)737 & 741 H StreetSubject Property: Area D (741 H Street)755 H StreetAdjacent Property to NW (nearest portion of building): 755 H St771 H St.Select Long‐Term Occupants or TenantsA & A Wholesale FloristsAmerican CyanamidArmour and CoBrentwood Egg CoButler JohnsonCalifornia Chemical Spray CoGermain SeedJohns Manville roofingLos Angeles Soap CoLumber Yards or CompaniesSlater Furniture CoUnited Fairway Produce CoZellerbach Paper Co5‐year or longer periods without historic referencesFinal period of vacancy with no documented tenantsVacant lot or parking lot (previously developed)Property, Building Area and Current AddressHistoric AddressYear, Key Historic Reference, and Site/Parcel Information1995199619971998199920002001200220032004200520062007200820092010201120122013201420152016201720182019202020212022City Directory City Directory Aerial Photo City Directory City Directory City Directory City Directory Aerial Photo Aerial Photo City DirectoryCity Directory; Aerial PhotoAerial Photo Aerial Photo City DirectoryCity Directory; Aerial PhotoCity Directory; Aerial PhotoCity Directory Aerial PhotoCity Directory; Aerial PhotoNo listing (701, 705, 707, 1745)No listing (701, 705, 707, 1745)Current building presentNo listing (701, 705, 707, 1745)No listing (701, 705, 707, 1745)No listing (701, 705, 707, 1745)No listing (701, 705, 707, 1745)Current building presentCurrent building presentNo listing (701, 705, 707, 1745)No listing (701, 705, 707, 1745)Current building presentCurrent building presentNo listing (701, 705, 707, 1745)No listing (701, 705, 707, 1745)No listing (701, 705, 707, 1745)No listing (701, 705, 707, 1745)Current building presentNo listing (701, 705, 707, 1745)No listing (717, 733); Vacant (735)No listing (719, 733, 735)Current building presentNo listing (719, 733); Falcon Enterprises of Fresno; Fresno Tire Disposal (735)No listing (719, 733, 735)No listing (719, 733, 735)No listing (719, 733); Occupant unknown (735)Current building presentCurrent building presentNo listing (719, 733, 735)No listing (719, 733, 735)Current building presentCurrent building presentNo listing (719, 733, 735)No listing (719, 733, 735)No listing (719, 733, 735)No listing (719, 733, 735)Current building presentNo listing (719, 733, 735)No listing (737); Vacant (739)No listing (737, 739)Current building presentNo listing (737, 739)No listing (737, 739)No listing (737, 739)No listing (737, 739)Current building presentCurrent building presentNo listing (737, 739)No listing (737, 739)Current building presentCurrent building presentNo listing (737, 739)No listing (737, 739)No listing (737, 739)No listing (737, 739)Current building presentNo listing (737, 739)No listing (741) No listing (741)Current building presentNo listing (741) No listing (741) No listing (741) No listing (741)Current building presentCurrent building presentNo listing (741) No listing (741)Current building presentCurrent building presentNo listing (741) No listing (741) No listing (741) No listing (741)Current building presentNo listing (741)No listing (755)No listing (755)Building is no longer presentNo listing (755) No listing (755) No listing (755) No listing (755)Parking lot visibleParking lot visibleNo listing (755) No listing (755)Parking lot visibleParking lot visibleNo listing (755) No listing (755) No listing (755) No listing (755)Parking lot visibleNo listing (755)Page 4 of 4 APPENDICES APPENDIX A ASBESTOS SURVEY AND LEAD BASED PAINT INSPECTION REPORT (2014) APPENDIX B ASBESTOS SURVEY REPORT (2022) Project Title (xx/xx/xx) www.forensicanalytical.com Forensic Analytical Consulting Services 1 of 29 January 14, 2022 Asbestos Survey Report City of Fresno Warehouse Asbestos Renovation Survey 735 H Street Fresno, CA 93721 Prepared for: Mr. Rod Andreasen TAM + CZ Architects, Inc. 5650 North Fresno Street, Suite 101 Fresno, CA 93710 (559) 435-4750 | randreasen@tamcz-architects.com Prepared By: Chris Chipponeri, CAC I/A Forensic Analytical Consulting Services 207 McHenry Avenue Modesto, CA 95354 209-551-2000 | cchipponeri@forensicanalytical.com FACS Project #PJ65200 Contents List of Acronyms ....................................................... 1 Executive Summary .................................................. 2 Introduction ................................................................. 3 Scope of Work ............................................................ 3 Site Characterization ................................................ 3 Survey Methods .............................................................. 3 Regulations ................................................................. 5 Findings and Recommendations .......................... 6 Limitations ................................................................... 7 Appendix A: Asbestos Survey Summary, Sample Chain- of-Custody, and Laboratory Results Report Appendix B: Site Photos and Sample Location Drawings Appendix C: Certifications of Personnel and Laboratory TAM + CZ Architects, Inc. – City of Fresno Warehouse Site Assessment 01-14-22 Asbestos Survey Report 1 of 8 List of Acronyms ACCM Asbestos Containing Construction Material ACM Asbestos Containing Material AHERA Asbestos Hazard Emergency Response Act AIHA American Industrial Hygiene Association CAC California - Certified Asbestos Consultant Cal/OSHA California Occupational Safety and Health Association CCR Code of California Regulations CFR Code of Federal Regulation DOSH Department of Occupational Safety and Health ELAP Environmental Laboratory Accreditation Program EPA Environmental Protection Agency (EPA) FACS Forensic Analytical Consulting Services, Inc. FALI Forensic Analytical Laboratories, Inc. ND None Detected NESHAP National Emissions Standard Hazardous Air Pollutants NIOSH National Institute for Occupational Safety and Health NIST National Institute of Science and Technology NVLAP National Voluntary Laboratory Accreditation Program PLM Polarized Light Microscopy TEM Transmission Electron Microscopy TTLC Total Threshold Limit Concentration TAM + CZ Architects, Inc. – City of Fresno Warehouse Site Assessment 01-14-22 Asbestos Survey Report 2 of 8 Executive Summary Forensic Analytical Consulting Services, Inc. (FACS) was retained by TAM + CZ Architects, Inc. to perform an asbestos inspection of a City of Fresno-owned warehouse, located at 725 H Street in Fresno, California. The survey included any suspect asbestos-containing materials (ACM) which may be disturbed during an upcoming renovation project at the warehouse. A summary list of suspect asbestos- containing materials which were identified and sampled is included in Appendix A of this report. The survey was performed on December 22, 2021. Asbestos The following suspect materials were sampled and identified to contain asbestos by laboratory analysis during this survey: •12" VFT – Marble •12" VFT – Pink •3'x3' Floor Tile – Black •9" VFT – Tan Oatmeal •Aircell •Drywall – Skip Trowel Texture •Drywall – Smooth Texture •Flooring Material - Black Vinyl •Transite Panels •Vibration Dampener •9” VFT – Black While lab results do not reflect all drywall materials as containing asbestos, it is recommended that all drywall containing a paint or texture finish be handled as asbestos-containing. This is due to the random nature of the drywall systems in the building and determining exactly where one system that contains asbestos may stop or start. Handling all drywall as asbestos-containing would remove the potential for an improper disturbance of the material during renovation activities. Please see Appendix A for a complete listing of materials sampled at the work areas and results during this survey. Any suspect materials not included must be assumed to be asbestos-containing materials until tested and proven not to contain asbestos. FACS recommends that the results of this report be incorporated into any renovation plans provided for this project for informational purposes. TAM + CZ Architects, Inc. – City of Fresno Warehouse Site Assessment 01-14-22 Asbestos Survey Report 3 of 8 Introduction Forensic Analytical Consulting Services, Inc. (FACS) was retained by TAM + CZ Architects, Inc. to perform an asbestos inspection of a City of Fresno-owned warehouse, located at 725 H Street in Fresno, California. The survey was conducted prior to potential renovation activities in the near future. The survey was performed on December 22, 2021. Scope of Work The purpose of this survey was to identify asbestos-containing materials (ACMs) which may be disturbed during the upcoming project. The visual inspection, bulk sampling, and survey documentation were performed by Chris Chipponeri. Mr. Chipponeri is a Division of Occupational Safety and Health (DOSH) Certified Asbestos Consultant (CAC #10-4633) as required under California regulations. The scope of the survey and the services provided by FACS included: •Performing a visual inspection of the project areas to identify accessible suspect asbestos- containing materials (ACMs) that will be disturbed during the planned project; •Collection of bulk material samples for asbestos analysis by polarized light microscopy (PLM); •Ensuring the technical quality of all work by using Asbestos Hazard Emergency Response Act (AHERA) accredited Building Inspectors; •Consolidating data and findings into a report format. Site Characterization The warehouse at 735 H Street in Fresno, California is a multi-level industrial building comprising a main floor, a sub level, and a limited upper level. The main floor includes 3 large warehouse bays, as well as office space and storage. The sub level is comprised of two disconnected basements with street access. The upper level consists of an office overviewing one warehouse floor, and attic space housing the building’s HVAC system. Survey Methods Document Review FACS has no prior survey or site inspection for this location. Visual Inspection Accessible building materials were visually inspected using the methods presented in the Federal AHERA regulations (40 CFR, Part 763). AHERA inspection methodology is required to be used for inspections of K-12 schools and is generally accepted as the industry standard for all ACM inspections regardless of structure or facility type. Suspect ACMs were also physically assessed for friability, condition and possible disturbance factors. All areas were accessible during this inspection. This inspection excluded the roof area of the building and additional survey for suspect materials would need to be performed of this area prior to any renovation activities. TAM + CZ Architects, Inc. – City of Fresno Warehouse Site Assessment 01-14-22 Asbestos Survey Report 4 of 8 Asbestos Inspection Bulk Sample Collection Bulk samples of identified homogeneous materials were collected in building areas that may be impacted by the planned renovation/demolition activities. Samples were collected of each separate homogeneous area. A homogeneous area is defined as a surfacing material, thermal system insulation, or miscellaneous material that is uniform in use, color, and texture. Examples of homogeneous areas could include: Vinyl floor tiles False ceiling panels Drywall with joint compound Vinyl sheet flooring The specific number of samples collected was determined by using the methods required by the Federal AHERA regulations (40 CFR, Part 763.86) as noted below: 1)For Surfacing Material: 1,000 ft2 or less - collect 3 samples 1,001 to 5,000 ft2 - collect 5 samples 5,001 ft2 or greater - collect 7 samples 2)For Thermal System Insulation: “In a randomly distributed manner” - collect 3 samples 6 linear feet of patching or less - collect 1 sample cementitious pipe fittings - “In a manner sufficient to determine” 3)For all Miscellaneous Material: Collect samples "In a manner sufficient to determine whether material is ACM (asbestos- containing material) or not ACM..." The suspect ACMs were sampled using a knife, chisel, scraper, drill or other similar coring device suitable to the type of material sampled to cut through its entire thickness and to ensure that a cross- section of the material was obtained. The material was then placed in an appropriately labeled container that was sealed and submitted to SGS-Forensic Laboratories for analysis. A unique sample number (e.g. PJ65200-01A) was assigned to each sample. Bulk samples will be retained by the laboratory for one month unless otherwise instructed. After this period, the samples will be disposed of appropriately. Bulk Sample Analysis A total of ninety-six (96) bulk samples were collected from a total of forty-seven (47) suspect materials. Bulk samples were analyzed by SGS-Forensic Laboratories (SGS-FL) in Hayward, California. SGS-FL is accredited by the California Department of Public Health (CDPH) Environmental Laboratory Accreditation Program (ELAP) and the National Institute of Science and Technology's (NIST) National Voluntary Laboratory Accreditation Program (NVLAP). SGS-FL participates in the National Institute for Occupational Safety and Health (NIOSH) Proficiency Analytical Testing Program and has substantial experience in the analysis of asbestos. All samples were analyzed using Polarized Light Microscopy with Dispersion Staining (PLM/DS) techniques in accordance with the methodology approved by the U.S. Environmental Protection Agency (EPA). The percentage of asbestos present in the samples was determined on the basis of a visual area TAM + CZ Architects, Inc. – City of Fresno Warehouse Site Assessment 01-14-22 Asbestos Survey Report 5 of 8 estimation. The EPA defines asbestos-containing materials (ACM) as any material containing more than one percent (1%) asbestos as determined using the method specified in Appendix A, Subpart F, 40 CFR Part 763, Section 1, Polarized Light Microscopy (PLM). 40 CFR Part 763 identifies the lower limit of reliable quantification for asbestos using the PLM method as approximately one percent (1%) by volume. Regulations in California (CAL/OSHA Title 8 CCR 1529) define asbestos-containing construction materials (ACCM) as those materials having asbestos content of greater than one tenth of one percent (> 0.1%); therefore, for the purpose of this survey, any amount of asbestos detected will be considered positive. In addition to the percentages, the types of asbestos minerals are also reported. The PLM method is the standard method used to analyze asbestos bulk samples. When "None Detected" (ND) appears in the laboratory results, it should be interpreted as meaning asbestos was not observed in the sample material. Regulations Background Asbestos is the name of a class of magnesium-silicate minerals that occur in fibrous form. Minerals that are included in this group are chrysotile, crocidolite, amosite, anthophyllite asbestos, tremolite asbestos, and actinolite asbestos. Although the chrysotile minerals are the most common type of asbestos found in the construction industry, all types of asbestos are regulated in the same manner. Asbestos has been used in more than 3,000 different building materials. Asbestos was added to building materials to: increase fire-resistance, insulate against heat, cold and sound, resist corrosion, and increase tensile strength. Common building materials that may contain asbestos include but are not limited to the following: floor tile, resilient sheet flooring, ceiling tile, mastics, roofing materials, fireproofing, acoustical treatments, wallboard, pipe and boiler insulations. Adverse health effects have been associated with the inhalation of airborne asbestos. However, asbestos fibers that are tightly bound in the building material, may not represent an exposure hazard, unless disturbed in such a way that releases airborne fibers (i.e., cutting, drilling, sanding, and other abrasive methods). Building Surveys The following is a summary of some current Federal and California State regulations which contain requirements related to the performance of building surveys for asbestos. These summaries are not intended to be all inclusive and do not contain every aspect of the regulations discussed. U.S. EPA National Emission Standard for Hazardous Air Pollutants (NESHAPs), 40 CFR Part 61 Under the NESHAPs regulation, no visible emissions are allowed during building demolition or renovation activities which involve regulated asbestos-containing materials. For this reason, all buildings must be surveyed for asbestos-containing materials prior to demolition or renovation. The EPA, CARB, and/or the local Air Quality Management District which implements EPA actions, must be notified prior to any building demolition even if no asbestos-containing materials are present. Regulated asbestos-containing material (RACM) is defined as a) any friable material with an asbestos content of greater than one percent, or b) any non-friable material with asbestos content of greater than one percent that will, or could, become friable. Asbestos Hazard Emergency Response Act (AHERA), 40 CFR Part 763, Subpart E AHERA requires performance of asbestos surveys and the development of Asbestos Management Plans for all primary and secondary schools in the United States. Although this regulation applies to primary and secondary schools only, the procedures mandated under AHERA are considered the industry TAM + CZ Architects, Inc. – City of Fresno Warehouse Site Assessment 01-14-22 Asbestos Survey Report 6 of 8 standard and are applied to all surveys performed by FACS unless otherwise specified by the building owner. Worker Protection California Assembly Bill AB3713, Health and Safety Code Division 20, Chapter 10.4, Section 25915- 25924 The state of California has enacted legislation that requires building owners, employers, lessees, etc. to notify tenants, employees and contractors of the presence of asbestos in both friable and non-friable forms. In addition, preventive maintenance activities must be developed and communicated to these parties. Notification is required 15 days after the identification of ACM in the building, and annually thereafter. Occupational Safety and Health Administration (OSHA) 29 CFR 1926.1101 and 8 CCR 1529 The Federal and State Occupational Safety and Health Administrations (OSHA) require employers to implement specific work practices which protect workers from airborne asbestos exposure. Building materials which contain even low levels of asbestos (<1%) can potentially generate significant concentrations of airborne asbestos fibers when disturbed. Therefore, control measures should be instituted which adequately address worker health and safety during planned renovation or demolition activities involving these materials. Cal/OSHA defines asbestos-containing construction materials as those materials having greater than one tenth of one percent asbestos (>0.1%). As stated previously, there is currently no viable method to accurately quantify asbestos at this level. Hazardous Waste Building materials reported to contain less than one percent (<1%) of asbestos are not considered hazardous by the U.S. EPA, and hence, may not require removal and disposal prior to demolition or renovation. Regulations may vary, however, between regional air quality management districts and/or other state agencies responsible for implementing EPA's rules. Therefore, local agencies should be contacted for specific ACM definitions and handling requirements. Cal/OSHA may also require special packaging and labeling on containers with asbestos-containing construction materials. Composite sampling, which may potentially reduce the total asbestos content of the material, is only permitted when sampling joint compound, tape, and gypsum wallboard according to EPA’s Asbestos NESHAP Clarification Regarding Analysis of Multi-Layered Systems (40 CFR Part 61 FRL-4821-7). Findings and Recommendations Forensic Analytical Consulting Services, Inc. (FACS) was retained by TAM + CZ Architects, Inc. to perform an asbestos inspection of a City of Fresno-owned warehouse prior to a potential renovation. The following suspect materials were sampled and identified to contain asbestos by laboratory analysis during this survey: •12" VFT – Marble •12" VFT – Pink •3'x3' Floor Tile – Black •9" VFT – Tan Oatmeal •Aircell •Drywall – Skip Trowel Texture •Drywall – Smooth Texture •Flooring Material - Black Vinyl •Transite Panels •Vibration Dampener •9” VFT – Black 7 of 8 TAM + CZ Architects, Inc. – City of Fresno Warehouse Site Assessment 01-14-22 Asbestos Survey Report While lab results do not reflect all drywall materials as containing asbestos, it is recommended that all drywall containing a paint or texture finish be handled as asbestos-containing. This is due to the random nature of the drywall systems in the building and determining exactly where one system that contains asbestos may stop or start. Handling all drywall as asbestos-containing would remove the potential for an improper disturbance of the material during renovation activities. Please see Appendix A for a complete listing of materials sampled at the work areas and results during this survey. Any suspect materials not included must be assumed to be asbestos-containing materials until tested and proven not to contain asbestos. The US EPA National Emissions Standard for Hazardous Air Pollutants (NESHAP) regulation, as enforced by the San Joaquin Valley Air Pollution Control District (SJVAPCD), requires the abatement of materials that contain more than 1% asbestos if they are friable or are likely to become friable by forces disturbing them. Materials noted as being friable, or would be considered friable when removed, include Aircell insulation, vibration dampened, and drywall materials. While not friable, the removal of asbestos- containing vinyl floor materials should be performed prior to renovation activities to prevent the improper disturbance of materials. If more than 160 square or 260 linear feet of regulated asbestos-containing material (RACM) will be abated, or if non-friable materials will be removed using mechanical means exceeding these thresholds, a 10-working day notification will need to be filed with the SJVAPCD, along with the payment of necessary fees that are based on quantities of materials to be removed. If materials identified as non- friable are not to be removed using mechanical means, a 10-working day notification is not required, but a courtesy notification should be filed at least 24 hours prior to abatement commencing with the SJVAPCD. For friable materials and non-friable materials that are removed using mechanical means or made friable by removal methods, the materials shall be disposed of as hazardous (regulated) asbestos-containing waste materials. Non-friable materials that remain non-friable during removal can be disposed of as a non-hazardous asbestos-containing waste material. The contractor performing removal shall follow all Cal/OSHA abatement work practices and engineering controls for the class of work being performed. The contractor will need to submit a notification for the abatement at least 24 hours prior to the start of abatement to the local Cal/OSHA office. If the contractor will be removing more than 100 square feet of material, they must be registered with Cal/OSHA as an asbestos abatement contractor. Workers will also need to have AHERA Worker training with one worker trained to the AHERA Contractor-Supervisor level. To comply with California State License Board requirements, the contractor performing the abatement will need to hold the C-22 asbestos abatement license or the C-class specialty license for each trade work to be performed with asbestos certification for that specialty class. Since more than two trades of work is involved in abatement, the abatement contractor may also hold the B-class general license with asbestos certification. FACS recommends that the results of this report be incorporated into any renovation plans provided for this project for informational purposes. Limitations This investigation is limited to the conditions and practices observed, and information made available to FACS. The methods, conclusions and recommendations provided are based on FACS’ judgment, expertise and the standard of practice for professional service. They are subject to the limitations and variability inherent in the methodology employed. As with all environmental investigations, this 8 of 8 TAM + CZ Architects, Inc. – City of Fresno Warehouse Site Assessment 01-14-22 Asbestos Survey Report investigation is limited to the defined scope and does not purport to set forth all hazards, nor indicate that other hazards do not exist. Please do not hesitate to contact our office at 209-551-2000 with any questions or concerns. Thank you for the opportunity to assist TAM+CZ Architects with promoting worker safety and a healthy environment. Respectfully, Reviewed by: FORENSIC ANALYTICAL FORENSIC ANALYTICAL Tyler Faison Chris Chipponeri Assistant Local Director, Modesto Local Director, Central Valley Offices Cal/OSHA CSST #16-5728 Cal/OSHA CAC #10-4633 CDPH I/A LRC-00002454 CDPH I/A LRC-00000782 TAM + CZ Architects, Inc. – City of Fresno Warehouse Site Assessment 01-14-22 Asbestos Survey Report www.forensicanalytical.com Forensic Analytical Consulting Services Appendix A Appendix A Asbestos Survey Summary, Sample Chain-of-Custody, and Laboratory Results Report Asbestos Survey Summary (Lab Report # B327113) TAM + CZ Architects, Inc. – City of Fresno Warehouse Survey Date: December 22, 2021 Sample Numbers Material Description Location(s) of Material Material Number Asbestos Content (percent) Asbestos NESHAP Category Approximate Quantity 01A 12” ACT – Pinhole w/ Mastic Room 1 01 Layer: Brown Mastic None Detect (ND) Layer: Tan Fibrous Material ND Layer: Paint ND N/A N/A 01B 12” ACT – Pinhole w/ Mastic Room 1 01 Layer: Brown Mastic ND Layer: Tan Fibrous Material ND Layer: Paint ND N/A N/A 02A 12” ACT – Uniform Hole (Nailed-On Material) Room 9 02 Layer: Tan Fibrous Material ND Layer: Paint ND N/A N/A 02B 12” ACT – Uniform Hole (Nailed-On Material) Room 9 02 Layer: Tan Fibrous Material ND Layer: Paint ND N/A N/A 03A 12” VFT – Brown Room 16 03 Layer: Brown Tile ND Layer: Tan Mastic ND N/A N/A 03B 12” VFT – Brown Room 16 03 Layer: Brown Tile ND Layer: Tan Mastic ND N/A N/A 04A 12” VFT – Green w/ Black Mastic Room 2 04 Layer: Green Tile ND Layer: Black Mastic ND N/A N/A 05A 12” VFT - Marble Room 14 05 Layer: Tan Tile Chrysotile 2% Layer: Yellow Mastic ND Category I Non-Friable 16 Sq. Ft. 05B 12” VFT - Marble Room 14 05 Layer: Tan Tile Chrysotile 2% Layer: Yellow Mastic ND Category I Non-Friable 16 Sq. Ft. TAM + CZ Architects, Inc. – City of Fresno Warehouse Site Assessment 01-14-22 Asbestos Survey Report www.forensicanalytical.com Forensic Analytical Consulting Services Appendix A 06A 12” VFT – Pink w/ Black Mastic Room 2 06 Layer: Brown Tile Chrysotile 5% Layer: Black Mastic ND Category I Non-Friable 81 Sq. Ft. 07A 3’x3’ Floor Tile – Black Room 9 07 Layer: Tan Tile Chrysotile 5% Layer: Black Mastic ND Category I Non-Friable 135 Sq. Ft. 08A 4” Baseboard – Black w/ Mastic Room 1 08 Layer: Black Non-Fibrous Material ND Layer: Beige Mastic ND N/A N/A 09A 6” Baseboard – Black w/ Mastic Room 2 09 Layer: Black Non-Fibrous Material ND Layer: Beige Mastic ND N/A N/A 10A 9” VFT – Gray Pebble Room1 10 Layer: Beige Tile ND Layer: Yellow Mastic ND N/A N/A 11A 9” VFT – Tan Oatmeal Room 7 11 Layer: Tan Tile Chrysotile 2% Layer: Black Mastic ND Category I Non-Friable 117 Sq. Ft. 11B 9” VFT – Tan Oatmeal Room 7 11 Layer: Tan Tile Chrysotile 2% Layer: Black Mastic ND Category I Non-Friable 117 Sq. Ft. 12A Aircell Room 8 12 Layer: Grey Fibrous Material Chrysotile 70% Friable/ RACM 80 Ln. Ft. (Additional Amount may Exist in Inaccessible Areas) 12B Aircell Room 8 12 Layer: Grey Fibrous Material Chrysotile 70% Friable/ RACM 80 Ln. Ft. (Additional Amount may Exist in Inaccessible Areas) 12C Aircell Room 8 12 Layer: Grey Fibrous Material Chrysotile 70% Friable/ RACM 80 Ln. Ft. (Additional Amount may Exist in Inaccessible Areas) TAM + CZ Architects, Inc. – City of Fresno Warehouse Site Assessment 01-14-22 Asbestos Survey Report www.forensicanalytical.com Forensic Analytical Consulting Services Appendix A 13A Black Mastic Room 8 13 Layer: Black Felt ND Layer: Black Mastic ND N/A N/A 14A Blown-In Insulation Room 8 14 Layer: Grey Fibrous Material ND N/A N/A 14B Blown-In Insulation Room 8 14 Layer: Grey Fibrous Material ND N/A N/A 14C Blown-In Insulation Room 8 14 Layer: Grey Fibrous Material ND N/A N/A 15A Brick Mortar Room 4 15 Layer: White Mortar ND N/A N/A 15B Brick Mortar Room 11 15 Layer: White Mortar ND N/A N/A 15C Brick Mortar Room 13 15 Layer: Red Cementitious Material ND Layer: White Mortar ND N/A N/A 15D Brick Mortar Room 13 15 Layer: Red Cementitious Material ND Layer: White Mortar ND N/A N/A 15E Brick Mortar Room 15 15 Layer: White Mortar ND N/A N/A 16A Carpet – Brown Room 1 16 Layer: Brown Carpet ND Layer: Beige Mastic ND Layer: Multicolored Foam ND N/A N/A 17A Carpet – Gray Room 2 17 Layer: Grey Carpet ND Layer: Beige Mastic ND Layer: Multicolored Foam ND N/A N/A 18A Carpet - Multicolored Room 9B 18 Layer: Multicolored Carpet ND N/A N/A 19A Carpet – Tan Room 1 19 Layer: Tan Carpet ND Layer: Beige Mastic ND Layer: Multicolored Foam ND N/A N/A TAM + CZ Architects, Inc. – City of Fresno Warehouse Site Assessment 01-14-22 Asbestos Survey Report www.forensicanalytical.com Forensic Analytical Consulting Services Appendix A 20A Concrete Outside – Loading Dock NW 20 Layer: Grey Cementitious Material ND N/A N/A 20C Concrete Outside – Loading Dock NE 20 Layer: Grey Cementitious Material ND N/A N/A 20D Concrete Room 4 20 Layer: Grey Cementitious Material ND N/A N/A 20E Concrete Room 14 20 Layer: Grey Cementitious Material ND N/A N/A 20F Concrete Room 15 20 Layer: Grey Cementitious Material ND N/A N/A 21A Construction Paper Room 18 21 Layer: Tan Fibrous Material ND N/A N/A 22A Drywall – Skip Trowel Texture w/ Tape & Joint Room 1 22 Layer: White Drywall ND Layer: Off-White Joint Compound Chrysotile 2% Layer: White Tape ND Layer: Off-White Texture Chrysotile 2% Layer: Paint ND Friable/ RACM 1,280 Sq. Ft. 22B Drywall – Skip Trowel Texture w/ Tape & Joint Room 2 22 Layer: White Drywall ND Layer: Off-White Joint Compound Chrysotile 2% Layer: White Tape ND Layer: Off-White Texture Chrysotile 2% Layer: Paint ND Friable/ RACM 1,280 Sq. Ft. 22C Drywall – Skip Trowel Texture w/ Tape & Joint Room 3 22 Layer: White Drywall ND Layer: Off-White Joint Compound Chrysotile 2% Layer: White Tape ND Layer: Off-White Texture Chrysotile 2% Layer: Paint ND Friable/ RACM 1,280 Sq. Ft. 23A Drywall – Smooth Texture Room 4 23 Layer: White Drywall ND Layer: Paint ND N/A N/A 23B Drywall – Smooth Texture Room 4 23 Layer: White Drywall ND Layer: Paint ND N/A N/A TAM + CZ Architects, Inc. – City of Fresno Warehouse Site Assessment 01-14-22 Asbestos Survey Report www.forensicanalytical.com Forensic Analytical Consulting Services Appendix A 23C Drywall – Smooth Texture Room 5 23 Layer: White Drywall ND Layer: Paint ND N/A N/A 23D Drywall – Smooth Texture Room 15 23 Layer: White Drywall ND Layer: Paint ND N/A N/A 23E Drywall – Smooth Texture Room 15 23 Layer: White Drywall ND Layer: Paint ND N/A N/A 24A Drywall – Smooth Texture w/ Tape & Joint Room 4 24 Layer: White Drywall ND Layer: Paint ND Friable/ RACM 2,600 Sq. Ft. 24B Drywall – Smooth Texture w/ Tape & Joint Room 5 24 Layer: White Drywall ND Layer: Paint ND Friable/ RACM 2,600 Sq. Ft. 24C Drywall – Smooth Texture w/ Tape & Joint Room 5 24 Layer: White Drywall ND Layer: White Joint Compound Chrysotile 2% Layer: Tan Tape ND Layer: White Texture Chrysotile 2% Layer: Paint ND Friable/ RACM 2,600 Sq. Ft. 24D Drywall – Smooth Texture w/ Tape & Joint Room 15 24 Layer: White Drywall ND Layer: White Joint Compound Chrysotile 2% Layer: Tan Tape ND Layer: White Texture Chrysotile 2% Layer: Paint ND Friable/ RACM 2,600 Sq. Ft. 25A Drywall - Unfinished Room 14 25 Layer: White Drywall ND N/A N/A 25B Drywall - Unfinished Room 14 25 Layer: White Drywall ND N/A N/A 26A Duct Tape – White Room 8 26 Layer: White Tape ND N/A N/A 26B Duct Tape – White Room 8 26 Layer: White Tape ND N/A N/A 27A Duct Tape – Yellow Room 8 27 Layer: Yellow Tape ND N/A N/A TAM + CZ Architects, Inc. – City of Fresno Warehouse Site Assessment 01-14-22 Asbestos Survey Report www.forensicanalytical.com Forensic Analytical Consulting Services Appendix A 28A Joint Compound – White Room 16 28 Layer: White Joint Compound ND Layer: Paint ND N/A N/A 28B Joint Compound – White Room 16 28 Layer: White Joint Compound ND Layer: Paint ND N/A N/A 29A Flooring Material – Black Vinyl Room 4 29 Layer: Black Non-Fibrous Material Chrysotile 2% Category I Non-Friable 5,170 Sq. Ft. 29B Flooring Material – Black Vinyl Room 4 29 Layer: Black Non-Fibrous Material Chrysotile 2% Category I Non-Friable 5,170 Sq. Ft. 30A Insulation – Brown Room 1 30 Layer: Brown Fibrous Material ND N/A N/A 30B Insulation – Brown Room 1 30 Layer: Brown Fibrous Material ND N/A N/A 30C Insulation – Brown Room 17 30 Layer: Brown Fibrous Material ND N/A N/A 31A Insulation Moisture Paper Room 17 31 Layer: Black Felt ND N/A N/A 31B Insulation Moisture Paper Room 17 31 Layer: Black Felt ND N/A N/A 32A Moisture Barrier – Felt Room 17 32 Layer: Black Felt ND N/A N/A 32B Moisture Barrier – Felt Room 17 32 Layer: Black Felt ND N/A N/A 33A Plaster Room 4 33 Layer: Off-White Plaster ND Layer: Paint ND N/A N/A 33B Plaster Room 10 33 Layer: Off-White Plaster ND Layer: Paint ND N/A N/A 33C Plaster Room 10 33 Layer: Off-White Plaster ND Layer: Paint ND N/A N/A TAM + CZ Architects, Inc. – City of Fresno Warehouse Site Assessment 01-14-22 Asbestos Survey Report www.forensicanalytical.com Forensic Analytical Consulting Services Appendix A 33D Plaster Room 12 33 Layer: Off-White Plaster ND Layer: Paint ND N/A N/A 33E Plaster Room 16 33 Layer: Off-White Plaster ND Layer: Paint ND N/A N/A 34A Plaster on Brick Room 12 34 Layer: Off-White Plaster ND Layer: Paint ND N/A N/A 34B Plaster on Brick Room 13 34 Layer: Off-White Plaster ND Layer: Paint ND N/A N/A 34C Plaster on Brick Room 13 34 Layer: Off-White Plaster ND Layer: Paint ND N/A N/A 35A Pressed Wood – Tile Look w/ Mastic Room 8 35 Layer: Brown Fibrous Material ND Layer: Paint ND N/A N/A 36A Pressed Wood Ceiling Room 10 36 Layer: Brown Fibrous Material ND Layer: Paint ND N/A N/A 36B Pressed Wood Ceiling Room 10 36 Layer: Brown Fibrous Material ND Layer: Paint ND N/A N/A 37A Pressed Wood w/ Yellow & Black Mastic Room 6 37 Layer: Yellow Mastic ND Layer: Brown Fibrous Material ND Layer: Black Mastic ND N/A N/A 37B Pressed Wood w/ Yellow & Black Mastic Room 6 37 Layer: Yellow Mastic ND Layer: Brown Fibrous Material ND Layer: Black Mastic ND N/A N/A 38A Transite Panel Rooms 8 (Attic) & 14 38 Layer: Grey Semi-Fibrous Material Chrysotile 10% Layer: Paint ND Category II Non-Friable 60 Sq. Ft. 38B Transite Panel Rooms 8 (Attic) & 14 38 Layer: Grey Semi-Fibrous Material Chrysotile 10% Layer: Paint ND Category II Non-Friable 60 Sq. Ft. 39A Vibration Dampener Room 8 (Attic) 39 Layer: Grey Fibrous Material Chrysotile 50% Friable / RACM 2 Each TAM + CZ Architects, Inc. – City of Fresno Warehouse Site Assessment 01-14-22 Asbestos Survey Report www.forensicanalytical.com Forensic Analytical Consulting Services Appendix A 39B Vibration Dampener Room 8 (Attic) 39 Layer: Grey Fibrous Material Chrysotile 50% Friable / RACM 2 Each 40A Vinyl Countertop Room 6 40 Layer: Grey Non-Fibrous Material ND Layer: Black Fibrous Backing ND Layer: Brown Mastic ND N/A N/A 41A Vinyl Sheet Flooring – Black Room 12 41 Layer: Dark Brown Sheet Flooring ND Layer: Black Fibrous Backing ND Layer: Brown Mastic ND N/A N/A 41B Vinyl Sheet Flooring - Black Room 12 41 Layer: Dark Brown Sheet Flooring ND Layer: Black Fibrous Backing ND Layer: Brown Mastic ND N/A N/A 42A Vinyl Stair Tread Room 9B 42 Layer: Black Non-Fibrous Material ND N/A N/A 43A Wire Insulation Room 17 43 Layer: Tan Woven Material ND Layer: Black Non-Fibrous Material ND Layer: Tan Woven Material ND N/A N/A 44A Fiberglass Insulation Paper Room 8 44 Layer: Yellow Fibrous Material ND Layer: Brown Fibrous Material ND Layer: Black Tar ND N/A N/A 44B Fiberglass Insulation Paper Room 8 44 Layer: Yellow Fibrous Material ND Layer: Brown Fibrous Material ND Layer: Black Tar ND N/A N/A 44C Fiberglass Insulation Paper Room 8 44 Layer: Yellow Fibrous Material ND Layer: Brown Fibrous Material ND Layer: Black Tar ND N/A N/A 45A 9” VFT – Black Room 12 45 Layer: Tan Tile 5% Chrysotile Layer: Black Mastic ND Category I Non-Friable 500 Sq. Ft. 45B 9” VFT – Black Room 12 45 Layer: Tan Tile 5% Chrysotile Layer: Black Mastic ND Category I Non-Friable 500 Sq. Ft. 46A Vinyl Sheet Flooring – Wood Room 12 46 Layer: Brown Sheet Flooring ND Layer: Black Fibrous Backing ND Layer: Brown Mastic ND N/A N/A 46B Vinyl Sheet Flooring – Wood Room 12 46 Layer: Brown Sheet Flooring ND Layer: Black Fibrous Backing ND Layer: Brown Mastic ND N/A N/A TAM + CZ Architects, Inc. – City of Fresno Warehouse Site Assessment 01-14-22 Asbestos Survey Report www.forensicanalytical.com Forensic Analytical Consulting Services Appendix A 47A Mirror Mastic Room 14 47 Layer: Yellow Foam ND Layer: Yellow Mastic ND N/A N/A Amended Report (EPA Method 40CFR, Part 763, Appendix E to Subpart E and EPA 600/R-93-116, Visual Area Estimation) Bulk Asbestos Analysis NVLAP Lab Code: 101459-0 FR09Client ID:FACS - Fresno B327113Report Number:Tyler Faison Date Received:21228 Cabot Blvd. 01/14/22Date Analyzed: 01/14/22Date Printed:Hayward, CA 94545 First Reported: FR09PJ65200; TAM+CZ ARCHITECTS, INC. 735 H Street Fresno CA SGSFL Job ID:Job ID/Site: Date(s) Collected:12/22/2021 96Total Samples Submitted: Total Samples Analyzed:96 12/27/21 01/04/22 Sample ID Lab Number Asbestos Type Percent in Layer Asbestos AsbestosPercent in Percent in Type TypeLayer Layer PJ65200-01A 12512916 Layer: Brown Mastic ND Layer: Tan Fibrous Material ND Layer: Paint ND Asbestos (ND)Total Composite Values of Fibrous Components: Cellulose (95 %) PJ65200-01B 12512917 Layer: Brown Mastic ND Layer: Tan Fibrous Material ND Layer: Paint ND Asbestos (ND)Total Composite Values of Fibrous Components: Cellulose (95 %) PJ65200-02A 12512918 Layer: Tan Fibrous Material ND Layer: Paint ND Asbestos (ND)Total Composite Values of Fibrous Components: Cellulose (95 %) PJ65200-02B 12512919 Layer: Tan Fibrous Material ND Layer: Paint ND Asbestos (ND)Total Composite Values of Fibrous Components: Cellulose (95 %) PJ65200-03A 12512920 Layer: Brown Tile ND Layer: Tan Mastic ND Asbestos (ND)Total Composite Values of Fibrous Components: Cellulose (Trace) PJ65200-03B 12512921 Layer: Brown Tile ND Layer: Tan Mastic ND Asbestos (ND)Total Composite Values of Fibrous Components: Cellulose (Trace) 1 of 13 3777 Depot Road, Suite 409, Hayward, CA 94545 / Telephone: (510) 887-8828 (800) 827-FASI / Fax: (510) 887-4218 Report Number:B327113 Date Printed:01/14/22Client Name:FACS - Fresno Sample ID Lab Number Asbestos Type Percent in Layer Asbestos AsbestosPercent in Percent in Type TypeLayer Layer PJ65200-04A 12512922 Layer: Green Tile ND Layer: Black Mastic ND Asbestos (ND)Total Composite Values of Fibrous Components: Cellulose (Trace) PJ65200-05A 12512923 Layer: Tan Tile Chrysotile 2 % Layer: Yellow Mastic ND Asbestos (2%)Total Composite Values of Fibrous Components: Cellulose (Trace) PJ65200-05B 12512924 Layer: Tan Tile Chrysotile 2 % Layer: Yellow Mastic ND Asbestos (2%)Total Composite Values of Fibrous Components: Cellulose (Trace) PJ65200-06A 12512925 Layer: Brown Tile Chrysotile 5 % Layer: Black Mastic ND Asbestos (5%)Total Composite Values of Fibrous Components: Cellulose (Trace) PJ65200-07A 12512926 Layer: Tan Tile Chrysotile 5 % Layer: Black Mastic ND Asbestos (5%)Total Composite Values of Fibrous Components: Cellulose (Trace) PJ65200-08A 12512927 Layer: Black Non-Fibrous Material ND Layer: Beige Mastic ND Asbestos (ND)Total Composite Values of Fibrous Components: Cellulose (Trace) PJ65200-09A 12512928 Layer: Black Non-Fibrous Material ND Layer: Beige Mastic ND Asbestos (ND)Total Composite Values of Fibrous Components: Cellulose (Trace) PJ65200-10A 12512929 Layer: Beige Tile ND Layer: Yellow Mastic ND Asbestos (ND)Total Composite Values of Fibrous Components: Cellulose (Trace) Talc (10 %) 2 of 13 3777 Depot Road, Suite 409, Hayward, CA 94545 / Telephone: (510) 887-8828 (800) 827-FASI / Fax: (510) 887-4218 Report Number:B327113 Date Printed:01/14/22Client Name:FACS - Fresno Sample ID Lab Number Asbestos Type Percent in Layer Asbestos AsbestosPercent in Percent in Type TypeLayer Layer PJ65200-11A 12512930 Layer: Tan Tile Chrysotile 2 % Layer: Black Mastic ND Asbestos (2%)Total Composite Values of Fibrous Components: Cellulose (Trace) Talc (10 %) PJ65200-11B 12512931 Layer: Tan Tile Chrysotile 2 % Layer: Black Mastic ND Asbestos (2%)Total Composite Values of Fibrous Components: Cellulose (Trace) Talc (10 %) PJ65200-12A 12512932 Layer: Grey Fibrous Material Chrysotile 70 % Asbestos (70%)Total Composite Values of Fibrous Components: Cellulose (25 %) PJ65200-12B 12512933 Layer: Grey Fibrous Material Chrysotile 70 % Asbestos (70%)Total Composite Values of Fibrous Components: Cellulose (25 %) PJ65200-12C 12512934 Layer: Grey Fibrous Material Chrysotile 70 % Asbestos (70%)Total Composite Values of Fibrous Components: Cellulose (25 %) PJ65200-13A 12512935 Layer: Black Felt ND Layer: Black Mastic ND Asbestos (ND)Total Composite Values of Fibrous Components: Cellulose (85 %) PJ65200-14A 12512936 Layer: Grey Fibrous Material ND Asbestos (ND)Total Composite Values of Fibrous Components: Cellulose (Trace) Fibrous Glass (99 %) PJ65200-14B 12512937 Layer: Grey Fibrous Material ND Asbestos (ND)Total Composite Values of Fibrous Components: Cellulose (Trace) Fibrous Glass (99 %) PJ65200-14C 12512938 Layer: Grey Fibrous Material ND Asbestos (ND)Total Composite Values of Fibrous Components: Cellulose (Trace) Fibrous Glass (99 %) 3 of 13 3777 Depot Road, Suite 409, Hayward, CA 94545 / Telephone: (510) 887-8828 (800) 827-FASI / Fax: (510) 887-4218 Report Number:B327113 Date Printed:01/14/22Client Name:FACS - Fresno Sample ID Lab Number Asbestos Type Percent in Layer Asbestos AsbestosPercent in Percent in Type TypeLayer Layer PJ65200-15A 12512939 Layer: White Mortar ND Asbestos (ND)Total Composite Values of Fibrous Components: Cellulose (Trace) PJ65200-15B 12512940 Layer: White Mortar ND Asbestos (ND)Total Composite Values of Fibrous Components: Cellulose (Trace) PJ65200-15C 12512941 Layer: Red Cementitious Material ND Layer: White Mortar ND Asbestos (ND)Total Composite Values of Fibrous Components: Cellulose (Trace) PJ65200-15D 12512942 Layer: Red Cementitious Material ND Layer: White Mortar ND Asbestos (ND)Total Composite Values of Fibrous Components: Cellulose (Trace) PJ65200-15E 12512943 Layer: White Mortar ND Asbestos (ND)Total Composite Values of Fibrous Components: Cellulose (Trace) PJ65200-16A 12512944 Layer: Brown Carpet ND Layer: Beige Mastic ND Layer: Multicolored Foam ND Asbestos (ND)Total Composite Values of Fibrous Components: Cellulose (Trace) Synthetic (85 %) PJ65200-17A 12512945 Layer: Grey Carpet ND Layer: Beige Mastic ND Layer: Multicolored Foam ND Asbestos (ND)Total Composite Values of Fibrous Components: Cellulose (Trace) Synthetic (85 %) PJ65200-18A 12512946 Layer: Multicolored Carpet ND Asbestos (ND)Total Composite Values of Fibrous Components: Cellulose (Trace) Synthetic (85 %) 4 of 13 3777 Depot Road, Suite 409, Hayward, CA 94545 / Telephone: (510) 887-8828 (800) 827-FASI / Fax: (510) 887-4218 Report Number:B327113 Date Printed:01/14/22Client Name:FACS - Fresno Sample ID Lab Number Asbestos Type Percent in Layer Asbestos AsbestosPercent in Percent in Type TypeLayer Layer PJ65200-19A 12512947 Layer: Tan Carpet ND Layer: Beige Mastic ND Layer: Multicolored Foam ND Asbestos (ND)Total Composite Values of Fibrous Components: Cellulose (Trace) Synthetic (85 %) PJ65200-20A 12512948 Layer: Grey Cementitious Material ND Asbestos (ND)Total Composite Values of Fibrous Components: Cellulose (Trace) PJ65200-20C 12512949 Layer: Grey Cementitious Material ND Asbestos (ND)Total Composite Values of Fibrous Components: Cellulose (Trace) PJ65200-20D 12512950 Layer: Grey Cementitious Material ND Asbestos (ND)Total Composite Values of Fibrous Components: Cellulose (Trace) PJ65200-20E 12512951 Layer: Grey Cementitious Material ND Asbestos (ND)Total Composite Values of Fibrous Components: Cellulose (Trace) PJ65200-20F 12512952 Layer: Grey Cementitious Material ND Asbestos (ND)Total Composite Values of Fibrous Components: Cellulose (Trace) PJ65200-21A 12512953 Layer: Tan Fibrous Material ND Asbestos (ND)Total Composite Values of Fibrous Components: Cellulose (95 %) PJ65200-22A 12512954 Layer: White Drywall ND Layer: Off-White Joint Compound Chrysotile 2 % Layer: White Tape ND Layer: Off-White Texture Chrysotile 2 % Layer: Paint ND Asbestos (Trace)Total Composite Values of Fibrous Components: Cellulose (20 %) Fibrous Glass (10 %) 5 of 13 3777 Depot Road, Suite 409, Hayward, CA 94545 / Telephone: (510) 887-8828 (800) 827-FASI / Fax: (510) 887-4218 Report Number:B327113 Date Printed:01/14/22Client Name:FACS - Fresno Sample ID Lab Number Asbestos Type Percent in Layer Asbestos AsbestosPercent in Percent in Type TypeLayer Layer PJ65200-22B 12512955 Layer: White Drywall ND Layer: Off-White Joint Compound Chrysotile 2 % Layer: White Tape ND Layer: Off-White Texture Chrysotile 2 % Layer: Paint ND Asbestos (Trace)Total Composite Values of Fibrous Components: Cellulose (20 %) Fibrous Glass (10 %) PJ65200-22C 12512956 Layer: White Drywall ND Layer: Off-White Joint Compound Chrysotile 2 % Layer: White Tape ND Layer: Off-White Texture Chrysotile 2 % Layer: Paint ND Asbestos (Trace)Total Composite Values of Fibrous Components: Cellulose (20 %) Fibrous Glass (10 %) PJ65200-23A 12512957 Layer: White Drywall ND Layer: Paint ND Asbestos (ND)Total Composite Values of Fibrous Components: Cellulose (20 %) Fibrous Glass (10 %) PJ65200-23B 12512958 Layer: White Drywall ND Layer: Paint ND Asbestos (ND)Total Composite Values of Fibrous Components: Cellulose (20 %) Fibrous Glass (10 %) PJ65200-23C 12512959 Layer: White Drywall ND Layer: Paint ND Asbestos (ND)Total Composite Values of Fibrous Components: Cellulose (20 %) Fibrous Glass (10 %) PJ65200-23D 12512960 Layer: White Drywall ND Layer: Paint ND Asbestos (ND)Total Composite Values of Fibrous Components: Cellulose (20 %) Fibrous Glass (10 %) PJ65200-23E 12512961 Layer: White Drywall ND Layer: Paint ND Asbestos (ND)Total Composite Values of Fibrous Components: Cellulose (20 %) Fibrous Glass (10 %) 6 of 13 3777 Depot Road, Suite 409, Hayward, CA 94545 / Telephone: (510) 887-8828 (800) 827-FASI / Fax: (510) 887-4218 Report Number:B327113 Date Printed:01/14/22Client Name:FACS - Fresno Sample ID Lab Number Asbestos Type Percent in Layer Asbestos AsbestosPercent in Percent in Type TypeLayer Layer PJ65200-24A 12512962 Layer: White Drywall ND Layer: Paint ND Asbestos (ND)Total Composite Values of Fibrous Components: Cellulose (20 %) Fibrous Glass (10 %) PJ65200-24B 12512963 Layer: White Drywall ND Layer: Paint ND Asbestos (ND)Total Composite Values of Fibrous Components: Cellulose (20 %) Fibrous Glass (10 %) PJ65200-24C 12512964 Layer: White Drywall ND Layer: White Joint Compound Chrysotile 2 % Layer: Tan Tape ND Layer: White Texture Chrysotile 2 % Layer: Paint ND Asbestos (Trace)Total Composite Values of Fibrous Components: Cellulose (20 %) Fibrous Glass (10 %) PJ65200-24D 12512965 Layer: White Drywall ND Layer: Off-White Joint Compound Chrysotile 2 % Layer: White Tape ND Layer: Off-White Texture Chrysotile 2 % Layer: Paint ND Asbestos (Trace)Total Composite Values of Fibrous Components: Cellulose (20 %) Fibrous Glass (10 %) PJ65200-25A 12512966 Layer: White Drywall ND Asbestos (ND)Total Composite Values of Fibrous Components: Cellulose (20 %) Fibrous Glass (10 %) PJ65200-25B 12512967 Layer: White Drywall ND Asbestos (ND)Total Composite Values of Fibrous Components: Cellulose (20 %) Fibrous Glass (10 %) PJ65200-26A 12512968 Layer: White Tape ND Asbestos (ND)Total Composite Values of Fibrous Components: Cellulose (90 %) PJ65200-26B 12512969 Layer: White Tape ND Asbestos (ND)Total Composite Values of Fibrous Components: Cellulose (90 %) 7 of 13 3777 Depot Road, Suite 409, Hayward, CA 94545 / Telephone: (510) 887-8828 (800) 827-FASI / Fax: (510) 887-4218 Report Number:B327113 Date Printed:01/14/22Client Name:FACS - Fresno Sample ID Lab Number Asbestos Type Percent in Layer Asbestos AsbestosPercent in Percent in Type TypeLayer Layer PJ65200-27A 12512970 Layer: Yellow Tape ND Asbestos (ND)Total Composite Values of Fibrous Components: Cellulose (90 %) PJ65200-28A 12512971 Layer: White Joint Compound ND Layer: Paint ND Asbestos (ND)Total Composite Values of Fibrous Components: Cellulose (Trace) PJ65200-28B 12512972 Layer: White Joint Compound ND Layer: Paint ND Asbestos (ND)Total Composite Values of Fibrous Components: Cellulose (Trace) PJ65200-29A 12512973 Layer: Black Non-Fibrous Material Chrysotile 2 % Asbestos (2%)Total Composite Values of Fibrous Components: Cellulose (Trace) PJ65200-29B 12512974 Layer: Black Non-Fibrous Material Chrysotile 2 % Asbestos (2%)Total Composite Values of Fibrous Components: Cellulose (Trace) PJ65200-30A 12512975 Layer: Brown Fibrous Material ND Asbestos (ND)Total Composite Values of Fibrous Components: Cellulose (95 %) PJ65200-30B 12512976 Layer: Brown Fibrous Material ND Asbestos (ND)Total Composite Values of Fibrous Components: Cellulose (95 %) PJ65200-30C 12512977 Layer: Brown Fibrous Material ND Asbestos (ND)Total Composite Values of Fibrous Components: Cellulose (95 %) PJ65200-31A 12512978 Layer: Black Felt ND Asbestos (ND)Total Composite Values of Fibrous Components: Cellulose (90 %) PJ65200-31B 12512979 Layer: Black Felt ND Asbestos (ND)Total Composite Values of Fibrous Components: Cellulose (90 %) 8 of 13 3777 Depot Road, Suite 409, Hayward, CA 94545 / Telephone: (510) 887-8828 (800) 827-FASI / Fax: (510) 887-4218 Report Number:B327113 Date Printed:01/14/22Client Name:FACS - Fresno Sample ID Lab Number Asbestos Type Percent in Layer Asbestos AsbestosPercent in Percent in Type TypeLayer Layer PJ65200-32A 12512980 Layer: Black Felt ND Asbestos (ND)Total Composite Values of Fibrous Components: Cellulose (90 %) PJ65200-32B 12512981 Layer: Black Felt ND Asbestos (ND)Total Composite Values of Fibrous Components: Cellulose (90 %) PJ65200-33A 12512982 Layer: Off-White Plaster ND Layer: Paint ND Asbestos (ND)Total Composite Values of Fibrous Components: Cellulose (Trace) PJ65200-33B 12512983 Layer: Off-White Plaster ND Layer: Paint ND Asbestos (ND)Total Composite Values of Fibrous Components: Cellulose (Trace) PJ65200-33C 12512984 Layer: Off-White Plaster ND Layer: Paint ND Asbestos (ND)Total Composite Values of Fibrous Components: Cellulose (Trace) PJ65200-33D 12512985 Layer: Off-White Plaster ND Layer: Paint ND Asbestos (ND)Total Composite Values of Fibrous Components: Cellulose (Trace) PJ65200-33E 12512986 Layer: Off-White Plaster ND Layer: Paint ND Asbestos (ND)Total Composite Values of Fibrous Components: Cellulose (Trace) PJ65200-34A 12512987 Layer: Off-White Plaster ND Layer: Paint ND Asbestos (ND)Total Composite Values of Fibrous Components: Cellulose (Trace) PJ65200-34B 12512988 Layer: Off-White Plaster ND Layer: Paint ND Asbestos (ND)Total Composite Values of Fibrous Components: Cellulose (Trace) 9 of 13 3777 Depot Road, Suite 409, Hayward, CA 94545 / Telephone: (510) 887-8828 (800) 827-FASI / Fax: (510) 887-4218 Report Number:B327113 Date Printed:01/14/22Client Name:FACS - Fresno Sample ID Lab Number Asbestos Type Percent in Layer Asbestos AsbestosPercent in Percent in Type TypeLayer Layer PJ65200-34C 12512989 Layer: Off-White Plaster ND Layer: Paint ND Asbestos (ND)Total Composite Values of Fibrous Components: Cellulose (Trace) PJ65200-35A 12512990 Layer: Brown Fibrous Material ND Layer: Paint ND Asbestos (ND)Total Composite Values of Fibrous Components: Cellulose (95 %) PJ65200-36A 12512991 Layer: Brown Fibrous Material ND Layer: Paint ND Asbestos (ND)Total Composite Values of Fibrous Components: Cellulose (95 %) PJ65200-36B 12512992 Layer: Brown Fibrous Material ND Layer: Paint ND Asbestos (ND)Total Composite Values of Fibrous Components: Cellulose (95 %) PJ65200-37A 12512993 Layer: Yellow Mastic ND Layer: Brown Fibrous Material ND Layer: Black Mastic ND Asbestos (ND)Total Composite Values of Fibrous Components: Cellulose (95 %) PJ65200-37B 12512994 Layer: Yellow Mastic ND Layer: Brown Fibrous Material ND Layer: Black Mastic ND Asbestos (ND)Total Composite Values of Fibrous Components: Cellulose (95 %) PJ65200-38A 12512995 Layer: Grey Semi-Fibrous Material Chrysotile 10 % Layer: Paint ND Asbestos (10%)Total Composite Values of Fibrous Components: Cellulose (Trace) PJ65200-38B 12512996 Layer: Grey Semi-Fibrous Material Chrysotile 10 % Layer: Paint ND Asbestos (10%)Total Composite Values of Fibrous Components: Cellulose (Trace) 10 of 13 3777 Depot Road, Suite 409, Hayward, CA 94545 / Telephone: (510) 887-8828 (800) 827-FASI / Fax: (510) 887-4218 Report Number:B327113 Date Printed:01/14/22Client Name:FACS - Fresno Sample ID Lab Number Asbestos Type Percent in Layer Asbestos AsbestosPercent in Percent in Type TypeLayer Layer PJ65200-39A 12512997 Layer: Grey Fibrous Material Chrysotile 50 % Asbestos (50%)Total Composite Values of Fibrous Components: Cellulose (45 %) Synthetic (5 %) PJ65200-39B 12512998 Layer: Grey Fibrous Material Chrysotile 50 % Asbestos (50%)Total Composite Values of Fibrous Components: Cellulose (45 %) Synthetic (5 %) PJ65200-40A 12512999 Layer: Grey Non-Fibrous Material ND Layer: Black Fibrous Backing ND Layer: Brown Mastic ND Asbestos (ND)Total Composite Values of Fibrous Components: Cellulose (40 %) Synthetic (10 %) PJ65200-41A 12513000 Layer: Dark Brown Sheet Flooring ND Layer: Black Fibrous Backing ND Layer: Brown Mastic ND Asbestos (ND)Total Composite Values of Fibrous Components: Cellulose (35 %) Synthetic (5 %) PJ65200-41B 12513001 Layer: Dark Brown Sheet Flooring ND Layer: Black Fibrous Backing ND Layer: Brown Mastic ND Asbestos (ND)Total Composite Values of Fibrous Components: Cellulose (35 %) Synthetic (5 %) PJ65200-42A 12513002 Layer: Black Non-Fibrous Material ND Asbestos (ND)Total Composite Values of Fibrous Components: Cellulose (Trace) PJ65200-43A 12513003 Layer: Tan Woven Material ND Layer: Black Non-Fibrous Material ND Layer: Tan Woven Material ND Asbestos (ND)Total Composite Values of Fibrous Components: Cellulose (80 %) PJ65200-44A 12513004 Layer: Yellow Fibrous Material ND Layer: Brown Fibrous Material ND Layer: Black Tar ND Asbestos (ND)Total Composite Values of Fibrous Components: Cellulose (20 %) Fibrous Glass (70 %) 11 of 13 3777 Depot Road, Suite 409, Hayward, CA 94545 / Telephone: (510) 887-8828 (800) 827-FASI / Fax: (510) 887-4218 Report Number:B327113 Date Printed:01/14/22Client Name:FACS - Fresno Sample ID Lab Number Asbestos Type Percent in Layer Asbestos AsbestosPercent in Percent in Type TypeLayer Layer PJ65200-44B 12513005 Layer: Yellow Fibrous Material ND Layer: Brown Fibrous Material ND Layer: Black Tar ND Asbestos (ND)Total Composite Values of Fibrous Components: Cellulose (20 %) Fibrous Glass (70 %) PJ65200-44C 12513006 Layer: Yellow Fibrous Material ND Layer: Brown Fibrous Material ND Layer: Black Tar ND Asbestos (ND)Total Composite Values of Fibrous Components: Cellulose (20 %) Fibrous Glass (70 %) PJ65200-45A 12513007 Layer: Tan Tile Chrysotile 5 % Layer: Black Mastic ND Asbestos (5%)Total Composite Values of Fibrous Components: Cellulose (Trace) PJ65200-45B 12513008 Layer: Tan Tile Chrysotile 5 % Layer: Black Mastic ND Asbestos (5%)Total Composite Values of Fibrous Components: Cellulose (Trace) PJ65200-46A 12513009 Layer: Brown Sheet Flooring ND Layer: Black Fibrous Backing ND Layer: Brown Mastic ND Asbestos (ND)Total Composite Values of Fibrous Components: Cellulose (80 %) Synthetic (5 %) PJ65200-46B 12513010 Layer: Brown Sheet Flooring ND Layer: Black Fibrous Backing ND Layer: Brown Mastic ND Asbestos (ND)Total Composite Values of Fibrous Components: Cellulose (80 %) Synthetic (5 %) PJ65200-47A 12513011 Layer: Yellow Foam ND Layer: Yellow Mastic ND Asbestos (ND)Total Composite Values of Fibrous Components: Cellulose (Trace) Note: Samples out of order. 12 of 13 3777 Depot Road, Suite 409, Hayward, CA 94545 / Telephone: (510) 887-8828 (800) 827-FASI / Fax: (510) 887-4218 Report Number:B327113 Date Printed:01/14/22Client Name:FACS - Fresno Sample ID Lab Number Asbestos Type Percent in Layer Asbestos AsbestosPercent in Percent in Type TypeLayer Layer Analyticalresults and reportsare generatedby SGS ForensicLaboratories(SGSFL) at the request of and for the exclusiveuse of the personor entity (client) named on such report. Results, reports or copies of same will not be released by SGSFL to any third party without prior written request from client. This report applies only to the sample(s) tested. Supportinglaboratory documentationis available upon request.This reportmust not be reproducedexceptin full, unlessapprovedby SGSFL. The clientis solelyresponsiblefor the use and interpretation of test results and reports requested from SGSFL. SGSFL is not able to assess the degree of hazard resulting from materials analyzed. SGS Forensic Laboratoriesreservesthe right to disposeof all samplesafter a period of thirty (30) days, accordingto all state and federalguidelines,unlessotherwisespecified. All sampleswere received in acceptable condition unless otherwise noted. Note: Limit of Quantification ('LOQ') = 1%. 'Trace' denotes the presence of asbestos below the LOQ. 'ND' = 'None Detected'. Tad Thrower, Laboratory Supervisor, Hayward Laboratory 13 of 13 3777 Depot Road, Suite 409, Hayward, CA 94545 / Telephone: (510) 887-8828 (800) 827-FASI / Fax: (510) 887-4218 www.forensicanalytical.com Forensic Analytical Consulting Services Appendix B TAM + CZ Architects, Inc. – City of Fresno Warehouse Site Assessment 01-14-22 Asbestos Survey Report Appendix B Site Photos and Sample Location Drawings 735 H Street; Exterior View Loading Dock Concrete - Damaged 9-inch Vinyl Floor Tile – Gray Pebble Room 1 Carpets – Gray (above) & Tan (below) www.forensicanalytical.com Forensic Analytical Consulting Services Appendix B TAM + CZ Architects, Inc. – City of Fresno Warehouse Site Assessment 01-14-22 Asbestos Survey Report 4-inch Vinyl Baseboard Drywall – Skip Trowel Texture 12-inch Acoustic Ceiling Tile – Pinhole Carpet - Gray www.forensicanalytical.com Forensic Analytical Consulting Services Appendix B TAM + CZ Architects, Inc. – City of Fresno Warehouse Site Assessment 01-14-22 Asbestos Survey Report 6-inch Vinyl Baseboard Hallway Flooring Drywall w/ Wallpaper Concrete Flooring www.forensicanalytical.com Forensic Analytical Consulting Services Appendix B TAM + CZ Architects, Inc. – City of Fresno Warehouse Site Assessment 01-14-22 Asbestos Survey Report Black and Yellow Mastic Under Floor Tile 3’x3’ Floor Tile - Black 9-inch Vinyl Floor Tile w/ Black Mastic 9-inch Vinyl Floor Tile w/ Black Mastic www.forensicanalytical.com Forensic Analytical Consulting Services Appendix B TAM + CZ Architects, Inc. – City of Fresno Warehouse Site Assessment 01-14-22 Asbestos Survey Report Pressed Wood Panel Ceiling 12-inch Acoustic Ceiling Tile – Uniform Hole Pressed Wood Panel Ceiling Vinyl Sheet Flooring – Wood Look www.forensicanalytical.com Forensic Analytical Consulting Services Appendix B TAM + CZ Architects, Inc. – City of Fresno Warehouse Site Assessment 01-14-22 Asbestos Survey Report Drywall – Smooth & Mirror w/ Mastic Drywall – Smooth Texture Brick and Mortar – Basement 12-inch Vinyl Floor Tile - Marble www.forensicanalytical.com Forensic Analytical Consulting Services Appendix B TAM + CZ Architects, Inc. – City of Fresno Warehouse Site Assessment 01-14-22 Asbestos Survey Report Vinyl Sheet Flooring - Wood 9-inch Vinyl Floor Tile - Black Drywall – Smooth w/ Paint Sample Removed Wire Insulation www.forensicanalytical.com Forensic Analytical Consulting Services Appendix B TAM + CZ Architects, Inc. – City of Fresno Warehouse Site Assessment 01-14-22 Asbestos Survey Report Plaster on Brick Brick and Mortar Fireplace Brick and Mortar Unfinished Drywall MAP WITH ASSOCIATED SAMPLE LOCATIONS Site Name: 735 H Street – City of Fresno Warehouse Address: 735 H Street, Fresno, CA 93721 Date: 12-22-2021 Room 2 Room 1 735 H Street Rooms 1-4, 14 Room 3 Room 14 01B 01A 04A 05A 05B 06A Room 15 08A 09A 10A 15A Room 4 16A 17A 19A 20C 20A 20D 20E 22B 22A 22C 23B 23A 24A 25B 25A 29B 29A 30A 30B 33A 38B 38A Exterior Loading Dock 47A 735 H Street – East End Rooms 5-12 Room 5 Room 10 Room 6 Room 7 Room 8 Room 11 Room 12 Stairs Room 9 02B 02A 09A 11A 11B 13A Room 4 15B 23C 24B 24C 33C 33B 33D 34A 35A 36B 36A 37B 37A 40A 41A 41B 46A 45B 45A 46B 735 H Street – West End Room 16 East End 735 H Street – Upper Level Rooms 9b and 8 Attic Stairs Room 9b Room 8 12A 12C 12B 14A 14B 14C 15E 18A 20F 23E 23D 26B 27A 26A Room 16 Room 15 33E 39B 39A 42A 44B 44A 44C 735 H Street – Sub Level Room 13 735 H Street – Sub Level Rooms 17 and 18 03A 03B 15D 15C Stairs To 16 Stairs To 12 21A Room 17 Room 18 Room 13 28B 28A 30C 31A 31B 32A 32B 34B 34C 43A www.forensicanalytical.com Forensic Analytical Consulting Services Appendix C 01-14-22TAM + CZ Architects, Inc. – City of Fresno Warehouse Site Assessment Asbestos Survey Report Appendix C Certifications of Personnel and Laboratory Forensic Analytical Consulting Services, Inc. This is to confirm that Chris Chipponeri Has attended the four-hour AHERA Refresher Course for Asbestos Inspectors And has completed the requisite training and passed the exam for asbestos accreditation under TSCA Title II September 10, 2021 Certificate Number: FACSBIR1140 Valid Until: September 10, 2022 Cal/OSHA Approval Number: CA-025-06 David B. McGrath, Corporate Training Director Forensic Analytical Consulting Services,Inc. 21228 Cabot Blvd, Hayward, CA 94545 (800) 677-1483 National Voluntary Laboratory Accreditation Program SCOPE OF ACCREDITATION TO ISO/IEC 17025:2017 Page 1 of 1 For the National Voluntary Laboratory Accreditation Program Effective 2021-07-01 through 2022-06-30 SGS Forensic Laboratories 3777 Depot Road, Suite 409 Hayward, CA 94545-2761 Mr. Steven Takahashi Phone: 310-294-4365 Fax: 310-764-1136 Email: steven.takahashi@sgs.com http://www.falaboratories.com ASBESTOS FIBER ANALYSIS NVLAP LAB CODE 101459-0 Bulk Asbestos Analysis Code Description 18/A01 EPA -- 40 CFR Appendix E to Subpart E of Part 763, Interim Method of the Determination of Asbestos in Bulk Insulation Samples 18/A03 EPA 600/R-93/116: Method for the Determination of Asbestos in Bulk Building Materials Airborne Asbestos Analysis Code Description 18/A02 U.S. EPA's "Interim Transmission Electron Microscopy Analytical Methods-Mandatory and Nonmandatory-and Mandatory Section to Determine Completion of Response Actions" as found in 40 CFR, Part 763, Subpart E, Appendix A. United States Department of Commerce National Institute of Standards and TechnologyCertificate of Accreditation to ISO/IEC 17025:2017NVLAP LAB CODE: 101459-0SGS Forensic LaboratoriesHayward, CAis accredited by the National Voluntary Laboratory Accreditation Program for specific services, listed on the Scope of Accreditation, for:Asbestos Fiber Analysis2021-07-01 through 2022-06-30Effective DatesFor the National Voluntary Laboratory Accreditation ProgramThis laboratory is accredited in accordance with the recognized International Standard ISO/IEC 17025:2017. This accreditation demonstrates technical competence for a defined scope and the operation of a laboratory quality management system (refer to joint ISO-ILAC-IAF Communique dated January 2009). Right People Right Perspective Right Now www.forensicanalytical.com APPENDIX C PRELIMINARY STRUCTURAL ASSESSMENT REPORT (2022) ROBERT S. PARRISH, S.E. JAMES R.A. HANSEN, S.E. GARY W. CARLSON, S.E. ROBBY GOTTSELIG, S.E. 455 W. FIR AVENUE · CLOVIS, CALIFORNIA 93611 · PHONE 559.449.2700 Mr. Rod Andreasen, Project Architect February 16, 2022 Temple Andersen Moore Architects 6781 N. Palm Ave, Suite 120 Fresno, CA 93704 PRELIMINARY STRUCTURAL ASSESSMENT REPORT Client: Temple Andersen Moore Architects RE: H St. Building - Preliminary structural assessment of an existing building for future occupancy options Facility: Vacant warehouse type building Location: Northwest corner of H St. and Mono St., Fresno, CA Owner: City of Fresno, CA Engineer: Provost & Pritchard Consulting Group – Parrish Hansen Division Project Manager: Robert S. Parrish, S.E. PH File No.: 02984-21-006 OBJECTIVE The objective of this report is to provide the Client and Owner with information describing the type of construction, condition of materials, and code compliance issues related to occupancy category changes for re-use of the facility. Inspections are limited to cursory observations of the interior and exterior of the building without destructive efforts to expose materials not open to view. The information provided in this report is strictly related to the building structural systems and materials. No material identifications and testings are to be performed at this phase of assessment. This report has been prepared for the use of the Client, Owner and any party authorized by either for the purpose of the intended services. This report shall not be used by any other party, or for any other purpose without the written consent of this Engineer. LIMITATIONS Inasmuch as it is understood by all parties to this effort that the Engineer is providing structural engineering evaluation services based on limited observations of the existing conditions, the comments, findings, and opinions expressed in this report are subject to further verification by analysis, detailed inspection, and material testing in order to gain increased confidence for determining the appropriate application of the information as related to future proposed occupancy options. Where assumptions of material type and strength are required to perform structural evaluations, assumptions are generally File: 02984-21-006 Page 2 Project: H St. Building Assessment February 16, 2022 made in general conformance to the most expected material type and grade that would have been used at the time of construction. In the case of this building there is no information available to estimate the time of construction of various portions of the building structure. In that consideration, for the purpose of this assessment, materials are assumed as follows: Wood: Construction Grade Doug-Fir. Glu-lam: 1600F Doug-Fir. Steel: Grade 30KSI. Bolts: Grade 8. Clay brick: f ’m = 1,000 psi Concrete: f’c = 2,000 psi No assumptions have been made to include higher than normal strengths of materials. OBSERVATIONS The building is a single-story construction with two basement spaces. The building is approximately 405 ft. long in the north-south dimension, and 50.5 ft. wide in the east- west dimension. One basement area is at the south end of the building and measures approximately 47 ft. x 47 ft. interior clear dimension between walls. The other basement is in the center portion of the building and measures 47 ft. wide x 100 ft. long clear between the walls. The building roof construction is wood-framed with 2x4 joists (sub-purlins) @ 24” o.c. spacings, spanning between 4x14 solid wood purlins @ 8’-0” o.c. spacings. The purlins span between glued-laminated, tapered girders @ 24 ft. o.c. spacings, and between glued- laminated girder and the end masonry exterior walls at the north and south ends. The girders are supported within pockets through the upper extension walls at the east and west sides and extend through the wall extending as a cantilever for the east and west side overhangs. The above grade exterior walls of the building are constructed of red clay brick in a two- wythe alternating pattern with what measures to be 8 ½” long x 3 ¾” wide brick units with a mortar joint of ½” thickness, resulting in a wall thickness of 12 ¾” to 13”. The brick portion of the walls is approximately 14 ft tall at the south section of the building and 16 ft. tall at the north end section. Bricks were laid in a ‘header course’, or ‘king row’ pattern at every 7 to 8 courses up the height of the brick portion of wall. These courses are for the purpose of ‘tying’ the inner and outer brick wythe course together and are an indication that the brick wall is unreinforced (no reinforcing steel). Above the brick portion of the wall there is, what appears to be either a concrete wall section, or a framed wall with plaster coating each side. This section of wall is File: 02984-21-006 Page 3 Project: H St. Building Assessment February 16, 2022 approximately 6 ft. tall at the north section of the building, and 8 ft. tall at the south section of the building and extends to the roof deck. This section of the wall appears to have been added to the top of the original brick wall to extend the height of the building roof evidenced by the original roofline impression at the north end wall. There has been no official information provided explaining the reason for this extension to the brick wall, and access was not available to reach the height of the wall to attempt to determine what construction type was installed. The basement walls are completely sub-terranean and similar to the above-grade walls in that construction consists of unreinforced clay brick of multi-wythe construction. The thickness of the basement walls could not be determined; however, it is expected that the thickness is greater than the above grade walls due to the function of the basement walls for soil retainment. The basement walls also exhibited ‘header coursing’ indicating unreinforced brick construction. The floor framing over the basements is of diagonal wood sheathing spanning to the wood joists @ 16” o.c., which are supported by wood post and beam construction. The floors over the basement areas are covered over the top surface with steel plate for an unknown reason, other than it would be expected that previous occupancy may have involved heavy loading conditions such as material storage or vehicle traffic. Beam supports to the posts are of varying types of bearings and attachments. The basement at the north end appeared to have wood posts that were added after the original construction, with bearing blocks set directly on the basement floor slab, while the original posts are setting on various bearing blocks of wood spreaders set on grout and brick pads. Whether there were footings under the basement floor slabs at the original posts could not be verified. The east side of the building has a raised concrete loading dock slab that extends to H St. with no shoulder at the traffic lane. The loading dock is level with the interior floor slab of the building. The support wall for the loading dock slab is an unreinforced brick wall at H St. OBSERVATIONS & DISCUSSIONS Roof framing – Observations of the roof framing indicated that some water infiltration had occurred in the interior portion at the north end as there is a section of roof where the plywood sheathing and joists had been replaced. Other locations were observed that indicate moisture damage may exist at the top of the roof sheathing. The exterior roof, especially at the east side, exhibited signs of moisture infiltration damage significant enough to suspect that fungal decay has occurred in the roof decking and framing. There are several locations where the east fascia beam is completely rotted and breaking loose of the File: 02984-21-006 Page 4 Project: H St. Building Assessment February 16, 2022 supporting beams. The roof structure is supporting only the weight of the roof structural components, as no insulation, ceiling, mechanical or electrical materials exists. Refer to the ‘Assessments’ portion of this report for results of a preliminary load analysis of the structural roof components. Above-grade exterior walls – Throughout the entire building there are significant occurrences of extreme exfoliation of the interior and exterior surfaces of the bricks leaving piles of ‘red-dust’ and ‘lamellar crusts’ at the bottom of the walls. This type of exfoliation is due to deterioration of the brick material caused by years of moisture infiltration through the walls, evaporating from the wall surfaces, which occurs primarily at the lower courses of the wall where the exterior soil is moist and wicks up the exterior wall surface. The degree of exfoliation that was observed is extreme, and irreparable, indicative of an extremely long period of moisture exposure. In addition, the mortar joints in the lower portions of the walls are also highly deteriorated, even to the point of being completely missing from the joists, also due to exfoliation. The most curious structural aspect of the building is the 6 ft. and 8 ft. high extension of the exterior wall, which occurs around the entire perimeter of the building. There are indications that the roof had been positioned at or near the top of the brick portion of the wall when originally constructed. It was suggested in a discussion at the site, although not verified, that the building had experienced a fire in the past that destroyed a major portion of the roof, and when the roof was re-built the roof height was raised by adding these extensions on top of the original brick wall. However, and for whatever reason the wall was increased in height, it is expected that the upper extension portion of the walls is of unreinforced concrete and results in a 38% to 60% increase in the original wall height, depending on which section of the building is being considered. This amount of height increase would result in a 90% to 150% increase in the stress level of the original wall when subjected to out-of-plane wind or seismic loads. This is an extreme increase in seismic/wind risk from the original intended construction. Observations around the perimeter of the roof at the top of the concrete portion of the wall do not exhibit any ‘out-of-plane’ ties (connectors) or in-plane shear transfers, except that there are steel clip angles each side of the girders on the exterior face of the wall. This method of anchorage of the walls to the roof would be considered extremely minimal and not adding any significant strength to the seismic resisting integrity of the wall-to-roof connection. Basement walls – The brick and mortar materials of the basement walls are also extremely deteriorated exhibiting extreme exfoliation; however, the exfoliation is over the entire height of the File: 02984-21-006 Page 5 Project: H St. Building Assessment February 16, 2022 walls as these walls are soil retaining and constantly exposed to moist soil conditions over the full height. There are many locations where the mortar is completely missing from the joints. The surrounding mortar joints and brick units could easily be scraped away with a screwdriver. Footings – There are no portions of the perimeter of the building that were not covered by concrete pavement. Therefore, no observations could be made of the footings below the above grade structural walls. To provide for observations of the footing systems concrete slabs would need to be removed alongside portions of the building where the basements do not occur and saw cutting of the interior basement slabs would be required to remove soil alongside the wall for observation of the basement footings. Considering the type of brick construction of the above-grade and basement walls, and the vintage of original construction, it is anticipated that the footing system is a ‘stacked’ brick footing which would consist of layers of bricks widening with each layer to create a soil bearing width. Considering the degree of deterioration observed in the building and basement wall brick and mortar, it would be expected that the brick footings would have also experienced significant deterioration due to constant exposure to damp soil. Ground floor – The ground floor appeared to be concrete slab where the basements did not occur. These slab surfaces could not be observed due to the steel plate coverings. The floors over the basement are wood-framed as described, however, it is curious that the north end basement has had posts added at some point after the original construction, reducing the floor beam spans to 50% of their original spans. There is also a section of the basement where joist framing that had experienced consecutive floor joist failure and had been repaired with doubler joists and a strongback spreader. There are some other areas where splitting of the joists has occurred. Some of these locations have not been repaired, and others have been repaired with various types of remediation methods indicating that failures had been occurring over a significant period of time. Loading dock – The loading dock concrete slab appeared to be reasonably level, however exhibiting significant conditions of cracking. The retaining wall at the H St. edge was constructed of unreinforced brick and covered over with a cement coating. The cement coating is highly deteriorated and much of the coating has spalled away leaving the brick exposed. There is a high degree of green moss on the surface of the brick and the bricks are extremely deteriorated. File: 02984-21-006 Page 6 Project: H St. Building Assessment February 16, 2022 ASSESMENTS Roof Framing – An analysis of the structural stresses of the roof framing components was performed using only the ‘assumed’ possible existing material weights, and assuming the grades of wood materials as described in this report. The results of the analyses are as described: 2x4 joists: Assumed roof material weight – Roofing (assumes built-up roof with re-cap) = 6.0 psf Plywood (5/8”) = 2.0 psf 2x4 joists = 0.7 psf = 8.7 psf Code required live load = 20.0 psf Under the assumed grade of material, dead weight loads and required design live loads the joists are overstressed by approximately 15% (1.15) of allowable stress limit, which indicates that the joists cannot sustain any added load for future remodeling. 4x14 purlins: Assumed roof material weight – Joist analysis weight (above) = 8.7 psf Purlin weight = 1.5 psf Misc. = 0.5 psf 10.7 psf Code required live load = 20.0 psf Under the assumed grade of material, dead weight loads and required design live loads the purlins are overstressed by approximately 90% (1.90) of allowable stress limit, which indicates that the joists cannot sustain any added load for future remodeling, and if subjected to the required design loads, would be approaching stress levels close to expected material failure for new material, causing more concern in consideration of the age of the wood purlins. Glued-laminated girders: Assumed roof material weight – Purlin analysis weight (above) = 10.7 psf Girder weight = 40.0 plf 297.0 plf File: 02984-21-006 Page 7 Project: H St. Building Assessment February 16, 2022 Under the assumed grade of material, dead weight loads and required design live loads the girders are overstressed by approximately 30% (1.30) of allowable stress limit, which indicates that the girders cannot sustain any added load for future remodeling. Keeping in mind that the material species and grade levels are ‘assumed’ minimum stress levels that could have been used for the original construction materials, the roof framing system does not appear to be capable of supporting any added loads, should the addition of materials be required for any proposed future use. Exterior walls – Based on the type of unreinforced brick construction originally constructed to a height of 14 ft. and 16 ft., and considering the added extension of a 6 ft. and 8 ft. high concrete wall extending the walls to approximately +22 ft. above the floor elevation, the strength capacity of the wall would need to be evaluated for gravity, wind and seismic load considerations in order to establish a level of stress relative to strength. This analysis would require wall materials (brick and mortar) to be sampled and tested to establish allowable brick strengths, mortar strengths, and in-place shear strengths. These tests would need to be performed by a material testing agency. However, the degree of brick and mortar deterioration at the lower portions of the above- grade walls is a telltale indication that the brick and mortar strengths throughout these areas will not be adequate enough to satisfy the minimum requirements for testing. The degree of deterioration of these lower level materials is far too extreme. Faces of the bricks are completely exfoliated and piles of brick and mortar dust occur at the base of the walls indicating a long-term period of deterioration resulting from moisture infiltration and evaporation. Basement walls – As discussed above for the above-grade walls, the basement walls are at a greater level of deterioration involving the brick and mortar materials, and deterioration occurs over the full height of the walls. The deterioration is so extreme that bricks and mortar are completely missing, not from being removed, but from the materials completely deteriorating into brick and mortar dust as can been seen in the piles of dust at the bottom of the walls on the floor slab. There are some locations observed where the floor beams and header lintels over openings are bearing on brick pilasters and wall jambs where brick and mortar are completely missing below the beams. File: 02984-21-006 Page 8 Project: H St. Building Assessment February 16, 2022 Interior floors – The interior wood framed floors over the basements should be evaluated for the capacity to support the intended occupancy live loads. All remediations of floor joist failures should be evaluated for the effectiveness of the repairs.. Exterior loading dock – The loading dock slab is assumed to be a concrete slab-on-fill soil and would require replacement of many portions due to cracking conditions. The loading dock retainment wall at H St. should be removed and replaced due to the extreme degree of deterioration of the brick and mortar. Gravity-load resistance – As has been discussed previously in this report, the roof framing system cannot receive any additional material weight due to the existing stress levels analyzed under the building code requirements for dead and live loads. However, the results of the analysis should be understood that a live load does not currently exist, and that there does not appear to be any reason to suspect that failures would occur under the current dead loading condition. Those areas of damage and current failure are an exception and need to be remediated. Although the existing framing is ‘legacied’ (grandfathered), the stress level results from our analyses are concerning, and at least warrant upgrading of the 4x purlins regardless of the future use of the building. It is also a recommendation that live loads (personnel access) be limited to this roof. This is to say, however, that personnel should not be allowed to access the roof without understanding that a risk level exceeding the minimum code requirements does exist. In consideration of the level of deterioration of the above-grade walls, it is expected that proper repair of the deteriorated brick and mortar would be extremely expensive, however, under gravity loading these walls do tend to distribute loads through better portions of the walls limiting the risk of an abrupt wall failure. The basement walls are a different category of risk as they support the above-grade walls and floor beams and are depending on the remaining integrity of highly deteriorated brick and mortar for support. Considering the extreme degree of deterioration of these walls it is unpredictable when an abrupt local failure could occur involving loss of support of a floor beam, or the caving in of a portion of the exterior retainment wall. Replacement of these walls would be extremely expensive as the walls would need to be replaced in their entirety, or otherwise remediated with the installation of new reinforced concrete walls at the interior faces and modified supports for support of the above-grade walls and floor beams. File: 02984-21-006 Page 9 Project: H St. Building Assessment February 16, 2022 Lateral-load resistance – The assessments of materials of the structural system have been described above for the local effects of gravity load conditions. However, a structural system relies on all parts of the structural system to be properly functioning for the effective resistance to lateral loads such as seismic (earthquake) activity and wind pressures. In the consideration of the conditions of this building there are many concerns for the seismic/wind resistance of the existing structural system. This is a large ‘open-space’ building with ‘heavy mass’ unreinforced brick walls, minimal plywood roof diaphragm, and many openings in the east and south exterior walls. In addition, there does not exist any measurable connection between the exterior walls and the roof framing. Each of these characteristics alone are considered problematic for lateral-load resistance of a building. The combination of these characteristics provides for the worst case scenario for lateral-load resistance and establishes such minimal level of resistance to lateral loads, especially seismic activity, that this structure would be considered extremely ‘unsafe’ and at ‘high risk’ of collapse in the event of a minor to moderate seismic event. Plywood roof sheathing resisting the lateral forces of thick masonry brick walls are subject to failure if not installed with the proper thickness, blocked edges, nailing, and limited diaphragm spans (distances between walls) creating diaphragm stiffness sufficient to limit deflections and distortions of the brick walls under seismic activity. In addition, the brick walls would require substantial connection to the roof, developed into the diaphragm to prevent the walls from pulling away from the roof resulting in roof and wall collapse. The integrity of the brick and mortar materials is important for the resistance of both in-plane and out-of-plane shear forces as these materials, when in a deteriorated state, will be subject to crumbling, again possibly resulting in roof and wall collapse. The south end of the building has very little brick wall available for lateral load resistance as most of the length of the wall includes areas of large openings. The headers of these opening are inlaid into the brick piers further limiting their effective resistance to lateral shear loads even more. This wall would be expected to fail under minor levels of seismic forces. The east wall is similar to the south wall in that there are many large openings along its length, and significant deterioration of the lower courses of brick. To compound the issue, the above-grade walls bear on top of the basement walls, relying on the extremely deteriorated basement walls for lateral-load shear transfers to the foundation/soil. Based in this engineer’s experience with evaluation of buildings subjected to seismic damage it is my opinion that this building could experience significant structural damage at a Richter level 4 event, and catastrophic damage, including collapse, at a Richter level 5 event. File: 02984-21-006 Page 10 Project: H St. Building Assessment February 16, 2022 CONCLUSIONS Conclusions can only be made based on the owner’s expectation for the structural performance of the existing building considering the owner’s intent for public safety and the potential occupancy types for continued use. Assuming the new occupancy category keeps the building within the same ‘Risk Category’ as currently assigned, per Table 1604.5 of the California Building Code (CBC), structural remediations of certain conditions are required by the building code due to deficiencies and deteriorations; and structural upgrades, regardless of what is required by the building code, can be made voluntarily. Otherwise, if the new occupancy should put the building into a higher Risk Category, then the entire building would need to be brought into compliance with the building code as for new construction, including options for the application of the ASCE 41 methods for rehabilitation. This being an existing building of significant age, unreinforced brick constructions, significant brick and mortar deteriorations, significant deficiencies in roof framing capability, and extreme deficiencies in resistance to seismic and wind forces, the questions that need to be answered are: - What extent of remediation and code upgrade is required by the building codes based on the existing structural conditions, within the current building’s Risk Category? - What extent of public safety is desired for the intended occupancy that would warrant additional voluntary structural upgrades, without a change in the building’s Risk Category? - Will the intended Change of Occupancy require compliance with the Existing Building Code for structural upgrades due to a change in the building’s Risk Category? - Are there intended modifications to the building structure to accommodate the new occupancy which will trigger code compliance with affected portions of the structure? In an attempt to provide answers to the above options, it should first be understood that, in the opinion of this engineer, the findings of this evaluation define the building as ‘extremely dangerous’ due to a combination of the many structural characteristics and conditions as noted above. This opinion is based on the historical experience of buildings of this type of construction when subjected to seismic activity, as unreinforced buildings without adequate wall-to-roof connections are the ‘worst’ of combined conditions for seismic resistance and are highly susceptible to collapse. In the case of this building, the unreinforced character of the walls is only one character weakness, compounded by the level of brick and mortar deterioration, minimal diaphragm strength, File: 02984-21-006 Page 11 Project: H St. Building Assessment February 16, 2022 minimal wall pier at the south wall, absence of wall-to-roof connections and deficient capability of the roof structural components. In consideration of these combinations of the characteristics it is this engineer’s opinion that the remediations and upgrades required by the building code due solely to the existing structural deficiencies and deteriorations, without consideration of voluntary upgrades to enhance public safety, would cost considerably more than the replacement of this building with a new, similar type of construction. However, to evaluate the cost of required remediations and upgrades, in-place evaluations from a materials testing agency, and a masonry repair contractor would be required as this type of repair/replacement of brick masonry is a specialty construction and involves maintaining the support of the building walls above. If the intent in the re-use of this building is to achieve a public safety performance level that would include an upgrade of the building’s seismic/wind resisting system, then the combined cost of such rehabilitation along with the required remediations and upgrades would be that much more than replacement of the building and would not have achieved the level of seismic/wind resistance as a new structural system. According to the California Existing Building Code, Appendix A, the purpose of this code section is for the strengthening of unreinforced masonry buildings, however, compliance with this code “will not necessarily prevent loss of life or injury or prevent earthquake damage to retrofitted buildings, as defined in the following code Section: Chapter A1 Seismic Strengthening Provisions for Unreinforced Masonry Bearing Wall Buildings Section A101 Purpose [BS] A101.1 Purpose The purpose of this chapter is to promote public safety and welfare by reducing the risk of death or injury from the effects of earthquakes on existing unreinforced masonry bearing wall buildings. The provisions of this chapter are intended as minimum standards for structural seismic resistance, and are established primarily to reduce the risk of life loss or injury. Compliance with these provisions will not necessarily prevent loss of life or injury or prevent earthquake damage to retrofitted buildings. File: 02984-21-006 Page 12 Project: H St. Building Assessment February 16, 2022 To develop a scope of rehabilitation and cost estimate for this building the following information will be required: - Establish an Occupancy Category for the proposed use of the building to determine if the Risk Category will change. - Establish a level of public safety to be achieved in the upgrading and retrofitting of the building. (This is a subjective level of upgrade to be discussed with the owner.) - Determine what, if any, modifications to the existing structure will be required by code specification for the new occupancy. It is our hope that this preliminary assessment report covers enough information regarding the existing building descriptions and conditions to evaluate the potential for re-use of the building. If you should have any questions regarding the information provided in this report please call my office. Respectfully, Robert S. Parrish Structural Engineer (S2331-CA) Project Manager Attachments: 16 photo sheets any 02/16/2022 3/23any PROJECT : H St. Warehouse Building FILE No: 02984-21-006 SHEET : P1 SUBJECT : Structural Assessment DATE : 02-15-2022 OF : 16 PHOTO # 1 COMMENTS : View of southeast corner at Mono St. and H St. PHOTO # 2 COMMENTS : View of west (back) side of building. PROJECT : H St. Warehouse Building FILE No: 02984-21-006 SHEET : P2 SUBJECT : Structural Assessment DATE : 02-15-2022 OF : 16 PHOTO # 3 COMMENTS : View of interior. PHOTO # 4 COMMENTS : View of roof purlins supported at the north end wall and glu-lam outrigger beam. Note the newer unpainted roof plywood and purlin. PROJECT : H St. Warehouse Building FILE No: 02984-21-006 SHEET : P3 SUBJECT : Structural Assessment DATE : 02-15-2022 OF : 16 PHOTO # 5 COMMENTS : View of east exterior wall, looking north. Note the upper portion of wall that appears to be an extension of the height of the original building. PHOTO # 6 COMMENTS : View of south exterior wall, looking east. Note the number of openings closed up with plywood. This wall has very minimal seismic shear resistance. Note the headers inlaid to the brick piers. PROJECT : H St. Warehouse Building FILE No: 02984-21-006 SHEET : P4 SUBJECT : Structural Assessment DATE : 02-15-2022 OF : 16 PHOTO # 7 COMMENTS : Brick exfoliation at interior surface of the west wall. Note the extreme degree of deterioration of both brick and mortar. PHOTO # 8 COMMENTS : Interior of west wall with plywood to cover over extreme deteriorations of the brick and mortar. PROJECT : H St. Warehouse Building FILE No: 02984-21-006 SHEET : P5 SUBJECT : Structural Assessment DATE : 02-15-2022 OF : 16 PHOTO # 9 COMMENTS : Northwest exterior corner. Note the mortar completely missing from joints. PHOTO # 10 COMMENTS : Exterior of west wall. Note the extreme deterioration of the brick and mortar, and the plaster coat at the bottom applied to help prevent further damage. PROJECT : H St. Warehouse Building FILE No: 02984-21-006 SHEET : P6 SUBJECT : Structural Assessment DATE : 02-15-2022 OF : 16 PHOTO # 11 COMMENTS : Glu-lam girder extending through pocket in exterior wall. Note the clip angle bolted to the wall and beam (each side). This is the only method of connection of the exterior walls to the roof structure. PHOTO # 12 COMMENTS : Interior opening between areas of the building. Note the grout at the header indicating a repair or replacement of the original header system. PROJECT : H St. Warehouse Building FILE No: 02984-21-006 SHEET : P7 SUBJECT : Structural Assessment DATE : 02-15-2022 OF : 16 PHOTO # 13 COMMENTS : View of the underneath of the east roof deck over the loading dock. Staining and peeling of the paint is due to moisture infiltration to the roof structure. PHOTO # 14 COMMENTS : East roof overhang. Rotted roof deck and fascia beam. PROJECT : H St. Warehouse Building FILE No: 02984-21-006 SHEET : P8 SUBJECT : Structural Assessment DATE : 02-15-2022 OF : 16 PHOTO # 15 COMMENTS : View of the bottom of a portion of the basement wall. Extreme brick and mortar deterioration. PHOTO # 16 COMMENTS : A typical basement wall surface with extreme brick and mortar deterioration. Note the ‘Red Dust” piled at the bottom of the wall. Evidence of a very long term condition beyond repair. PROJECT : H St. Warehouse Building FILE No: 02984-21-006 SHEET : P9 SUBJECT : Structural Assessment DATE : 02-15-2022 OF : 16 PHOTO # 17 COMMENTS : Basement wall deterioration in pilaster supporting a main floor beam. PHOTO # 18 COMMENTS : Basement wall brick and mortar deterioration. The brick on the floor was easily removed by hand. PROJECT : H St. Warehouse Building FILE No: 02984-21-006 SHEET : P10 SUBJECT : Structural Assessment DATE : 02-15-2022 OF : 16 PHOTO # 19 COMMENTS : South basement floor framing. Unconventional floor beam supports. PHOTO # 20 COMMENTS : View of floor joists setting on basement wall wood plate. Blockings between joists do not have connections to the wood plate. Not shear resistance exists between the floor and the basement wall. PROJECT : H St. Warehouse Building FILE No: 02984-21-006 SHEET : P11 SUBJECT : Structural Assessment DATE : 02-15-2022 OF : 16 PHOTO # 21 COMMENTS : Steel header beam in basement. Note the extreme deterioration of the brick and mortar intended to support the header. PHOTO # 22 COMMENTS : Closeup view of laminar exfoliation of a brick occurring over a long period of moisture infiltration and evaporation. This type of damage is non-reparable and can eventually result in collapse of the wall. PROJECT : H St. Warehouse Building FILE No: 02984-21-006 SHEET : P12 SUBJECT : Structural Assessment DATE : 02-15-2022 OF : 16 PHOTO # 23 COMMENTS : The unpainted post has been added since the original construction. These added posts are typical throughout the north basement and were added at mid-span of the floor beams. PHOTO # 24 COMMENTS : The white painted post is an original post supporting a floor beam and sets on a wood shim and brick spreader on the slab. The unpainted post was added after original construction and is setting on wood blocks on the slab. It could not be verified if there were dedicated footings under the slab at the original posts. PROJECT : H St. Warehouse Building FILE No: 02984-21-006 SHEET : P13 SUBJECT : Structural Assessment DATE : 02-15-2022 OF : 16 PHOTO # 25 COMMENTS : A beam and post repair effort for broken floor joists. PHOTO # 26 COMMENTS : An added post at a broken floor joist. PROJECT : H St. Warehouse Building FILE No: 02984-21-006 SHEET : P14 SUBJECT : Structural Assessment DATE : 02-15-2022 OF : 16 PHOTO # 27 COMMENTS : An added ‘strongback’ with doubled joists to spread the load from broken joists to unbroken joists. PHOTO # 28 COMMENTS : Another type of broken floor joist repair. PROJECT : H St. Warehouse Building FILE No: 02984-21-006 SHEET : P15 SUBJECT : Structural Assessment DATE : 02-15-2022 OF : 16 PHOTO # 29 COMMENTS : A typical view of the face of the loading dock retainment wall. The cement coating, which was probably applied to protect the brick from further deterioration, has fallen apart. Brick is behind the green moss. PHOTO # 30 COMMENTS : Close-up of the condition of the loading dock wall brick behind the plaster coating. PROJECT : H St. Warehouse Building FILE No: 02984-21-006 SHEET : P16 SUBJECT : Structural Assessment DATE : 02-15-2022 OF : 16 PHOTO # 31 COMMENTS : Failure of the concrete slab breaking away from the loading dock at the H St. wall. PHOTO # 32 COMMENTS : Elevator lift in the basement. The pit and walls could not be observed. APPENDIX D FEMA FLOOD HAZARD AREAS MAP City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID 23-1485 Agenda Date:10/19/2023 Agenda #: 1.-O. REPORT TO THE CITY COUNCIL FROM:JENNIFER CLARK, Director Planning and Development Department PHIL SKEI, Assistant Director Planning and Development BY:DYLAN MCCULLY, Sr Management Analyst Homeless Services Division SUBJECT Action pertaining to homeless youth services agreement provided under the Homeless Housing, Assistance, and Prevention (HHAP) program (Bid File 12400090): 1.Approve an Agreement for one-year with one optional one-year extension with Fresno County Economic Opportunities Commission to provide homeless youth bridge housing services in the annual amount of $139,429.00. RECOMMENDATION Staff recommends the City Council approve the HHAP agreement with Fresno County Economic Opportunities Commission (FEOC)to provide homeless youth bridge housing services in the amount of $139,429.00 annually and authorize the City Manager,or designee,to sign all implementing agreements. EXECUTIVE SUMMARY The City of Fresno (City)is seeking to award funding for homeless youth services as part of the HHAP program requirements.Staff issued a Request for Proposal (RFP)on August 2,2023,and received two proposals for homeless youth services.One proposal was determined to be qualified and responsive to the RFP.Based on the evaluation completed by a selection committee,staff recommends awarding FEOC an annual allocation of $139,429.00 for homeless bridge housing services for one-year agreement with one optional one-year extension. BACKGROUND On January 18,2023,the City of Fresno received a total of $7,524,257.15 in a third round of HHAP funding.HHAP Round 3 funding,authorized by Assembly Bill 140,is designed to develop a unified regional response to homelessness and to provide support to local jurisdictions to continue to build on regional collaboration developed through previous rounds of California Interagency Council on Homelessness (Cal ICH)funding.The funding is available to continuums of care,counties,tribal City of Fresno Printed on 10/20/2023Page 1 of 3 powered by Legistar™ File #:ID 23-1485 Agenda Date:10/19/2023 Agenda #: 1.-O. Homelessness (Cal ICH)funding.The funding is available to continuums of care,counties,tribal governments,and cities with populations over 300,000.A requirement of HHAP Round 3 funding is that 10%must be set aside to serve youth,which are defined as unaccompanied youth who are between 12 and 24 years old and experiencing homelessness.The City of Fresno currently has $752,425.72 in HHAP Round 3 funds set aside to serve youth and staff are recommending $139,429.00 of these funds be awarded to FEOC to provide four (4)youth bridge shelter beds for those who have met the requirements for permanent housing but are awaiting placement. Staff issued an RFP on August 2,2023,requesting proposals for services to provide homeless youth services as authorized under Health and Safety Code (HSC)§50220.7(e)through the Homeless Housing,Assistance and Prevention (HHAP)program.The City received two proposals for homeless youth services by the August 29,2023,deadline.The evaluation committee was comprised of representatives from the Planning and Development Department’s Homeless Services Division and Long-Range Planning Division as well as Fresno Housing Authority. On September 14,2023,the committee evaluated the proposals based on the ability to meet the stated service requirements,conformance with the terms and conditions of the RFP,costs associated with providing services,past performance and experience,and other related information provided. The committee determined FEOC’s proposal to be qualified and most responsive to the homeless youth services activities as outlined in the RFP for a total amount of $139,429.00.Based on this evaluation staff recommends awarding FEOC. Fresno County Economic Opportunities Commission: Homeless Youth Bridge Housing FEOC’s Sanctuary and Support Services will operate four (4)bridge beds for youth ages 18 -24 experiencing homelessness.Each household will have their own apartment.Each apartment has a working kitchen with appliances,bathroom,heating,and air conditioning.Apartments will be furnished with beds and couches,as well as décor.Once youth enter the program,the goal will be to exit them into their own housing situation within six (6) months. Homeless youth will be referred to the program through the Coordinated Entry System,which evaluates the youth’s need for housing.During intake,housing staff will review services,program rules and expectations.The clients will meet their assigned case manager who will assist with any additional service needs (i.e.housing searches,counseling,education,mental health linkages). Youth not currently employed or receiving any income will be encouraged to look for employment and referred to employment and training services,located on site during various times of the day.Youth already employed will be encouraged to save a portion of their income for future housing needs when they exit the project. The goal at exit is for youth to become self-sufficient and enter safe, stable, permanent housing. After exit,case management staff will provide aftercare support for 30 days and will follow up in the event the youth need assistance with issues that arise.Referrals and linkages can still be provided to the youth at this time. The recommended agreement with FEOC totals $139,429 annually for homeless youth bridge housing. City of Fresno Printed on 10/20/2023Page 2 of 3 powered by Legistar™ File #:ID 23-1485 Agenda Date:10/19/2023 Agenda #: 1.-O. ENVIRONMENTAL FINDINGS This item is not a project as defined by the California Environmental Quality Act. LOCAL PREFERENCE Local preference is not applicable because of the use of State funds. FISCAL IMPACT The agreement will be funded through the City’s HHAP allocations. Attachments: 1.Agreement with Fresno County Economic Opportunities Commission City of Fresno Printed on 10/20/2023Page 3 of 3 powered by Legistar™ GSD-B Service Contract – Contractor (08-2023) - 1 - SERVICE CONTRACT THIS CONTRACT (Contract) is made and entered into by and between the CITY OF FRESNO, a California municipal corporation (City), and Fresno Economic Opportunities Commission, a California Corporation (Contractor), as follows: 1. CONTRACT DOCUMENTS. The "Notice Inviting Bids," "Instructions to Bidders," "Bid Proposal," and the "Specifications" including "General Conditions", "Special Conditions" and "Technical Specifications" for the following: Homeless Housing, Assistance, and Prevention (HHAP) Program Homeless Youth Services (Bid File No. 12400090) copies of which are annexed hereto, together with all the drawings, plans, and documents specifically referred to in said annexed documents, and are hereby incorporated into and made a part of this Contract, and shall be known as the Contract Documents. 2. PRICE. For the monetary consideration of $139,429.00, as set forth in the Bid Proposal, Contractor promises and agrees to furnish or cause to be furnished, in a new and working condition, and to the satisfaction of City, and in strict accordance with the Specifications, all of the items as set forth in the Contract Documents. 3. PAYMENT. City accepts Contractor's Bid Proposal as stated and agrees to pay the consideration stated, at the times, in the amounts, and under the conditions specified in the Contract Documents. 4. INDEMNIFICATION: To the furthest extent allowed by law, including California Civil Code section 2782 (if applicable), Contractor shall indemnify, hold harmless and defend City and each of its officers, officials, employees, agents and volunteers from any and all loss, liability, fines, penalties, forfeitures, costs and damages (whether in contract, tort or strict liability, including, but not limited to personal injury, death at any time and property damage) incurred by City, Contractor or any other person, and from any and all claims, demands and actions in law or equity (including reasonable attorney's fees, litigation expenses, and costs to enforce this Contract), arising or alleged to have arisen directly or indirectly out of performance of this Contract. Contractor's obligations under the preceding sentence shall apply regardless of whether City or any of its officers, officials, employees, agents or volunteers are passively negligent, but shall not apply to any loss, liability, fines, penalties, forfeitures, costs or damages caused by the active or sole negligence, or by the willful misconduct, of City or any of its officers, officials, employees, agents or volunteers. If Contractor should subcontract all or any portion of the work to be performed under this Contract, Contractor shall require each subcontractor to indemnify, hold harmless and defend City and each of its officers, officials, employees, agents and volunteers in accordance with the terms of the preceding paragraph. This section shall survive termination or expiration of this Contract. 5. The City Manager, or designee, is hereby authorized and directed to execute and implement this Agreement. The previous sentence is not intended to delegate any authority to the City Manager to administer the Agreement, any delegation of authority must be expressly included in the Agreement.          GSD-B Service Contract – Contractor (08-2023) - 2 - [Signatures follow on the next page.]          GSD-B Service Contract – Contractor (08-2023) -3 - IN WITNESS WHEREOF, the parties have executed this Contract on the day and year here below written, of which the date of execution by City shall be subsequent to that of Contractor’s, and this Contract shall be binding and effective upon execution by both parties. CITY OF FRESNO, A California municipal corporation By: Melissa Perales Purchasing Manager General Services Department APPROVED AS TO FORM: ANDREW JANZ City Attorney By: Date Supv./Senior Deputy City Attorney ATTEST: TODD STERMER, CMC City Clerk By: Date Deputy FRESNO ECONOMIC OPPORTUNITIES COM0ISSION, A California corporation By: Name: Title: (If corporation or LLC., Board Chair, Pres. or Vice Pres.) By: Name: Title: (If corporation or LLC., CFO, Treasurer, Secretary or Assistant Secretary) REVIEWED BY: Addresses: CITY: City of Fresno Attention: Joe Pasillas, Housing and Neighborhood Revitalization Manager 2600 Fresno Street, CH3N 3065 Fresno, CA 93721 Phone: (559) 621-8053 E-mail: joe.pasillas@fresno.gov CONTRACTOR: FRESNO ECONOMIC OPPORTUNITIES COM0ISSION Attention: Emilia Reyes, CEO 1920 Mariposa Street, Suite 300 Fresno, CA 93721 Phone: (559) 263-1010 E-mail: emelia.reyes@fresnoeoc.org                       City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID 23-1523 Agenda Date:10/19/2023 Agenda #:1.-P. REPORT TO THE CITY COUNCIL FROM:JENNIFER CLARK, Director Planning and Development Department BY:PHIL SKEI, Assistant Director Planning and Development Department DANIELLE GONZALES, Senior Management Analyst Planning and Development Department SUBJECT Actions pertaining to a proposed permanent affordable housing project at 6507 North Polk Avenue, known as the Welcome Home Project (District 2): 1.***RESOLUTION -Authorizing acceptance of Project Homekey 3 Funding from the State of California Department of Housing and Community Development for the Welcome Home Project in the amount of $21,983,607 and authorizing the City Manager or designee to enter into and execute a standard agreement to secure the Homekey 3 funds and participate in the Homekey 3 Program (Subject to Mayor’s Veto) 2.***RESOLUTION -Adopting the 24th amendment to the Annual Appropriation Resolution (AAR)No.2023-185 appropriating $21,983,700 to the Homekey Program fund for Fiscal Year 2023-2024. (Requires 5 Affirmative Votes) (Subject to Mayor’s Veto) 3.Approve a State and Local Fiscal Recovery Funds (part of the American Rescue Plan Act) Agreement with Valley Teen Ranch for development of the Welcome Home Project,in an amount not to exceed $2,800,000. 4.Approve a Memorandum of Understanding with Valley Teen Ranch related to the Welcome Home Project and the State of California Homekey 3 Program. RECOMMENDATION Staff recommends the City Council adopt a resolution accepting a Homekey 3 grant award from the California Department of Housing and Community Development (HCD)in the amount of $21,983,607 for the development of the Welcome Home Project in northwest Fresno and authorize the City Manager or designee to sign all necessary implementing documents.Staff also recommends the City Council adopt the 24th amendment to the Annual Appropriation Resolution No.2023-185 appropriating $21,983,700 to the Homekey Program fund for Fiscal Year 2023-2024.Staff additionally recommends approval of a State and Local Fiscal Recovery Funds (SLFRF)Agreement in an amount not to exceed $2,800,000 and a Memorandum of Understanding (MOU)with Valley Teen Ranch related to the Welcome Home Project as part of the Homekey 3 program. City of Fresno Printed on 10/30/2023Page 1 of 3 powered by Legistar™ File #:ID 23-1523 Agenda Date:10/19/2023 Agenda #:1.-P. EXECUTIVE SUMMARY The Welcome Home Project will provide 96 units of permanent affordable housing in northwest Fresno.The project will be funded primarily through the State of California’s Homekey 3 program, with the City and Valley Teen Ranch (Developer)contributing additional funds.The proposed resolution will authorize the City Manager to accept the awarded Homekey 3 grant award by entering into a Standard Agreement with HCD.Approval of the AAR will appropriate $21,983,700 to the Homekey Program fund for Fiscal Year 2023-2024.The SLFRF agreement will provide the Developer with $2,800,000 for payment of SLFRF eligible acquisition,pre-development,and construction costs.The proposed MOU will establish a schedule for the disbursement of Homekey funds to Valley Teen Ranch and will outline roles and responsibilities between the City and Developer as co-applicants of the Homekey award. BACKGROUND In March 2023,the Department of Housing and Community Development (HCD)issued a Notice of Funding Availability for Homekey 3.On April 27,2023,the City Council adopted Resolution 2023-109 authorizing a Homekey 3 joint application with the Developer for the Welcome Home Project.In addition,on April 27,2023,the City Council adopted Resolution 2023-10 expressing an intent to contribute up to $2.8 million for the project,subject to the full allocation of Homekey 3 funds and the City’s execution and recordation of one or more funding agreements.In May 2023,the City jointly applied for Homekey 3 grant funds with Developer. The Welcome Home project cost is estimated at $26,345,283:$21,983,607 in Homekey 3 funds, $1,561,676 in Developer funds, and $2,800,000 in City of Fresno SLFRF funds. This project consists of the construction of modular,factory-built residential housing that will be delivered and anchored to a permanent foundation on land being purchased by the Developer located at 6507 N Polk Avenue,Fresno 93722 (APN:506-130-04s)(Attachment -Photos and Site Plan).The project site is approximately 3.91 acres or 170,320 square feet.The project consists of 96 units of permanent housing for homeless youth,youth at risk of homelessness,and the general homeless.Sixty units will be set aside for Homeless Youth or Youth at Risk of Homelessness,and 35 units for the broader homeless population.One unit will be reserved for an on-site manager.All 96 units will be one-bedroom units.The unit size is 440 square feet per unit.Qualifying tenants’income will be at or below 30% of area median income. The Developer will provide the following services to individuals,couples,and small families experiencing homelessness:outreach services,intake and assessment services,case management, assistance obtaining benefits and essential documentation,education and employment assistance services,life skills,and referrals for behavioral health services,physical health services,education and employment opportunities,substance abuse treatment,food resources,and clothing and household goods.The Developer will utilize two on-site community buildings to provide these services and others. The resolution presented to Council authorizes and directs the City Manager,or designee to accept the Homekey 3 grant award and execute the Homekey Standard Agreement,subject to approval as to form by the City Attorney’s Office.The AAR will appropriate the Homekey 3 grant award to the Homekey Program fund for Fiscal Year 2023-2024. If approved as recommended,the Developer will enter into an SLFRF Agreement with the City forCity of Fresno Printed on 10/30/2023Page 2 of 3 powered by Legistar™ File #:ID 23-1523 Agenda Date:10/19/2023 Agenda #:1.-P. If approved as recommended,the Developer will enter into an SLFRF Agreement with the City for $2.8 million at 3%interest for eligible acquisition,pre-development,and construction costs.The proposed MOU will establish a schedule for the disbursement of Homekey funds to the Developer and will outline Homekey terms and conditions. The approximate completion date of the Welcome Home project is October 2024.Once completed, Welcome Home will help the City of Fresno achieve its affordable housing goals and objectives as outlined in the One Fresno Housing Strategy,2020-2024 Consolidated Plan,and Housing Element of the 2035 General Plan. ENVIRONMENTAL FINDINGS Pursuant to Assembly Bill (AB)2162,this project is ministerial.Ministerial projects are exempt from the requirements of CEQA under CEQA Guidelines Section 15268.In addition,pursuant to the “Coronavirus State and Local Fiscal Recovery Funds Final Rule”document published by the U.S. Department of the Treasury,in July 2023,the National Environmental Policy Act (NEPA)does not apply to Treasury's administration of the funds. FISCAL IMPACT The State and Local Fiscal Recovery Funds for the proposed Welcome Home project were appropriated to the Planning and Development Department as part of its fiscal year 2024 Budget. Additional funding will be provided by the State of California’s Project Homekey grant. Attachments: 1.Resolution 2.Resolution - Annual Appropriation Resolution (AAR) 3.SLFRF Agreement (Valley Teen Ranch - Welcome Home) 4.Photos and Site Plan 5.Memorandum of Understanding (Valley Teen Ranch - Welcome Home) City of Fresno Printed on 10/30/2023Page 3 of 3 powered by Legistar™ Date Adopted: 1 of 2 Date Approved: Effective Date: Resolution No. RESOLUTION NO. ___________ A RESOLUTION OF THE COUNCIL OF THE CITY OF FRESNO ADOPTING THE 24th AMENDMENT TO THE ANNUAL APPROPRIATION RESOLUTION NO. 2023-185 TO APPROPRIATE $21,983,700 IN THE HOMEKEY PROGRAM FUND FOR FISCAL YEAR 2023-2024 BE IT RESOLVED BY THE COUNCIL OF THE CITY OF FRESNO: THAT PART III of the Annual Appropriation Resolution No. 2023-185 be and is hereby amended as follows: Increase/(Decrease) TO: PLANNING AND DEVELOPMENT DEPARTMENT Homekey Grant-VTR Welcome Home $ 21,983,700 THAT account titles and numbers requiring adjustment by this Resolution are as follows: Homekey Grant-VTR Welcome Home Revenues: Account String: 2070-2090-1906-450-433401-19-6-0000-0000- $ 21,983,700 Total Revenues $ 21,983,700 Appropriations: Account String: 2070-2090-1906-450-658004-19-6-0000-0000- $ 21,983,700 Total Appropriations $ 21,983,700 THAT the purpose is to appropriate $21,983,700 for the development of the Welcome Home Project in northwest Fresno. 2 of 2 CLERK’S CERTIFICATION STATE OF CALIFORNIA} COUNTY OF FRESNO } ss. CITY OF FRESNO } I, TODD STERMER, City Clerk of the City of Fresno, certify that the foregoing Resolution was adopted by the Council of the City of Fresno, California, at a regular meeting thereof, held on the Day of , 2023 AYES: NOES: ABSENT: ABSTAIN: Mayor Approval: , 2023 Mayor Approval/No Return: , 2023 Mayor Veto: , 2023 Council Override Veto: , 2023 TODD STERMER, CMC City Clerk BY: ____________________________ Deputy Recorded at the Request of and When Recorded Return to: City of Fresno City Clerk’s Office 2600 Fresno Street, Room 2133 Fresno, CA 93721-3603 (SPACE ABOVE THIS LINE FOR RECORDER’S USE ONLY) This SLFRF Agreement is recorded at the request and for the benefit of the City of Fresno and is exempt from the payment of a recording fee pursuant to Government Code Section 6103 CITY OF FRESNO By: Georgeanne A. White, City Manager Date: CITY OF FRESNO STATE AND LOCAL FISCAL RECOVERY FUNDS (PART OF THE AMERICAN RESCUE PLAN) AGREEMENT by and between CITY OF FRESNO, a municipal corporation and Valley Teen Ranch a California nonprofit public benefit corporation regarding Welcome Home Project 6507 North Polk Avenue, Fresno, CA 93722 APN 506-130-04s TABLE OF CONTENTS Page RECITALS ............................................................................................................................ 1 ARTICLE 1. DEFINITIONS .................................................................................................. 2 ARTICLE 2. TERMS OF THE LOAN ................................................................................... 3 ARTICLE 3. REPRESENTATION AND WARRANTIES OF DEVELOPER. ......................... 7 ARTICLE 4. WARRANTIES AND COVENANTS BY DEVELOPER. ................................... 8 ARTICLE 5. PROPERTY MAINTENANCE ........................................................................ 13 ARTICLE 6. DISBURSEMENT OF SLFRF FUNDS ........................................................... 17 ARTICLE 7. REHABILITATION AND CONSTRUCTION OF THE PROJECT ................... 19 ARTICLE 8. OPERATIONS OF THE PROJECT ............................................................... 24 ARTICLE 9. INSURANCE AND INDEMNITY AND BONDS .............................................. 27 ARTICLE 10. DEFAULT AND REMEDIES. ....................................................................... 32 ARTICLE 11. GENERAL PROVISIONS. ........................................................................... 34 1 STATE AND LOCAL FISCAL RECOVERY FUNDS (PART OF THE AMERICAN RESCUE PLAN) AGREEMENT This State and Local Fiscal Recovery Funds Agreement (Agreement) is entered into this month of September __, 2023, by and between the City of Fresno, a municipal corporation, (CITY), and Valley Teen Ranch, a California nonprofit public benefit corporation (DEVELOPER). RECITALS A. WHEREAS, the CITY has received State and Local Fiscal Recovery Funds (SLFRF) from the U.S. Department of the Treasury under the Coronavirus State Fiscal Recovery Fund and the Coronavirus Local Fiscal Recovery Fund established under the American Rescue Plan Act of 2021, as amended (Act). B. WHEREAS, the City has elected to use a portion of the SLFRF allocation to support the COVID-19 Public Health and Economic Response to address impacts on households by using funds to support affordable housing development, an eligible use of funds under the Act. C. WHEREAS, the Project, as defined below, serves the intent of the SLFRF Program by serving households that meet the qualifications of the U.S Department of Housing and Urban Development, HOME Investment Partnerships Program. D. WHEREAS, to advance the supply of affordable rental housing within the City of Fresno, the CITY desires, among other things, to encourage investment in the affordable rental housing market. E. WHEREAS, the DEVELOPER desires to act as the owner/developer exercising effective project control, as to the construction of 96 one-bedroom apartment units, and related on-site and off-site improvements as more particularly described in EXHIBIT “B” – Project Description and Schedule, incorporated herein. F. WHEREAS, the Project will be constructed upon SLFRF Program-eligible Property located in the City of Fresno (Property) owned by the DEVELOPER, as more specifically described in Exhibit "A”, attached hereto and incorporated herein. G. WHEREAS, to further its goal to increase the supply of Affordable Housing within the City of Fresno, the CITY desires to assist the DEVELOPER by providing a Two Million Eight Hundred Thousand dollars and 00/100 ($2,800,000.00) residual receipts SLFRF Program Loan to the Project (Loan), at 3% interest for a period of 55-years for eligible SLFRF Project Property eligible soft and hard construction costs, upon the terms and conditions in this Agreement, as further identified in EXHIBIT “C” – Budget, to be secured by the underlying Property and the Affordable Housing covenants attached as EXHIBIT “D” – Exemplar Declaration of Restriction, and Note, Exemplar Note attached as EXHIBIT “F” – Promissory Note loan, upon the terms and conditions in this Agreement. H. The CITY has determined that it has ministerial authority to approve this Project, which is statutorily exempt from CEQA pursuant to Article 18, Statutory Exemptions, Section 15268 of the CEQA Guidelines. I. WHEREAS, the CITY has determined that this Agreement is in the best interest of, and will materially contribute to, the Housing Element of the General Plan. Further, the 2 CITY has found that the Project: (i) will have a positive influence in the neighborhood and surrounding environs, (ii) is in the vital and best interest of the CITY, and the health, safety, and welfare of CITY residents, (iii) complies with applicable federal, State, and local laws and requirements, (iv) will increase, improve, and preserve the community’s supply of Extremely Low Income Housing available at an affordable cost to Extremely Low Income households, as defined hereunder, (v) planning and administrative expenses incurred in pursuit hereof are necessary for the production, improvement, or preservation of Extremely Low Income Housing, and (vi) will comply with any and all owner participation rules and criteria applicable thereto. J. WHEREAS, the parties acknowledge and agree that the obligations and liabilities of the DEVELOPER hereunder shall be joint and several unless and except to any extent expressly provided otherwise. NOW, THEREFORE, IN CONSIDERATION of the above recitals, which recitals are contractual in nature, the mutual promises herein contained, and for other good and valuable consideration hereby acknowledge, the parties agree as follows: ARTICLE 1. DEFINITIONS The following terms have the meaning and content set forth in this Article wherever used in this Agreement, attached exhibits or attachments that are incorporated into this Agreement by reference. 1.1 Acquisition means vesting of the Property in fee title to the DEVELOPER. 1.2 ADA means the Americans with Disabilities Act of 1990, as most recently amended. 1.3 Affirmative Marketing means a good faith effort to attract eligible persons of all racial, ethnic and gender groups, in the housing market area, to rent the proposed Housing Units proposed for construction on the eligible Property, as hereinafter defined. 1.4 Affordability Period means the minimum period of 55-years commencing from the date the CITY records a Certification of Completion. 1.5 Affordable Housing means all the units (excluding a manager unit) in the Project required to meet the affordability requirements of the SLFRF. 1.6 Budget means the Budget for the development of the Project, as may be amended upon the approval of the CITY’s Housing and Community Development Division Manager provided any increase in SLFRF funds hereunder requires City Council Approval, attached hereto as EXHIBIT “C”. 1.7 Certificate of Completion means that certificate issued, in the form attached as EXHIBIT “E” (Exemplar Certificate of Completion), to the DEVELOPER by the CITY evidencing completion of the Project and a release of construction related covenants for the purposes of the Agreement. 1.8 CFR means the Code of Federal Regulations. 1.9 Commencement of Construction means the time the DEVELOPER or the DEVELOPER’s construction contractor begins substantial physical work on the Property, including, without limitation, delivery of materials and any work, beyond maintenance of the Property in its status quo condition, which shall take place in accordance with the Project 3 Schedule. 1.10 Completion Date means the date the City issues a recorded Certificate of Completion for the Project. The Completion of the Project is identified in EXHIBIT “B”. 1.11 Debt Service means payments made in a calendar year pursuant to the financing obtained for the acquisition, rehabilitation, and construction, operation and/or ownership of the Project, but excluding payments made pursuant to the Note. 1.12 Declaration of Restrictions means the Declaration of Restrictions in the form attached hereto as EXHIBIT “D”, which contains the affordability covenants and requirements of this Agreement which shall run with the land and which the DEVELOPER shall record or cause to be recorded against the Property no later than Commencement of Construction. 1.13 Deed of Trust means that standard form Deed of Trust (including the security agreement) given by the DEVELOPER as Trustor, to the CITY as beneficiary, through escrow established by the DEVELOPER at its sole cost and expense with Old Republic Title Company, and recorded against the Property to ensure the Note, together with the Deed of Trust in a substantially similar form and attached as EXHIBIT “G” and approved as to form by the City Attorney, as well as any amendments to, modification of and restatements of said Deed of Trust, which Deed of Trust shall be subordinated to Project lenders per the Budget attached as EXHIBIT “C”. The terms of any such Deed of Trust are hereby incorporated into this Agreement by this reference. 1.14 Eligible Costs means the SLFRF eligible construction costs funded by the Loan, consistent with the Project Budget attached as EXHIBIT “C”, allowable under SLFRF regulations, however, that costs incurred in connection with any activity that is determined to be ineligible under the SLFRF or the CITY shall not constitute Eligible Costs. 1.15 Event of Default shall have the meaning assigned to such term under Section 10.1 hereunder. 1.16 Extremely Low Income means 15-30% of AMI. 1.17 Family has the same meaning given that term in 24 CFR 5.403. 1.18 Federal SLFRF Funds (also referred to in this Agreement as “SLFRF Funds” means the federal SLFRF monies consisting of the Loan, in an amount not to exceed the sum of Two Million Eight Hundred Thousand Dollars and 00/100 ($2,800,000.00) to be used for eligible Project construction costs. 1.19 Funding Sources means the CITY’s SLFRF Funds, State of California’s HomeKey program funds, Developer’s contribution, and any other funds that may become available to the Project. 1.20 Hazardous Materials means any hazardous or toxic substances, materials, wastes, pollutants or contaminants which are defined, regulated or listed as "hazardous substances," "hazardous wastes," "hazardous materials," "pollutants," "contaminants" or "toxic substances" under federal or State environmental and health safety laws and regulations, including without limitation, petroleum and petroleum byproducts, flammable explosives, urea formaldehyde insulation, radioactive materials, asbestos and lead. Hazardous Materials do not include substances that are used or consumed in the normal course of developing, operating or occupying a housing project, to the extent and degree that such substances are stored, used and disposed of in the manner and in amounts that 4 are consistent with normal practice and legal standards. 1.21 Household means persons occupying the rental units within the Project. 1.22 HUD means the United States Department of Housing and Urban Development. 1.23 Loan means the Project Loan of SLFRF Funds provided under the Coronavirus State Fiscal Recovery Fund and the Coronavirus Local Fiscal Recovery Fund established under the American Rescue Plan Act of 2021, as amended, in the total amount not to exceed Two Million Eight Hundred Thousand Dollars and 00/100 ($2,800,000.00), made available by the CITY to the Project pursuant to this Agreement, as more specifically described in the Budget and in the Promissory Note attached as EXHIBIT “F“. The Loan shall be payable in accordance with the terms of the Note, shall be secured by a deed of trust on each parcel constituting the Property, and shall be subject to the Deed of Trust attached as EXHIBIT “G“. 1.24 Loan Documents are collectively this Agreement, Promissory Note - EXHIBIT “F”, Deed of Trust – EXHIBIT “G”, and Declaration of Restrictions – EXHIBIT “D”, attached hereto and all related documents/instruments as they may be amended, modified, or restated from time to time along with all exhibits and attachments thereto, relative to the Loan. 1.25 Note means that certain Two Million Eight Hundred Thousand Dollars and 00/100 ($2,800,000.00), SLFRF Loan Note as determined by the CITY, given by the DEVELOPER as promisor, in favor of the CITY as promisee, evidencing the Loan and performance of the affordability and other covenants and restrictions set forth in this Agreement, secured by the Deed of Trust as no worse than 2nd position lien upon the Property, naming the CITY as beneficiary and provided to the CITY, no later than the date of the Project funding hereunder, an exemplar of which is attached hereto as EXHIBIT “F“, and incorporated herein, as well as any amendments to, modifications of and restatements of said Note consented to by the CITY. 1.26 Operating Expenses means actual, reasonable and customary (for comparable quality, construction of rental housing in Fresno County) costs, fees and expenses directly incurred, paid and attributable to the operation, maintenance and management of the completed Project in a calendar year, including, without limitation; painting, cleaning, repairs, alterations, landscaping, utilities, refuse removal, certifications, permits and licenses, sewer charges, real and personal property taxes, assessments, insurance, security, advertising and promotion, janitorial services, cleaning and building supplies, purchasing, repair, servicing and installation of appliances, equipment, fixtures and furnishings which are not paid from the capital replacement reserve, fees and expenses of property management and common area expenses, fees and expenses of accountants, attorneys, and other professionals, the cost of social services, repayment of any completion of operating loans including any and all deferred contractor’s fees per the Budget, made to the DEVELOPER, its successors or assigns, and other actual operating costs and capital costs which are incurred and paid by the DEVELOPER, but which are not paid from reserve accounts. 1.27 Project Schedule means the schedule for commencement and completion of the Project included in EXHIBIT “B”. 1.28 Project Units means the construction of 96 rental units (95 affordable units and 1 on-site manager’s unit) of which 60 will be reserved for youth and 35 will be for general homeless individuals. 5 1.29 Property means Welcome Home located at 6507 N. Polk Avenue, Fresno, CA 93722 (APN: 506-130-04s), as more specifically described in the EXHIBIT “A” – Property Description. 1.30 Rent means the total monthly payment a tenant pays for an Affordable SLFRF assisted Unit including the following: use and occupancy of the Unit and land and associated facilities, including parking, provided by the DEVELOPER (other than parking services acquired by tenants on an optional basis), any separately charged fees or service charges assessed by the DEVELOPER which are required of all tenants (other than security deposits), the cost of an adequate level of service for utilities paid by the tenants (including garbage collection, sewer, water, common area electricity, but not telephone or internet service), any other interest, taxes, fees or charges for use of the land or associated facilities and assessed by a public or private entity other than the DEVELOPER, and paid by the tenant. Rent does not include payments for any optional services provided by the DEVELOPER. 1.31 Senior Financing means the financing for the Project set forth on the Budget and Finance Plan which shall be senior to the SLFRF Loan. 1.32 Senior Lender means lenders providing the Senior Financing for the Affordable Project. 1.33 U.S. Department of Treasury means the United States Department of Treasury. ARTICLE 2. TERMS OF THE LOAN 2.1 Loan of SLFRF Funds. The CITY agrees to provide a loan of SLFRF Funds to the DEVELOPER, in an amount not to exceed Two Million Eight Hundred Thousand Dollars and 00/100 ($2,800,000.00), all under the terms and conditions provided in this Agreement. The SLFRF Funds shall be used for payment of eligible pre-development, soft and hard construction costs. 2.2 Loan Documents. The DEVELOPER shall execute and deliver the Loan Documents including the Promissory Note to the CITY, and notarized Deed of Trust to First American Title Company for recordation against the Property, as provided for in this Agreement. 2.3 Term of Agreement. This Agreement is effective upon the date of full execution and shall remain in force with respect to the Project for the duration of the Affordability Period unless earlier terminated as provided herein. After the 55-year Affordability Period, this Agreement will expire. It is understood and agreed upon, however, that if for any reason this Agreement should be terminated in whole or in part as provided hereunder, without default, the CITY agrees to record a Notice of Cancellation regarding this Agreement upon the written request of the DEVELOPER. 2.4 Loan Repayment and Maturity. The Loan will accrue interest commencing on the date provided for in the Promissory Note and shall be due and payable in accordance with the Promissory Note and in full not later than the Maturity date provided in the Promissory Note. 2.5 Incorporation of Documents. If applicable, the DEVELOPER’s SLFRF application, the CITY Council approved Minutes, approving this Agreement, the Loan Documents, the SLFRF regulations and all exhibits, attachments, documents, and instruments referenced herein, as now in effect and as may be amended from time to time, 6 constitute part of this Agreement and are incorporated herein by reference. All such documents have been provided to the parties herewith or have been otherwise provided to/procured by the parties and reviewed by each of them prior to execution hereof. 2.6 Covenants of DEVELOPER. The DEVELOPER for itself and its agents/assigns covenants and agrees to comply with all the terms and conditions of this Agreement and the requirements of the SLFRF and the Act, as such may be amended from time to time. 2.7 Subordination. This Agreement, Declaration of Restrictions, and Deed of Trust may be subordinated to certain approved financing (in each case, a “Senior Lender”), to no worse than 2nd position, but only on condition that all of the following are satisfied: (a) All of the proceeds of the proposed Senior Loan, less any transaction costs, must be used to provide construction financing for the Project consistent with an approved financing plan; (b) the subordination agreement must provide the CITY with adequate rights to cure any defaults by the DEVELOPER including providing the CITY or its successor with copies of any notices of default; (c) upon a determination by the City Manager that the conditions in this Section have been satisfied, the City Manager or his/her designee will be authorized to execute the approved subordination agreement, inter-creditor agreements, standstill agreements, and/or other documents as may be reasonably requested by the Lender to evidence subordination to the Project financing, without the necessity of any further action or approval provided that such agreements contain written provisions that are no more onerous and which are consistent with the customary standard requirements imposed by the financing source(s), on subordinate cash flow obligations under their then existing senior financing policies, and further provided that the City Attorney approves such document(s) as to form. ARTICLE 3. REPRESENTATIONS AND WARRANTIES OF DEVELOPER 3.1 Existence and Qualification. The DEVELOPER, represents and warrants to the CITY as of the date hereof, that the DEVELOPER is a duly organized California nonprofit public benefit corporation in good standing with the State of California; the DEVELOPER has the requisite power, right, and legal authority to execute, deliver, and perform its obligations under the SLFRF Agreement and has taken all actions necessary to authorize the execution, delivery, performance, and observance of its obligations under this Agreement. This Agreement, when executed and delivered by the DEVELOPER, is enforceable against the DEVELOPER in accordance with its respective terms, except as such enforceability may be limited by: (a) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium, or other similar laws of general applicability affecting the enforcement of creditors' rights generally, and (b) the application of general principles of equity without the joinder of any other party. 3.2 No Litigation Material to Financial Condition. The DEVELOPER represents and warrants to the CITY as of the date hereof that, except as disclosed to the CITY in writing, no litigation or administrative proceeding before any court or governmental body or agency is now pending, nor, to the best of the DEVELOPER’s knowledge, is any such litigation or proceeding now threatened, or anticipated against the DEVELOPER that, if adversely determined, would have a material adverse effect on the financial condition, business, or assets of the DEVELOPER or on the operation of the Project. 3.3 No Conflict of Interest. The DEVELOPER represents and warrants to the CITY as of the date hereof that no officer, agent, or employee of the CITY directly or indirectly owns or controls any interest in the DEVELOPER, and no person, directly or indirectly owning 7 or controlling any interest in the DEVELOPER, is an official, officer, agent, or employee of the CITY. 3.4 No Legal Bar. The DEVELOPER represents and warrants to the CITY, as of the date hereof that the execution, delivery, performance, or observance by the DEVELOPER of this Agreement will not, to the best of the DEVELOPER’s knowledge, materially violate or contravene any provisions of: (a) any existing law or regulation, or any order of decree of any court, governmental authority, bureau, or agency; (b) governing documents and instruments of the DEVELOPER; or (c) any mortgage, indenture, security agreement, contract, undertaking, or other agreement or instrument to which the DEVELOPER is a party or that is binding on any of its properties or assets, the result of which would materially or substantially impair the DEVELOPER’s ability to perform and discharge its obligations or its ability to complete the Project under this Agreement. 3.5 No Violation of Law. The DEVELOPER represents and warrants to the CITY as of the date hereof that, to the best of the DEVELOPER’s knowledge, this Agreement and the operation of the Project as contemplated by the DEVELOPER, do not violate any existing federal, State, or local laws of regulations. 3.6 No Litigation Material to Project. The DEVELOPER represents and warrants to the CITY as of the date hereof, except as disclosed to, and approved by the CITY in writing, there is no action, proceeding, or investigation now pending, or any basis therefor known or believed to exist by the DEVELOPER that questions the validity of this Agreement, or of any action to be taken under this Agreement, that would, if adversely determined, materially or substantially impair the DEVELOPER’s ability to perform and observe its obligations under this Agreement, or that would either directly or indirectly have an adverse effect or impair the completion of the Project. 3.7 Assurance of Governmental Approvals and Licenses. The DEVELOPER represents and warrants to the CITY, as of the date hereof, that the DEVELOPER has obtained and, to the best of the DEVELOPER’s knowledge, is in compliance with all federal, State, and local governmental reviews, consents, authorizations, approvals, and licenses presently required by law to be obtained by the DEVELOPER for the Project as of the date hereof. ARTICLE 4. WARRANTIES AND COVENANTS OF THE DEVELOPER The DEVELOPER, for itself and its development team covenants and warrants that: 4.1 Accessibility. The DEVELOPER covenants and agrees with the CITY that it shall comply with 24 CFR Part 8, which implements Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794), including, without limitation, the construction of the Project so that it meets the applicable accessibility requirements, including, but not limited to, the following: A. At least 5% of the dwelling units, or at least five, whichever is greater, must be constructed to be accessible for persons with mobility disabilities. An additional 2% of the dwelling units, or at least two units, whichever is greater, must be accessible for persons with hearing or visual disabilities. These units must be constructed in accordance with the Uniform Federal Accessibility Standards (U.F.A.S.) or a standard that is equivalent or stricter. B. The design and construction requirements of the Fair Housing Act (Title VIII of the Civil Rights Act of 1968, as amended), including the following seven 8 requirements of the Fair Housing Accessibility Guidelines: i. Provide at least one accessible building entrance on an accessible route. ii. Construct accessible and usable public and common use areas. iii. Construct all doors to be accessible and usable by persons in wheelchairs. iv. Provide an accessible route into and through the covered dwelling unit. v. Provide light switches, electrical outlets, thermostats and other environmental controls in accessible locations. vi. Construct reinforced bathroom walls for later installation of grab bars around toilets, tubs, shower stalls and shower seats, where such facilities are provided. vii. Provide usable kitchens and bathrooms such that an individual who uses a wheelchair can maneuver about the space. C. Title III of the Americans with Disability Act of 1990 (ADA) as it relates to the required accessibility of public and common use area of the Project. D. The design and construction requirements as required by the CITY’s Universal Design Ordinance pursuant to Fresno Municipal Code 11-110, including, but not limited to the following requirements: i. No step accessible entryway; ii. All interior doorways and passageways at least 32 inches wide; iii. One downstairs “flex room” and accessible bathroom with reinforcements for grab bars; iv. Six square feet of accessible kitchen counter space; and v. Hallways at least 42 inches wide. 4.2 Affirmative Marketing. The DEVELOPER warrants, covenants and agrees with the CITY that it shall comply with all affirmative marketing requirements, including without limitation, those set out at 24 CFR 92.350 and 92.351, in order to provide information and otherwise attract eligible persons from all racial, ethnic and gender groups in the housing market in the rental of the Project Units. The DEVELOPER shall maintain records of actions taken to affirmatively market units constructed in the future, and to assess the results of these actions. 4.3 Availability of SLFRF Funds. The DEVELOPER understands and agrees that the availability of SLFRF Funds is subject to the control of the Department of the Treasury, or other federal agencies, and should said Funds be encumbered, withdrawn or otherwise made unavailable to the CITY, whether earned by or promised to the DEVELOPER, and/or should the CITY in any fiscal year hereunder fail to allocate said Funds, the CITY shall not provide said Funds unless and until they are made available for payment to the CITY by HUD and the CITY receives and allocates said Funds. No other funds owned or controlled by the 9 CITY shall be obligated under this Agreement. 4.4 Compliance with Agreement. The DEVELOPER warrants, covenants and agrees that, in accordance with the requirements of the SLFRF Act, upon any uncured default by the DEVELOPER within the meaning of Article 10.1 of this Agreement, the CITY may suspend or terminate this Agreement and all other agreements with the DEVELOPER without waiver or limitation of rights/remedies otherwise available to the CITY. 4.5 Conflict of Interest. The DEVELOPER warrants, covenants and agrees that it shall comply with the Conflict-of-Interest requirements including, without limitation, that no officer, employee, agent, or consultant of the DEVELOPER may occupy an Affordable Unit. The DEVELOPER understands and acknowledges that no employee, agent, consultant, officer or elected official or appointed official of the CITY, who exercises any functions or responsibilities with respect to the Project, or who is in a position to participate in a decision making process or gain inside information with regard to these activities, may obtain a financial interest or benefit from the Project, or have an interest in any contract, subcontract or agreement with respect thereto, or the proceeds thereunder, either for him or herself or for anyone with which that person has family or business ties, during his or her tenure or for one year thereafter. 4.6 Construction Standards. The DEVELOPER shall cause construction of the proposed Project Units assisted under this Agreement in compliance with all applicable local codes, ordinances, and zoning requirements in effect at the time of issuance of CITY building permits. 4.7 Covenants and Restrictions to Run with the Land. The CITY and the DEVELOPER expressly warrant, covenant and agree to ensure that the covenants and restrictions set forth in this Agreement are recorded and will run with the land, provided, however, that, on expiration of this Agreement such covenants and restrictions shall expire, provided that such agreements contain written provisions that are no more onerous and which are consistent with the customary standard requirements imposed by the financing source(s), on subordinate cash flow obligations under their then existing senior financing policies, and further provided that City Attorney approves such document(s) as to form. A. The CITY and the DEVELOPER hereby declare their understanding and intent that the covenants and restrictions set forth herein directly benefit the land by: (a) enhancing and increasing the enjoyment and ownership of the proposed Project by a certain Extremely Low-Income Households, and (b) making possible the obtaining of advantageous financing for construction. B. The DEVELOPER covenants and agrees with the CITY that after issuance of a recorded Certification of Completion for the Project until the expiration of the Affordability Period it shall cause 95 Affordable Units to be rented as Affordable Housing for Extremely Low-Income households. C. Without waiver or limitation, the CITY shall be entitled to injunctive or other equitable relief against any violation or attempted violation of any covenants and restrictions, and shall, in addition, be entitled to damages available under law or contract for any injuries or losses resulting from any violations thereof. D. All present and future owners of the Property and other persons claiming by, through or under them shall be subject to and shall comply with the covenants and restrictions. The acceptance of a deed of conveyance to the Property shall constitute 10 an agreement that the covenants and restrictions, as may be amended or supplemented from time to time, are accepted and ratified by such future owners, tenant or occupant, and all such covenants and restrictions shall be covenants running with the land and shall bind any person having at any time any interest or estate in the Property, all as though such covenants and restrictions were recited and stipulated at length in each and every deed, conveyance, mortgage or lease thereof. E. The failure or delay at any time of the CITY or any other person entitled to enforce any such covenants or restrictions shall in no event be deemed a waiver of the same, or of the right to enforce the same at any time or from time to time thereafter, or an estoppel against the enforcement thereof. 4.8 Displacement of Persons. The DEVELOPER covenants and agrees with the CITY that pursuant to 24 CFR 92.353, it will take all reasonable steps to minimize the displacement of any persons (families, individuals, businesses, nonprofit organizations and farms). The parties acknowledge and agree that the Property located at 6507 North Polk Avenue, Fresno, CA 93722 and is currently vacant. 4.9 Initial and Annual Income Certification and Reporting. The DEVELOPER covenants and agrees with the CITY that it shall comply with the procedures for annual income determination at 24 CFR 92.203. The DEVELOPER, shall obtain, complete and maintain on file, immediately prior to initial occupancy, and annually thereafter, income certifications from the Project Unit Household members. The DEVELOPER, shall make a good faith effort to verify that the income provided by an applicant or occupying Household in an income certification is accurate by taking one or more of the following steps as part of the verification process: (1) obtain a pay stub for the three most recent pay periods; (2) obtain an income verification form from the applicant’s current employer; (3) obtain an income verification form from the Social Security Administration and California Department of Social Services if the applicant receives assistance from either of such agencies; (4) obtain income tax return for the most recent three years; or (5) if the applicant is unemployed, obtain another form of independent verification. Copies of Household income certification and verification must be available for review and approval by the CITY prior to initial lease up. The DEVELOPER further warrants, covenants and agrees that it will cooperate with the CITY in the CITY’s income certification/affordability monitoring activities. 4.10 Lead-Based Paint. The DEVELOPER covenants and agrees with the CITY that it shall comply with all applicable requirements of the Lead-Based Paint Poisoning Prevention Act of 42 U.S.C. 4821 et seq., 24 CFR Part 35, including the HUD 1012 Rule, and 24 CFR 982.401(j), and any amendment thereto, and Environmental Protection Agency (EPA) Section 402 (c)(3) of the Toxic Substances Control Act (TSCA) to address lead-based hazards created by renovation, repair, and painting activities that disturb lead-based paint in target housing and child-occupied facilities. Contractors performing renovations in lead- based paint units must be EPA-certified renovators. These requirements apply to all units and common areas of the Project. The DEVELOPER shall incorporate or cause incorporation of this provision in all contracts and subcontracts for work performed on the Project, which involve the application of paint. The DEVELOPER shall be responsible for all disclosure, inspection, testing, evaluation, and control and abatement activities. 4.11 Minority Outreach Activities. The DEVELOPER covenants and agrees with the CITY that it shall comply with all federal laws and regulations described in Subpart H of 24 CFR Part 92, including, without limitation, any requirement that the DEVELOPER comply 11 with the CITY’s minority outreach program. 4.12 Other Laws and Regulations. The DEVELOPER covenants and agrees with the CITY that, in addition to complying with the federal laws and regulations already cited in this Agreement, the DEVELOPER has reviewed, and shall comply with and require all its contractors and subcontractors on the Project to comply with, all other federal laws and regulations that apply to the SLFRF, including, without limitation, requirements of the Act (Pub.L. 117-2), CSLFRF Final Rule (31 CFR Part 35), 24 CFR 58.6 and the Flood Disaster Protection Act of 1973, as amended (42 U.S.C. 4001-4128) and the following: A. The DEVELOPER does not intend to use any financing that is secured by a mortgage insured by HUD in connection with the Project as part of its land acquisition and construction costs of the Project. B. The Project is not located in a tract identified by the Federal Emergency Management Agency as having special flood requirements. C. The Project requirements, Subpart F of 24 C.F.R. Part 92, as applicable and in accordance with the type of Project assisted. D. The property standards at 24 CFR 92.251. E. The Project “Labor” requirements, as applicable, of 24 C.F.R. 92.354 including Davis Bacon prevailing wage requirements (40 U.S.C. 276a - 276a-7), as supplemented by Department of Labor regulations (29 CFR Part 5). F. The provisions of Section 102 and 107 of the Contract Work Hours and Safety Standards Act (40 U.S.C. 327-333), as supplemented by Department of Labor Regulations (29 CFR Part 5), in regard to the construction and management of the proposed Project. G. The DEVELOPER and its contractors, subcontractors and service providers for the Project, shall comply with all applicable local, State and federal requirements concerning equal employment opportunity, including compliance with Executive Order (E.O.) 11246, “Equal Employment Opportunity”, as amended by E.O. 11375, (amending E.O. 11246 Relating to Equal Employment Opportunity), and as supplemented by regulations at 41 CFR chapter 60, “Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor”. H. The provisions of the Copeland “Anti-Kickback” Act (18 U.S.C. 874), as supplemented by Department of Labor regulations (29 CFR part 3, “Contractors and Subcontractors on Public Building or Public Work Financed in Whole or in Part by Loans or Grants from the United States”). I. The provisions of the Clean Air Act (42 U.S.C. 7401 et seq.) and the Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.), as amended. J. The provisions of the Byrd Anti-Lobbying Amendment (31 U.S.C. 1352). K. The provision of E.O.s 12549 and 12689, “Debarment and Suspension,” as set forth at 24 CFR part 24. L. The provisions of the Drug-Free Workplace Act of 1988 (42 U.S.C. 701), in accordance with the Act and with HUD's rules at 24 CFR part 24, subpart F. M. Title 8 of the Civil Rights Act of 1968 PL. 90-284. 12 N. E.O. 11063 on Equal Opportunity and Housing. O. Section 3 of the Housing and Urban Development Act of 1968. P. The Housing and Community Development Act of 1974. Q. Clean Water Requirements 33 U.S.C. 1251. R. Civil Rights Requirements, 29 U.S.C. 623, 42 U.S.C. 2000, 42 U.S.C. 6102, 42 U.S.C 12112, 42 U.S.C. 12132, 49 U.S.C 5332, 29 C.F.R. Part 1630, 41 C.F.R. and Part 60 et seq. S. Recipients of SLFRF Funds shall comply, to the extent required by the Act and the SLFRF with 2 CFR Part 200, Office of Management and Budget’s (OMB) Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards (commonly called the ‘Uniform Guidance’). T. Violence Against Women Act (VAWA), 24 CFR 92.359 and 24 CFR 92.504(c)(3)(v)(F), including but not limited to notice requirements, obligations under emergency transfer plan, bifurcation of lease requirements, imposition of requirements for the duration of the period of affordability, and inclusion of VAWA lease addendum requirements. U. DEVELOPER shall comply with broadband infrastructure requirements for new housing and rehabilitation projects as set forth in 24 CRF 92.251. 4.13 Faith Based Activities. The DEVELOPER warrants, covenants and agrees with the CITY that it shall not engage in any prohibited activities described in 24 CFR 92.257. 4.14 Reporting Requirements. The DEVELOPER warrants, covenants and agrees with the CITY that it shall submit performance reports to the CITY as detailed in Section 7.18. Furthermore, the DEVELOPER agrees to provide, at the sole cost of the DEVELOPER, an annual audited Financial Statement and residual receipts calculation for the Project expenses and ongoing financial transactions which occur as a result of this Agreement as detailed in Section 5.6. The DEVELOPER agrees to account for the expenditure of SLFRF Funds using generally accepted accounting principles, which financial documentation shall be made available to the CITY and HUD upon their respective written request(s). Recipients of SLFRF Funds shall comply with 2 CFR Part 200, Office of Management and Budget’s (OMB) Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards (commonly called the ‘‘Uniform Guidance’’). 4.15 Housing Affordability. The DEVELOPER covenants and agrees with the CITY that the ninety-five (95) Project Units will be affordable to Extremely Low-Income households and other requirements during the Affordability Period. The Project Units, at a minimum, shall be rented to and occupied by, or, if vacant, available for rental and occupancy by (a) person(s) whose annual household income at the time of initial occupancy is not greater than 30% of AMI consistent with SLFRF Program regulations, for the Affordability Period except upon foreclosure or other transfer in lieu of foreclosure following default under a Deed of Trust. However, if at any time following a transfer by foreclosure or transfer in lieu of foreclosure, but still during the Affordability Period, the owner of record prior to the foreclosure or transfer in lieu of foreclosure, or any newly formed entity that includes such owner of record those whom such owner of record has or had business ties, obtains an ownership interest in the Project or the Property, the Affordability Period shall be revived according to its original terms. In the event the DEVELOPER fails to comply with this Section 13 or the Affordability Period is not revived following transfer by foreclosure or transfer in lieu of foreclosure, the DEVELOPER shall return to the CITY all SLFRF Funds disbursed to the DEVELOPER by the CITY. 4.16 Terminated Projects. The DEVELOPER understands and agrees that, if the Project is terminated before completion, either voluntarily or otherwise, such constitutes an ineligible activity, and the CITY will not be required to provide any further SLFRF assistance funding to the Project Units. ARTICLE 5. PROPERTY MAINTENANCE The DEVELOPER covenants and agrees to the following, for the entire term of the Agreement. 5.1 Adequate Repair and Maintenance. The DEVELOPER during its time on title shall cause the maintenance to the Project and Property to be in compliance with all applicable codes, laws, and ordinances. The CITY reserves the right to require the Developer to change the property management company for the Property if it is determined through annual property monitoring that the property management company is not performing satisfactorily. 5.2 Affordable Rental Housing. The DEVELOPER covenants and agrees that the Project shall constitute 95 Project Units for rent to Extremely Low-Income Rental Households as provided at 24 C.F.R.92.252 during the entire Affordability Period. This covenant shall remain in effect and run with and restrict the land during the entirety of the Affordability Period. In the event the DEVELOPER fails to comply with the time period in which the Affordable Units constitute Affordable Housing, the CITY shall without waiver or limitation, be entitled to injunctive relief, as the DEVELOPER acknowledges that damages are not adequate remedy at law for such breach. 5.3 Compliance with Environmental Laws. The DEVELOPER shall cause the Affordable Units to be in compliance with, and not to cause or permit the Project to be in violation of, any Hazardous Materials law, rule, regulation, ordinance, or statute. Although the CITY will utilize its employees and agents for regular inspection and testing of the eligible Property, the DEVELOPER agrees that, if the CITY has reasonable grounds to suspect any such violation, the DEVELOPER shall be entitled to thirty (30) days' notice and opportunity to cure such violation. If the suspected violation is not cured, the CITY shall have the right to retain an independent consultant to inspect and test the eligible Property for such violation. If a violation is discovered, the DEVELOPER shall pay for the reasonable cost of the independent consultant. Additionally, the DEVELOPER agrees: A. That the CITY shall not be directly or indirectly responsible, obligated or liable with the inspection, testing, removal or abatement of asbestos or other hazardous or toxic chemicals, materials, substances, or wastes and that all cost, expense and liability for such work shall be and remain solely with the DEVELOPER; B. Not to transport to, or from, the proposed Property, or use, generate, manufacture, produce, store, release, discharge, or dispose of on, under, or about the Property, or surrounding real estate, or transport to or from the Project site, or surrounding real estate, any hazardous or toxic chemicals, materials, substance, or wastes or allow any person or entity to do so except in such amounts and under such 14 terms and conditions permitted by applicable laws, rules, regulations, ordinances, and statutes; C. To give prompt written notice to the CITY of the following: (i) Any proceeding or inquiry by any governmental authority with respect to the presence of any hazardous or toxic chemicals, materials, substance, or waste in or on the eligible Property or the surrounding real estate or the migration thereof from or to other property; (ii) All claims made or threatened by any third party against the DEVELOPER, or such properties relating to any loss or injury resulting from any hazardous or toxic chemicals, materials, substance, or waste; and (iii) The DEVELOPER’s discovery of any occurrence or condition on any real property adjoining or in the vicinity of such properties that would cause such properties or underlying or surrounding real estate or part thereof to be subject to any restrictions on the ownership, occupancy, transferability, or use of the property under any environmental law, rule, regulation, ordinance or statute; and D. To indemnify, defend, and hold the CITY harmless from any and all claims, actions, causes of action, demand, judgments, damages, injuries, administrative orders, consent agreements, orders, liabilities, penalties, costs, expenses (including attorney’s fees and expenses), and disputes of any kind whatsoever arising out of or relating to the DEVELOPER or DEVELOPER’s employees’, contractors’ or agents’ use or release of any hazardous or toxic chemicals, materials, substance, or waste on the Property regardless of cause or origin, including any and all liability arising out of or relating to any investigation, site monitoring, containment, cleanup, removal, restoration, or related remedial work of any kind or nature. 5.4 Compliance with Laws. The DEVELOPER shall promptly and faithfully comply with, conform to and obey all present and future federal, State and local statutes, regulations, rules, ordinances and other legal requirements applicable by reason of this Agreement or otherwise to the Project including without limitation prevailing wage requirements. The DEVELOPER acknowledges that the use of SLFRF Funds subjects the Project to extensive federal regulation and covenants and agrees that it shall comply with, conform to and obey (and take steps as are required of the DEVELOPER to enable the CITY to comply with, conform to and obey) all federal statues, regulations, rules and policies applicable to the Project. 5.5 Existence, Qualification, and Authority. The DEVELOPER shall provide to the CITY any evidence required or requested by the CITY to demonstrate the continuing existence, qualification, and authority of the DEVELOPER to execute this Agreement and to perform the acts necessary to carry out the Project. 5.6 Financial Statements and Audits. Annually, within 180 days following: 1) the end of fiscal year(s) in which the SLFRF Funds are disbursed hereunder, and 2) the end of fiscal year(s) in which this contract shall terminate, and otherwise upon the CITY’s, written request during the term of this Agreement, the DEVELOPER, at its sole cost and expense shall submit to the CITY: 15 A. Audited annual financial statements with notes that are current, signed, and prepared according to generally accepted accounting principles consistently applied (except as otherwise disclosed therein). B. Audited Financial Statements with the management notes covering the income and expenses, and the financial transactions for the Project during the prior fiscal year. 5.7 Inspection and Audit of Books, Records and Documents. The DEVELOPER shall account for all SLFRF Funds disbursed for the Project pursuant to this Agreement. Any duly authorized representative of the CITY or HUD shall, at all reasonable times, have access to and the right to inspect, copy, make excerpts or transcripts, audit, and examine all books of accounts, records, files and other papers or property, and other documents of the DEVELOPER pertaining to the Project or all matters covered in this Agreement and for up to six years after the expiration or termination of this Agreement. A. The DEVELOPER will maintain books and records for the Project using generally accepted accounting principles. The DEVELOPER agrees to maintain books and records that accurately and fully show the date, amount, purpose and payee of all expenditures financed with SLFRF Funds and to keep all invoices, receipts and other documents related to expenditures financed with SLFRF Funds for not less than six years after the expiration or termination of the Agreement. Books and records must be kept accurate and current. For purposes of this section, "books, records and documents" include, without limitation; plans, drawings, specifications, ledgers, journals, statements, contracts/agreements, funding information, funding applications, purchase orders, invoices, loan documents, computer printouts, correspondence, memoranda, and electronically stored versions of the foregoing. This section shall survive the termination of this Agreement. B. The CITY may audit any conditions relating to this Agreement at the CITY’s expense, unless such audit shows a significant discrepancy in information reported by the DEVELOPER in which case the DEVELOPER shall bear the cost of such audit. The DEVELOPER shall also comply with any applicable audit requirements of 24 CFR 92.506. This section shall survive the termination of this Agreement. C. The DEVELOPER will cooperate fully with the CITY in connection with any interim or final audit relating to the Project that may be performed relative to the performance of this Agreement. 5.8 Inspection of Property. Any duly authorized representative of the CITY shall, at all reasonable times and with 72 hours’ written notice, have access and the right to inspect the Property until completion of the Project and expiration of the applicable Affordability Period, subject to the rights of the tenants. 5.9 No Other Liens. The DEVELOPER shall not create or incur, or suffer to be created or incurred, or to exist, any additional mortgage, pledge, lien, charge, or other security interest of any kind on the eligible Property, other than those related to the Project’s rehabilitation and construction loans in relation to the Project, consistent with the attached Budget, without the prior written consent of the CITY. 5.10 Nondiscrimination. The DEVELOPER shall comply with and cause any and all 16 contractors and subcontractors to comply with any and all federal, State, and local laws with regard to illegal discrimination, and the DEVELOPER shall not illegally discriminate against any persons on account of race, religion, sex, family status, age, handicap, or place of national origin in its performance of this Agreement and the completion of the Project. 5.11 Ownership. Except as required in pursuit hereof, the DEVELOPER shall not sell, lease, transfer, assign or otherwise dispose (Transfer) all or any material part of any interest it might hold in the Property or the Project without the prior written consent of the CITY, which consent shall not be unreasonably withheld or delayed. “Transfer” shall exclude the leasing of any single Unit in the Project. A. The DEVELOPER shall request CITY’s written approval of the granting of the security interests in the Property described in Section 5.9 above. 5.12 Payment of Liabilities. The DEVELOPER shall pay and discharge in the ordinary course of its business all material obligations and liabilities, the nonpayment of which could have a material or adverse impact on its financial condition, business, or assets or on the operation of the Project, except such obligations and liabilities that have been disclosed to the CITY in writing and are being contested in good faith. 5.13 Report of Events of Default. The DEVELOPER shall promptly give written notice to the CITY upon becoming aware of any Event of Default under this Agreement. ARTICLE 6. DISBURSEMENT OF SLFRF FUNDS Without waiver of limitation, the parties agree as follows, regarding SLFRF Funds: 6.1 Loan Commitments and Financing Plan. The DEVELOPER shall submit its most current Finance Plan for the Project to the CITY within the time frame provided in the Project Schedule. So long as the Finance Plan is consistent with the Budget contained in EXHIBIT “C”, the CITY shall accept the Finance Plan. If the Finance Plan is not consistent with the Budget, then within thirty (30) days after receiving the Finance Plan, the CITY, through its Planning and Development Department, Housing and Community Development Division, will review the Finance Plan and deliver notice to the DEVELOPER either approving or disapproving the Finance Plan in its reasonable discretion. If the CITY disapproves the Finance Plan, it will specify the reason for the disapproval and ask the DEVELOPER to provide any additional information the CITY may need to approve the Finance Plan. The failure of the CITY to send notice within such 30 daytime period shall be deemed an approval of the Finance Plan. 6.2 Finance Plan Content. The Finance Plan shall contain all Project pre- construction and post-construction, and permanent loans or letters of intent from one or more qualified public/private lenders or funding sources in sufficient amounts, combined with any other DEVELOPER financing, for the DEVELOPER to complete construction of the Project. The total amount of the liens to be recorded against the Property as presented in the Finance Plan shall not exceed the DEVELOPER’s estimated construction Budget. 6.3 Use of SLFRF Funds. The DEVELOPER warrants, covenants and agrees that it shall use SLFRF Funds only for eligible construction costs as identified in the attached Budget, attached hereto as EXHIBIT “C”, including costs allowable under the SLFRF, aggregating not more than Two Million Eight Hundred Thousand Dollars and 00/100 17 ($2,800,000.00). The CITY’s obligations shall in no event exceed the SLFRF amount specified in this Agreement. A. If any such Funds shall be determined to have been requested and/or used by the DEVELOPER for costs other than for eligible construction costs, and subject to the notice and cure provisions of Section 10.2 hereunder, an equal amount from nonpublic funds shall become immediately due and payable by the DEVELOPER to the CITY; provided, however, that the DEVELOPER shall, subject to its full cooperation with the CITY, be entitled to participate in any opportunity to remedy, contest, or appeal such determination. B. In the event SLFRF Funds are used for Eligible Costs which subsequently lose eligibility as Eligible Costs, the DEVELOPER shall immediately return such SLFRF to the CITY. C. The CITY will disburse SLFRF Funds to the DEVELOPER through proper invoicing for eligible construction costs of the Affordable Units as provided in this Article 6. 6.4 Conditions Precedent to Disbursement. The CITY shall not be obligated to make or authorize any disbursements of SLFRF Funds unless the following conditions are satisfied: A. Prior to execution of this Agreement by the City, DEVELOPER will permit CITY staff to conduct a risk assessment, as required under the Uniform Guidance (2 CFR 200.332(b)). Failure to allow City staff to conduct this risk assessment may result in the City terminating this Agreement in accordance with Section 4.4. Additionally, the GRANTEE’s failure to be certified by City staff at the end of the risk assessment as having adequate internal controls to manage the funding provided in this agreement may result in the City terminating this Agreement in accordance with Section 4.4. B. There exists no Event of Default as provided in Article 10, nor any act, failure, omission, or condition that with the passage of time or the giving of notice or both would constitute an Event of Default. C. The DEVELOPER has received and delivered to the CITY firm commitments of, or Agreements for, sufficient funds to finance the Project. D. The CITY has approved the disbursement of SLFRF funds for eligible Project construction costs. E. The DEVELOPER has obtained insurance coverage and delivered to the City evidence of insurance as required in Article 9. F. The DEVELOPER is current with its compliance of reporting requirements set forth in this Agreement. G. The DEVELOPER has provided the CITY with a written request for SLFRF Funds (provided by the CITY), for eligible Project construction costs, and detailing such Eligible Costs applicable to the request. H. The CITY has received certification required by Section 6.6 of this Agreement. 18 I. The CITY has received, and continues to have the right to disburse, SLFRF Funds. 6.5 Requests for Disbursement of SLFRF Funds. The DEVELOPER shall request that the CITY disburse funds for eligible construction cost using the CITY’s Request for Disbursement of Funds form. The DEVELOPER shall only request a maximum of Two Million Eight Hundred Thousand Dollars and 00/100 ($2,800,000.00) in SLFRF assistance. All requests should provide in detail such Eligible Costs applicable to the request. All requests for SLFRF reimbursement shall be accompanied with the Certification required by Section 6.6 of this Agreement. 6.6 DEVELOPER Certification. The DEVELOPER shall submit to the CITY a written certification that, as of the date of the Request for Disbursement of Funds (Certification): A. The representations and warranties contained in or incorporated by reference in this Agreement continue to be true, complete and accurate in material respects. B. The DEVELOPER has carried out all of its obligations and is in compliance with all the obligations or covenants specified in this Agreement, to the extent that such obligations or covenants are required to have been carried out or are applicable at the time of the Request for Disbursement of Funds; and C. The DEVELOPER has not committed or suffered an act, event, occurrence, or circumstance that constitutes an Event of Default or that with the passage of time or giving of notice or both would constitute an Event of Default; and D. The disbursement of funds shall be used solely for expenses related to Eligible construction Costs identified in this Agreement and must by supported by the itemized obligations that have been properly incurred, expended and are properly chargeable in connection with construction of the Project. 6.7 Disbursement of Funds. The disbursement of SLFRF Funds shall occur within the normal course of CITY business (approximately 30 days) after the CITY receives the Certification and Request for Disbursement with correct supporting documentation and to the extent of annually allocated and available SLFRF Funds. ARTICLE 7. REHABILITATION AND CONSTRUCTION OF THE PROJECT Without waiver of limitation, the parties agree as follows: 7.1 Pre-Construction Meeting Regarding Processes and Procedures. The CITY may schedule, and the DEVELOPER shall attend, or the DEVELOPER may schedule, and the CITY shall attend a meeting prior to construction for the purpose of outlining the Project processes and procedures. 7.2 Commencement and Completion of Project. The DEVELOPER shall commence construction of the Project, and when completed, record a Notice of Completion of construction of the Project in accordance with the Project Schedule as identified in EXHIBIT “B”, and provide the CITY with a copy of the recordation. 7.3 Contracts and Subcontracts. Consistent with Section 5.3, all hazardous waste abatement, construction work and professional services for the Project shall be performed by persons or entities licensed or otherwise legally authorized to perform the applicable work 19 or service in the State of California and the City of Fresno. The DEVELOPER shall provide the CITY with copies of all agreements it has entered into with any and all general contractors or subcontractors for this Project. The DEVELOPER shall require that each such general contractor agreement contain a provision whereby the party(ies) to the agreement, other than the DEVELOPER, agree to: (i) notify the CITY immediately of any event of default by the DEVELOPER thereunder, (ii) notify the CITY immediately of the filing of a mechanic’s lien, (iii) notify the CITY immediately of termination or cancellation of the construction agreement on the Project, and (iv) provide the CITY, upon the CITY’s request, an Estoppel Certificate certifying that the agreement is in full force and effect and the DEVELOPER is not in default thereunder. The DEVELOPER agrees to notify the CITY immediately of termination or cancellation of any such agreement(s), notice of filing of a mechanic’s lien, or breach or default by other party(ies) thereto. 7.4 Damage to Property. To the extent consistent with the requirements of any permitted encumbrance, or as otherwise approved by the CITY, and subject to Article 9 of this Agreement, if any building or improvement constructed on the Property is damaged or destroyed by an insurable cause, the DEVELOPER shall, at its cost and expense, diligently undertake to repair or restore said buildings and improvements consistent with the original Plans and Specifications of the Project. Such work or repair shall begin within ninety (90) days after the insurance proceeds are made available to the DEVELOPER and shall be completed within two (2) years thereafter. All insurance proceeds collected for such damage or destruction shall be applied to the cost of such repairs or restoration and, if such insurance proceeds shall be insufficient for such purpose, the DEVELOPER shall use its best efforts to make up the deficiency. 7.5 Fees, Taxes and Other Levies. The DEVELOPER shall be responsible for payment of all fees, assessments, taxes, charges, and levies imposed by any public authority or utility company with respect to the Property or the Project and shall pay such charges prior to delinquency. However, the DEVELOPER shall not be required to pay and discharge any such charge so long as: (a) the legality thereof is being contested diligently and in good faith and by appropriate proceedings, and (b) if requested by the CITY, the DEVELOPER deposits with the CITY any funds or other forms of assurances that the CITY, in good faith, may determine from time to time are appropriate to protect the CITY from the consequences of the contest being unsuccessful. The DEVELOPER shall have the right to apply for and obtain an abatement and/or exemption of the Project from real property taxes in accordance with all applicable rules and regulations, including Section 214(g) of the California Revenue and Taxation Code. 7.6 Financing. The DEVELOPER shall promptly inform the CITY of any new financing or funding not included in the budget for the Project, and the DEVELOPER shall provide the CITY with copies of all agreements with any and all funding sources for the Project. The DEVELOPER shall require each agreement with any and all funding sources not included in the Budget to contain a provision whereby the party(ies) to the agreement other than the DEVELOPER, if permitted by the party(ies) applicable rules and regulations, agree to notify the CITY immediately of any event of default by the DEVELOPER thereunder. Should the DEVELOPER not comply with all the obligations of this section, the Loan shall become immediately due and payable as provided for in this Agreement. This Section shall survive expiration or termination of this Agreement. 7.7 Identification Signage. Before the start of construction, the DEVELOPER shall 20 place a poster or sign, with a minimum four feet by four feet in size, identifying the City of Fresno Planning and Development Department, Housing and Community Development Division as a Project participant. The sign shall also include the CITY’s Housing logo, as well as the Equal Housing Opportunity logo, as mandated by HUD. The font size shall be a minimum of 4 inches. The poster/sign shall be appropriately placed and shall remain in place throughout the Project construction. 7.8 Inspections. The DEVELOPER shall permit, facilitate, and require its contractors and consultants to permit and facilitate observation and inspection at the Project site by the CITY and other public authorities during reasonable business hours, for the purpose of determining compliance with this Agreement, including without limitation those annual on-site inspections required by the CITY. 7.9 Utilities. The DEVELOPER shall be responsible, at its sole cost and expense, to determine the location of any utilities on the Property and to negotiate with the utility companies for, and to relocate the utilities, if any, as necessary to complete the Project. 7.10 Insurance and Bonds. The DEVELOPER shall submit for CITY approval bonds, certificates and applicable endorsements for all insurance and bonds required by this Agreement in accordance with Article 9. 7.11 Mechanic’s Liens and Stop Notices. If any claim of lien is filed against the Property or a stop notice affecting any financing, SLFRF Program Funds or funding sources for the Project is served on the CITY or any other third party in connection with the Project, the DEVELOPER shall, within 20 days of such filing or service, either pay and fully discharge the lien or stop notice, effect the release of such lien or stop notice by delivering to the CITY a surety bond in sufficient form and amount, or provide the CITY with other assurance satisfactory to the CITY that the claim of lien or stop notice will be paid or discharged. A. If the DEVELOPER fails to discharge, bond or otherwise satisfy the CITY with respect to any lien, encumbrance, charge or claim referred to in Section 7.11 above, then, in addition to any other right or remedy, the CITY may, but shall not be obligated to, discharge such lien, encumbrance, charge, or claim at the DEVELOPER’s expense. Alternatively, the CITY may require the DEVELOPER to immediately deposit with the CITY the amount necessary to satisfy such lien or claim and any costs, pending resolution thereof. The CITY may use such deposit to satisfy any claim or lien that is adversely determined against the DEVELOPER. The DEVELOPER hereby agrees to indemnify and hold the CITY harmless from liability for such liens, encumbrances, charges or claims together with all related costs and expenses. 7.12 Permits and Licenses. The DEVELOPER shall submit, for CITY approval, all the necessary permits and licenses required for Commencement of Construction. As the CITY may reasonably request, the DEVELOPER, at its sole cost and expense, shall provide to the CITY copies of any and all permit approvals and authorizations including plot plan, plat, zoning variances, sewer, building, and other permits required by governmental authorities other than the CITY in pursuit of the Project, and for its stated purposes in accordance with all applicable building, environmental, ecological, landmark, subdivision, zoning codes, laws, and regulations. The DEVELOPER is responsible at its sole cost and expense to determine the location of any utilities on the Property and to negotiate with the utility companies for and to relocate the utilities, if any, as necessary to complete the Project. 21 7.13 Plans and Specifications. The DEVELOPER has submitted to the CITY preliminary plans and specifications for the Project under Sierra and Polk Application number P23-1302 (Project Preliminary Plans). The DEVELOPER will construct the Project in full conformance with the CITY-approved Development Permit and plans and specifications and modifications thereto approved by the CITY. The DEVELOPER shall obtain the CITY’s prior written approval for any modifications to the plans and specifications. A. The SLFRF Agreement shall contain by reference the design and site plan of the Project; such design must be approved by the CITY Council with the SLFRF Agreement. B. Before Commencement of Construction, the DEVELOPER shall submit to the CITY, for its review and approval, the final Plans and Specifications for the Project. The DEVELOPER will construct the Affordable Housing in full conformance with the Plans and Specifications and modifications thereto approved by the CITY. The DEVELOPER shall obtain the CITY’s prior written approval for any modifications to the Plans and Specifications. 7.14 Project Responsibilities/Public Work-Prevailing Wage Requirements. The DEVELOPER shall be solely responsible for all aspects of the DEVELOPER’s conduct in connection with the Project, including but not limited to, compliance with all local, State and federal laws including without limitation, as to prevailing wage and public bidding requirements. The Council of the City of Fresno has adopted Resolution No. 82-297 ascertaining the general prevailing rate of per diem wages and per diem wages for holidays and overtime in the Fresno area for each craft, classification or type of workman needed in the execution of contracts for the CITY. A copy of the resolution is on file at the Office of the City Clerk. Actual wage schedules are available upon request at the City’s Construction Management Office. Without limiting the foregoing, the DEVELOPER shall be solely responsible for the quality and suitability of the work completed and the supervision of all contracted work, qualifications, and financial conditions of and performance of all contracts, subcontractors, consultants, and suppliers. Any review or inspection undertaken by the CITY with reference to the Project and/or payroll monitoring/auditing is solely for the purpose of determining whether the DEVELOPER is properly discharging its obligation to the CITY and shall not be relied upon by the DEVELOPER or by any third parties as a warranty or representation by the CITY as to governmental compliance and/or the quality of work completed for the Project. 7.15 Property Condition. The DEVELOPER shall maintain the Project and all improvements on site in a reasonably good condition and repair (and, as to landscaping, in a healthy condition), all according to the basic design and related plans, as amended from time to time. The DEVELOPER and those taking direction under the DEVELOPER shall: (i) maintain all on-site improvements according to all other applicable law, rules, governmental agencies and bodies having or claiming jurisdiction and all their respective departments, bureaus, and officials; (ii) keep the improvements free from graffiti; (iii) keep the Project Property free from any accumulation of debris or waste material; (iv) promptly make repairs and replacements to on-site improvements; (iv) promptly replace any dead, or diseased plants and/or landscaping (if any) with comparable materials, and (v) enforce tenant lease terms. 7.16 Quality of Work. The DEVELOPER shall ensure that construction of the Project employs building materials of a quality suitable for the requirements of the Project. The 22 DEVELOPER shall cause completion of the construction of the Project on the Property in full conformance with applicable local, State, and federal laws, statutes, regulations, and building and housing codes. 7.17 Relocation. If and to the extent that the construction of the proposed Project results in the permanent or temporary displacement of residential tenants, the DEVELOPER shall comply with all applicable local, State, and federal statutes and regulations with respect to relocation planning, advisory assistance, and payment of monetary benefits. The DEVELOPER shall be solely responsible for payment of any relocation benefits to any displaced persons and any other obligations associated with complying with said relocation laws. 7.18 Reporting Requirements. The DEVELOPER shall submit to the CITY the following Project reports: A. From the date of execution of this Agreement, until issuance of the final Certificate of Completion, the DEVELOPER shall submit a Quarterly Report, in a form approved by the CITY, which will include, at a minimum, the following information: progress of the Project and affirmative marketing efforts. The Quarterly Reports are due 15 days after each March 31st, June 30th, September 30th, and December 31st, during said period. B. Annually, beginning on the first day of the month following the CITY’s issuance of the Certificate of Completion, and continuing until the termination of the Agreement, the DEVELOPER shall submit an Annual Rent Roll Report to the CITY, in a form approved by the CITY. The Annual Report shall include, at a minimum, the following information: occupancy of each Project Unit including the annual income and the household size, the date occupancy commenced, certification from an officer of the DEVELOPER that the Project is in compliance with the Affordability requirements, and such other information the CITY may be required by law to obtain. The DEVELOPER shall provide any additional information reasonably requested by the CITY upon request and at the annual monitoring of the Property. C. Annually, beginning on the first day of the month following the CITY’s issuance of the final Certificate of Completion, evidencing the construction of the Project, and continuing until the expiration of the Agreement, the DEVELOPER shall submit proof of property and liability insurance, as required in Article 9, listing the CITY as loss payee. 7.19 Scheduling and Extension of Time; Unavoidable Delay in Performance. It shall be the responsibility of the DEVELOPER to coordinate and schedule the work to be performed so that the Commencement of the Construction and issuance of the Notice of Completion will take place in accordance with the provisions of the Agreement and Project Schedule. The time for performance contained in the Project Schedule shall be automatically extended upon the following: A. The time for performance of provisions of the Agreement by either party shall be extended for a period equal to the period of any delay directly affecting the Project or this Agreement which is caused by: war, insurrection, strike or other labor disputes, lock-outs, riots, floods, earthquakes, fires, casualties, acts of God, acts of a public enemy, epidemics, quarantine restrictions, freight embargoes, lack of transportation, suits filed by third parties concerning or arising out of this Agreement, 23 or unseasonable weather conditions (force majeure). An extension of time for any of the above specified causes will be granted only if written notice by the party claiming such extension is sent to the other party within 10 calendar days from the date the affected party learns of the commencement of the cause and the resulting delay, and such extension of time is accepted by the other party in writing. In any event, the Project must be completed no later than 180 calendar days after the scheduled completion date specified in this Agreement, notwithstanding any delay caused by that included in this Section. B. Any and all extensions hereunder shall be by mutual agreement between the City and Developer. The City’s Planning Director may administratively extend deadline for up to 180 days cumulatively. Any extension beyond the Director's 180-day cumulative extension shall require City Council approval. 7.20 Certificate of Completion. Upon completion of the construction of the Project, the DEVELOPER shall submit to the CITY: 1) certification in writing that the Project has been substantially constructed in accordance with the plans and specifications, approved by the CITY; 2) a recorded Notice of Completion; 3) a cost-certifying final budget where the DEVELOPER shall identify the actual costs, in line-item format consistent with the Project Budget, of construction of the Project; and 4) a request for a recorded Certification of Completion. Upon a determination by the CITY that the DEVELOPER is in compliance with all of the DEVELOPER’s construction obligations, as specified in this Agreement, the CITY shall furnish, within 30 calendar days of a written request by the DEVELOPER, a recordable Certificate of Completion for the Project in the form attached hereto as EXHIBIT “E”. The CITY will not unreasonably withhold or delay furnishing the Certificate of Completion. If the CITY fails to provide the Certificate of Completion within the specified time, it shall provide the DEVELOPER a written statement indicating in what respects the DEVELOPER has failed to complete the Project in conformance with this Agreement or has otherwise failed to comply with the terms of this Agreement, and what measures the DEVELOPER will need to take or what standards it will need to meet in order to obtain the Certificate of Completion. Upon the DEVELOPER taking the specified measures and meeting the specified standards, the DEVELOPER will certify to the CITY in writing of such compliance and the CITY shall deliver the recordable Certificate of Completion to the DEVELOPER in accordance with the provisions of this Section. ARTICLE 8. OPERATIONS OF THE PROJECT 8.1 Operation of the Project. The DEVELOPER shall lease, operate, and manage the Project in full conformity with the terms of this Agreement. 8.2 Occupancy Requirements. Ninety-Five of the Project Affordable Units shall be rented and occupied by, or if vacant, available for rental occupancy by Extremely Low- Income households, at or below 30% of AMI. The DEVELOPER shall comply with the income targeting requirements of the SLFRF. 8.3 Leasing the SLFRF-Assisted Affordable Units. Before leasing any SLFRF- Assisted Affordable Units, the DEVELOPER shall submit its proposed form of lease agreement for the CITY’s review and approval. The DEVELOPER covenants and agrees to utilize only leases that have been approved in advance by the CITY. The CITY shall respond to the DEVELOPER’s submission of a sample lease agreement within 30 days. Should the CITY not respond within 30 days of the lease agreement submittal, the DEVELOPER shall 24 be authorized to use the submitted sample lease agreement. Additionally, the DEVELOPER agrees not to terminate the tenancy or to refuse to renew or lease with a tenant of the Units assisted with SLFRF Funds except for serious or repeated violations of the terms and conditions of the lease agreement, for violation of applicable federal, State, or local law, or for other good cause. Any such termination or refusal to renew must be preceded by not less than 30 days’ written notice served by the DEVELOPER or its authorized management entity upon the tenant specifying the grounds for such action. The DEVELOPER agrees it shall annually report to the CITY the number of leases that were not renewed or terminated and the reason for such non-renewal or termination. 8.4 Lease of SLFRF-Assisted Affordable Units Provisions. In addition to the SLFRF requirements and the VAWA lease addendum required in accordance with 24 CFR 92.359(e), the leases are subject to the following: A. Each such lease agreement shall also provide that the Household is subject to annual certification, and that, if the Household’s annual income increases above the applicable limits for Extremely Low Income household, such Household’s rent may be subject to increase to the lesser of: 1) the amount payable by tenant under State or local law; or 2) 30% of the Household’s actual adjusted monthly income, except that, tenants of SLFRF-assisted Affordable Units that have also been allocated Low Income Housing Tax Credits by a housing credit agency pursuant to section 42 of the internal Revenue Code of 1986 (26 U.S.C. 42) must meet both program rules. 8.5 Final Management Plan. Before leasing and at least sixty 60 calendar days prior to the construction Completion Date, the DEVELOPER shall submit to the CITY, for review and approval, a plan for marketing and managing the proposed Affordable Units (Final Management Plan). The Final Management Plan shall address in detail how the DEVELOPER or its designated management entity plans to market the availability of the Affordable Units to prospective tenants and how the DEVELOPER plans to certify the eligibility of potential tenants. The Final Management Plan shall also address how the DEVELOPER and/or the management entity plan to manage and maintain the Affordable Units in accordance with SLFRF regulations for Property Standards and shall include appropriate financial information and documentation. The Final Management Plan shall contain detailed descriptions of policies and procedures with respect to tenant selections and evictions. Topics to be covered in these procedures shall include at a minimum the following: • Interviewing procedures for prospective tenants; • Previous rental history of tenants with references; • Credit reports; • Criminal background checks; • Deposit amounts, purpose, use and refund policy; • Employment/Income verification; • Occupancy restrictions; • Income Limits; • Equal Housing Opportunity Statement; • Restrictions on use of the premises; and • Tenant/Landlord dispute resolution procedures. 25 The Final Management Plan shall contain copies of all standardized forms associated with the above listed topics. The Final Management Plan shall include a form lease agreement that the DEVELOPER proposes to enter into with the lower income tenants. The DEVELOPER shall abide by the terms of this Final Management Plan, approved by the CITY, in marketing, managing, and maintaining the SLFRF-Assisted Affordable Units. At least 90 calendar days prior to the Project Completion Date, the DEVELOPER shall also submit any proposed management contract to the CITY for prior review. The CITY shall have the right to review any proposed amendments, other than renewals to the management contract, and any new management contracts during the term of this Agreement. Such management contract(s) shall contain a provision expressing this right. 8.6 Property Management. The DEVELOPER shall comply with the following: A. Management Responsibilities. The DEVELOPER directly and/or through its designated management entity, is specifically responsible for all management functions with respect to the Project including, without limitation, the selection of tenants, certification and re-certification of Household size and income, evictions, collection of Rents and deposits, construction management, affirmative marketing, maintenance, landscaping, routine and extraordinary repairs, replacement of capital items and security. The CITY shall have no responsibility for such management of the Project. 8.7 Maintenance and Security. The DEVELOPER shall (i) at its own expense maintain the Project in good condition, in good repair and in decent, safe, sanitary, habitable, and tenantable living conditions for the benefit of the Affordable Unit occupants. The DEVELOPER shall not commit or permit any waste on or to the Project and shall prevent and/or rectify any physical deterioration of the Project. The DEVELOPER shall maintain the Units in conformance with all applicable federal, State, and local laws, ordinances, codes and regulations, the Final Management Plan, and this Agreement. 8.8 Nondiscrimination. The DEVELOPER shall not illegally discriminate or segregate in the constructed complex, the use, enjoyment, occupancy, or conveyance of any part of the Project or Property on the basis of race, color, ancestry, national origin, religion, sex, marital status, family status, source of income/rental assistance subsidy, physical or mental disability, Acquired Immune Deficiency Syndrome (AIDS) or AIDS-related conditions (ARC), sexual orientation, or any other arbitrary basis. The DEVELOPER shall otherwise comply with all applicable local, State, and federal laws concerning nondiscrimination in housing. Neither the DEVELOPER nor any person claiming under or through the DEVELOPER, shall establish or permit any such practice or practices of illegal discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants or vendees of any Affordable Unit or in connection with employment of persons for the construction of any Affordable Unit. All deeds or contracts made or entered into by the DEVELOPER as to the Affordable Units or the Project or portion thereof, shall contain covenants concerning nondiscrimination consistent with this section. The DEVELOPER shall include a statement in all advertisements, notices, and signs for availability of Affordable Units for rent to the effect that the DEVELOPER is an Equal Housing Opportunity Provider. A. Nothing in this section is intended to require the DEVELOPER to change the character, design, use or operation of the Project; or to require the DEVELOPER 26 to obtain licenses or permits other than those required for the Project. 8.9 Rent Schedule and Utility Allowances. The DEVELOPER covenants and agrees to charge rent to tenants occupying the SLFRF-Assisted Units in an amount which does not exceed those rents prescribed to the Project as they associate with particular rent limit established annually by the Department of the Treasury, consistent with the SLFRF Program requirements applicable to the Affordable Units in the Fresno, California area, and further covenants to provide a monthly allowance to tenants occupying the SLFRF Units as approve by HUD. The DEVELOPER agrees to furnish the CITY with an annual rent roll setting forth the maximum monthly rent and utility allowance for the SLFRF-Assisted Units until the expiration of the Affordability Period. The DEVELOPER shall reexamine the rent, utility allowance, and tenant income for the SLFRF Units at least annually. 8.10 Rental Housing Fees. The DEVELOPER covenants and agrees not to charge fees that are not customarily charged in rental housing such as laundry room access fees, and other fees in accordance with 24 CFR 92.504(c)(3)(xi). ARTICLE 9. INSURANCE AND INDEMNITY AND BONDS Without waiver of limitation, the parties agree as follows regarding the DEVELOPER’S Insurance and Indemnity Obligations: 9.1 Insurance Requirements. (a) Throughout the life of this Agreement, DEVELOPER shall pay for and maintain in full force and effect all insurance as required herein with an insurance company(ies) either (i) admitted by the California Insurance Commissioner to do business in the State of California and rated no less than “A-VII” in the Best’s Insurance Rating Guide, or (ii) as may be authorized in writing by CITY'S Risk Manager or his/her designee at any time and in his/her sole discretion. The required policies of insurance as stated herein shall maintain limits of liability of not less than those amounts stated therein. However, the insurance limits available to CITY, its officers, officials, employees, agents and volunteers as additional insureds, shall be the greater of the minimum limits specified therein or the full limit of any insurance proceeds to the named insured. (b) If at any time during the life of the Agreement or any extension, DEVELOPER or any of its subcontractors fail to maintain any required insurance in full force and effect, all services and work under this Agreement shall be discontinued immediately, and all payments due or that become due to DEVELOPER shall be withheld until notice is received by CITY that the required insurance has been restored to full force and effect and that the premiums therefore have been paid for a period satisfactory to CITY. Any failure to maintain the required insurance shall be sufficient cause for CITY to terminate this Agreement. No action taken by CITY pursuant to this section shall in any way relieve DEVELOPER of its responsibilities under this Agreement. The phrase “fail to maintain any required insurance” shall include, without limitation, notification received by CITY that an insurer has commenced proceedings, or has had proceedings commenced against it, indicating that the insurer is insolvent. (c) The fact that insurance is obtained by DEVELOPER shall not be deemed to release or diminish the liability of DEVELOPER, including, without limitation, liability under the indemnity provisions of this Agreement. The duty to indemnify CITY shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by 27 DEVELOPER. Approval or purchase of any insurance contracts or policies shall in no way relieve from liability nor limit the liability of DEVELOPER, vendors, suppliers, invitees, contractors, sub-contractors, subcontractors, or anyone employed directly or indirectly by any of them. Coverage shall be at least as broad as: (i) COMMERCIAL GENERAL LIABILITY insurance which shall be at least as broad as the most current version of Insurance Services Office (ISO) Commercial General Liability Coverage Form CG 00 01 and include insurance for “bodily injury,” “property damage” and “personal and advertising injury” with coverage for premises and operations (including the use of owned and non-owned equipment), products and completed operations, and contractual liability (including, without limitation, indemnity obligations under the Agreement) with limits of liability not less than the following: $2,000,000 per occurrence for bodily injury and property damage $2,000,000 per occurrence for personal and advertising injury $4,000,000 aggregate for products and completed operations $4,000,000 general aggregate applying separately to the work performed under the Agreement. (ii) COMMERCIAL AUTOMOBILE LIABILITY insurance which shall be at least as broad as the most current version of Insurance Service Office (ISO) Business Auto Coverage Form CA 00 01, and include coverage for all owned, hired, and non- owned automobiles or other licensed vehicles (Code 1- Any Auto) with limits of liability of not less than $1,000,000 per accident for bodily injury and property damage. (iii) Workers’ Compensation insurance as required by the State of California and Employer’s Liability Insurance. (iv) EMPLOYEE LIABILITY insurance with limits of liability of no less than $1,000,000 each accident, $1,000,000 disease policy limit and $1,000,000 diseased each employee (v) BUILDERS RISK (Course of Construction) insurance, obtained by the DEVELOPER or subcontractor in an amount equal to the completed value of the project with no coinsurance penalty provisions. (Only required if the project includes new construction of a building; or renovation of, or addition to, an existing building.) (vi) CONTRACTOR POLLUTION with coverage for bodily injury, property damage or pollution clean-up costs that could result from of pollution condition, both sudden and gradual. Including a discharge of pollutants brought to the work site, a release of pre-existing pollutants at the site, or other pollution conditions with limits of liability of not less than the following: $1,000,000 per occurrence $2,000,000 general aggregate per annual policy period In the event the work involves any lead-based, mold or asbestos environmental hazard, either the Automobile Liability insurance policy or the Pollution Liability insurance policy shall 28 be endorsed to include Transportation Pollution Liability insurance covering materials to be transported by the DEVELOPER pursuant to the SLFRF Agreement. In the event the work involves any lead-based environmental hazard (e.g., lead-based paint), the DEVELOPER’s Pollution Liability insurance policy shall be endorsed to include coverage for lead based environmental hazards. In the event the DEVELOPER involves any asbestos environmental hazard (e.g., asbestos remediation), the DEVELOPER’s Pollution Liability insurance policy shall be endorsed to include coverage for asbestos environmental hazards. In the event the SLFRF Agreement involves any mold environmental hazard (e.g., mold remediation), the Pollution Liability insurance policy shall be endorsed to include coverage for mold environmental hazards and “microbial matter including mold” within the definition of “Pollution” under the policy. UMBRELLA OR EXCESS INSURANCE In the event DEVELOPER purchases an Umbrella or Excess insurance policy(ies) to meet the “Minimum Limits of Insurance,” this insurance policy(ies) shall “follow form” and afford no less coverage than the primary insurance policy(ies). In addition, such Umbrella or Excess insurance policy(ies) shall also apply on a primary and non-contributory basis for the benefit of the CITY, its officers, officials, employees, agents and volunteers. DEDUCTIBLES AND SELF-INSURED RETENTIONS DEVELOPER shall be responsible for payment of any deductibles contained in any insurance policy(ies) required herein and DEVELOPER shall also be responsible for payment of any self-insured retentions. OTHER INSURANCE PROVISIONS/ENDORSEMENTS All policies of insurance required hereunder shall be endorsed to provide that the coverage shall not be cancelled, non-renewed, reduced in coverage or in limits except after thirty (30) calendar day written notice has been given to CITY. Upon issuance by the insurer, broker, or agent of a notice of cancellation, non-renewal, or reduction in coverage or in limits, the DEVELOPER shall furnish the CITY with a new certificate and applicable endorsements for such policy(ies). In the event any policy is due to expire during the work to be performed for the CITY, the DEVELOPER shall provide a new certificate, and applicable endorsements, evidencing renewal of such policy not less than fifteen (15) calendar days prior to the expiration date of the expiring policy. The General Liability, Pollution and Automobile Liability insurance policies shall be written on an occurrence form. The General Liability, Automobile Liability and Pollution Liability insurance policies shall name the CITY, its officers, officials, agents, employees and volunteers as an additional insured for ongoing and completed operations. All such policies of insurance shall be endorsed so the DEVELOPER’s insurance shall be primary and no contribution shall be required by the CITY. The coverage shall contain no special limitations on the scope of protection afforded to the CITY, its officers, officials, employees, agents, and volunteers. If the DEVELOPER maintains higher limits of liability than the minimums shown above, the CITY requires and shall be entitled to coverage for the higher limits of liability maintained by the DEVELOPER. 29 The Builders Risk (Course of Construction) insurance policy shall be endorsed to name the CITY as loss payee. All insurance policies required including the Workers’ Compensation insurance policy shall contain a waiver of subrogation as to the City, its officers, officials, agents, employees, and volunteers. The DEVELOPER shall furnish the CITY with all certificate(s) and applicable endorsements effecting coverage required hereunder. All certificates and applicable endorsements are to be received and approved by the CITY’s Risk Manager or his/her designee before work commences. Upon request of the CITY, the DEVELOPER shall immediately furnish the CITY with a complete copy of any insurance policy required under this Agreement, including all endorsements, with said copy certified by the underwriter to be a true and correct copy of the original policy. This requirement shall survive expiration or termination of this Agreement. In the event of a partial or total destruction by the perils insured against of any or all of the work and/or materials herein provided for at any time prior to the final completion of the Agreement and the final acceptance by the CITY of the work or materials to be performed or supplied thereunder, the DEVELOPER shall promptly reconstruct, repair, replace, or restore all work or materials so destroyed or injured at his/her sole cost and expense. Nothing herein provided for shall in any way excuse the DEVELOPER or his/her insurance company from the obligation of furnishing all the required materials and completing the work in full compliance with the terms of this Agreement. SUBCONTRACTORS If DEVELOPER subcontracts any or all of the services to be performed under this Agreement, DEVELOPER shall require, at the discretion of the CITY Risk Manager or designee, subcontractor(s) to enter into a separate Side Agreement with the City to provide required indemnification and insurance protection. Any required Side Agreement(s) and associated insurance documents for the subcontractor must be reviewed and preapproved by CITY Risk Manager or designee. If no Side Agreement is required, DEVELOPER will be solely responsible for ensuring that its subcontractors maintain insurance coverage at levels no less than those required by applicable law and is customary in the relevant industry. 9.2 Indemnification. To the furthest extent allowed by law, DEVELOPER shall indemnify, hold harmless and defend the CITY and each of its officers, officials, employees, agents and volunteers from any and all loss, liability, fines, penalties, forfeitures, costs and damages (whether in contract, tort or strict liability, including but not limited to personal injury, death at any time and property damage) incurred by the CITY, the DEVELOPER or any other person, and from any and all claims, demands and actions in law or equity (including attorney's fees, litigation expenses and cost to enforce this agreement), arising or alleged to have arisen directly or indirectly out of performance of this Agreement. The DEVELOPER’s obligations under the preceding sentence shall apply regardless of whether CITY or any of its officers, officials, employees, agents or volunteers are passively negligent, but shall not apply to any loss, liability, fines, penalties, forfeitures, costs or damages caused by the active negligence or by the willful misconduct of the CITY or any of its officers, officials, employees, agents or volunteers. If DEVELOPER should subcontract all or any portion of the work to be performed under this Contract, DEVELOPER shall require each subcontractor to indemnify, hold harmless and defend CITY and each of its officers, officials, employees, agents and volunteers in 30 accordance with the terms of the preceding paragraph. This section shall survive termination or expiration of this Contract. 9.3 Property Insurance. The DEVELOPER shall maintain in full force and effect, throughout the remaining life of this Agreement, a policy or policies of property insurance acceptable to the CITY, covering the Project premises, with limits reflective of the value of the Project premises upon issuance of the Certificate of Completion or substantial completion of the project referenced in this agreement, including fire and Extended Comprehensive Exposure (ECE) coverage in an amount, form, substance, and quality as acceptable to the CITY’s Risk Manager. The CITY shall be added by endorsement as a loss payee thereon. 9.4 Bond Obligations. The DEVELOPER or its General Contractor shall obtain, pay for and deliver good and sufficient payment and performance bonds along with a Primary Obligee, Co-Obligee or Multiple Obligee Rider in a form acceptable to the CITY from a corporate surety, admitted by the California Insurance Commissioner to do business in the State of California and Treasury-listed, in a form satisfactory to the CITY and naming the CITY as Obligee. A. The “Faithful Performance Bond” shall be at least equal to 100% of the total amount of the Loan as reflected in the DEVELOPER’s pro forma budget, attached hereto as EXHIBIT “C”, to the guarantee faithful performance of the Project, within the time prescribed, in a manner satisfactory to the CITY, consistent with this Agreement, and that all material and workmanship will be free from original or developed defects. B. The “Payment Bond” shall be at least equal to 100% of the total amount of the Loan to satisfy claims of material supplies and of mechanics and laborers employed for this Project. The bond shall be maintained by the DEVELOPER in full force and effect until the Project is completed and until all claims for materials and labor are paid and as required by the applicable provisions of Chapter 7, Title 15, Part 4, Division 3 of the California Civil Code. ARTICLE 10. DEFAULT AND REMEDIES 10.1 Events of Default. The parties agree that each of the following shall constitute an "Event of Default" by the DEVELOPER for purposes of this Agreement after the cure period in Section 10.2 has expired without a cure: A. The DEVELOPER’s use of SLFRF Funds for costs other than Eligible Costs or for uses not permitted by the terms of this Agreement; except that there shall be no Event of Default if the DEVELOPER’s use of the SLFRF were for costs that were Eligible Costs at the time they were incurred but subsequently lose eligibility; B. The DEVELOPER’s Failure to obtain and maintain the insurance coverage required under this Agreement; C. Except as otherwise provided in this Agreement, the failure of the DEVELOPER to punctually and properly perform any other covenant or agreement contained in this Agreement including without limitation the following: (1) the DEVELOPER’s material deviation in the Project work specified in the Project Description as identified in this Agreement, without the CITY’s prior written consent; (2) the DEVELOPER’s use of defective or unauthorized materials or defective workmanship in pursuit of the Project; (3) the DEVELOPER’s failure to commence or 31 complete the Project, as specified in this Agreement, unless delay is permitted under Section 7.19 of this Agreement; (4) cessation of the Project for a period of more than fifteen (15) consecutive days (other than as provided at Section 7.19 of this Agreement) prior to submitting to the CITY certification that the Project is complete; (5) any material adverse change in the condition of the DEVELOPER or its development team, or the Project that gives the CITY reasonable cause to believe that the Project cannot be completed by the scheduled completion date according to the terms of this Agreement; (6) the DEVELOPER’s failure to remedy any deficiencies in record keeping or failure to provide records to the CITY upon the CITY’s request; or (7) the DEVELOPER’s failure to comply with any federal, State or local laws or applicable CITY restrictions governing the Project, including but not limited to provisions of this Agreement pertaining to equal employment opportunity, nondiscrimination and lead-based paint; D. Any representation, warranty, or certificate given or furnished by or on behalf of the DEVELOPER shall prove to be materially false as of the date of which the representation, warranty, or certification was given, or that the DEVELOPER concealed or failed to disclose a material fact to the CITY, provided, however, that if any representation, warranty, or certification that proves to be materially false is due merely to the DEVELOPER’s inadvertence, the DEVELOPER shall have a 30 day opportunity after written notice thereof to cause such representation, warranty, or certification to be true and complete in every respect; E. The DEVELOPER shall file, or have filed against it, a petition of bankruptcy, insolvency, or similar law, State or federal, or shall file any petition or answer seeking, consenting to, or acquiescing in any reorganization, arrangement, composition, readjustment, liquidation, dissolution, or similar relief, and such petition shall not have been vacated within 90 days; or shall be adjudicated bankrupt or insolvent, under any present or future statute, law, regulation, under State or federal law, and such judgment or decree is not vacated or set aside within 90 days; F. The DEVELOPER’s failure, inability or admission in writing of its inability to pay its debts as they become due or the DEVELOPER assignment for the benefit of creditors; G. A receiver, trustee, or liquidator shall be appointed for the DEVELOPER or any substantial part of the DEVELOPER’s assets or properties, and not be removed within (10) days; H. The DEVELOPER’s breach of any other material condition, covenant, warranty, promise or representation contained in this Agreement not otherwise identified within this Section. I. Any substantial or continuous breach by the DEVELOPER of any material obligation owned by the DEVELOPER imposed by any other agreement with respect to the financing, of the Project, whether or not the CITY is a party to such agreement after expiration of all notice and cure periods contained within such document. 10.2 Notice of Default and Opportunity to Cure. The CITY shall give written notice to the DEVELOPER of any Event of Default by specifying: (1) the nature of the event or deficiency giving rise to the default; (2) the action required to cure the deficiency, if any action 32 to cure is possible, and (3) a date, which shall not be less than the lesser of any time period provided in this Agreement, any time period provided for in the notice no less than 10 days, or 30 calendar days from the date of the notice, by which such deficiency must be cured, provided that if the specified deficiency or default cannot reasonably be cured within the specified time, with the CITY’s written consent, the DEVELOPER shall have an additional reasonable period to cure so long as it commences cure within the specified time and thereafter diligently pursues the cure in good faith. The CITY acknowledges and agrees that the DEVELOPER shall have the right to cure any defaults hereunder and that notice and cure rights hereunder shall extend to any and all partners of the DEVELOPER that are previously identified in writing delivered to the CITY in the manner provided in this Agreement. 10.3 Remedies Upon an Event of Default. Upon the happening of an Event of Default and a failure to cure said Event of Default within the time specified, the CITY’s obligation to disburse SLFRF shall terminate. The CITY may also at its option and without notice institute any action, suit, or other proceeding in law, in equity or otherwise, which it shall deem necessary or proper for the protection of its interests and may without limitation proceed with any or all of the following remedies in any order or combination that the CITY may choose in its sole discretion: A. Terminate this Agreement immediately upon written notice; B. Bring an action in equitable relief: (1) seeking specific performance of the terms and conditions of this Agreement, and/or (2) enjoining, abating or preventing any violation of said terms and conditions, and/or (3) seeking declaratory relief; C. Pursue any other remedy allowed by law or in equity or under this Agreement; and ARTICLE 11. GENERAL PROVISIONS Without waiver of limitation, the parties agree that the following general provisions shall apply in the performance hereof: 11.1 Amendments. No modification or amendment of any provision of this Agreement shall be effective unless made in writing and signed by the parties hereto. The CITY recognizes that other Project funders and equity investors may require revisions to the Loan Documents to be consistent with their funding and investing requirements. The CITY agrees to reasonably consider and negotiate as to any reasonable amendments to this Agreement to address such requirements, subject to approval as to form by the City Attorney’s Office. 11.2 Attorney's Fees. If either party is required to commence any proceeding or legal action to enforce or interpret any term, covenant or condition of this Agreement, the prevailing party will be entitled to recover from the other party its reasonable attorney's fees and legal expenses. 11.3 Binding on All Successors and Assigns. Unless otherwise expressly provided in this Agreement, all the terms and provisions of this Agreement shall be binding on and inure to the benefit of the parties hereto, and their respective heirs, successors, assigns, and legal representatives. 11.4 Counterparts. This Agreement may be executed in counterparts, each of which when executed and delivered will be deemed an original, and all of which together will 33 constitute one instrument. The execution of this Agreement by any party hereto will not become effective until counterparts hereof have been executed by all parties hereto. 11.5 Disclaimer of Relationship. Nothing contained in this Agreement, nor any act of the CITY or of the DEVELOPER, or of any other person, shall in and by itself be deemed or construed by any person to create any relationship of third-party beneficiary, or of principal and agent, of limited or general partnership, or of joint venture. 11.6 Discretionary Governmental Actions. Certain planning, land use, zoning and other permits and public actions required in connection with the Project including, without limitation, the approval of this Agreement, the environmental review and analysis under NEPA or any other statute, and other transactions contemplated by this Agreement are discretionary government actions. Nothing in this Agreement obligates the CITY or any other governmental entity to grant final approval of any matter described herein. Such actions are legislative, quasi-judicial, or otherwise discretionary in nature. The CITY cannot take action with respect to such matters before completing the environmental assessment of the Project under NEPA and any other applicable statutes. The CITY cannot and does not commit in advance that it will give final approval to any matter. The CITY shall not be liable, in contract, law or equity, to the DEVELOPER or any of its executors, administrators, transferees, successors-in-interest or assigns for any failure of any governmental entity to grant approval on any matter subject to discretionary approval. 11.7 Effective Date. This Agreement shall be effective upon the date first above written, upon the CITY and the DEVELOPER’s complete execution following City Council approval and recordation of related documents. 11.8 Entire Agreement. This Agreement represents the entire and integrated agreement of the parties with respect to the subject matter hereof. This Agreement supersedes all prior negotiations, representations or agreements, either written or oral. 11.9 Exhibits. Each exhibit and attachment referenced in this Agreement is, by the reference, incorporated into and made a part of this Agreement. 11.10 Expenses Incurred Upon Event of Default. The DEVELOPER shall reimburse the CITY for all reasonable expenses and costs of collection and enforcement, including reasonable attorney's fees, incurred by the CITY as a result of one or more Events of Default by the DEVELOPER under this Agreement. 11.11 Governing Law and Venue. Except to the extent preempted by applicable federal law, the laws of the State of California shall govern all aspects of this Agreement, including execution, interpretation, performance, and enforcement. Venue for filing any action to enforce or interpret this Agreement will be Fresno, California. 11.12 Headings. The headings of the articles, sections, and paragraphs used in this Agreement are for convenience only and shall not be read or construed to affect the meaning or construction of any provision. 11.13 Interpretation. This Agreement in its final form is the result of the combined efforts of the parties. Any ambiguity will not be construed in favor or against any party, but rather by construing the terms in accordance with their generally accepted meaning. 11.14 No Assignment or Succession. The DEVELOPER shall not sell, transfer, assign or otherwise dispose of all or a material part of any interest it might hold in the Property without the prior written consent of the CITY, which consent shall not be unreasonably 34 withheld or delayed. Notwithstanding the foregoing, upon prior written notice to the CITY, the DEVELOPER shall be permitted to assign its rights and obligation under this Agreement with respect to the Project without the CITY’s consent. 11.15 No Third-Party Beneficiary. No contractor, subcontractor, mechanic, materialman, laborer, vendor, or other person hired or retained by the DEVELOPER shall be, nor shall any of them be deemed to be, third-party beneficiaries of this Agreement, but each such person shall be deemed to have agreed: (a) that they shall look to the DEVELOPER as their sole source of recovery if not paid, and (b) except as otherwise agreed to by the CITY and any such person in writing, they may not enter any claim or bring any such action against the CITY under any circumstances. Except as provided by law, or as otherwise agreed to in writing between the CITY and such person, each such person shall be deemed to have waived in writing all right to seek redress from the CITY under any circumstances whatsoever. 11.16 No Waiver. Neither failure nor delay on the part of the CITY in exercising any right under this Agreement shall operate as a waiver of such right, nor shall any single or partial exercise of any such right preclude any further exercise thereof or the exercise of any other right. No waiver of any provision of this Agreement or consent to any departure by the DEVELOPER therefrom shall be effective unless the same shall be in writing, signed on behalf of the CITY by a duly authorized officer thereof, and the same shall be effective only in the specific instance for which it is given. No notice to or demand on the DEVELOPER in any case shall entitle the DEVELOPER to any other or further notices or demands in similar or other circumstances or constitute a waiver of any of the CITY's right to take other or further action in any circumstances without notice or demand. 11.17 Nonreliance. The DEVELOPER hereby acknowledges having obtained such independent legal or other advice as it has deemed necessary and declares that in no manner has it relied on the CITY, its agents, employees, or attorneys in entering into this Agreement. 11.18 Notice. Any notice to be given to either party under the terms of this Agreement shall be given by certified United States mail, postage prepaid, return receipt requested, at the addresses specified below, or at such other addresses as may be specified in writing by the parties. If to the CITY: City of Fresno Planning and Development Department Housing and Community Development Division 2600 Fresno Street, Room 3065 Fresno, CA 93721-3605 If to DEVELOPER: Valley Teen Ranch Attn: Chief Executive Officer 2610 W Shaw Lane, Suite 105 Fresno, CA 93711 11.19 Precedence of Documents. In the event of any conflict between the body of this Agreement and any exhibit or attachment hereto, the terms and conditions of the body of this Agreement will control. 35 11.20 Recording of Documents. The DEVELOPER agrees to cooperate with the CITY and execute any documents required, promptly upon the CITY’s request, and to promptly effectuate the recordation of this Agreement, the Declaration of Restrictions, the Deed of Trust, and any other documents/instruments that the CITY requires to be recorded, in the Official Records of Fresno County, California, consistent with this Agreement. 11.21 Remedies Cumulative. All powers and remedies given by this Agreement shall be cumulative and in addition to those otherwise provided by law. 11.22 Severability. The invalidity, illegality, or un-enforceability of any one or more of the provisions of this Agreement shall not affect the validity, legality, or enforceability of the remaining provisions hereof or thereof. [SIGNATURE PAGE TO FOLLOW] EXHIBIT “A” LEGAL DESCRIPTION EXHIBIT “B” PROJECT DESCRIPTION, INCOME LEVELS, SCHEDULE I. PROJECT DESCRIPTION The Welcome Home Project consists of developing 96 units of Permanent Housing for persons experiencing homelessness or at risk of homelessness. The target populations will be Homeless Youth and Youth at Risk of Homelessness and General Homeless. 60 units will be set aside for Homeless Youth or Youth at Risk of Homelessness, 35 units for the general homeless, and 1 on-site manager unit. All units will be one-bedroom units. The project will be an acquisition of modular housing that will be set on a permanent foundation on a lot owned by Valley Teen Ranch at 6507 N Polk Avenue, Fresno CA 93722. SLFRF Funds will be made available by the CITY for payment of SLFRF eligible acquisition, pre-development, and construction costs not to exceed Two Million Eight Hundred Thousand dollars and 00/100 ($2,800,000.00). II. PROJECT SCHEDULE A. Capital Funds Expenditure Deadline: May 26, 2024 B. Completion of Construction: September 26, 2024 C. Occupancy Deadline: December 26, 2024 II. INCOME LEVEL In order to qualify for housing, all tenants will be required to meet or be below 30% AMI to be eligible for housing. While they will not lose their housing if they start making more income, once they move out, the new tenant will be at or below 30% AMI for Fresno. EXHIBIT “C” PROJECT BUDGET SLFRF/ARPA funds ($2,800,000) • Upon full execution of this SLFRF agreement, $2,030,000 will be paid to the modular manufacturer (Factory OS) to be used as a deposit on the modular construction and design and engineering. • The remaining funds ($770,000) will be paid directly to VTR. Of these funds, $413,840 will cover expenditures incurred to date. $356,160 will be used as working capital. VTR shall submit backup documentation for all funds received, as agreed upon with the City. EXHIBIT “D” EXEMPLAR DECLARATION OF RESTRICTIONS Recorded at the Request of and When Recorded Return to: City of Fresno Planning and Development Dept. Housing and Community Development Division 2600 Fresno Street, Room 3065 Fresno, CA 93721-3605 (SPACE ABOVE THIS LINE FOR RECORDER’S USE ONLY) The document is exempt from the payment of a recording fee in accordance with Government Code Sections 6103 and 27383. APN: 506-130-04s DECLARATION OF RESTRICTIONS THIS DECLARATION OF RESTRICTIONS (Declaration) is executed as of this _____ day of October, 2023, by Valley Teen Ranch, a California nonprofit public benefit corporation (DECLARANT), in favor of the CITY OF FRESNO, a California municipal corporation (CITY). WHEREAS, the DECLARANT is the owner of the real estate in the City of Fresno, County of Fresno, California, located at 6507 North Polk Avenue, Fresno, CA 93722 particularly described in EXHIBIT “A” – Property Description, attached hereto and made a part hereof, including the improvements thereon (Property); and WHEREAS, pursuant to a certain City of Fresno State and Local Fiscal Recovery Funds (“SLFRF”) Agreement dated October __, 2023, incorporated herein by reference (“SLFRF Agreement”) and instruments referenced therein, the DECLARANT agrees to utilize, and the CITY agrees to provide, certain SLFRF from the United States Department of the Treasury, to the DECLARANT and the DECLARANT agrees to develop 95 rental housing units, of which 60 will be reserved for youth and 35 units for the general homeless. WHEREAS, the SLFRF regulations promulgated by the Department of the Treasury, impose certain affordability requirements upon property owned by the DECLARANT, which affordability restrictions shall be enforceable for a 55-year period; and WHEREAS, these restrictions are intended to bind the DECLARANT, and all purchasers of the Property and their successors. NOW THEREFORE, the DECLARANT declares that the Property is held and will be held, transferred, encumbered, used, sold, conveyed and occupied subject to the covenants, restrictions, and limitations set forth in this Declaration, all of which are declared and agreed to be in furtherance of the Project. All of the restrictions, covenants and limitations will run with the land and will be binding on all parties having or acquiring any right, title or interest in the Property or any part thereof, will inure to the benefit of the CITY, and will be enforceable by it. Any purchaser under a contract of sale covering any right, title or interest in any part of the Property, by accepting a deed or a contract of sale or agreement of purchase, accepts the document subject to, and agrees to be bound by, any and all restrictions, covenant, and limitations set forth in this Declaration commencing on the date the DECLARANT is notified by the CITY that the Affordable Unit Household information has been obtained and verified, constituting the commencement of the 55-year Affordability Period. 1. Declarations. The DECLARANT hereby declares that the Property is and shall be subject to the covenants and restrictions hereinafter set forth, all of which are declared to be in furtherance of the Project and the SLFRF Agreement, and are established and agreed upon for the purpose of enhancing and protecting the value of the Property and in consideration of the CITY entering into the SLFRF Agreement with the DECLARANT. 2. Restrictions. The following covenants and restrictions on the use and enjoyment of the Property shall be in addition to any other covenants and restrictions affecting the Property, and all such covenants and restrictions are for the benefit and protection of the CITY and shall run with the Property and be binding on any future owners of the Property and inure to the benefit of and be enforceable by CITY. These covenants and restrictions are as follows: a. The DECLARANT for itself and its successor(s) on title covenants and agrees that from the date the Project is determined by the City to be complete, until the expiration of the Affordability Period, it shall cause 95 affordable housing units to be used as rental affordable housing to low income households (at or below 30% AMI). The DECLARANT further agrees to file a recordable document setting forth the Project Completion Date when determined by the CITY. Unless otherwise provided in the Agreement, the term Affordable Housing shall include, without limitation, compliance with the following requirements: i. Nondiscrimination. There shall be no discrimination against nor segregation of any persons or group of persons on account of race, color, creed, religion, sex, marital status, national origin, ancestry, or handicap in the sale, transfer, use, occupancy, tenure, or enjoyment of any of the Property, nor shall the DECLARANT establish or permit any practice of discrimination or segregation with reference to the selection, location, number, use or occupancy of owners or vendees of the Project and/or Property. ii. Principal Residence. The Housing Units constituting the Affordable Units upon the Project Property shall be leased only to eligible natural persons, who shall occupy the Affordable housing units as the tenants’ principal place of residence. The forgoing requirement that the tenant of unit occupy the unit as their principal residence does not apply to (i) persons, other than natural persons, who acquire the Project Property or portion thereof by foreclosure or deed in lieu of foreclosure; or qualified entities that acquire the Property or portion thereof with the consent of the CITY. iii. Household Income Requirements. In order to qualify for housing, all tenants will be required to meet or be below 30% AMI to be eligible for housing. While they will not lose their housing if they start making more income, once they move out, the new tenant will be at or below 30% AMI for Fresno. Item (a) above is hereinafter referred to as the Covenant and Restriction. 3. Enforcement of Restrictions. Without waiver or limitation, the CITY shall be entitled to injunctive or other equitable relief against any violation or attempted violation of any Covenant and Restriction. 4. Acceptance and Ratification. All present and future owners of the Property and other persons claiming by, through, or under them shall be subject to and shall comply with the Covenant and Restriction. The acceptance of a deed of conveyance to the Property shall constitute an agreement that the Covenant and Restriction, as may be amended or supplemented from time to time, are accepted and ratified by future owners, tenant or occupant, and such Covenant and Restriction shall be a covenant running with the land and shall bind any person having at any time any interest or estate in the Property, all as though such Covenant and Restriction was recited and stipulated at length in each and every deed, conveyance, mortgage or lease thereof. Notwithstanding the foregoing, upon foreclosure by a lender or other transfer in lieu of foreclosure, or assignment of an FHA-insured mortgage to HUD, the Affordability Period shall be terminated unless the foreclosure or other transfer in lieu of foreclosure or assignment recognizes any contractual or legal rights of public agencies, nonprofit sponsors, or others to take actions that would avoid the termination of affordability. However, the requirements with respect to an Affordable Unit shall be revived according to their original terms, if during the original Affordability Period, the owner of record before the foreclosure or other transfer, or any entity that includes the former owner of those with whom the former owner has or had formally, family or business ties, obtains an ownership interest in the Project or the Property, the Affordability Period shall be revived according to its original terms. 5. Benefit. This Declaration shall run with and bind the Property for a term of 55 years from the date of recordation of the Notice of Completion. The failure or delay at any time of CITY and/or any other person entitled to enforce this Declaration shall in no event be deemed a waiver of the same, or of the right to enforce the same at any time or from time to time thereafter, or an estoppel against the enforcement thereof. 6. Costs and Attorney’s Fees. In any proceeding arising because of failure of the DECLARANT or any future owner of the Property to comply with the Covenant and Restriction required by this Declaration, as may be amended from time to time, the CITY shall be entitled to recover its respective costs and reasonable attorney’s fees incurred in connection with such default or failure. 7. Waiver. Neither the DECLARANT nor any future owner of the Property may exempt itself from liability for failure to comply with the Covenant and Restriction required in this Declaration; provided however, that upon the transfer of the Property, the transferring owner may be released from liability hereunder, upon the CITY’s written consent of such transfer, which consent shall not be unreasonably withheld, conditioned or delayed. 8. Severability. The invalidity of the Covenant and Restriction or any other covenant, restriction, condition, limitation, or other provision of this Declaration shall not impair or affect in any manner the validity, enforceability, or effect of the rest of this Declaration and each shall be enforceable to the greatest extent permitted by law. 9. Pronouns. Any reference to the masculine, feminine, or neuter gender herein shall, unless the context clearly requires the contrary, be deemed to refer to and include all genders. Words in the singular shall include and refer to the plural, and vice versa, as appropriate. 10. Interpretation. The captions and titles of the various articles, sections, subsections, paragraphs, and subparagraphs of this Declaration are inserted herein for ease and convenience of reference only and shall not be used as an aid in interpreting or construing this Declaration or any provision hereof. 11. Amendment. No amendment or modification of this Declaration shall be permitted without the prior written consent of the CITY and the DECLARANT. 12. Recordation. The DECLARANT acknowledges that this Declaration will be filed of record in the Office of the Recorder of County of Fresno, State of California. 13. Capitalized Terms. All capitalized terms used in this Declaration, unless otherwise defined herein, shall have the meanings assigned to such terms in the SLFRF Agreement. 14. Headings. The headings of the articles, sections, and paragraphs used in this Declaration are for convenience only and shall not be read or construed to affect the meaning or construction of any provision. // EXHIBIT “E” CERTIFICATE OF COMPLETION Recorded at the Request of and When Recorded Return to: City of Fresno Planning and Development Department Housing and Community Development Division 2600 Fresno Street, Room 3065 Fresno, CA 93721-3605 (SPACE ABOVE THIS LINE FOR RECORDER’S USE ONLY) This Certificate of Completion is recorded at the request and for the benefit of the City of Fresno and is exempt from the payment of a recording fee pursuant to Government Code Section 6103. APN: 506-130-04s City of Fresno By: Planning and Development Department Date: Certificate of Completion APN: 506-130-04s Recitals: A. By a State and Local Fiscal Recovery Funds (SLFRF) Agreement dated ______, 2023, (SLFRF Agreement) between the City of Fresno, a municipal corporation (CITY), and Valley Teen Ranch, LP, a nonprofit public benefit corporation partnership (DEVELOPER), the DEVELOPER agreed to develop three 2-story residential buildings, providing a total of 96 one-bedroom apartment units, of which 60 units will be reserved for youth, 35 for general homeless individuals, and 1 is to be reserved for an on-site manager, and related on-site and off-site improvements upon the Property described in EXHIBIT “A” attached to the SLFRF Agreement, and made part hereof by this reference (the “Property”), with assistance of SLFRF while meeting the affordable housing, income targeting and other requirements of the SLFRF and according to the terms and conditions of the SLFRF Agreement and Loan Documents and other documents/instruments referenced therein. B. The SLFRF Agreement was recorded on , as Instrument No. in the Official Records of Fresno County, California. C. Under the terms of the SLFRF Agreement, after the DEVELOPER completes the Project, the DEVELOPER may ask the CITY to record a Certificate of Completion. D. The DEVELOPER has asked the CITY to furnish the DEVELOPER with a recordable Certificate of Completion. E. The CITY’s issuance of this Certificate of Completion is conclusive evidence that the DEVELOPER has completed the Project as set forth in the SLFRF Agreement. NOW THEREFORE: 1. The CITY certifies that the DEVELOPER commenced construction of the Project on _______, 20XX and completed construction of the Project on _________ 20XX, and has done so in full compliance with the SLFRF Agreement. 2. This Certificate of Completion is not evidence of the DEVELOPER’s compliance with, or satisfaction of, any obligation to any mortgage or security interest holder, or any mortgage or security interest insurer, securing money lent to finance work on the Property or Project, or any part of the Property or Project. 3. This Certificate of Completion is not a notice of completion as referred to in California Civil Code Section 3093. 4. Nothing contained herein modifies any provision of the SLFRF Agreement. // EXHIBIT “F” - PROMISSORY NOTE DO NOT DESTROY THIS NOTE: When paid, this note, must be surrendered to Borrower for Cancellation. _______________________________________________________________________________ PROMISSORY NOTE Secured by Deed of Trust Loan Amount: $2,800,000 Date: ________________ Fresno, California For value received, the undersigned, Valley Teen Ranch, a California nonprofit public benefit corporation (BORROWER), promises to pay to the order of the City of Fresno, a California municipal corporation, (Lender), the sum of $2,800,000 dollars and 00/100 ($2,800,000.00), to the extent that such funds are loaned to the BORROWER, with interest on the unpaid principal balance running from the date of disbursement with simple interest at the rate of 3% annually in accordance with the State and Local Fiscal Recovery Funds (SLFRF) Agreement dated __________, 2023, entered into between the Lender and the BORROWER, (Agreement), with the balance of principal and interest due and payable on or before the earlier of (i) the BORROWER’s uncured default under the Agreement with respect to the Project, or (ii) 55-years from the date of this Note (Maturity Date), on which date the unpaid balance of principal with unpaid interest thereon shall be due and payable, along with attorney’s fees and costs of collection, and without relief from valuation and appraisement laws. This is a Residual Receipts Note. Principal and interest payments equal to 20% of annual 100% of Residual Receipts, to the extent that Residual Receipts exist and are itemized in audited financial statements supplied to Lender with each payment hereunder, shall be due 180 days following the end of the year in which the Project is completed, and said payment continues each successive year thereafter until the Maturity Date, upon which all principal and interest shall be due and payable (prorated amounts to be paid for the first and last year of the Note). Any failure to make a payment required hereunder within 10 days after such payments are due shall constitute a default under the Agreement with respect to the Project and this Note. It shall not be a default hereunder if no payment was made because the Project Residual Receipts did not exist for any particular year. Additionally, any failure to timely submit to Lender annual audited financial statements with the management notes and residual receipts calculation within 30 days after such financial statements are due shall constitute a default under the Agreement with respect to the Project and Note. Residual Receipts means in each operating year 100% of the sum of: (i) all cash received by the Project from rents, lease payments, and all sources generally considered in the apartment industry to be “other income” (which does not include payments for optional services provided by BORROWER), (ii) payments from HUD under a Housing Assistance Program Section 8 Contract, if any, excluding tenant security or other deposits required by law to be segregated and restricted, and interest on reserves not available for distribution, and the net proceeds of any insurance (including rental interruption insurance), other than fire and extended coverage and title insurance, to the extent not reinvested, less the sum of: (i) all payments on account of any loans (including unpaid principal and accrued reasonable interest) made for the benefit of the Project by the BORROWER, (ii) contributions to any prudent and reasonable cash reserves for working capital, operating expenses, capital expenditures, repairs, replacements and anticipated expenditures, in such amounts as may be reasonably required by the lenders to the Project for the operation of the Project not to exceed the amount required by the Project’s permanent lender, annually adjusted in proportion to the average increase of the following indices (a) the United States Bureau of Labor Statistics for Hourly Wage Rates of all workers in manufacturing, and (b) of all Commodity Wholesale Prices, said indices shall be re-defined to the mutual satisfaction of the parties in the event of change in form and basis of indices, all increases shall use the indices for calendar year 2010 as their base; and (iii) the payment of principal and interest, and any associated fees, expenses, and costs, with respect to the senior Financing. Operating Expenses means actual, reasonable and customary (for comparable quality, newly constructed rental housing developments in Fresno County) costs, fees and expenses directly incurred, paid, and attributable to the operation, maintenance and management of the Affordable Project in a calendar year, including, without limitation: painting, cleaning, repairs, alterations, landscaping, utilities, refuse removal, certificates, permits and licenses, sewer charges, real and personal property taxes, assessments, insurance, security, advertising and promotion, janitorial services, cleaning and building supplies, purchase, repair, servicing and installation of appliances, equipment, fixtures and furnishings which are not paid from the capital replacement reserve, fees and expenses of property management and common area expenses, fees and expenses of accountants, attorneys and other professionals, the cost of social services, repayment of any completion or operating loans including any and all deferred fees per the Budget, made to the BORROWER, its successors or assigns, Asset Management Fee, GP Asset Management Fee, and other actual operating costs and capital costs which are incurred and paid by the BORROWER, but which are not eligible for payment from reserve accounts. All capitalized terms used in this Note, unless otherwise defined, will have the respective meanings specified in the Agreement. In addition, as used in this Note, the following terms will have the following meanings: Business Day means any day other than Saturday, Sunday, or public holiday or the equivalent for banks generally under the laws of California. Whenever any payment to be made under this Note is stated to be due on a day other than a Business Day, that payment may be made on the next succeeding Business Day. Note Maturity Date means 55-years from the Note date. This Note, and any extensions or renewals hereof, is secured by a Deed of Trust and Assignment of Rents, on real estate in Fresno County, California, that provides for acceleration upon stated events, dated as of the same date as this Note, and executed in favor of and delivered to the Lender (Deed of Trust), insured as a 5th position lien on the Property. Time is of the essence. It will be a default under this Note if the BORROWER defaults under the Agreement, any other Loan Document with the Lender, or this Note and such default continues beyond the notice and cure period as provided in such documents. In the event of a default by the BORROWER with respect to any sum payable under this Note and the failure to cure such default within 10 days, the BORROWER shall pay a late charge equal to the lesser of 2% of any outstanding payment or the maximum amount allowed by law. All payments collected shall be applied first to payment of any costs, fees or other charges due under this Note or any other Loan Documents then to the interest and then to principal balance. On the occurrence of an uncured default or on the occurrence of any other event that under the terms of the Loan Documents give rise to the right to accelerate the balance of the indebtedness, then, at the option of Lender, this Note or any notes or other instruments that may be taken in renewal or extension of all or any part of the indebtedness will immediately become due without any further presentment, demand, protest, or notice of any kind. Lender acknowledges and agrees that it shall send notice of any default hereunder to the limited partners of the BORROWER and shall accept any cure offered by such limited partners on the same basis as it would accept a cure from Borrower. The indebtedness evidenced by this Note may, at the option of the BORROWER, be prepaid in whole or in part without penalty. Lender will apply all the prepayments first to the payment of any costs, fees, late charges, or other charges due under this Note or under any of the other Loan Documents and then to the interest and then to the principal balance. All Loan payments are payable in lawful money of the United States of America at any place that Lender or the legal holders of this Note may, from time to time, in writing designate. The BORROWER agrees to pay all costs including, without limitation, reasonable attorney fees, incurred by the holder of this Note in the successful enforcement of payment, whether or not suit is filed, and including, without limitation, all costs, reasonable attorney fees, and expenses incurred by the holder of this Note in connection with any bankruptcy, reorganization, arrangement, or other similar proceedings involving the BORROWER that in any way affects the exercise by the holder of this Note of its rights and remedies under this Note. All costs incurred by the holder of this Note in any action undertaken to obtain relief from the stay of bankruptcy statutes are specifically included in those costs and expenses to be paid by the BORROWER. Any notice, demand, or request relating to any matter set forth herein shall be in writing and shall be given as provided in the Agreement. No delay or omission of the Lender in exercising any right or power arising in connection with any default will be construed as a waiver or as acquiescence, nor will any single or partial exercise preclude any further exercise. The Lender may waive any of the conditions in this Note and no waiver will be deemed to be a waiver of the Lender’s rights under this Note, but rather will be deemed to have been made in pursuance of this Note and not in modification. No waiver of any default will be construed to be a waiver of or acquiescence in or consent to any preceding or subsequent default. The Deed of Trust provides as follows: Except as provided herein or in the Agreement, if the Trustor/Grantor shall sell, convey or alienate said property, or any part thereof, or any interest therein, or shall be divested of his title or any interest therein in any manner or way, whether voluntarily or involuntarily, without the written consent of the Beneficiary being first had and obtained, Beneficiary shall have the right, at its option, except as prohibited by law, to declare any indebtedness or obligations secured hereby, irrespective of the maturity date specified in any Note evidencing the same, immediately due and payable. The Lender may transfer this Note and deliver to the transferee all or any part of the Property then held by it as security under this Note, and the transferee will then become vested with all the powers and rights given to the Lender; and the Lender will then be forever relieved from any liability or responsibility in the matter, but the Lender will retain all rights and powers given by this Note with respect to Property not transferred. If any one or more of the provisions in this Note is held to be invalid, illegal, or unenforceable in any respect by a court of competent jurisdiction, the validity, legality, and enforceability of the remaining provisions will not in any way be affected or impaired. This Note will be binding on and inure to the benefit of the BORROWER, Lender, and their respective successors and assigns. The BORROWER and Lender agree that this Note will be deemed to have been made under and will be governed by the laws of California in all respects, including matters of construction, validity, and performance, and that none of its terms or provisions may be waived, altered, modified, or amended except as the Lender and BORROWER may consent to in a writing duly signed by the BORROWER or Lender or its authorized agents. This Note shall be nonrecourse to the BORROWER and all its constituent members and may be prepaid at any time without penalty. Neither the BORROWER nor any of its officers, directors, employees, or agents shall have any personal liability for repayment of the Loan. The sole recourse of the Lender under the Loan Documents for repayment of the Loan shall be the exercise of its rights against the Property pursuant to the Deed of Trust and the Lender shall have no right to seek or recover any deficiency amount from the BORROWER or any affiliate of the BORROWER. EXHIBIT “G” EXEMPLAR DEED OF TRUST Recorded at the Request of and When Recorded Return to: City of Fresno Planning and Development Department Housing and Community Development Division 2600 Fresno Street, Room 3065 Fresno, CA 93721-3605 (SPACE ABOVE THIS LINE FOR RECORDER’S USE ONLY) TITLE ORDER NO.___________________ ESCROW NO._________________________ A.P.N.: 506-130-04s DEED OF TRUST ASSIGNMENT OF RENTS THIS DEED OF TRUST (Deed of Trust) made this __ day of October, 2023, by and between Valley Teen Ranch, a California nonprofit public benefit corporation (Borrower), Old Republic Title Company, a California Corporation (Trustee), and the City of Fresno, a Municipal Corporation organized and existing under the laws of the State of California whose address is 2600 Fresno Street, Fresno, California 93721 (Beneficiary and Lender). The Borrower, in consideration of the indebtedness herein recited and the trust herein created, does irrevocably grant and convey to Trustee, in trust, with power of sale, all the Borrower’s right, title, and interest now owned or hereafter acquired in the real property (Land) known as 6507 N Polk Avenue, Fresno, CA 93722, located in Fresno County, California and more particularly described in the Attached EXHIBIT “A”, incorporated by reference to the Land later acquired during the term of this Deed of Trust will be subject to this Deed of Trust), together with the rents, issues, and profits, subject however, to the right, power, and authority granted and conferred on the Borrower in this Deed of Trust to collect and apply the rents, issues, and profits; and The Borrower also irrevocably grants, transfers, and assigns to the Trustee, in trust, with power of sale, all of the Borrower’s right, title and interest now owned or later acquired to the following property (including the rights or interests pertaining to the property) located at the Property: (1) All buildings (“Buildings”) and improvements now or later on the land and all easements, rights, appurtenances, water and water rights, minerals and mineral rights; all machinery, equipment, appliances, and fixtures for the generation or distribution of air, water, heat, electricity, light, fuel, or refrigeration or for ventilating or sanitary purposes or for the exclusion of vermin or insects or for the removal of dust, refuse, or garbage; all wall safes, built-in furniture, and installations, window shades and blinds, light fixtures, fire hoses and brackets, screens, linoleum, carpets, furniture, furnishings, fixtures, plumbing, laundry tubs and trays, refrigerators, heating units, stoves, water heaters, incinerators, and communication systems and installations for which any Building is specially designed; all of these item, whether now or later installed, being declared to be for all purposes of this Deed of Trust a part of the Land, the specific enumerations in this Deed of Trust not excluding the general; and (2) The rents, issues, profits, and proceeds relating to the foregoing; and (3) The Property to the extent not included on clauses (1) and (2) above. TO SECURE, in order of priority that the Beneficiary determines: (1) Payment of the indebtedness evidenced by a note of the Borrower of even date with this Deed of Trust in the principal amount of Two Million dollars Eight Hundred Thousand and 00/100 ($2,800,000) (Note), payable to the Beneficiary or order, and all extensions, modifications, or renewals of that Note; (2) Payment of the interest on that indebtedness according to the terms of the Note; (3) Payment of all other sums (with interest as provided herein) becoming due and payable to the Beneficiary or the Trustee pursuant to the terms of this Deed of Trust; (4) Performance of every obligation contained in this Deed of Trust, the Note, the SLFRF Agreement dated the ___ of ___, 2023 (SLFRF Agreement), and its related documents, the Declaration of Restrictions dated the ___ of ____, 2023, any instrument now or later evidencing or securing any indebtedness secured by this Deed of Trust, and any agreements, supplemental agreements, or other instruments of security executed by Borrower as of the same date of this Deed of Trust or at any time subsequent to the date of this Deed of Trust for the purpose of further securing any indebtedness amending this Deed of Trust or any instrument secured by this Deed of Trust (collectively, the “Loan Documents”); and (5) Payment of all other obligations owed by Borrower to Beneficiary that by their terms recite that they are secured by this Deed of Trust, including those incurred as primary obligor or as guarantor. The Borrower covenants that the Borrower is lawfully seized of the estate hereby conveyed and has the right to grant and convey the Property, and that the Property is unencumbered except for encumbrances of record. The Borrower covenants that the Borrower will forever warrant and will defend the grant made in this Deed of Trust against all claims and demands, subject to encumbrances of record. The Borrower covenants that the Borrower will maintain and preserve the lien of this Deed of Trust until all the indebtedness under the Note is paid in full. The Borrower represents and warrants to the Beneficiary that as of the date of this Deed of Trust, the Borrower is a validly existing and is in good standing under the laws of the State of California and is qualified to do business in the State of California; that the Borrower has the requisite power and authority to own, develop, and operate the property; and that the Borrower is in compliance with all laws, regulations, ordinances, and orders of public authorities applicable to it. The Borrower represents and warrants to the Beneficiary that as of the date of this Deed of Trust the execution, delivery, and performance by the Borrower and the borrowings evidenced by the Note are within the power of the Borrower; have been duly authorized by all requisite corporate or partnership actions, as appropriate; has received all necessary governmental approvals; and will not violate any provision of law, any order of any court or agency of government, the charter documents of the Borrower, or any indenture, agreement, or any other instrument to which the Borrower is a party or by which the Borrower or any of it property is bound, nor will they conflict with, result in a breach of, or constitute (with due notice and lapse of time) a default under any indenture, agreement, or other instrument, or result in the creation or imposition of any lien, charge, or encumbrance of any nature on any of the property or assets of the Borrower, except as contemplated by the provisions of the Loan Documents; and each of the Loan Documents, when executed and delivered to the Beneficiary, will constitute a valid obligation, enforceable in accordance with its terms. The Borrower represents and warrants to the Beneficiary that as of the date of this Deed of Trust that the Property is not used principally for agricultural or grazing purposes; that the Borrower is engaged in the development and operation of Improvements to the Property; and that the principal purpose of the Loan is the construction of affordable housing and improvements to the Property. UNIFORM COVENANTS. The Borrower and the Lender covenant and agree as follows: 1. Payment of Principal. The Borrower shall promptly pay when due the principal indebtedness evidenced by the Note. 2. Hazard Insurance. The Borrower, at its sole cost and expense, for the mutual benefit of the Borrower and Beneficiary, shall keep the improvements now existing or hereafter erected on the Property insured against loss by fire, hazards included within the term "extended coverage", and such other hazards as the Lender may require and in such amounts and for such periods as the Lender may require as set forth in the SLFRF Agreement referenced above. The insurance carrier providing the insurance shall be chosen by the Borrower subject to approval by the Lender; provided that such approval shall not be unreasonably withheld. All insurance policies and renewals thereof shall be in a form acceptable to the Lender and shall include a standard mortgage clause in favor of and in a form acceptable to the Lender. The Lender shall have the right to hold the policies and renewals thereof, subject to the terms of any mortgage, deed of trust or other security agreement with a lien which has priority over this Deed of Trust. In the event of loss, the Borrower shall give prompt notice to the insurance carrier and the Lender. The Lender may make proof of loss if not made promptly by the Borrower. If the Property is abandoned by the Borrower, or if the Borrower fails to respond to the Lender within thirty (30) days from the date notice is mailed by the Lender to the Borrower that the insurance carrier offers to settle a claim for insurance benefits, the Lender is authorized to collect and apply the insurance proceeds at the Lender's option either to restoration or repair of the Property or to the sums secured by this Deed of Trust. 3. Preservation and Maintenance of Property. Leaseholds; Condominiums; Planned Unit Developments. The Borrower shall keep the Property in good repair and shall not commit waste or permit impairment or deterioration of the Property and shall comply with the provisions of any lease if this Deed of Trust is on a leasehold. If this Deed of Trust is on a unit in a condominium or a planned unit development, the Borrower shall perform all of the Borrower's obligations under the declaration or covenants creating or governing the condominium or planned unit development, the by-laws and regulations of the condominium or planned unit development, and constituent documents. The Borrower shall not permit overcrowded conditions to exist as defined by the U.S. Department of Housing and Urban Development. 4. Protection of Lender's Security. If the Borrower fails to perform the covenants and agreements contained in this Deed of Trust, or if any action or proceeding is commenced which materially affects the Lender's interest in the Property, then the Lender, at the Lender's option, upon notice to the Borrower, may make such appearances, disburse such sums, including reasonable attorney's fees, and take such action as is necessary to protect the Lender's interest. If the Lender requires mortgage insurance as a condition of making the loan secured by this Deed of Trust, Borrower shall pay the premiums required to maintain such insurance in effect until such time as the requirement for such insurance terminates in accordance with the Borrower's and Lender's written agreement or applicable laws. Any amounts disbursed by the Lender pursuant to this Paragraph 4 shall become additional indebtedness of the Borrower secured by this Deed of Trust. Unless the Borrower and Lender agree to other terms of payment, such amounts shall be payable upon notice from the Lender to the Borrower requesting payment thereof. Nothing contained in this paragraph 4 shall require the Lender to incur any expense or take any action hereunder. 5. Inspection. The Lender may make or cause to be made reasonable entries upon and inspections of the Property, provided that the Lender shall provide the Borrower notice prior to any such inspection specifying reasonable cause therefore related to the Lender's interest in the Property. 6. Condemnation. The proceeds of any award or claim for damages, direct or consequential, in connection with any condemnation or other taking of the Property, or part thereof, or for conveyance in lieu of condemnation, are hereby assigned and shall be paid to the Lender, subject to the terms of any mortgage, deed of trust or other security agreement with a lien which has priority over this Deed of Trust. 7. Borrower Not Released; Forbearance By Lender Not a Waiver. The extension of the time for payment or modification of amortization of the sums secured by this Deed of Trust granted by the Lender to any successor in interest of the Borrower shall not operate to release, in any manner, the liability of the original Borrower and the Borrower's successors in interest. The Lender shall not be required to commence proceedings against such successor or refuse to extend time for payment or otherwise modify amortization of the sums secured by this Deed of Trust be reason of any demand made by the original Borrower and the Borrower's successors in interest. Any forbearance by the Lender in exercising any right or remedy hereunder, or otherwise afforded by applicable law, shall not be waiver of or preclude the exercise of any such right of remedy. 8. Successors and Assignees Bound; Joint and Several Liability; Co-Signers. The covenants and agreements herein contained shall bind, and the rights hereunder shall inure to the respective successors and assignees of the Lender and the Borrower. All covenants and agreements of the Borrower shall be joint and several. Any borrower who co-signs this Deed of Trust, but does not execute the Note is: (a) co-signing this Deed of Trust only to grant and convey that the Borrower's interest in the Property of Trustee under the terms of this Deed of Trust, and (b) not personally liable on the Note or under this Deed of Trust or the Note, without that Borrower's consent and without releasing that Borrower or modifying this Deed of Trust as to that Borrower's interest in the Property. 9. Transferability. One of the inducements to the Beneficiary for making the Loan is the identity of the Borrower. The existence of any interest in the Property other than the interests of the Borrower and Beneficiary and any encumbrance permitted in this Deed of Trust, even though subordinate to the security interest of the Beneficiary, and the existence of any interest in the Borrower other than those of the present owners, would impair the Property and the security interest of the Beneficiary, and, therefore, except as provided herein or in the Loan Documents, the Borrower will not sell, convey, assign, transfer, alienate, or otherwise dispose of its interest in the Property, either voluntarily or by operation of law, or agree to do so, without the prior written consent of the Beneficiary. The consent to one transaction by the Beneficiary will not be deemed a waiver of the right to require consent to further or successive transactions. If the Borrower is a corporation, any sale, transfer, or disposition of 50% or more of the voting interest of the Borrower or of any entity that directly or indirectly owns or controls the Borrower, including, without limitation, the parent company of the Borrower, and the parent company of the parent company of the Borrower, will constitute a sale of the Property for purposes of this article. If the Borrower is a partnership any change or addition of a general partner of the Borrower, change of a partnership interest of the Borrower with the exception of a limited partner transfer, which shall not require the Beneficiary’s consent, or sale, transfer, or disposition of 50% or more of the voting interest or partnership interest of any general partner of the Borrower or of any corporation, partnership or entity that directly or indirectly owns or controls any general partner of the Borrower, including, without limitation, each parent company of a general partner of the Borrower and each parent company of any parent company of a general partner of the Borrower, will constitute a sale of the Property for purposes of this section. If the Borrower is a limited liability company, any change of the manager or any sale, transfer or disposition of 50% or more of the partnership interests of the Borrower, or disposition of 50% or more of the voting interest of the Borrower or of any corporation, partnership or entity that directly or indirectly owns or controls any member of the Borrower, including without limitations, each parent company of the Borrower and each parent company of any parent company of a member of the Borrower, will constitute a sale of the Property for purposes of this section. Any transaction in violation of this section will cause all Indebtedness, irrespective of the maturity dates, at the option of the Beneficiary and without demand or notice, immediately to become due, together with any prepayment premium in accordance with the terms of the Note except as prohibited by law. 10. Notice. Except for any notice required under applicable law to be given in another manner, (a) any notice to the Borrower provided for in this Deed of Trust shall be given by delivering it or by mailing such notice by certified mail addressed to the Borrower at the Property Address or at such other address as the Borrower may designate by notice to the Lender as provided herein, and (b) any notice to the Lender shall be given by certified mail to the Lender's address stated herein or to such other address as the Lender may designate by notice to the Borrower as provided herein. Any notice provided for in this Deed of Trust shall be deemed to have been given to the Borrower or Lender when given in the manner designated herein. 11. Governing Law; Severability. The state and local laws applicable to this Deed of Trust shall be the laws of the jurisdiction in which the Property is located. The foregoing sentence shall not limit the applicability of Federal law to this Deed of Trust or if the Note conflicts with applicable law, such conflict shall not affect other provisions of this Deed of Trust or the Note which can be given effect without the conflicting provision, and to this end the provisions of this Deed of Trust and the Note are declared to be severable. As used herein, "costs", "expenses", and "attorney's fees" include all sums to the extent not prohibited by applicable law or limited herein. 12. Borrower's Copy. The Borrower shall be furnished a conformed copy of the Note and of this Deed of Trust at the time of execution or after recordation thereof. NON-CONFORMING COVENANTS. Borrower and Lender further covenant and agree as follows: 13. Acceleration; Remedies. Upon the Borrower's breach of any covenant or agreement of the Borrower in this Deed of Trust, including the covenants to pay when due any sums secured by this Deed of Trust, the Note or the Program restrictions, the Lender, prior to acceleration shall give notice to the Borrower as provided in paragraph 10 hereof specifying: (1) the breach; (2) the action required to cure such breach; (3) a date, not less than 10 days from the date notice is mailed to the Borrower, by which such breach must be cured or 30 days for a non-monetary default; and (4) that failure to cure such breach on or before the date specified in the notice may result in acceleration of the sums secured by this Deed of Trust and sale of the Property. The notice shall further inform the Borrower of the right to reinstate after acceleration and the right to bring a court action to assert the nonexistence of a default or any other defense of the Borrower to acceleration and sale. If the breach is not cured on or before the date specified in the notice, the Lender, at the Lender's option may declare all of the sums secured by this Deed of Trust to be immediately due and payable without further demand and may invoke the power of sale and any other remedies permitted by applicable law. The Lender shall be entitled to collect all reasonable costs and expenses incurred in pursuing the remedies provided in this paragraph 13, including, but not limited to, reasonable attorney's fees. If the Lender invokes the power of sale, the Lender shall execute or cause the Trustee to execute a written notice of the occurrence of an event of default and of the Lender's election to cause the Property to be sold and shall cause such notice to be recorded in each county in which the Property or some part thereof is located. The Lender or the Trustee shall mail copies of such notice in the manner prescribed by applicable law. The Trustee shall give public notice of sale to the persons and in the manner prescribed by applicable law. After the lapse of such time as may be required by applicable law, the Trustee, without demand on the Borrower, shall sell the Property at public auction to the highest bidder at the time and place and under the terms designated in the notice of sale in one or more parcels and in such order as Trustee may determine. The Trustee may postpone sale of all or any parcel of the Property by public announcement at the time and place of any previously scheduled sale. The Lender or the Lender's designee may purchase the Property at any sale. The Trustee shall deliver to the purchaser the Trustee's deed conveying the Property so sold without any covenant or warranty, expressed or implied. The recitals in the Trustee's deed shall be prima facie evidence of the truth of the statements made therein. The Trustee shall apply the proceeds of the sale in the following order: (a) to all reasonable costs and expenses of the sale, including, but not limited to, reasonable Trustee's and attorney's fees and costs of title evidence; (b) to all sums secured by this Deed of Trust; and (c) the excess, if any, to the person or persons legally entitled thereto. 14. Borrower's Right to Reinstate. Notwithstanding the Lender's acceleration of the sums secured by this Deed of Trust due to the Borrower's breach, the Borrower shall have the right to have any proceedings begun by the Lender to enforce this Deed of Trust discontinued at any time prior to five days before sale of the Property pursuant to the power of sale contained in this Deed of Trust or at any time prior to entry of a judgment enforcing this Deed of Trust if: (a) the Borrower pays the Lender all sums which would be then due under this Deed of Trust and the Note had no acceleration occurred; (b) the Borrower cures all breaches of any other covenants or agreements of Borrower contained in this Deed of Trust; (c) the Borrower pays all reasonable expenses incurred by the Lender and Trustee in enforcing the covenants and agreements of Borrower in paragraph 13 hereof, including but not limited to, reasonable attorney's fees; and (d) the Borrower takes such action as the Lender may reasonably require to assure that the lien of this Deed of Trust, Lender's interest in the Property and the Borrower's obligation to pay the sums secured by this Deed of Trust shall continue unimpaired. Upon such payment and cure by the Borrower, this Deed of Trust and the obligations secured hereby shall remain in full force and effect as if no acceleration had occurred. 15. Nonrecourse. The Borrower, its officers, commissioners, employees, or agents, shall not have any personal liability for repayment of the loan. The sole recourse of the Lender under the Loan Documents for repayment of the Loan shall be the exercise of its rights against the Property. 16. Withdrawal, Removal and/or Replacement. Unless otherwise provided herein, withdrawal of the General partner of the Borrower pursuant to the terms of a partnership agreement due to violation by a general partner of the terms of a partnership agreement, or a voluntary withdrawal from a partnership by a general partner, and any transfer of limited partnership interest or interests in the same, shall not constitute a default under any of the Loan Documents, and any such actions shall not accelerate the maturity of the Loan. 17. Lien of Deed of Trust. The Beneficiary agrees that the lien of this Deed of Trust shall be subordinated to any extended low-income housing commitment (as such term is defined in Section (42(h)(6)(B) of the internal Revenue Code) (the “Extended Use Agreement”) recorded against the Property, provided that such Extended Use Agreement, by its terms, must terminate upon foreclosure under this Deed of Trust or upon a transfer of the Property by instrument of lieu of foreclosure, in accordance with Section 42(h)(6)(E) of the Internal Revenue Code, subject to the limitations upon evictions, terminations of tenancies and increases in gross rents of tenants of low-income units as provided in that Section. 18. Assignment of Rent; Appointment of Receiver; Lender in Possession. As additional security hereunder, the Borrower hereby assigns to the Lender the rents of the Property, provided that the Borrower shall, prior to acceleration under paragraph 13 or abandonment of the Property, have the right to collect and retain such rents as they become due and payable. Upon acceleration under paragraph 13 hereunder or abandonment of the Property, the Lender, in person, by agent or by judicially appointed receiver shall be entitled to enter upon, take possession of and manage the Property and to collect the rents of the Property including those past due. All rents collected by the Lender or the receiver shall be applied first to premiums on receiver's bonds and reasonable attorney's fees, and then to the sums secured by this Deed of Trust. The Lender and the receiver shall be liable to account only for those rents actually received. 19. Reconveyance. Upon payment of all sums secured by this Deed of Trust, the Lender shall request the Trustee to reconvey the Property and shall surrender this Deed of Trust, and all notes evidencing indebtedness secured by this Deed of Trust to Trustee. The Trustee shall reconvey the Property without warranty and without charge to the person or persons legally entitled thereto. Such person or persons shall pay all costs of recordation, if any. 20. Substitute Trustee. The Lender at the Lender's option, may from time to time, appoint a successor trustee to any Trustee appointed hereunder by an instrument executed and acknowledged by the Lender and recorded in the Fresno County Recorder's Office. The instrument shall contain the name of the original the Lender, Trustee and Borrower, the book and page where this Instrument is recorded and the name and address of the successor trustee. The successor trustee shall, without conveyance of the Property, succeed to all the title, powers and duties conferred upon the Trustee herein and by applicable law. This procedure for substitution of trustee shall govern to the exclusion of all other provisions for substitution. 21. Statement of Obligation. The Lender may collect a fee not to exceed fifty dollars ($50.00) for furnishing the statement of obligation as provided by Section 2943 of the Civil Code of California. 22. Event of Default. Prior to declaring or taking any remedy permitted under Loan Documents, (where applicable) the Borrower’s limited partners shall have an additional period of not less than 30 days to cure such alleged default. Notwithstanding the foregoing, in the case of a default that cannot with reasonable diligence be remedied or cured within 30 days, the Borrower’s authorized representatives shall have such additional time as reasonably necessary to remedy or cure such default, but in no event more than 90 days from the expiration of the initial 30 day period above, and if the Borrower’s limited partners reasonably believe that in order to cure such default. To the extent that there is a conflict between this paragraph 22 and any remedy permitted by the SLFRF Agreement, Loan Documents, or Loan, the terms of this paragraph 22 shall control. The following events are each an “Event of Default”: (a) Default in the payment of any sum of principal or interest when due under the Note or any other sum due under the Loan Documents. (b) Failure to maintain insurance as provided in Section 2 hereof. (c) The failure (without cure during the applicable period, if any, for cure) of any the Borrower to observe, perform, or discharge any obligation, term, covenant, or condition of any of the Loan Documents, any agreement relating to the Property, or any agreement or instrument between any Loan Party and the Beneficiary. (d) The assignment by the Borrower, as lessor or sublessor, as the case may be, of the rents or the income of the Property or any part of it (other than to Beneficiary) without first obtaining the written consent of the Beneficiary. (e) The following events: (i) the filing of any claim or lien against the Property or any party of it, whether or not the lien is prior to this Deed of Trust, and the continued maintenance of the claim or lien for a period of 30 days without discharge, satisfaction, or adequate bonding in accordance with the terms of this Deed of Trust; (ii) the existence of any interest in the Property other than those of the Borrower, Beneficiary, any tenants of the Borrower, and any one listed in a title exception approved by the Beneficiary in writing; or (iii) the sale, hypothecation, conveyance, or other disposition of the Property except with the express written approval of the Beneficiary, any of which will be an Event of Default because the Borrower’s obligation to own and operate the Property is one of the inducements to the Beneficiary to make the Loan; (f) Default under any agreement to which the Borrower is a party, which agreement relates to the borrowing of money by the Borrower from Beneficiary. (g) Any presentation or warranty made by any Loan Party or any other Person under this Deed of Trust or in, under, or pursuant to the Loan Documents, is false or misleading in any material respect as of the date on which the representation or warranty was made. (h) Any of the Loan Documents, at any time after their respective execution and delivery and for any reason, cease to be in full force or are declared null and void, or the validity or enforceability is contested by the Borrower or any stockholder or partner of the Borrower, or the Borrower denies that it has any or further liability or obligation under any of the Loan Documents to which it is a party. If one or more Event of Default occurs and is continuing, then the Beneficiary may declare all the Indebtedness to be due and the Indebtedness will become due without any further presentment, demand, protest, or notice of any kind, and the Beneficiary may: (i) in person, by agent, or by a receiver, and without regard to the adequacy of security, the solvency of the Borrower, or the existence of waste, enter on and take possession of the Property or any party of it in its own name or in the name of Trustee, sue for or otherwise collect the rents, issues, and profits, and apply them, less costs and expenses of operation and collection, including reasonable attorneys’ fees, upon the Indebtedness, all in any order that the Beneficiary many determine. The entering on and taking possession of the Property, the collection of rents, issues, and profits, and the application of them will not cure or waive any default or notice of default or invalidate any act done pursuant to the notice; (ii) commence an action to foreclose this Deed of Trust in the manner provided by law for the foreclosure of mortgages of real property; (iii) deliver to the Trustee a written declaration of default and demand for sale, and a written notice of default and election to cause the Property to be sold, which notice the Trustee or the Beneficiary will cause to be filed for record; (iv) with respect to any Personalty, proceed as to both the real and personal property in accordance with the Beneficiary’s rights and remedies in respect of the Land, or proceed to sell the Personalty separately and without regard to the Land in accordance with the Beneficiary’s rights and remedies; or (v) exercise any of these remedies in combination or any other remedy at law or in equity. 24. Protection of Security. If an Event of Default occurs and is continuing, the Beneficiary or Trustee, without notice to or demand upon the Borrower, and without releasing the Borrower from any obligations or defaults may: (a) enter on the Property in any manner and to any extent that either deems necessary to protect the security of this Deed of Trust; (b) appear in and defend any action or proceeding purporting to affect, in any manner, the Obligations or the Indebtedness, the security of this Deed of Trust, or the rights or powers of Beneficiary or Trustee; (c) pay, purchase, or compromise any encumbrance, charge, or lien that in the judgment of Beneficiary or Trustee is prior or superior to this deed of Trust; and (d) pay expenses relating to the Property and its sale, employ counsel, and pay reasonable attorneys’ fees. The Borrower agrees to repay on demand all sums expended by the Trustee or the Beneficiary pursuant to this section with interest at the Note Rate of Interest, and those sums, with interest, will be secured by this Deed of Trust. 25. Effect of Assignment. The assignment of rents as provided herein will not impose on the Beneficiary any duty to produce rents, issues, or profits from the Property, or cause the Beneficiary to be: (a) a “mortgagee-in-possession” for any purpose; (b) responsible for performing any of the obligations of the lessor under any of the Leases; or (c) responsible for any waste committed by lessees or any other parties, any dangerous or defective condition of the Property, or any negligence in the management, upkeep, repair, or control of the Property. The Beneficiary will not be liable to the Borrower or any other party as a consequence of the exercise of the rights granted to the Beneficiary under this assignment or the failure of the Beneficiary to perform any obligation of the Borrower arising under Leases. // EXHIBIT “A” Legal Description To Deed of Trust The following is a copy of provisions (1) to (14), inclusive, of the fictitious deed of trust, recorded in each county in California, as stated in the foregoing Deed of Trust and incorporated by reference in said Deed of Trust as being a part thereof as if set forth at length therein To Protect the Security of This Deed of Trust, Trustor (Borrower) Agrees: (1) To keep said property in good condition and repair, not to remove or demolish any building thereon, to complete or restore promptly and in good and workmanlike manner any building which may be constructed, damaged or destroyed thereon and to pay when due all claims for labor performed and materials furnished therefor, to comply with all laws affecting said property or requiring any alterations or improvements to be made thereon, not to commit or permit waste thereof, not to commit, suffer or permit any act upon said property in violations of law to cultivate, irrigate, fertilize, fumigate, prune and do all other acts which from the character or use of said property may be reasonably necessary, the specific enumerations herein not excluding the general. (2) To provide maintain and deliver to the Beneficiary fire insurance satisfactory to and with loss payable to the Beneficiary. The amount collected under any fire or other insurance policy may be applied by the Beneficiary upon indebtedness secured hereby and in such order as the Beneficiary may determine, or at option of the Beneficiary the entire amount so collected or any part thereof may be released to the Borrower. Such application or release shall not cure or waive any default or notice of default hereunder or invalidate any act done pursuant to such notice. (3) To appear in and defend any action or proceeding purporting to affect the security hereof or the rights or powers of the Beneficiary or the Trustee, and to pay all costs and expenses including cost of evidence of title and attorney's fees in a reasonable sum, in any such action or proceeding in which the Beneficiary or the Trustee may appear, and in any suit brought by the Beneficiary to foreclose this Deed of Trust. (4) To pay at least ten (10) days before delinquency all taxes and assessments affecting said property, including assessments on appurtenant water stock, when due, all encumbrances, charges and liens, with interest, on said property or any part thereof, which appear to be prior or superior hereto, all costs, fees, and expenses of this Trust. Should the Borrower fail to make any payment or to do any act as herein provided, then the Beneficiary or the Trustee, but without obligation to do so and without notice to or demand upon the Borrower and without releasing the Borrower from any obligation hereof, may make or do the same in such manner and to such extent as either may deem necessary to protect the security hereof the Beneficiary or the Trustee being authorized to enter upon said property for such purposes; appear in and defend any action or proceeding purporting to affect the security hereof or the rights or powers of the Beneficiary or the Trustee, pay, purchase, contest or compromise any encumbrance, charge or lien which in the judgment of either appears to be prior or superior hereto, and in exercising any such powers, pay necessary expenses, employ counsel and pay his reasonable fees. (5) To pay immediately and without demand all sums so expended by the Beneficiary or the Trustee, with interest from date of expenditure at the amount allowed by law in effect at the date hereof, and to pay for any statement provided for by law in effect at the date hereof regarding the obligation secured hereby any amount demanded by the Beneficiary not to exceed the maximum allowed by law at the time when said statement is demanded. (6) That any award of damages in connection with any condemnation for public use of or injury to said property or any part thereof is hereby assigned and shall be paid to the Beneficiary who may apply or release such moneys received by it in the same manner and with the same effect as above provided for disposition of proceeds of fire or other insurance. (7) That by accepting payment of any sum secured hereby after its due date, the Beneficiary does not waive its rights either to require prompt payment when due of all other sums so secured or to declare default for failure so to pay. (8) That at any time or from time to time, without liability therefor and without notice, upon written request of the Beneficiary and presentation of this Deed and said Note for endorsement, and without affecting the personal liability of any person for payment of the indebtedness secured hereby, the Trustee may reconvey any part of said property, consent to the making of any map or plot thereof; join in granting any easement thereon; or join in any extension agreement or any agreement subordinating the lien or charge hereof. (9) That upon written request of the Beneficiary state that all sums secured hereby have been paid, and upon surrender of this Deed and said Note to the Trustee for cancellation and retention and upon payment of its fees, the Trustee shall reconvey, without warranty, the property then held hereunder. The recitals in such reconveyance of any matters or facts shall be conclusive proof of the truthfulness thereof. The grantee in such reconveyance may be described as "The person or persons legally entitled thereto." Five (5) years after issuance of such full reconveyance, the Trustee may destroy said note and this Deed (unless directed in such request to retain them). (10) That as additional security, the Borrower hereby gives to and confers upon the Beneficiary the right, power and authority, during the continuance of these Trusts, to collect the rents, issues and profits of said property, reserving unto the Borrower the right, prior to any default by the Borrower in payment of any indebtedness secured hereby or in performance of any agreement hereunder, to collect the rents, issues and profits of said property, reserving unto the Borrower the right, prior to any default by the Borrower in payment of any indebtedness secured hereby or in performance of any agreement hereunder, to collect and retain such rents, issues and profits as they become due and payable. Upon any such default, the Beneficiary may at any time without notice, either in person, by agent, or by a receiver to be appointed by a court, and without regard to the adequacy of any security for the indebtedness hereby secured, enter upon and take possession of said property or any part thereof, in its own name sue for or otherwise collect such rents, issues and profits, including those past due and unpaid, and apply the same, less costs and expenses of operation and collection, including reasonable attorney's fees. Upon any indebtedness secured hereby, and in such order as the Beneficiary may determine. The entering upon and taking possession of said property, the collection of such rents, issues and profits and the application thereof as aforesaid, shall not cure or waive any default or notice of default hereunder or invalidate any act done pursuant to such notice. (11) That upon default by the Borrower in payment of any indebtedness secured hereby or in performance of any agreement hereunder. The Beneficiary may declare all sums secured hereby immediately due and payable by delivery to the Trustee of written declaration of default and demand for sale and of written notice of default and of election to cause to be sold said property which notice the Trustee shall cause to be filed for record. The Beneficiary also shall deposit with Trustee this Deed, said note and all documents evidencing expenditures secured hereby. After the lapse of such time as may then be required by law following the recordation of said notice of default, and notice of sale having been given as then required by law, the Trustee, without demand on the Borrower, shall sell said property at the time and place fixed by it in said notice of sale, either as a whole or in separate parcels, and in such order as it may determine, at public auction to the highest bidder for cash in lawful money of the United States, payable at time of sale. The Trustee may postpone sale of all or any portion of said property by public announcement at such time and place of sale, and from time to time thereafter may postpone such sale by public announcement at the time fixed by the preceding postponement Trustee shall deliver to such purchaser its deed conveying the property so sold, but without any covenant or warranty, express or implied. The recitals in such deed of any matters or facts shall be conclusive proof of the truthfulness thereof. Any person, including the Borrower, Trustee, or the Beneficiary as hereinafter defined, may purchase at such sale. After deducting all costs, fees and expenses of the Trustee and of this Trust, including cost of evidence of title in connection with sale, the Trustee shall apply the proceeds of sale to payment of all sums expended under the terms hereof, not then repaid, with accrued interest at the amount allowed by law in effect at the date hereof, all other sums then secured hereby, and the remainder, if any, to the person or persons legally entitled thereto. (12) The Beneficiary, or any successor in ownership of any indebtedness secured hereby, may from time to time, by instrument in writing, substitute a successor or successors to any Trustee named herein or acting hereunder, which instrument, executed by the Beneficiary and duly acknowledged and recorded in the office of the recorder of the county or counties where said property is situated, shall be conclusive proof of proper substitution of such successor Trustee or Trustees, who shall, without conveyance from the Trustee predecessor, succeed to all its title, estate, rights, powers and duties. Said instrument must contain the name of the original Borrower, Trustee and the Beneficiary hereunder, the book and page where this Deed is recorded and the name and address of the new Trustee. (13) That this Deed applies to, inures to the benefit of, and binds all parties hereto, their heirs, legatees, devisees, administrators, executors, successors and assigns. The term Beneficiary shall mean the owner and holder, including pledgees, of the note secured hereby whether or not named as the Beneficiary herein in this Deed, whenever the context so requires, the masculine gender includes the feminine and/or neuter, and the singular number includes the plural. (14) That Trustee accepts this Trust when this Deed, duly executed and acknowledged, is made a public record as provided by law. The Trustee is not obligated to notify any party hereto of pending sale under any other Deed of Trust or of any action or proceeding in which the Borrower, Beneficiary or Trustee shall be a party unless brought by Trustee. DO NOT RECORD REQUEST FOR FULL RECONVEYANCE To be used only when note has been paid: To Old Republic Title Company, Trustee: Dated _________________________________ The undersigned is the legal owner and holder of all indebtedness secured by the within Deed of Trust. All sums secured by said Deed of Trust have been fully paid and satisfied; and you are hereby requested and directed, on payment to you of any sums owing to you under the terms of said Deed of Trust, to cancel all evidences of indebtedness, secured by said Deed of Trust, delivered to you herewith together with said Deed of Trust, and to reconvey, without warranty, to the parties designated by the terms of said Deed of Trust, the estate now held by you under the same. MAIL RECONVEYANCE TO: By ___________________________________________ Do not lose or destroy this Deed of Trust OR THE NOTE which it secures. Both must be delivered to the Trustee for cancellation before reconveyance will be made. Exhibit B - Photos and Site Plan MEMORANDUM OF UNDERSTANDING BETWEEN THE CITY OF FRESNO AND VALLEY TEEN RANCH REGARDING WELCOME HOME PROJECT THIS MEMORANDUM OF UNDERSTANDING (MOU or Agreement) is made and entered into effect on ____________ (the Effective Date), by and between the CITY OF FRESNO, a California municipal corporation (City), and VALLEY TEEN RANCH, a California nonprofit public benefit corporation (Valley Teen Ranch). RECITALS WHEREAS, the State of California Department of Housing and Community Development (HCD) issued a Notice of Funding Availability for the Homekey Program Round 3 (NOFA), dated March 29, 2023; WHEREAS, City and Valley Teen Ranch submitted a joint application in response to the NOFA for the construction and operation of 6507 N. Polk Avenue as permanent affordable housing; WHEREAS, the City and Valley Teen Ranch were awarded $21,983,607 in Homekey Round 3 funds from HCD; WHEREAS, Valley Teen Ranch will act as the owner/developer exercising effective project control, as to the construction of 96 one-bedroom apartment units on the Property, and related on-site and off-site improvements (Project); WHEREAS, the City has determined that the Project is vital and in the best interest of the City, and the health, safety, and welfare of City residents and will increase, improve, and preserve the community’s supply of affordable housing. NOW, THEREFORE, in consideration of the recitals and mutual covenants and conditions contained in this MOU, incorporated herein, the Parties agree, as follows: Section 1. The parties to this MOU encourage the highest possible degree of cooperative relationships between their respective representatives with regard to the Homekey Program including but not limited to acting in good faith to ensure the transparency, mutual success, and liability prevention, to acquire, develop, and maintain the Property and provide services to the residents. Section 2. The parties to this MOU shall coordinate their resources and efforts to develop the Project and manage the Property in a timely manner. The Parties agree that 96 units shall be developed and operated as a result of this round of the Homekey Program. Section 3. The Parties agree to comply with all Homekey regulations, and any other guidelines issued by the State of California that directly relate to the Homekey program. Section 4. Valley Teen Ranch shall pay all third-party costs incurred in connection with the Homekey program application and shall reimburse the City with Homekey funds for all eligible costs under the Homekey program. Section 5. Attachment “A” (Project Description and Project Schedule) provides a summary of the Project and performance deadlines. Attachment "B" (Budget and Disbursement Schedule) outlines the disbursement of funds. Both documents are hereby fully incorporated herein. Section 6. Indemnification and Insurance. Insurance Requirements. (a) Throughout the life of this Agreement, VALLEY TEEN RANCH shall pay for and maintain in full force and effect all insurance as required herein with an insurance company(ies) either (i) admitted by the California Insurance Commissioner to do business in the State of California and rated no less than “A-VII” in the Best’s Insurance Rating Guide, or (ii) as may be authorized in writing by CITY'S Risk Manager or his/her designee at any time and in his/her sole discretion. The required policies of insurance as stated herein shall maintain limits of liability of not less than those amounts stated therein. However, the insurance limits available to CITY, its officers, officials, employees, agents and volunteers as additional insureds, shall be the greater of the minimum limits specified therein or the full limit of any insurance proceeds to the named insured. (b) If at any time during the life of the Agreement or any extension, VALLEY TEEN RANCH or any of its subcontractors fail to maintain any required insurance in full force and effect, all services and work under this Agreement shall be discontinued immediately, and all payments due or that become due to VALLEY TEEN RANCH shall be withheld until notice is received by CITY that the required insurance has been restored to full force and effect and that the premiums therefore have been paid for a period satisfactory to CITY. Any failure to maintain the required insurance shall be sufficient cause for CITY to terminate this Agreement. No action taken by CITY pursuant to this section shall in any way relieve VALLEY TEEN RANCH of its responsibilities under this Agreement. The phrase “fail to maintain any required insurance” shall include, without limitation, notification received by CITY that an insurer has commenced proceedings, or has had proceedings commenced against it, indicating that the insurer is insolvent. (c) The fact that insurance is obtained by VALLEY TEEN RANCH shall not be deemed to release or diminish the liability of VALLEY TEEN RANCH, including, without limitation, liability under the indemnity provisions of this Agreement. The duty to indemnify CITY shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by VALLEY TEEN RANCH. Approval or purchase of any insurance contracts or policies shall in no way relieve from liability nor limit the liability of VALLEY TEEN RANCH, vendors, suppliers, invitees, contractors, sub-contractors, subcontractors, or anyone employed directly or indirectly by any of them. Coverage shall be at least as broad as: (i) COMMERCIAL GENERAL LIABILITY insurance which shall be at least as broad as the most current version of Insurance Services Office (ISO) Commercial General Liability Coverage Form CG 00 01 and include insurance for “bodily injury,” “property damage” and “personal and advertising injury” with coverage for premises and operations (including the use of owned and non-owned equipment), products and completed operations, and contractual liability (including, without limitation, indemnity obligations under the Agreement) with limits of liability not less than the following: $2,000,000 per occurrence for bodily injury and property damage $2,000,000 per occurrence for personal and advertising injury $4,000,000 aggregate for products and completed operations $4,000,000 general aggregate applying separately to the work performed under the Agreement. (ii) COMMERCIAL AUTOMOBILE LIABILITY insurance which shall be at least as broad as the most current version of Insurance Service Office (ISO) Business Auto Coverage Form CA 00 01, and include coverage for all owned, hired, and non-owned automobiles or other licensed vehicles (Code 1- Any Auto) with limits of liability of not less than $1,000,000 per accident for bodily injury and property damage. (iii) Workers’ Compensation insurance as required by the State of California and Employer’s Liability Insurance. (iv) EMPLOYEE LIABILITY insurance with limits of liability of no less than $1,000,000 each accident, $1,000,000 disease policy limit and $1,000,000 diseased each employee (v) BUILDERS RISK (Course of Construction) insurance, obtained by VALLEY TEEN RANCH or subcontractor in an amount equal to the completed value of the project with no coinsurance penalty provisions. (Only required if the project includes new construction of a building; or renovation of, or addition to, an existing building.) (vi) CONTRACTOR POLLUTION with coverage for bodily injury, property damage or pollution clean-up costs that could result from of pollution condition, both sudden and gradual. Including a discharge of pollutants brought to the work site, a release of pre-existing pollutants at the site, or other pollution conditions with limits of liability of not less than the following: $1,000,000 per occurrence $2,000,000 general aggregate per annual policy period In the event the work involves any lead-based, mold or asbestos environmental hazard, either the Automobile Liability insurance policy or the Pollution Liability insurance policy shall be endorsed to include Transportation Pollution Liability insurance covering materials to be transported by VALLEY TEEN RANCH pursuant to the MOU. In the event the work involves any lead-based environmental hazard (e.g., lead- based paint), VALLEY TEEN RANCH’s Pollution Liability insurance policy shall be endorsed to include coverage for lead based environmental hazards. In the event VALLEY TEEN RANCH involves any asbestos environmental hazard (e.g., asbestos remediation), VALLEY TEEN RANCH’s Pollution Liability insurance policy shall be endorsed to include coverage for asbestos environmental hazards. In the event the MOU involves any mold environmental hazard (e.g., mold remediation), the Pollution Liability insurance policy shall be endorsed to include coverage for mold environmental hazards and “microbial matter including mold” within the definition of “Pollution” under the policy. UMBRELLA OR EXCESS INSURANCE In the event VALLEY TEEN RANCH purchases an Umbrella or Excess insurance policy(ies) to meet the “Minimum Limits of Insurance,” this insurance policy(ies) shall “follow form” and afford no less coverage than the primary insurance policy(ies). In addition, such Umbrella or Excess insurance policy(ies) shall also apply on a primary and non-contributory basis for the benefit of the CITY, its officers, officials, employees, agents and volunteers. DEDUCTIBLES AND SELF-INSURED RETENTIONS VALLEY TEEN RANCH shall be responsible for payment of any deductibles contained in any insurance policy(ies) required herein and VALLEY TEEN RANCH shall also be responsible for payment of any self-insured retentions. OTHER INSURANCE PROVISIONS/ENDORSEMENTS All policies of insurance required hereunder shall be endorsed to provide that the coverage shall not be cancelled, non-renewed, reduced in coverage or in limits except after thirty (30) calendar day written notice has been given to CITY. Upon issuance by the insurer, broker, or agent of a notice of cancellation, non-renewal, or reduction in coverage or in limits, VALLEY TEEN RANCH shall furnish the CITY with a new certificate and applicable endorsements for such policy(ies). In the event any policy is due to expire during the work to be performed for the CITY, VALLEY TEEN RANCH shall provide a new certificate, and applicable endorsements, evidencing renewal of such policy not less than fifteen (15) calendar days prior to the expiration date of the expiring policy. The General Liability, Pollution and Automobile Liability insurance policies shall be written on an occurrence form. The General Liability, Automobile Liability and Pollution Liability insurance policies shall name the CITY, its officers, officials, agents, employees and volunteers as an additional insured for ongoing and completed operations. All such policies of insurance shall be endorsed so VALLEY TEEN RANCH’s insurance shall be primary, and no contribution shall be required by the CITY. The coverage shall contain no special limitations on the scope of protection afforded to the CITY, its officers, officials, employees, agents, and volunteers. If VALLEY TEEN RANCH maintains higher limits of liability than the minimums shown above, the CITY requires and shall be entitled to coverage for the higher limits of liability maintained by VALLEY TEEN RANCH. The Builders Risk (Course of Construction) insurance policy shall be endorsed to name the CITY as loss payee. All insurance policies required including the Workers’ Compensation insurance policy shall contain a waiver of subrogation as to the City, its officers, officials, agents, employees, and volunteers. VALLEY TEEN RANCH shall furnish the CITY with all certificate(s) and applicable endorsements effecting coverage required hereunder. All certificates and applicable endorsements are to be received and approved by the CITY’s Risk Manager or his/her designee before work commences. Upon request of the CITY, VALLEY TEEN RANCH shall immediately furnish the CITY with a complete copy of any insurance policy required under this Agreement, including all endorsements, with said copy certified by the underwriter to be a true and correct copy of the original policy. This requirement shall survive expiration or termination of this Agreement. In the event of a partial or total destruction by the perils insured against of any or all of the work and/or materials herein provided for at any time prior to the final completion of the Agreement and the final acceptance by the CITY of the work or materials to be performed or supplied thereunder, VALLEY TEEN RANCH shall promptly reconstruct, repair, replace, or restore all work or materials so destroyed or injured at his/her sole cost and expense. Nothing herein provided for shall in any way excuse VALLEY TEEN RANCH or his/her insurance company from the obligation of furnishing all the required materials and completing the work in full compliance with the terms of this Agreement. SUBCONTRACTORS If VALLEY TEEN RANCH subcontracts any or all of the services to be performed under this Agreement, VALLEY TEEN RANCH shall require, at the discretion of the CITY Risk Manager or designee, subcontractor(s) to enter into a separate Side Agreement with the City to provide required indemnification and insurance protection. Any required Side Agreement(s) and associated insurance documents for the subcontractor must be reviewed and preapproved by CITY Risk Manager or designee. If no Side Agreement is required, VALLEY TEEN RANCH will be solely responsible for ensuring that its subcontractors maintain insurance coverage at levels no less than those required by applicable law and is customary in the relevant industry. Indemnification. To the furthest extent allowed by law, including California Civil Code section 2782, VALLEY TEEN RANCH shall indemnify, defend and hold harmless CITY and each of its officers, officials, employees, agents, and volunteers from any and all claims, demands, actions in law or equity, loss, liability, fines, penalties, forfeitures, interest, costs including legal fees, and damages (whether in contract, tort, or strict liability, including but not limited to personal injury, death at any time, property damage, or loss of any type) arising or alleged to have arisen directly or indirectly out of (1) any voluntary or involuntary act or omission, (2) error, omission or negligence, or (3) the performance or non-performance of this Contract. VALLEY TEEN RANCH'S obligations as set forth in this section shall apply regardless of whether CITY or any of its officers, officials, employees, agents, or volunteers are passively negligent, but shall not apply to any loss, liability, fines, penalties, forfeitures, costs or damages caused by the active or sole negligence, or the willful misconduct, of CITY or any of its officers, officials, employees, agents or volunteers. To the fullest extent allowed by law, and in addition to the express duty to indemnify, VALLEY TEEN RANCH, whenever there is any causal connection between VALLEY TEEN RANCH’s performance or non-performance of the work or services required under this Contract and any claim or loss, injury or damage of any type, VALLEY TEEN RANCH expressly agrees to undertake a duty to defend CITY and any of its officers, officials, employees, agents, or volunteers, as a separate duty, independent of and broader that the duty to indemnify. The duty to defend as herein agreed to by VALLEY TEEN RANCH expressly includes all costs of litigation, attorneys fees, settlement costs and expenses in connection with claims or litigation, whether or not the claims are valid, false or groundless, as long as the claims could be in any manner be causally connected to VALLEY TEEN RANCH as reasonably determined by CITY. Upon the tender by CITY to VALLEY TEEN RANCH, VALLEY TEEN RANCH shall be bound and obligated to assume the defense of CITY and any of its officers, officials, employees, agents, or volunteers, including the a duty to settle and otherwise pursue settlement negotiations, and shall pay, liquidate, discharge and satisfy any and all settlements, judgments, awards, or expenses resulting from or arising out of the claims without reimbursement from CITY or any of its officers, officials, employees, agents, or volunteers. It is further understood and agreed by VALLEY TEEN RANCH that if CITY tenders a defense of a claim on behalf of CITY or any of its officers, officials, employees, agents, or volunteers and VALLEY TEEN RANCH fails, refuses or neglects to assume the defense thereof, CITY and its officers, officials, employees, agents, or volunteers may agree to compromise and settle or defend any such claim or action and VALLEY TEEN RANCH shall be bound and obligated to reimburse CITY and its officers, officials, employees, agents, or volunteers for the amounts expended by each in defending or settling such claim, or in the amount required to pay any judgment rendered therein. The defense and indemnity obligations set forth above shall be direct obligations and shall be separate from and shall not be limited in any manner by any insurance procured in accordance with the insurance requirements set forth in this Contract. In addition, such obligations remain in force regardless of whether CITY provided approval for, or did not review or object to, any insurance VALLEY TEEN RANCH may have procured in a accordance with the insurance requirements set forth in this Contract. The defense and indemnity obligations shall arise at such time that any claim is made, or loss, injury or damage of any type has been incurred by CITY, and the entry of judgment, arbitration, or litigation of any claim shall not be a condition precedent to these obligations. The defense and indemnity obligations set forth in this section shall survive termination or expiration of this Contract. If VALLEY TEEN RANCH should subcontract all or any portion of the work to be performed under this Contract, VALLEY TEEN RANCH shall require each subcontractor to Indemnify, hold harmless and defend CITY and each of its officers, officials, employees, agents and volunteers in accordance with the terms as set forth above. Section 7. Non-Performing Deed of Trust. City can enforce Valley Teen Ranch’s obligation to the Project and City to ensure compliance with this MOU by executing a deed of trust, and recording it as a lien against the Property, in a subordinate lien priority to all liens, including but not limited to a senior secured debt or regulatory agreement at the close of escrow. Section 8. Time is of the essence in the performance of this MOU. When any party has knowledge that any actual or potential situation is delaying or threatens to delay timely performance, that party shall, within twenty-four (24) hours, give notice thereof, including all relevant information with respect thereto, to the other party or parties. Section 9. Any alterations, modifications, or amendments shall only be valid when reduced to writing, duly signed and approved by the authorized representative of the Parties as an amendment to this MOU. City and Valley Teen Ranch recognize and acknowledge that the State of California may require amendments to this MOU as the Homekey Program grant funds are awarded. Section 10. All actions in this MOU are contingent on the State of California awarding Homekey Program grant funds for the application. In the event that the State of California does not award Homekey Program funds to City for its application, this MOU shall be of no force or effect and shall be deemed terminated. The indemnification requirements of this section shall survive termination of this MOU. Section 11. The parties understand and agree that the availability of Homekey Program grant funds is subject to the control of the State of California, and should said funds be encumbered, withdrawn, or otherwise made unavailable to the City, whether earned or promised to Valley Teen Ranch, and/or should the City in any fiscal year hereunder fail to allocate said Funds, the City shall not provide the Homekey Program grant funds unless and until they are made available for payment to the City by the State of California and the City receives and allocates said Homekey Program grant funds. No other funds owned or controlled by the City shall be obligated under this MOU. Section 12. Valley Teen Ranch may assign its rights, obligations, and duties contemplated under this MOU to controlled subsidiaries ( Assignee), and may form one or more jointly controlled or owned special purpose entities as may be required for the financing or other purposes related to the execution of the obligations of Valley Teen Ranch under this MOU, so long as such assignment or creation of special purposes entities do no substantively change the obligations of Valley Teen Ranch or the rights of City. The assignment of rights, obligations, and duties does not relieve Valley Teen Ranch of their obligations under this MOU. Section 13. This MOU may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, and such counterparts shall together constitute one and the same instrument. The parties shall be entitled to sign and transmit an electronic signature of this MOU (whether by facsimile, PDF or other email transmission), which shall be binding on the party whose name is contained therein. Each party providing an electronic signature agrees to promptly execute and deliver to the other party an original signed MOU upon request. [SIGNATURE PAGE TO FOLLOW] IN WITNESS WHEREOF, the parties have executed this MOU to be executed below. CITY OF FRESNO, a California municipal corporation By: _______________________ Georgeanne A. White City Manager (Attach notary certificate of acknowledgment) Date: APPROVED AS TO FORM: ANDREW JANZ City Attorney By: ______________________ Tracy N. Parvanian Supervising Deputy City Attorney Date: ______________________ ATTEST: TODD STERMER, CMC City Clerk By: _________________________ Name: Deputy Date: ___________________________ Valley Teen Ranch a California nonprofit public benefit corporation By: _____________________________ Valley Teen Ranch a California nonprofit public benefit corporation By: ______________________ Andrea Evans Chief Executive Officer By: ______________________ Donna Callahan Secretary Attachments: EXHIBIT A: PROJECT DESCRIPTION AND PROJECT SCHEDULE EXHIBIT B: BUDGET AND DISBURSEMENT SCHEDULE Exhibit A I. PROJECT DESCRIPTION The Welcome Home Project consists of developing 96 units of Permanent Housing for persons experiencing homelessness or at risk of homelessness. The target populations will be Homeless Youth and Youth at Risk of Homelessness and General Homeless. 60 units will be set aside for Homeless Youth or Youth at Risk of Homelessness, 35 units for the general homeless, and 1 on-site manager unit. All units will be one-bedroom units. The project will be an acquisition of modular housing that will be set on a permanent foundation on a lot owned by Valley Teen Ranch at 6507 N Polk Avenue, Fresno CA 93722. II. PROJECT SCHEDULE A. Capital Funds Expenditure Deadline: May 26, 2024 B. Completion of Construction: September 26, 2024 C. Occupancy Deadline: December 26, 2024 D. Operating Funds Expenditure Deadline: June 30,2026 Exhibit B BUDGET AND DISBURSEMENT SCHEDULE Disbursement Schedule: Homekey funds ($21,983,607 - $20,261,675 capital funds, $1,721,932 operating subsidy) • Upon full execution of the Homekey Standard Agreement with HCD and receipt of the funds by City, HCD shall deposit $6,360,389 into an escrow account for the modular construction. In addition, HCD shall deposit $695,000 into an escrow account for the cost of the land. • City will disburse 50% of the remaining capital funds, $6,603,143, upfront to Valley Teen Ranch via wire, to be used as 4-6 months of working capital to cover expenses in the following categories: o Construction costs o Development management fees o Design and Engineering o Construction testing o Title and Recording fees o Construction-related insurance o Legal Fees o City Fees (Plan Review, Permitting, Inspections) o Prevailing Wage Monitoring o Miscellaneous Consultant expenses • Valley Teen Ranch shall submit all required documentation to the City for the initial 50%, as described in the following sections of this MOU.As the required documentation is provided by Valley Teen Ranch to the City, the City will release additional funding on a dollar-for-dollar (1:1) basis, until all funds have been disbursed. Valley Teen Ranch shall continue to submit all required documentation to the City for all funds received, as agreed upon with the City. • Valley Teen Ranch shall request that the CITY disburse Homekey funds for eligible project costs using the CITY’s Request for Disbursement of Funds form. All requests should provide in detail such Eligible Costs applicable to the request. All requests for disbursement of Homekey funds shall be accompanied by a Certification as required below • Valley Teen Ranch shall submit to the CITY a written certification that, as of the date of the Request for Disbursement of Funds (Certification): o The representations and warranties contained in or incorporated by reference in this MOU continue to be true, complete and accurate in material respects. o Valley Teen Ranch has carried out all of its obligations and is in compliance with all the obligations specified in this MOU, to the extent that such obligations are required to have been carried out or are applicable at the time of the Request for Disbursement of Funds; and o Valley Teen Ranch has not committed or suffered an act, event, occurrence, or circumstance that constitutes an Event of Default or that with the passage of time or giving of notice or both would constitute an Event of Default; and o The disbursement of funds shall be used solely for expenses related to Eligible projects Costs identified in this MOU and must by supported by the itemized obligations that have been properly incurred, expended and are properly chargeable in connection with construction of the Project. Disbursement of Funds. The disbursement of Homekey Funds shall occur within the normal course of CITY business (approximately 30 days) after the CITY receives the Certification and Request for Disbursement with correct supporting documentation. MEMORANDUM OF UNDERSTANDING BETWEEN THE CITY OF FRESNO AND VALLEY TEEN RANCH REGARDING WELCOME HOME PROJECT THIS MEMORANDUM OF UNDERSTANDING (MOU or Agreement) is made and entered into effect on ____________ (the Effective Date), by and between the CITY OF FRESNO, a California municipal corporation (City), and VALLEY TEEN RANCH, a California nonprofit public benefit corporation (Valley Teen Ranch). RECITALS WHEREAS, the State of California Department of Housing and Community Development (HCD) issued a Notice of Funding Availability for the Homekey Program Round 3 (NOFA), dated March 29, 2023; WHEREAS, City and Valley Teen Ranch submitted a joint application in response to the NOFA for the construction and operation of 6507 N. Polk Avenue as permanent affordable housing; WHEREAS, the City and Valley Teen Ranch were awarded $21,983,607 in Homekey Round 3 funds from HCD; WHEREAS, Valley Teen Ranch will act as the owner/developer exercising effective project control, as to the construction of 96 one-bedroom apartment units on the Property, and related on-site and off-site improvements (Project); WHEREAS, the City has determined that the Project is vital and in the best interest of the City, and the health, safety, and welfare of City residents and will increase, improve, and preserve the community’s supply of affordable housing. NOW, THEREFORE, in consideration of the recitals and mutual covenants and conditions contained in this MOU, incorporated herein, the Parties agree, as follows: Section 1. The parties to this MOU encourage the highest possible degree of cooperative relationships between their respective representatives with regard to the Homekey Program including but not limited to acting in good faith to ensure the transparency, mutual success, and liability prevention, to acquire, develop, and maintain the Property and provide services to the residents. Section 2. The parties to this MOU shall coordinate their resources and efforts to develop the Project and manage the Property in a timely manner. The Parties agree that 96 units shall be developed and operated as a result of this round of the Homekey Program. Section 3. The Parties agree to comply with all Homekey regulations, and any other guidelines issued by the State of California that directly relate to the Homekey program. Section 4. Valley Teen Ranch shall pay all third-party costs incurred in connection with the Homekey program application and shall reimburse the City with Homekey funds for all eligible costs under the Homekey program.          Section 5. Attachment “A” (Project Description and Project Schedule) provides a summary of the Project and performance deadlines. Attachment "B" (Budget and Disbursement Schedule) outlines the disbursement of funds. Both documents are hereby fully incorporated herein. Section 6. Indemnification and Insurance. Insurance Requirements. (a) Throughout the life of this Agreement, VALLEY TEEN RANCH shall pay for and maintain in full force and effect all insurance as required herein with an insurance company(ies) either (i) admitted by the California Insurance Commissioner to do business in the State of California and rated no less than “A-VII” in the Best’s Insurance Rating Guide, or (ii) as may be authorized in writing by CITY'S Risk Manager or his/her designee at any time and in his/her sole discretion. The required policies of insurance as stated herein shall maintain limits of liability of not less than those amounts stated therein. However, the insurance limits available to CITY, its officers, officials, employees, agents and volunteers as additional insureds, shall be the greater of the minimum limits specified therein or the full limit of any insurance proceeds to the named insured. (b) If at any time during the life of the Agreement or any extension, VALLEY TEEN RANCH or any of its subcontractors fail to maintain any required insurance in full force and effect, all services and work under this Agreement shall be discontinued immediately, and all payments due or that become due to VALLEY TEEN RANCH shall be withheld until notice is received by CITY that the required insurance has been restored to full force and effect and that the premiums therefore have been paid for a period satisfactory to CITY. Any failure to maintain the required insurance shall be sufficient cause for CITY to terminate this Agreement. No action taken by CITY pursuant to this section shall in any way relieve VALLEY TEEN RANCH of its responsibilities under this Agreement. The phrase “fail to maintain any required insurance” shall include, without limitation, notification received by CITY that an insurer has commenced proceedings, or has had proceedings commenced against it, indicating that the insurer is insolvent. (c) The fact that insurance is obtained by VALLEY TEEN RANCH shall not be deemed to release or diminish the liability of VALLEY TEEN RANCH, including, without limitation, liability under the indemnity provisions of this Agreement. The duty to indemnify CITY shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by VALLEY TEEN RANCH. Approval or purchase of any insurance contracts or policies shall in no way relieve from liability nor limit the liability of VALLEY TEEN RANCH, vendors, suppliers, invitees, contractors, sub-contractors, subcontractors, or anyone employed directly or indirectly by any of them. Coverage shall be at least as broad as: (i) COMMERCIAL GENERAL LIABILITY insurance which shall be at least as broad as the most current version of Insurance Services Office (ISO) Commercial General Liability Coverage Form CG 00 01 and include insurance for “bodily injury,” “property damage” and “personal and advertising injury” with coverage for premises and operations          (including the use of owned and non-owned equipment), products and completed operations, and contractual liability (including, without limitation, indemnity obligations under the Agreement) with limits of liability not less than the following: $2,000,000 per occurrence for bodily injury and property damage $2,000,000 per occurrence for personal and advertising injury $4,000,000 aggregate for products and completed operations $4,000,000 general aggregate applying separately to the work performed under the Agreement. (ii) COMMERCIAL AUTOMOBILE LIABILITY insurance which shall be at least as broad as the most current version of Insurance Service Office (ISO) Business Auto Coverage Form CA 00 01, and include coverage for all owned, hired, and non-owned automobiles or other licensed vehicles (Code 1- Any Auto) with limits of liability of not less than $1,000,000 per accident for bodily injury and property damage. (iii) Workers’ Compensation insurance as required by the State of California and Employer’s Liability Insurance. (iv) EMPLOYEE LIABILITY insurance with limits of liability of no less than $1,000,000 each accident, $1,000,000 disease policy limit and $1,000,000 diseased each employee (v) BUILDERS RISK (Course of Construction) insurance, obtained by VALLEY TEEN RANCH or subcontractor in an amount equal to the completed value of the project with no coinsurance penalty provisions. (Only required if the project includes new construction of a building; or renovation of, or addition to, an existing building.) (vi) CONTRACTOR POLLUTION with coverage for bodily injury, property damage or pollution clean-up costs that could result from of pollution condition, both sudden and gradual. Including a discharge of pollutants brought to the work site, a release of pre-existing pollutants at the site, or other pollution conditions with limits of liability of not less than the following: $1,000,000 per occurrence $2,000,000 general aggregate per annual policy period In the event the work involves any lead-based, mold or asbestos environmental hazard, either the Automobile Liability insurance policy or the Pollution Liability insurance policy shall be endorsed to include Transportation Pollution Liability insurance covering materials to be transported by VALLEY TEEN RANCH pursuant to the MOU. In the event the work involves any lead-based environmental hazard (e.g., lead- based paint), VALLEY TEEN RANCH’s Pollution Liability insurance policy shall be endorsed to include coverage for lead based environmental hazards. In the event VALLEY TEEN RANCH involves any asbestos environmental hazard (e.g., asbestos remediation), VALLEY TEEN RANCH’s Pollution Liability insurance policy shall be endorsed to include coverage for asbestos environmental hazards. In the event the MOU involves any mold environmental hazard (e.g., mold remediation), the Pollution Liability          insurance policy shall be endorsed to include coverage for mold environmental hazards and “microbial matter including mold” within the definition of “Pollution” under the policy. UMBRELLA OR EXCESS INSURANCE In the event VALLEY TEEN RANCH purchases an Umbrella or Excess insurance policy(ies) to meet the “Minimum Limits of Insurance,” this insurance policy(ies) shall “follow form” and afford no less coverage than the primary insurance policy(ies). In addition, such Umbrella or Excess insurance policy(ies) shall also apply on a primary and non-contributory basis for the benefit of the CITY, its officers, officials, employees, agents and volunteers. DEDUCTIBLES AND SELF-INSURED RETENTIONS VALLEY TEEN RANCH shall be responsible for payment of any deductibles contained in any insurance policy(ies) required herein and VALLEY TEEN RANCH shall also be responsible for payment of any self-insured retentions. OTHER INSURANCE PROVISIONS/ENDORSEMENTS All policies of insurance required hereunder shall be endorsed to provide that the coverage shall not be cancelled, non-renewed, reduced in coverage or in limits except after thirty (30) calendar day written notice has been given to CITY. Upon issuance by the insurer, broker, or agent of a notice of cancellation, non-renewal, or reduction in coverage or in limits, VALLEY TEEN RANCH shall furnish the CITY with a new certificate and applicable endorsements for such policy(ies). In the event any policy is due to expire during the work to be performed for the CITY, VALLEY TEEN RANCH shall provide a new certificate, and applicable endorsements, evidencing renewal of such policy not less than fifteen (15) calendar days prior to the expiration date of the expiring policy. The General Liability, Pollution and Automobile Liability insurance policies shall be written on an occurrence form. The General Liability, Automobile Liability and Pollution Liability insurance policies shall name the CITY, its officers, officials, agents, employees and volunteers as an additional insured for ongoing and completed operations. All such policies of insurance shall be endorsed so VALLEY TEEN RANCH’s insurance shall be primary, and no contribution shall be required by the CITY. The coverage shall contain no special limitations on the scope of protection afforded to the CITY, its officers, officials, employees, agents, and volunteers. If VALLEY TEEN RANCH maintains higher limits of liability than the minimums shown above, the CITY requires and shall be entitled to coverage for the higher limits of liability maintained by VALLEY TEEN RANCH. The Builders Risk (Course of Construction) insurance policy shall be endorsed to name the CITY as loss payee. All insurance policies required including the Workers’ Compensation insurance policy shall contain a waiver of subrogation as to the City, its officers, officials, agents, employees, and volunteers.          VALLEY TEEN RANCH shall furnish the CITY with all certificate(s) and applicable endorsements effecting coverage required hereunder. All certificates and applicable endorsements are to be received and approved by the CITY’s Risk Manager or his/her designee before work commences. Upon request of the CITY, VALLEY TEEN RANCH shall immediately furnish the CITY with a complete copy of any insurance policy required under this Agreement, including all endorsements, with said copy certified by the underwriter to be a true and correct copy of the original policy. This requirement shall survive expiration or termination of this Agreement. In the event of a partial or total destruction by the perils insured against of any or all of the work and/or materials herein provided for at any time prior to the final completion of the Agreement and the final acceptance by the CITY of the work or materials to be performed or supplied thereunder, VALLEY TEEN RANCH shall promptly reconstruct, repair, replace, or restore all work or materials so destroyed or injured at his/her sole cost and expense. Nothing herein provided for shall in any way excuse VALLEY TEEN RANCH or his/her insurance company from the obligation of furnishing all the required materials and completing the work in full compliance with the terms of this Agreement. SUBCONTRACTORS If VALLEY TEEN RANCH subcontracts any or all of the services to be performed under this Agreement, VALLEY TEEN RANCH shall require, at the discretion of the CITY Risk Manager or designee, subcontractor(s) to enter into a separate Side Agreement with the City to provide required indemnification and insurance protection. Any required Side Agreement(s) and associated insurance documents for the subcontractor must be reviewed and preapproved by CITY Risk Manager or designee. If no Side Agreement is required, VALLEY TEEN RANCH will be solely responsible for ensuring that its subcontractors maintain insurance coverage at levels no less than those required by applicable law and is customary in the relevant industry. Indemnification. To the furthest extent allowed by law, including California Civil Code section 2782, VALLEY TEEN RANCH shall indemnify, defend and hold harmless CITY and each of its officers, officials, employees, agents, and volunteers from any and all claims, demands, actions in law or equity, loss, liability, fines, penalties, forfeitures, interest, costs including legal fees, and damages (whether in contract, tort, or strict liability, including but not limited to personal injury, death at any time, property damage, or loss of any type) arising or alleged to have arisen directly or indirectly out of (1) any voluntary or involuntary act or omission, (2) error, omission or negligence, or (3) the performance or non-performance of this Contract. VALLEY TEEN RANCH'S obligations as set forth in this section shall apply regardless of whether CITY or any of its officers, officials, employees, agents, or volunteers are passively negligent, but shall not apply to any loss, liability, fines, penalties, forfeitures, costs or damages caused by the active or sole negligence, or the willful misconduct, of CITY or any of its officers, officials, employees, agents or volunteers. To the fullest extent allowed by law, and in addition to the express duty to indemnify, VALLEY TEEN RANCH, whenever there is any causal connection between VALLEY TEEN RANCH’s performance or non-performance of the work or services required under this Contract and any claim or loss, injury or damage of any type, VALLEY          TEEN RANCH expressly agrees to undertake a duty to defend CITY and any of its officers, officials, employees, agents, or volunteers, as a separate duty, independent of and broader that the duty to indemnify. The duty to defend as herein agreed to by VALLEY TEEN RANCH expressly includes all costs of litigation, attorneys fees, settlement costs and expenses in connection with claims or litigation, whether or not the claims are valid, false or groundless, as long as the claims could be in any manner be causally connected to VALLEY TEEN RANCH as reasonably determined by CITY. Upon the tender by CITY to VALLEY TEEN RANCH, VALLEY TEEN RANCH shall be bound and obligated to assume the defense of CITY and any of its officers, officials, employees, agents, or volunteers, including the a duty to settle and otherwise pursue settlement negotiations, and shall pay, liquidate, discharge and satisfy any and all settlements, judgments, awards, or expenses resulting from or arising out of the claims without reimbursement from CITY or any of its officers, officials, employees, agents, or volunteers. It is further understood and agreed by VALLEY TEEN RANCH that if CITY tenders a defense of a claim on behalf of CITY or any of its officers, officials, employees, agents, or volunteers and VALLEY TEEN RANCH fails, refuses or neglects to assume the defense thereof, CITY and its officers, officials, employees, agents, or volunteers may agree to compromise and settle or defend any such claim or action and VALLEY TEEN RANCH shall be bound and obligated to reimburse CITY and its officers, officials, employees, agents, or volunteers for the amounts expended by each in defending or settling such claim, or in the amount required to pay any judgment rendered therein. The defense and indemnity obligations set forth above shall be direct obligations and shall be separate from and shall not be limited in any manner by any insurance procured in accordance with the insurance requirements set forth in this Contract. In addition, such obligations remain in force regardless of whether CITY provided approval for, or did not review or object to, any insurance VALLEY TEEN RANCH may have procured in a accordance with the insurance requirements set forth in this Contract. The defense and indemnity obligations shall arise at such time that any claim is made, or loss, injury or damage of any type has been incurred by CITY, and the entry of judgment, arbitration, or litigation of any claim shall not be a condition precedent to these obligations. The defense and indemnity obligations set forth in this section shall survive termination or expiration of this Contract. If VALLEY TEEN RANCH should subcontract all or any portion of the work to be performed under this Contract, VALLEY TEEN RANCH shall require each subcontractor to Indemnify, hold harmless and defend CITY and each of its officers, officials, employees, agents and volunteers in accordance with the terms as set forth above. Section 7. Non-Performing Deed of Trust. City can enforce Valley Teen Ranch’s obligation to the Project and City to ensure compliance with this MOU by executing a deed of trust, and recording it as a lien against the Property, in a subordinate lien priority to all liens, including but not limited to a senior secured debt or regulatory agreement at the close of escrow.          Section 8. Time is of the essence in the performance of this MOU. When any party has knowledge that any actual or potential situation is delaying or threatens to delay timely performance, that party shall, within twenty-four (24) hours, give notice thereof, including all relevant information with respect thereto, to the other party or parties. Section 9. Any alterations, modifications, or amendments shall only be valid when reduced to writing, duly signed and approved by the authorized representative of the Parties as an amendment to this MOU. City and Valley Teen Ranch recognize and acknowledge that the State of California may require amendments to this MOU as the Homekey Program grant funds are awarded. Section 10. All actions in this MOU are contingent on the State of California awarding Homekey Program grant funds for the application. In the event that the State of California does not award Homekey Program funds to City for its application, this MOU shall be of no force or effect and shall be deemed terminated. The indemnification requirements of this section shall survive termination of this MOU. Section 11. The parties understand and agree that the availability of Homekey Program grant funds is subject to the control of the State of California, and should said funds be encumbered, withdrawn, or otherwise made unavailable to the City, whether earned or promised to Valley Teen Ranch, and/or should the City in any fiscal year hereunder fail to allocate said Funds, the City shall not provide the Homekey Program grant funds unless and until they are made available for payment to the City by the State of California and the City receives and allocates said Homekey Program grant funds. No other funds owned or controlled by the City shall be obligated under this MOU. Section 12. Valley Teen Ranch may assign its rights, obligations, and duties contemplated under this MOU to controlled subsidiaries ( Assignee), and may form one or more jointly controlled or owned special purpose entities as may be required for the financing or other purposes related to the execution of the obligations of Valley Teen Ranch under this MOU, so long as such assignment or creation of special purposes entities do no substantively change the obligations of Valley Teen Ranch or the rights of City. The assignment of rights, obligations, and duties does not relieve Valley Teen Ranch of their obligations under this MOU. Section 13. This MOU may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, and such counterparts shall together constitute one and the same instrument. The parties shall be entitled to sign and transmit an electronic signature of this MOU (whether by facsimile, PDF or other email transmission), which shall be binding on the party whose name is contained therein. Each party providing an electronic signature agrees to promptly execute and deliver to the other party an original signed MOU upon request. [SIGNATURE PAGE TO FOLLOW]          IN WITNESS WHEREOF, the parties have executed this MOU to be executed below. CITY OF FRESNO, a California municipal corporation By: _______________________ Georgeanne A. White City Manager (Attach notary certificate of acknowledgment) Date: APPROVED AS TO FORM: ANDREW JANZ City Attorney By: ______________________ Tracy N. Parvanian Supervising Deputy City Attorney Date: ______________________ ATTEST: TODD STERMER, CMC City Clerk By: _________________________ Name: Deputy Date: ___________________________ Valley Teen Ranch a California nonprofit public benefit corporation By: ______________________ Andrea Evans Chief Executive Officer By: ______________________ Donna Callahan Secretary Attachments: EXHIBIT A: PROJECT DESCRIPTION AND PROJECT SCHEDULE EXHIBIT B: BUDGET AND DISBURSEMENT SCHEDULE           Exhibit A I. PROJECT DESCRIPTION The Welcome Home Project consists of developing 96 units of Permanent Housing for persons experiencing homelessness or at risk of homelessness. The target populations will be Homeless Youth and Youth at Risk of Homelessness and General Homeless. 60 units will be set aside for Homeless Youth or Youth at Risk of Homelessness, 35 units for the general homeless, and 1 on-site manager unit. All units will be one-bedroom units. The project will be an acquisition of modular housing that will be set on a permanent foundation on a lot owned by Valley Teen Ranch at 6507 N Polk Avenue, Fresno CA 93722. II. PROJECT SCHEDULE A. Capital Funds Expenditure Deadline: May 26, 2024 B. Completion of Construction: September 26, 2024 C. Occupancy Deadline: December 26, 2024 D. Operating Funds Expenditure Deadline: June 30,2026          Exhibit B BUDGET AND DISBURSEMENT SCHEDULE          Disbursement Schedule: Homekey funds ($21,983,607 - $20,261,675 capital funds, $1,721,932 operating subsidy) x Upon full execution of the Homekey Standard Agreement with HCD and receipt of the funds by City, HCD shall deposit $6,360,389 into an escrow account for the modular construction. In addition, HCD shall deposit $695,000 into an escrow account for the cost of the land. x City will disburse 50% of the remaining capital funds, $6,603,143, upfront to Valley Teen Ranch via wire, to be used as 4-6 months of working capital to cover expenses in the following categories: o Construction costs o Development management fees o Design and Engineering o Construction testing o Title and Recording fees o Construction-related insurance o Legal Fees o City Fees (Plan Review, Permitting, Inspections) o Prevailing Wage Monitoring o Miscellaneous Consultant expenses x Valley Teen Ranch shall submit all required documentation to the City for the initial 50%, as described in the following sections of this MOU.As the required documentation is provided by Valley Teen Ranch to the City, the City will release additional funding on a dollar-for-dollar (1:1) basis, until all funds have been disbursed. Valley Teen Ranch shall continue to submit all required documentation to the City for all funds received, as agreed upon with the City. x Valley Teen Ranch shall request that the CITY disburse Homekey funds for eligible project costs using the CITY’s Request for Disbursement of Funds form. All requests should provide in detail such Eligible Costs applicable to the request. All requests for disbursement of Homekey funds shall be accompanied by a Certification as required below x Valley Teen Ranch shall submit to the CITY a written certification that, as of the date of the Request for Disbursement of Funds (Certification): o The representations and warranties contained in or incorporated by reference in this MOU continue to be true, complete and accurate in material respects. o Valley Teen Ranch has carried out all of its obligations and is in compliance with all the obligations specified in this MOU, to the extent that such          obligations are required to have been carried out or are applicable at the time of the Request for Disbursement of Funds; and o Valley Teen Ranch has not committed or suffered an act, event, occurrence, or circumstance that constitutes an Event of Default or that with the passage of time or giving of notice or both would constitute an Event of Default; and o The disbursement of funds shall be used solely for expenses related to Eligible projects Costs identified in this MOU and must by supported by the itemized obligations that have been properly incurred, expended and are properly chargeable in connection with construction of the Project. Disbursement of Funds. The disbursement of Homekey Funds shall occur within the normal course of CITY business (approximately 30 days) after the CITY receives the Certification and Request for Disbursement with correct supporting documentation.          City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID 23-1443 Agenda Date:10/19/2023 Agenda #: 1.-Q. REPORT TO THE CITY COUNCIL FROM:RANDALL W. MORRISON, PE, Director Capital Projects Department AARON A. AGUIRRE, Director Parks, After School, Recreation, and Community Services Department BY:FRANCISCO V. MAGOS II, PE, Assistant Director Capital Projects Department, Utilities and On-Site Project Management Division HARLAVPREET S. BRAR, Licensed Professional Engineer Capital Projects Department, Utilities and On-Site Project Management Division SUBJECT Actions pertaining to Woodward Tot Lot and ADA Accessibility Improvements (Council District 6): 1.Reject the bid received and direct staff to re-bid the project (Bid File 12400255). 2.Approve the First Amendment to the Consultant Services Agreement with Quad Knopf,Inc, dba QK,in the amount not to exceed $7,500,for a total increased contract amount not to exceed $57,200, for professional support services to re-bid the project. RECOMMENDATIONS Staff recommends that the City Council (1)reject the one bid received for the Woodward Tot Lot and ADA Accessibility Improvements Project and (2)approve the First Amendment to the Consultant Services Agreement with Quad Knopf Inc.,dba QK,in the amount not to exceed $7,500,paid on time and materials basis,for a total increased contract amount not to exceed $57,200,for the Woodward Tot Lot and ADA Accessibility Improvements project,and authorize the Capital Projects Director or designee to execute the First Amendment on behalf of the City of Fresno. EXECUTIVE SUMMARY Staff recommends that the City Council reject the one bid received for the Woodward Park Tot Lot and ADA Accessibility Improvements Project and approve the First Amendment to Consultant Agreement with QK for professional support services to re-bid the project.The received bid was twenty-eight percent (28%)above the engineer’s estimate and exceeded the funding allocation for the project.Upon rejection of the bid,the staff will work with the consultant to revise and repackage the project together with the Roeding Tot Lot and ADA Accessibility Improvements Project.Staff believes that the magnitude and scope of the combined projects will attract more,competitive prospective bidders.The Consultant Services Agreement was originally funded by Fiscal Year 22 City of Fresno Printed on 10/30/2023Page 1 of 3 powered by Legistar™ File #:ID 23-1443 Agenda Date:10/19/2023 Agenda #: 1.-Q. prospective bidders.The Consultant Services Agreement was originally funded by Fiscal Year 22 General Funds.The adopted project budget has sufficient funding to cover the additional staff and consultant costs needed to rebid the project. BACKGROUND Woodward Park is located on the southwest corner of Friant Avenue and Fort Washington Road.In an effort to improve the condition and accessibility of the play structures located within the City’s Regional Parks (Woodward and Roeding),an assessment of the existing structures and accessibility to them was initiated through separate consultant agreements with Quad Knopf Inc.,dba QK,on April 14,2022.After examining the prevailing site conditions at both locations,QK provided a comprehensive planning and development strategy with the intention of rehabilitating the existing play structures and removing any accessibility barriers at each park playground site.As a result of the recommendations,Parks,After School,Recreation,and Community Services (PARCS)moved forward with implementing the proposed enhancements at four (4)different play area locations within Woodward Park:Park View,Valley View,River View and Art of Life;and two (2)different play locations within Roeding Park:Maple Grove and Pine Grove.Incorporated within the project design is a comprehensive scope to reconstruct the existing paths of travel,refurbishment of parking stalls and provide site amenities that adhere to ADA accessibility standards. The Notice Inviting Bids for the Woodward Park Tot Lot and ADA Accessibility Improvements Project was advertised and published in the Business Journal,and PlanetBids on July 19,2023,and posted on the City’s website.Nine (9)building exchanges received the Notice Inviting Bids.The specifications were distributed to twenty (20)prospective bidders.One (1)sealed bid proposal was received and opened in a public bid opening on August 22,2023,with a bid amount of $663,520. American Paving Co.of Fresno,California submitted the only bid in the amount of $663,520 and was determined to be the lowest responsive and responsible bidder for the project.The bids will expire on October 25, 2023. Upon evaluation of the bids,Staff determined that the bid received surpassed engineer’s estimate by twenty-eight percent (28%).It is possible the magnitude and scope of the project may have deterred a competitive pool of prospective construction contractors.Staff recommends the rejection of the bid and approval of the First Amendment to Agreement with QK in the amount not to exceed $7,500,for a total increased contract amount not to exceed $57,200,to provide professional support services to re-bid the project together with Roeding Tot Lot and ADA Accessibility Improvements Project in an effort to provide a favorable economy of scale and potentially attract more prospective bidders and authorize the Capital Projects Director or designee to sign on behalf of the City of Fresno. The City Attorney’s Office has reviewed and approved the proposed amendment as to form. ENVIRONMENTAL FINDINGS By the definition provided in the California Environmental Quality Act (CEQA)Guidelines,Section 15378,the rejection of the bid and contract amendment does not qualify as a “project”as defined by the CEQA requirements. LOCAL PREFERENCE City of Fresno Printed on 10/30/2023Page 2 of 3 powered by Legistar™ File #:ID 23-1443 Agenda Date:10/19/2023 Agenda #: 1.-Q. The local preference was not implemented; this is an action to (1) reject the bid and (2) amend an existing consultant agreement. FISCAL IMPACT The proposed project is located within Council District 6.The Consultant Services Agreement was originally funded by Fiscal Year 22 General Funds.The adopted project budget has sufficient funding to cover the additional staff and consultant costs needed to rebid the project.Rejection of this bid and rebid of the project along with another project will potentially reduce the construction cost and will attract more prospective bidders. Attachment(s): Bid Evaluation Original Agreement First Amendment to Agreement Vicinity Map - Woodward Park City of Fresno Printed on 10/30/2023Page 3 of 3 powered by Legistar™ 1 FIRST AMENDMENT TO AGREEMENT THIS FIRST AMENDMENT TO AGREEMENT (Amendment) made and entered into as of this ____ day of ___________ 20__, amends the Agreement entered into between the CITY OF FRESNO, a California municipal corporation (“City”), and Quad Knopf, Inc. dba QK, a California Corporation (“Consultant”). RECITALS WHEREAS, City and Consultant entered into an Agreement dated April 14, 2022, for Woodward Park Tot Lots Project (“Agreement”); and WHEREAS, Consultant has completed the Design Development and Construction Document portion of the Agreement; and WHEREAS, City and Consultant now desire to modify the scope of work therein by requiring additional services; and WHEREAS, the Agreement will be administered for the City by its Capital Projects Director (“Director”) or designee; and WHEREAS, the entry into this Agreement, Consultant agrees that Consultant has no claim, demand, or dispute against the City. AGREEMENT NOW, THEREFORE, in consideration of the above recitals, which recitals are contractual in nature the mutual promises herein contained, and for other good and valuable consideration hereby acknowledged the parties agree that the Agreement be amended as follows: 1. Consultant shall provide additional services as described in Attachment A, attached hereto and incorporated herein by reference. Such additional services shall be completed within 21 days following execution of this Amendment by both parties. 2. Consultant’s sole compensation for satisfactory performance of all services required or rendered pursuant to this Amendment shall be a total fee not to exceed $7,500, paid on time and materials basis in accordance with the schedule of fees contained in Attachment A. 3. In the event of any conflict between the body of this Amendment and any exhibit or attachment hereto, the terms and conditions of the body of this Amendment shall control and take precedence over the terms and conditions expressed within the exhibit or attachment. Furthermore, any terms or conditions contained within any exhibit or attachment hereto which purport to modify the allocation of risk between the parties, provided for within the body of this Amendment, shall be null and void. 2 4. Except as otherwise provided herein, the Agreement entered into by City and Consultant, dated April 14, 2022, remains in full force and effect. [Signatures follow on the next page.] 3 IN WITNESS WHEREOF, the parties have executed this Amendment at Fresno, California, the day and year first above written. CITY OF FRESNO, a California municipal corporation By: Randall W. Morrison, PE Director Capital Projects Department APPROVED AS TO FORM: ANDREW JANZ City Attorney By: Angela M. Karst Date Senior Deputy City Attorney ATTEST: TODD STERMER, CMC City Clerk By: Deputy Date Quad Knopf, Inc., a California Corporation By: Name: Title: (If corporation or LLC., Board Chair, Pres. or Vice Pres.) By: Name: Title: (If corporation or LLC., CFO, Treasurer, Secretary or Assistant Secretary) REVIEWED BY: Francisco V. Magos Assistant Director Capital Projects Department Address: CITY: CONSULTANT: City of Fresno Quad Knopf Inc. Attention: Harlavpreet S. Brar, PE Attention: Ernie Escobedo Licensed Professional Engineer Branch Manager Capital Projects Department 601 Pollasky Avenue, Suite 301 2600 Fresno Street, Room 4016 Clovis, CA 93612 Fresno, CA 93721 Telephone: 559-449-2400 Telephone: 559-621-8616 Email - Harlavpreet.brar@fresno.gov Email – Ernie.Escobedo@qkinc.com Attachment: Attachment A President/CEO Amber Aguayo CFO/COO Ronald J. Wathen, PE #58690 09/25/23 4 Attachment A ADDITIONAL SCOPE OF SERVICES Consultant Service First Amendment to Agreement between City of Fresno (City) and Quad Knopf, Inc. dba QK, a California Corporation (Consultant) Woodward Park Tot Lots Quad Knopf Inc., dba QK, is working on the design of construction documents for the ADA Accessibility Improvement project at four (4) well-frequented locations with Woodward Park: Park View, River View, Valley View and Art of Life. QK is also working on the design of construction documents to reconstruct and provide ADA accessibility improvements to the existing paths of travel and parking stalls, demolition of existing play structures and replacing with new play equipment, installation of new site amenities and pour-in-place rubber surface at two (2) play areas within Roeding Park: Pine Grove and Maple Grove, through a separate agreement dated April 14, 2022, for Roeding Park Tot Lots Project. QK will combine the bid documents for the Woodward Park Tot Lots project and Roeding Park Tot Lots project and advertise as one combined bid package. Additional Scope of Services include, but are not limited to: 1. Coordinate with the City Staff to combine the two projects together. 2. One (1) 24” x 36” Combined Cover Sheet for the set of plans. 3. One (1) original signed set of combined PS&E documents. 4. Update and collaborate the Bid Proposal Items and Bid Proposal Descriptions for both the projects. 5. Update and collaborate the Bid Specs Division VII – Project Specific Technical Specifications. COMPENSATION The compensation for the additional services, as described above, shall be paid on a time and material basis in accordance with the schedule of fees contained below. Fees will be billed monthly in accordance with phase work completed. Original Contract TOTAL ORIGINAL PROFESSIONAL FEE (LUMP SUM) $ 49,700.00 First Amendment Compensation FIRST AMENDMENT COMPENSATION (NOT TO EXCEED) $ 7,500.00 5 TOTAL AMENDED CONTRACT AMOUNT NOT TO EXCEED $ 57,200.00 SCHEDULE Documentation Completion 21 additional calendar days Whites Bridge MapleBrawleyHerndon Bullard Shaw ClovisFowlerTemperanceWestPalmClovisFowlerTemperanceDe WolfShields McKinley Belmont ChestnutPeachAmerican CedarGrantlandHayesElmEastMarksWestWalnutCorneliaNorth California Jensen Ashlan GrantlandHayesCorneliaBrawleyMarksShaw Bullard Herndon Nees De WolfShields McKinley Belmont California Jensen North Kings Canyon AshlanPeachBehymer Copper Shepherd NeesBlackstoneFirstCedarChestnutGarfieldBryanPolkBlytheValentineVan NessFruitMaroaFresnoMillbrookMapleWillowDakota Clinton Olive Gettysburg Barstow Sierra Alluvial Nielsen Kearney Muscat Annadale Church WillowMinnewawaMalaga OrangeBryanSunnysideArmstrongLocanFigCherryHughesFruitPolkValentineBlytheAlluvial Sierra Barstow Perrin SunnysideArmstrongLocanClinton Olive Tulare Butler Church Annadale DakotaMinnewawaInternational Teague Woodward Park N 0 1.5 30.75 Miles Project ID: PC00363 Council District: 6 Woodward Park Tot Lot and ADA Accessibility Improvements VICINITY MAP DEPARTMENT OFPUBLIC WORKS District 6 City_Limits City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID 23-1483 Agenda Date:10/19/2023 Agenda #: 1.-R. REPORT TO THE CITY COUNCIL FROM:RANDALL W. MORRISON, PE, Director Capital Projects Department AARON A. AGUIRRE, Director Parks, After School, Recreation, and Community Services Department SCOTT L. MOZIER, PE, Director Public Works Department BY:FRANCISCO V. MAGOS II, PE, Assistant Director Capital Projects Department, Utilities and On-Site Project Management Division L. NATHAN SANCHEZ, Projects Administrator Capital Projects Department, Utilities and On-Site Project Management Division SUBJECT Award a construction contract for the Base Bid plus all eight (8)Add Alternates in the total amount of $8,646,293 to Avison Construction,Inc of Madera,CA,as the lowest responsive and responsible bidder for the Transformative Climate Communities (TCC)Park at MLK Magnet Core Project (Bid File No. 12302905) (Council District 3). RECOMMENDATION Staff recommends that Council award a construction contract to Avison Construction,Inc.for the Base Bid plus all eight (8)Add Alternates in the total amount of $8,646,293,as the lowest responsive and responsible bidder,for the TCC Park at the MLK Magnet Core site,which is within the project footprint of the West Creek Village Project (“MLK Magnet Core Project”)and authorize the Capital Projects Director or designee to sign a standardized construction contract on behalf of the City of Fresno. EXECUTIVE SUMMARY The community driven Transform Fresno Plan identified the TCC Park at MLK Magnet Core Project as a key project for southwest Fresno under the Transformative Climate Communities (TCC)funding program.The project proposes the construction of a new 10-acre public park to be located west of Martin Luther King Jr.Boulevard between Church and Jensen Avenues,in the center of the planned West Creek Village residential and commercial development and adjacent to the new State Center Community College District’s West Fresno Satellite Campus.The project is fully funded by the TCC City of Fresno Printed on 10/20/2023Page 1 of 4 powered by Legistar™ File #:ID 23-1483 Agenda Date:10/19/2023 Agenda #: 1.-R. Community College District’s West Fresno Satellite Campus.The project is fully funded by the TCC Grant funding,local Development Park Impact Fees and a one-third developer contribution for a portion of the supporting improvements,as specified in the West Creek Village Development Agreement. BACKGROUND In January 2018,the City was awarded grant funds in the amount of $66,500,000 from the TCC Grant Program from the State of California through the Strategic Growth Council (SGC)to fund the development and implementation of neighborhood-level coordinated greenhouse gas emissions reduction projects that provide local economic,environmental and health benefits to disadvantaged communities,which was detailed in the Transform Fresno Plan.The Transform Fresno Plan was created by a participatory steering committee comprised of community stakeholders from the Chinatown,Downtown and Southwest Fresno neighborhoods.On February 28,2019,the City Council unanimously approved the Master Grant Agreement which bound the City and SGC,and then subsequently approved the Sub-Recipient Agreement on January 16,2020,between the City and Partners who received funds to implement components of the Transform Fresno Plan.Council approved a sub-recipient grant award to the Department of Public Works (DPW)in the amount of $5,430,466.53, for the implementation of Project 13 - Park at MLK Magnet Core. The design started following the City Council approval of the consultant contract with MLA Green Inc.,DBA Studio-MLA of Los Angeles,CA,on July 29,2021.The design includes landscaping with 100 trees,low water use plantings and irrigation,walking paths,restroom,wet and dry utilities infrastructure,themed playground area,site furnishings and LED lighting.In accordance with the Development Agreement,the construction also includes a public road from Church Avenue,a loop road around the park that includes street improvements,street lighting and sidewalks.A temporary ponding basin along with underground utilities is also included as part of the construction for this project.The project will provide green space and infrastructure for new development in southwest Fresno. The Notice Inviting Bids was advertised and published in the Business Journal on June 21,2023,and posted on the City’s website.Two (2)building exchanges received the Notice Inviting Bids.The specifications were distributed to fifty-three (53)perspective bidders.Three (3)sealed bid proposals were received and opened in a public bid opening on September 19,2023,with bids ranging from $8,646,293.00 to $9,969,492.42.The bids will expire 64 days after the bid opening,on November 22, 2023.If the bids are rejected or expire,the project will be rebid,resulting in a delay of construction completion. Staff recommends that Council award a construction contract to Avison Construction,Inc.for the Base Bid plus all eight (8)Add Alternates in the total amount of $8,646,293,as the lowest responsive and responsible bidder,for the TCC Park at MLK Magnet Core Project and authorize the Capital Projects Director or designee to sign a standardized construction contract on behalf of the City of Fresno. The Project Labor Agreement (PLA)specifically for the TCC Program,executed in August 2017,was included as part of the requirements for this project. City of Fresno Printed on 10/20/2023Page 2 of 4 powered by Legistar™ File #:ID 23-1483 Agenda Date:10/19/2023 Agenda #: 1.-R. The City Attorney’s Office has reviewed and approved this item as to form. ENVIRONMENTAL FINDINGS A Mitigated Negative Declaration,A-17-007/R-17-010/TPM-17-06/ANX-17-005 was prepared for Plan Amendment Application No.A-17-007,Prezone Application No.R-17-010,Tentative Parcel Map Application No.TMP-2017-06 and Annexation Application No.ANX-17-005.It was adopted on August 24,2017.The MND assessed a plan amendment,rezone,tentative parcel map,and annexation for approximately 115.95 acres located on the northwest corner of East Jensen and South Martin Luther King Jr.Blvd.On February 13,2020 City Council approved Plan Amendment and Rezone Application No.P18-03290 which further refined the land use designations and zone districts for the West Creek Village Project Area.On February 27,2020,the Council adopted Ordinance No.2020-006 approving a Development Agreement by and between the City of Fresno and 2500 MLK,LLC.(“Development Agreement”)setting forth terms for the development of the West Creek Village project which included development of a 10 acre park and further contemplated that development of the park would be supported with TCC grant funds.Plan Amendment and Rezone Application No.P18-03290 and the Development Agreement were environmentally assessed with an addendum to MND No.A-17-007/R -17-010/TPM-17-06/ANX-17-005.This approval is to implement a a required term of the Development Agreement,through approval of a sub recipient agreement for TCC Grant funding, which is necessary funding for design,property acquisition,and construction of the park contemplated in the Development Agreement for the West Creek Village Project An analysis has been performed pursuant CEQA Guidelines §15162 to determine whether subsequent environmental review is required for approval of the sub recipient agreement.Based upon this analysis the following findings are made to support the determination that no subsequent environmental review is required: 1.No substantial changes are proposed in the project which will require major revisions of the previous Mitigated Negative Declaration or the Addendum to the MND due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects.In this case,the park is still proposed to be located within the existing boundary of the West Creek Village Project in the same location as set forth in the Development Agreement and is the same size as discussed in the Addendum. 2.No substantial changes have occurred with respect to the circumstances under which the project was undertaken which will require major revisions of the previous Mitigated Negative Declaration or Addendum due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects. 3.There is no new information,which was not known and could not have been known at the time of the previous Mitigated Negative Declaration or Addendum showing that: a)The project will have one or more significant effects not discussed in the previous Mitigated Negative Declaration or Addendum; b)Significant effects previously examined will be substantially more severe than shown in the previous Mitigated Negative Declaration or Addendum; City of Fresno Printed on 10/20/2023Page 3 of 4 powered by Legistar™ File #:ID 23-1483 Agenda Date:10/19/2023 Agenda #: 1.-R. c)Mitigation measures or alternatives previously found to be not feasible are now feasible and would substantially reduce one or more significant effects of the project. Based upon these findings,it has been determined that no further environmental documentation is required for this approval. LOCAL PREFERENCE Local preference was not implemented because of the TCC Grant Funding. FISCAL IMPACT The TCC Park at MLK Magnet Core Project in the West Creek Village Project Area is located in Council District 3.The project is fully funded by the TCC Grant funding,local Development Park Impact Fees and a one-third developer contribution for a portion of the supporting improvements,as detailed out in the West Creek Village Development Agreement.Of the overall budget of the project, $8,646,293 will be used for the construction contract award.All funds necessary for the contract award are included in the current fiscal year budget as previously adopted by the Council.The project will have no impact to the General Fund. Attachment(s): Standard Contract Bid Evaluation Fiscal Impact Statement Vicinity Map Location Map City of Fresno Printed on 10/20/2023Page 4 of 4 powered by Legistar™ DPW-S Formal Bid Contract – Public Work Improvement (11-2022) A230706 2023-04 DPWTCCPLADivI 1.24 rev. 04.23 CONTRACT CITY OF FRESNO, CALIFORNIA PUBLIC WORK OF IMPROVEMENT THIS CONTRACT is made and entered into by and between CITY OF FRESNO, a California municipal corporation (City), and [Contractor Name], [Legal Identity] (Contractor) as follows: 1. Contract Documents. The “Notice Inviting Bids,” “Instructions to Bidders,” “Bid Proposal,” and the “Specifications” including “General Conditions,” “Special Conditions,” and “Technical Specifications” for the following: [Title] (Bid File No. [Bid File No.]) [Alternates (if any)] copies of which are annexed hereto, together with all the drawings, plans, and documents specifically referred to in said annexed documents, including Performance and Payment Bonds, if required, and are hereby incorporated into and made a part of this Contract, and shall be known as the Contract Documents. 2. Price and Work. For the monetary consideration of [Written Dollar Amount] dollars and [Written Cents Amount] cents ($[Amount]), as set forth in the Bid Proposal, Contractor promises and agrees to perform or cause to be performed, in a good and workmanlike manner, under the direction and to the satisfaction of the City’s “Engineer,” and in strict accordance with the Specifications, all of the work as set forth in the Contract Documents. 3. Payment. City accepts Contractor’s Bid Proposal as stated and agrees to pay the consideration stated, at the times, in the amounts, and under the conditions specified in the Contract Documents. 4. Indemnification. To the furthest extent allowed by law including California Civil Code Section 2782, Contractor shall indemnify, hold harmless and defend City and each of its officers, officials, employees, agents and volunteers from any and all loss, liability, fines, penalties, forfeitures, costs and damages (whether in contract, tort or strict liability, inclu ding, but not limited to personal injury, death at any time and property damage) incurred by City, Contractor or any other person, and from any and all claims, demands and actions in law or equity (including attorney’s fees and litigation expenses), arising or alleged to have arisen directly or indirectly out of performance of this Contract. Contractor’s obligations under the preceding sentence shall apply regardless of whether City or any of its officers, officials, employees, agents, or volunteers are passively negligent, but shall not apply to any loss, liability, fines, penalties, forfeitures, costs, or damages caused by the active or sole negligence, or willful misconduct, of City or any of its officers, officials, employees, agents, or volunteers. If Contractor should subcontract all or any portion of the work to be performed under this Contract, Contractor shall require each subcontractor to indemnify, hold harmless and defend City and each of its officers, officials, employees, agents, and volunteers in accordance with the terms of the preceding paragraph. This section shall survive termination or expiration of this Contract. 5. Trench Shoring Detailed Plan. Contractor acknowledges the provisions of Section 6705 of the California Labor Code and, if said provisions are applicable to this Contract, agrees to comply therewith. 6. Worker’s Compensation Certification. In compliance with the provisions of Section 1861 of the California Labor Code, Contractor hereby certifies as follows: DPW-S Formal Bid Contract – Public Work Improvement (11-2022) A230706 2023-04 DPWTCCPLADivI 1.25 rev. 04.23 I am aware of the provisions of Section 3700 of the California Labor Code which require every employer to be insured against liability for worker ’s compensation or to undertake self-insurance in accordance with the provisions of that Code, and I will comply with such provisions before commencing the performance of work of this Contract and will make my subcontractors aware of this provision. IN WITNESS WHEREOF, the parties have executed this Contract on the day and year here below written, of which the date of execution by City shall be subsequent to that of Contractor’s, and this Contract shall be binding and effective upon execution by both parties. [Contractor Name], [Legal Identity] By: Name: (Type or print written signature.) Title: (If corporation or LLC, Board Chair, Pres. or Vice Pres.) Dated: By: Name: (Type or print written signature.) Title: (If corporation or LLC, CFO, Treasurer, Secretary or Assistant Secretary) Dated: CITY OF FRESNO, a California municipal corporation By: [Name], [Title] Department of Public Works Dated: ATTEST: TODD STERMER, CMC City Clerk By: Deputy No signature of City Attorney required. Standard Document DPW-S Formal Bid Contract – Public Work Improvement (11- 2022) has been used without modification as certified by the undersigned. By: [City Certifier Name] [City Certifier Title] Department of Public Works City address: City of Fresno Attention: [Name], [Title] [Street Address] Fresno, CA [Zip] Whites Bridge MapleBrawleyHerndon Bullard Shaw ClovisFowlerTemperanceWestPalmClovisFowlerTemperanceDe WolfShields McKinley Belmont ChestnutPeachAmerican CedarGrantlandHayesElmEastMarksWestWalnutCorneliaNorth California Jensen Ashlan GrantlandHayesCorneliaBrawleyMarksShaw Bullard Herndon Nees De WolfShields McKinley Belmont California Jensen North Kings Canyon AshlanPeachBehymer Copper Shepherd NeesBlackstoneFirstCedarChestnutGarfieldBryanPolkBlytheValentineVan NessFruitMaroaFresnoMillbrookMapleWillowDakota Clinton Olive Gettysburg Barstow Sierra Alluvial Nielsen Kearney Muscat Annadale Church WillowMinnewawaMalaga OrangeBryanSunnysideArmstrongLocanFigCherryHughesFruitPolkValentineBlytheAlluvial Sierra Barstow Perrin SunnysideArmstrongLocanClinton Olive Tulare Butler Church Annadale DakotaMinnewawaInternational Teague Ted Wills Community Center N 0 1.5 30.75 Miles Project ID: PC00254-TEDCWCouncil District: 3 Ted C. Wills Soccer Field770 N. San Pablo Ave VICINITY MAP DEPARTMENT OFPUBLIC WORKS District 3 City_Limits TCC Park at MLK Magnet Core TCC Park at MLK Magnet Core 2520 S. West Creek Village Way Project ID: PW00857 Council District: 3 CAPITAL PROJECTS DEPARTMENT E Swift AveE Swift Ave E H oll a n d A v eE H oll a n d A v e N Blackstone AveN Blackstone AveCopyright nearmap 2015 4343 N. Blackstone Ave, Fresno, CA Project ID: CTWD0276 Council District: 4 LOCATION MAPN 0 60 12030 Feet DEPARTMENT OFPUBLIC WORKS Exhibit ASenior Center Senior Center Legend Proposed Senior Center City Limits Martin Luther King Jr. BlvdMartin Luther King Jr. BlvdS. Walnut AveE. Jensen Ave E. Church Ave S. West Creek Village WayScope of Work Proposed Park 2520 S. West Creek Village Way 0 100 200 400 600 2520 S. West Creek Village Way, Fresno, CA 93760 Project ID: PW00857 Council District: 3 CAPITAL PROJECTS DEPARTMENT City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID 23-1469 Agenda Date:10/19/2023 Agenda #: 1.-S. REPORT TO THE CITY COUNCIL FROM:RANDALL W. MORRISON, PE, Director Capital Projects Department SCOTT L. MOZIER, PE, Director Public Works Department BY:SCOTT P. SEHM, PE, Assistant Director Capital Projects Department, Design Services Division STEVE DELSID, PE, Licensed Professional Engineer Capital Projects Department, Design Services Division SUBJECT Actions pertaining to the Friant Road Southbound Right Turn Lane Extension at Audubon Drive (Bid File 12303030) (Council District 6): 1.Adopt a finding of Categorical Exemption per staff’s determination pursuant to Section 15301/Class 1 of the California Environmental Quality Act (CEQA) Guidelines. 2.Award a construction contract in the amount of $697,625 to Avison Construction,Inc.,Madera, California. RECOMMENDATIONS Staff recommends the City Council adopt a finding of Categorical Exemption pursuant to Section 15301/Class 1 (Existing Facilities)of the CEQA guidelines,award a construction contract to Avison Construction,Inc.,Madera,in the amount of $697,625 as the lowest responsive and responsible bidder for the Friant Road Southbound Right Turn Lane Extension Project at Audubon Drive,and authorize the Capital Projects Director or designee to sign the construction contract on behalf of the City of Fresno. EXECUTIVE SUMMARY The proposed Friant Road Southbound Right Turn Lane Extension Project at Audubon Drive will enhance safety of the Audubon Drive and Friant Road intersection for vehicles,pedestrians and cyclists by installing “no right-turn on red”signage for southbound Friant Road to westbound Audubon Drive,extending the right turn pocket to create the needed vehicle storage capacity as well as class II bicycle lanes and advance stop bars on Friant Road,between Shepherd Avenue and Audubon Drive.Right-of-way acquisition was not needed for these improvements and the project is City of Fresno Printed on 10/30/2023Page 1 of 3 powered by Legistar™ File #:ID 23-1469 Agenda Date:10/19/2023 Agenda #: 1.-S. completely funded with Citywide Regional Street Impact Fee revenue. BACKGROUND During February 2022,a press conference was held at Woodward Park to outline a multi-pronged action plan to address pedestrian and cyclist safety concerns along Friant Road.Public Works staff identified several immediate,medium-and long-term improvements that could be made to enhance safety along the Friant Road corridor.Implementing traffic signal modifications at the intersection of Friant Road and Audubon Drive,including a “no-right turn on red”traffic signal operation at the intersection for the southbound right-turn movement was identified as a medium/long term improvement.The design phase of the Friant Road Southbound Right Turn Lane Extension Project was initiated in FY22 after the project was budgeted using Citywide Regional Street Impact Fee revenue;the engineering design,project management,and right-of-way acquisition took approximately one year and was performed in-house by City staff. The project scope includes modifications to the Friant Road and Audubon Drive traffic signal to replace the vehicle indication head for the southbound Friant Road to westbound Audubon Drive right turn movement.This change will include a red arrow that prohibits right turns,thereby promoting pedestrian safety by no longer allowing vehicles to make right turn movements on red.The project will also lengthen the southbound Friant Road right-turn lane from 380 feet to 730 feet to provide the necessary capacity improvements during the peak hour.Other improvements proposed to enhance cyclist and pedestrian safety include the construction of a Class II bicycle lane along Friant Road, from Shepherd Avenue to Audubon Drive,incorporation of advance stop bars on southbound Friant Road at both Shepherd Avenue and Audubon Drive,and construction of a bicycle exit ramp where the Class II lane ends,south of Audubon Drive,so cyclists continuing along Friant Road have the option to exit the roadway and access the existing trail if they prefer to ride off-street versus the Class II on-street experience. Access to Woodward Park will not be impacted during construction and all improvements are accommodated within the existing right-of-way.Capital Projects staff performed all survey and engineering tasks,including preparation of the construction documents and project management duties. A Notice Inviting Bids was published in the Fresno Business Journal on July 31,2023,posted on the City’s website,and distributed to 37 building exchange.The specifications were distributed to three (3)prospective bidders.Two (2)bid proposals were received and opened in a public bid opening on September 5,2023,with bids ranging from $697,625 to $782,531.Avison Construction,Inc. submitted the apparent low bid of $697,625 and was determined to be the lowest responsive and responsible bidder for the project.The bids will expire on November 8,2023;if the bids are rejected or expire, the project must be rebid, which will result in a delay of approximately 90 days. The Community Workforce Agreement (PLA),adopted by Council in September 2021,does not apply to this contract because the engineer’s estimate for this project was less than $1 million,pursuant to the terms of the PLA. Staff recommends Council award a construction contract to Avison Construction,Inc.in the amount of $697,625 for the Friant Road Southbound Right Turn Lane Extension Project as the lowest responsible and responsive bidder and authorize the Capital Projects Director or designee to sign City of Fresno Printed on 10/30/2023Page 2 of 3 powered by Legistar™ File #:ID 23-1469 Agenda Date:10/19/2023 Agenda #: 1.-S. responsible and responsive bidder and authorize the Capital Projects Director or designee to sign and execute the standardized contract on behalf of the City of Fresno. ENVIRONMENTAL FINDINGS Staff has performed a preliminary environmental assessment of this project and has determined that it falls within the Categorical Exemption set forth in CEQA Guidelines,Section 15301/Class 1 (Existing Facilities),which exempts the repair and maintenance of existing facilities that involves negligible or no expansion of an existing use.This exemption applies because this project involves partial reconstruction of traffic signals,slurry and restriping of roadway and crosswalks,and construction of sidewalks and accessible ramps that does not involve the expansion of the roadway. Furthermore,staff has determined that none of the exceptions to Categorical Exemptions set forth in the CEQA Guidelines, section 15300.2 apply to this project. LOCAL PREFERENCE Local Preference was not applied as both bidders were determined to be local. FISCAL IMPACT The Friant Road Southbound Right Turn Lane Extension Project is located in Council District 6.The overall cost of the project is $937,190 and is locally funded by Citywide Regional Street Impact Fees. Of the overall project budget,$697,625 will be used for the construction contract award.The project will have no impact to the General Fund. Attachment(s): Vicinity Map CEQA Environmental Assessment Bid Evaluation Fiscal Impact Statement Standardized Contract City of Fresno Printed on 10/30/2023Page 3 of 3 powered by Legistar™ Whites Bridge MapleBrawleyHerndon Bullard Shaw ClovisFowlerTemperanceWestPalmClovisFowlerTemperanceDe WolfShields McKinley Belmont ChestnutPeachAmerican CedarGrantlandHayesElmEastMarksWestWalnutCorneliaNorth California Jensen Ashlan GrantlandHayesCorneliaBrawleyMarksShaw Bullard Herndon Nees De WolfShields McKinley Belmont California Jensen North Kings Canyon AshlanPeachBehymer Copper Shepherd NeesBlackstoneFirstCedarChestnutGarfieldBryanPolkBlytheValentineVan NessFruitMaroaFresnoMillbrookMapleWillowDakota Clinton Olive Gettysburg Barstow Sierra Alluvial Nielsen Kearney Muscat Annadale Church WillowMinnewawaMalaga OrangeBryanSunnysideArmstrongLocanFigCherryHughesFruitPolkValentineBlytheAlluvial Sierra Barstow Perrin SunnysideArmstrongLocanClinton Olive Tulare Butler Church Annadale DakotaMinnewawaInternational Teague Friant Road SouthboundRight Turn Lane Extension N 0 1.5 30.75 Miles Project ID: PW01024Council District: 6 Friant Road SouthboundRight Turn Lane Extension VICINITY MAP DEPARTMENT OFPUBLIC WORKS District 6 City Limits CITY OF FRESNO CATEGORICAL EXEMPTION ENVIRONMENTAL ASSESSMENT NO. PW01024 THE PROJECT DESCRIBED HEREIN IS DETERMINED TO BE CATEGORICALLY EXEMPT FROM THE PREPARATION OF ENVIRONMENTAL DOCUMENTS PURSUANT TO ARTICLE 19 OF THE STATE CEQA GUIDELINES. APPLICANT: Steve Delsid Department of Public Works City of Fresno 2600 Fresno Street Fresno, CA 93721 PROJECT LOCATION: Friant Avenue from Audubon Avenue to Shepherd Avenue in Fresno, California PROJECT DESCRIPTION: The City of Fresno Department of Public Works is proposing to make improvements to the intersections of Audubon and Friant, Friant and Shepherd, and Friant Avenue between Audubon and Shepherd. The proposed project will modify the existing traffic signal of East Audubon and North Friant, to permit southbound bicycle traffic along Friant Avenue and improve southbound right turn traffic and to provide a longer southbound right turn lane, modify the roadway striping from Shepherd to Audubon on Friant, make room for bicycle traffic, and to slightly alter the intersection of Shepherd and Friant by reducing the size of traffic lanes to make room for a bike lane. These changes will move traffic over a small amount to make room for the bicycle traffic. The roadway modifications will not alter any of the right of way or landscaping within the project limits. This project is exempt under Section 15301/Class 1 of the California Environmental Quality Act (CEQA) Guidelines. Section 15301/Class 1 consists of the operation, repair, maintenance, permitting, leasing, licensing, or minor alteration of existing public or private structures, facilities, mechanical equipment, or topographical features, involving negligible or no expansion of use beyond that existing at the time of the lead agency's determination. The types of "existing facilities" itemized below are not intended to be all-inclusive of the types of projects which might fall within Class 1. The key consideration is whether the project involves negligible or no expansion of an existing use. Specifically included in this class of exemption are: (c) Existing highways and streets, sidewalks, gutters, bicycle and pedestrian trails, and similar facilities (this includes road grading for the purpose of public safety, and other alterations such as the addition of bicycle facilities, including but not limited to bicycle parking, bicycle-share facilities and bicycle lanes, transit improvements such as bus lanes, pedestrian crossings, street trees, and other similar alterations that do not create additional automobile lanes). The proposed traffic signal modification of Audubon and Friant and bike lane additions involves no alteration to the rights-of-way within the improvements. The proposed changes will improve public safety at this intersection and provide for the addition of bike lanes. The traffic signal alteration will replace two signal heads with ones which include arrows for motor vehicles turning right onto Audubon from Friant. The proposed lane reconfiguration improvements consist of reducing the width of the travel lanes by removing and repainting the lane striping to allot room for the Class II bike lane. The proposed alteration does not include expansions of existing use. Thus, the project is exempt under CEQA Guidelines Section 15301/Class 1. None of the exceptions to Categorical Exemptions set forth in the CEQA Guidelines, Section 15300.2 apply to this project. Furthermore, the proposed project is not expected to have a significant effect on the environment. Accordingly, a categorical exemption, as noted above, has been prepared for the project. No adverse environmental impacts will occur as a result of the proposed project. Date: July 11, 2023 Prepared By: Steve Delsid, PE Submitted by: Steve Delsid Supervising Professional Engineer City of Fresno Public Works Department (559) 621-8725 FISCAL IMPACT STATEMENT PROGRAM: Friant Road Southbound right turn lane extension at Audubon Ave, SB bike lane Shepherd to Audubon. PW01024, Inv No. 12303030 TOTAL OR ANNUALIZED RECOMMENDATION CURRENT COST Direct Cost $697,625 Indirect Cost $239,765 TOTAL COST $937,190 Additional Revenue or Savings Generated $0 Net City Cost $937,190 Amount Budgeted (If none budgeted, identify source) $896,300 Indirect cost consists of the following: Preliminary Engineering $ 78,600 Construction Engineering $ 91,200 Contingency $ 69,765 Total $239,565 A231023 2023-06 DPWNoFedDivI 1.2Rev. 06.23 SAMPLE CONTRACT CITY OF FRESNO, CALIFORNIA PUBLIC WORK OF IMPROVEMENT THIS CONTRACT is made and entered into by and between CITY OF FRESNO, a California municipal corporation (City), and [Contractor Name], [Legal Identity] (Contractor) as follows: 1. Contract Documents. The “Notice Inviting Bids,” “Instructions to Bidders,” “Bid Proposal,” and the “Specifications” including “General Conditions,” “Special Conditions,” and “Technical Specifications” for the following: [Title] (Bid File No. [Bid File No.]) [Alternates (if any)] copies of which are annexed hereto, together with all the drawings, plans, and documents specifically referred to in said annexed documents, including Performance and Payment Bonds, if required, and are hereby incorporated into and made a part of this Contract, and shall be known as the Contract Documents. 2. Price and Work. For the monetary consideration of [Written Dollar Amount] dollars and [Written Cents Amount] cents ($[Amount]), as set forth in the Bid Proposal, Contractor promises and agrees to perform or cause to be performed, in a good and workmanlike manner, under the direction and to the satisfaction of the City’s “Engineer,” and in strict accordance with the Specifications, all of the work as set forth in the Contract Documents. 3. Payment. The City accepts the Contractor’s Bid Proposal as stated and agrees to pay the consideration stated, at the times, in the amounts, and under the conditions specified in the Contract Documents. 4. Indemnification. To the furthest extent allowed by law including California Civil Code Section 2782, Contractor shall indemnify, hold harmless and defend City and each of its officers, officials, employees, agents and volunteers from any and all loss, liability, fines, penalties, forfeitures, costs and damages (whether in contract, tort or strict liability, including, but not limited to personal injury, death at any time and property damage) incurred by City, Contractor or any other person, and from any and all claims, demands and actions in law or equity (including attorney’s fees and litigation expenses), arising or alleged to have arisen directly or indirectly out of performance of this Contract. Contractor’s obligations under the preceding sentence shall apply regardless of whether City or any of its officers, officials, employees, agents, or volunteers are passively negligent, but shall not apply to any loss, liability, fines, penalties, forfeitures, costs, or damages caused by the active or sole negligence, or willful misconduct, of City or any of its officers, officials, employees, agents, or volunteers. If Contractor should subcontract all or any portion of the work to be performed under this Contract, Contractor shall require each subcontractor to indemnify, hold harmless and defend City and each of its officers, officials, employees, agents, and volunteers in accordance with the terms of the preceding paragraph. This section shall survive termination or expiration of this Contract. 5. Trench Shoring Detailed Plan. Contractor acknowledges the provisions of Section 6705 of the California Labor Code and, if said provisions are applicable to this Contract, agrees to comply therewith. 6. Worker’s Compensation Certification. In compliance with the provisions of Section 1861 of the California Labor Code, Contractor hereby certifies as follows: A231023 2023-06 DPWNoFedDivI 1.2Rev. 06.23 I am aware of the provisions of Section 3700 of the California Labor Code which require every employer to be insured against liability for worker’s compensation or to undertake self-insurance in accordance with the provisions of that Code, and I will comply with such provisions before commencing the performance of work of this Contract and will make my subcontractors aware of this provision. IN WITNESS WHEREOF, the parties have executed this Contract on the day and year here below written, of which the date of execution by City shall be subsequent to that of Contractor’s, and this Contract shall be binding and effective upon execution by both parties. [Contractor Name], [Legal Identity] By: Name: (Type or print written signature.) Title: (If corporation or LLC, Board Chair, Pres. or Vice Pres.) Dated: By: Name: (Type or print written signature.) Title: (If corporation or LLC, CFO, Treasurer, Secretary or Assistant Secretary) Dated: CITY OF FRESNO, a California municipal corporation By: [Name], [Title] Department of Public Works Dated: ATTEST: TODD STERMER, CMC City Clerk By: Deputy No signature of City Attorney required. Standard Document # 2022-11 DPW- SFormalBidContract-PublicWorkofImprovement has been used without modification as certified by the undersigned. By: [City Certifier Name] [City Certifier Title] Department of Public Works City address: City of Fresno Attention: [Name], [Title] [Street Address] Fresno, CA [Zip] City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID 23-1473 Agenda Date:10/19/2023 Agenda #:1.-T. REPORT TO THE CITY COUNCIL FROM:RANDALL W. MORRISON, PE, Director Capital Projects Department SCOTT L. MOZIER, PE, Director Public Works Department BY:JESUS AVITIA, PE, Assistant Director Capital Projects Department, Transportation Project Management Division ISAAC CAMPOS, Engineer II Capital Projects Department, Transportation Project Management SUBJECT Actions pertaining to the Tulare Complete Streets Project from 6th Street to Cedar Avenue (Bid File No. 12300027) (Council Districts 5 and 7): 1.Adopt a finding of Categorical Exemption pursuant to Sections 15301/Class 1 (Existing Facilities),15303/Class 3 (New Construction or Conversion of Small Structures),and 15304/Class 4 (Minor Alterations to Land)of the California Environmental Quality Act (CEQA) Guidelines 2.Award a construction contract in the amount of $2,339,250 to Agee Construction Corporation of Clovis, California RECOMMENDATIONS Staff recommends that the City Council (1)adopt a finding of Categorical Exemption pursuant to Sections 15301/Class1 ,15303/Class 3,and 15304/Class 4 of the California Environmental Quality Act (CEQA)Guidelines,and (2)award a construction contract to Agee Construction Corporation of Clovis,California,in the amount of $2,339,250 as the lowest responsive and responsible bidder,for the Tulare Complete Streets Project from 6th Street to Cedar Avenue,and authorize the Capital Projects Director or designee to sign the construction contract on behalf of the City of Fresno. EXECUTIVE SUMMARY The Public Works Department and Capital Projects Department seek to award a construction contract for the Tulare Complete Streets Project from 6th Street to Cedar Avenue.The construction of this project will increase the pedestrian and bicycle infrastructure available to students and their families in the Jackson and Rowell Elementary School neighborhoods.This project will install and widen sidewalks along the south side of Tulare Avenue,upgrade curb ramps,restripe the roadway as a 3-lane collector with Class II bicycle facilities,and install additional streetlights.This construction contract award is fully funded by a federal grant through the Congestion Mitigation and Air Quality City of Fresno Printed on 10/30/2023Page 1 of 3 powered by Legistar™ File #:ID 23-1473 Agenda Date:10/19/2023 Agenda #:1.-T. contract award is fully funded by a federal grant through the Congestion Mitigation and Air Quality (CMAQ)program,with local match provided through Measure C Bike Lane and SB1 Road Maintenance and Rehabilitation Account (RMRA) funds. BACKGROUND This project has been requested by community members working collaboratively with families at Jackson and Rowell Elementary Schools.Many students walk to school and have requested improved infrastructure to support active transportation through the area.The proposed sidewalks on the south side of Tulare Avenue will provide improved connectivity through the area,as will Class II bike lanes.In October of 2017,the City of Fresno applied for a federal CMAQ grant for the design and construction phases of this complete streets project.This project is funded with federal CMAQ grant funds that are administered by Caltrans on behalf of the Federal Highway Administration,along with a match from local Measure C Bike Lane and SB1 funds.The purpose of this project is to increase the pedestrian and bicycle infrastructure available to students and their families in the Jackson and Rowell Elementary School neighborhoods. The design started following the City Council approval of the consultant contract with Peters Engineering Group,Inc.of Clovis,California,on November 19th,2020.The project scope includes installing and widening sidewalk on the south side of Tulare Avenue,upgrading curb ramps,restriping the roadway to include a road diet and Class II bicycle facilities, and additional street lighting. The Notice Inviting Bids was published in the Business Journal on June 25,2023,and posted on the City’s website.Four sealed bid proposals were received and opened in the public bid opening on September 5,2023,with bids ranging from $2,339,250 to $2,702,161.60.Agee Construction Corporation of Clovis,California is deemed the lowest responsive and responsible bidder.The bids will expire 64 days after the bid opening,on November 08,2023.If the bids are rejected or expire the project must be rebid, which will result in a delay of approximately 3 months. Staff is recommending the award of a construction contract to Agee Construction Corporation of Clovis,California in the amount of $2,339,250 to construct the Tulare Avenue Complete Streets Project from 6th Street to Tulare Avenue,as the lowest responsive and responsible bidder,and to authorize the Capital Projects Director or designee to sign and execute the standardized contract on behalf of the City of Fresno. This contract is covered by the Community Workforce Agreement (PLA),adopted by Council in September 2021.The Contractor shall become signatory to the PLA by executing the Agreement to Be Bound. A standardized agreement has been used in accordance with Administrative Order 4-4,which has been approved as to form by the City Attorney’s Office. ENVIRONMENTAL FINDINGS Staff performed a preliminary environmental assessment of the project and determined that it falls within the Categorical Exemptions set forth in CEQA Guidelines,Sections 15301 (Existing Facilities), 15303 (New Construction or Conversion of Small Structures),and 15304 (Minor Alterations to Land). The proposed project involves improvements to existing public facilities to reconstruct pavement, install curb ramps to meet ADA regulations,and add signage and striping to include Class II bikeCity of Fresno Printed on 10/30/2023Page 2 of 3 powered by Legistar™ File #:ID 23-1473 Agenda Date:10/19/2023 Agenda #:1.-T. install curb ramps to meet ADA regulations,and add signage and striping to include Class II bike lanes.These changes do not constitute an expansion of use and will improve the public right-of-way without increasing road capacity.The proposed project involves negligible expansion of the existing use and will have substantially the same purpose. LOCAL PREFERENCE Local preference was not implemented for this project because this contract is federally funded. FISCAL IMPACT The Tulare Complete Streets Project from 6th Street to Cedar Avenue is located within Council Districts 5 and 7.The overall cost of the project is $3,119,900 and is primarily funded by the Federal CMAQ grant program.The required local match is funded by Measure C Bike Lane funding and SB1 RMRA funds.Of the overall budget of the project,$2,339,250 wiII be used for the construction contract award.The project will have no impact to the General Fund.All funds necessary for the contract award are included in the adopted fiscal year budget for the Public Works Department. Attachment(s): Environmental Assessment Standardized Contract Bid Evaluation Fiscal Impact Statement Vicinity Map City of Fresno Printed on 10/30/2023Page 3 of 3 powered by Legistar™ CITY OF FRESNO CATEGORICAL EXEMPTION ENVIRONMENTAL ASSESSMENT APPLICATION NO. P21-06566 THE PROJECT DESCRIBED HEREIN IS DETERMINED TO BE CATEGORICALLY EXEMPT FROM THE PREPARATION OF ENVIRONMENTAL DOCUMENTS PURSUANT TO ARTICLE 19 OF THE STATE CEQA GUIDELINES. APPLICANT: Brandon Chacon Department of Public Works City of Fresno 2600 Fresno Street Fresno, CA 93721 PROJECT LOCATION: East Tulare Avenue between South Sixth Street and South Cedar Avenue as outlined in Exhibit A. PROJECT DESCRIPTION: Environmental Assessment Application No. P21-06566 was filed by Brandon Chacon, on behalf of the City of Fresno Public Works Department. The applicant proposes to reconstruct the curb and gutter on the south side of the road to allow for construction of new sidewalk and ADA compliant curb ramps, re-stripe the project area from a five-lane collector with no bike lanes on the north and south side to a three-lane collector with bike lanes on the north and south side. The project also includes new pavement construction from the centerline of Tulare Avenue to the new curb and gutter on the south side to allow for a smooth cross slope for automobile traffic and bicycle use, new valley gutter construction, new storm drain construction maintain existing drainage patterns, sewer manholes and water main valves will be adjusted, striping transitions will be required east and west of the project area, and the north side of Tulare Avenue will receive a Type II slurry seal to assist with the new striping design. This project is exempt under Section 15301/Class 1, Section 15303/Class 3, and Section 15304/Class 4 of the California Environmental Quality Act (CEQA) Guidelines as follows: Under Section 15301/Class 1, the proposed project is exempt from CEQA requirements when the project consists of the operation, repair, maintenance, permitting, leasing, licensing, or minor alteration of existing public or private structures, facilities, mechanical equipment, or topographical features, involving negligible or no expansion of existing or former use. The key consideration is whether the project involves negligible or no expansion of use. This includes alterations such as the addition of bicycle facilities, including but not limited to bicycle lanes and other similar alterations that do not create additional automobile lanes. Under Section 15303/Class 3, the proposed project is exempt from CEQA requirements when the project consists of construction and location of limited numbers of new, small facilities or structures; installation of small new equipment and facilities in small structures; and the conversion of existing small structures from one use to another where only minor modifications are made in the exterior of the structure. This includes street improvements of reasonable length to serve such construction. Under Section 15304/Class 4, the proposed project is exempt from CEQA requirements when the project consists of minor public or private alterations in the condition of land, water, and/or vegetation which do not involve removal of healthy, mature, scenic trees except for forestry or agricultural purposes. This includes the creation of bicycle lanes on existing rights-of-way. The proposed project is consistent with the Class 1, Class 3, and Class 4 exemptions because the project is requesting to make improvements to existing public facilities to reconstruct pavement, install curb ramps to meet ADA regulations, and add signage and striping to include Class II bike lanes. The segment of East Tulare Avenue will remain a collector street. The proposed street improvements are minor, do not constitute an expansion of use, and will improve the public right-of-way without increasing road capacity. The proposed project involves negligible expansion of the existing use and will have substantially the same purpose. None of the exceptions to Categorical Exemptions set forth in the CEQA Guidelines, Section 15300.2 apply to the project. Furthermore, the proposed project is not expected to have a significant effect on the environment. A categorical exemption, as noted above, has been prepared for the project and the area is not environmentally sensitive. Date: March 28, 2022 Prepared By: Steven Lieng, Planner II Submitted by: McKencie Perez Supervising Planner City of Fresno Planning & Development Department (559) 621-8277 S Ninth St Aly E Tulare St S Ninth St AlyS Eighth StE Verrue Ave E Tulare St E Platt Ave AlyS Ninth StE Kerckhoff Ave S Tenth StE Platt Ave E Kerckhoff AveS Eighth St Aly S Tenth StS Tenth StE Verrue Ave S Eighth StSEighthStE Kerckhoff Ave E Platt Ave E Verrue Ave SEleventh St Aly E Platt Ave E Tulare St S Eleventh St Aly Aly AlyS Eleventh StS Cedar AveS Eleventh StS Cedar AveE Kerckhoff Ave E Verrue Ave E Tulare St S Cedar AveS CedarAveE Platt AveS Sixth StE Kerckhoff Ave E Tulare St AlyS Sixth StSSeventh StE Platt Ave E Kerckhoff Ave Aly S Seventh StS Sixth St Aly S Seventh StE Verrue Ave E Verrue AveS Seventh StE Tulare St N Eleventh StE Iowa AveN EighthSt Aly N EleventhStN Eighth StN Ninth StE Iowa Ave N Ninth StN Ninth StN Eighth St Aly N Ninth StE Illinois Ave AlyN Ninth St Aly E Illinois Ave Aly N Cedar AveE Iowa Ave E Illinois Ave N Eleventh StE IllinoisAveN Cedar AveN Sixth StE Illinois Ave AlyN Sixth StE Iowa Ave Aly N Sixth StN Sixth St Aly E Illinois Ave N SeventhStE Iowa AveN Seventh StN Sixth St Aly Copyright nearmap 2015 Street Labels 3/24/2022, 3:00:19 PM 0 0.06 0.120.03 mi 0 0.1 0.20.05 km 1:4,514 Copyright nearmap 2015 | Web AppBuilder for ArcGIS Exhibit A Environmental Assessment Area A230647 2023-03 DPWPLADivI 1.31 rev. 04-23 SAMPLE CONTRACT CITY OF FRESNO, CALIFORNIA PUBLIC WORK OF IMPROVEMENT THIS CONTRACT (Contract) is made and entered into by and between CITY OF FRESNO, a California municipal corporation (City), and [Contractor Name], [Legal Identity] (Contractor) as follows: 1. Contract Documents. The “Notice Inviting Bids,” “Instructions to Bidders,” “Bid Proposal,” and the “Specifications” including “General Conditions,” “Special Conditions,” and “Technical Specifications” for the following: [Title] (Bid File No. [Bid File No.]) [Alternates (if any)] copies of which are annexed hereto, together with all the drawings, plans, and documents specifically referred to in said annexed documents, including Performance and Payment Bonds, if required, and are hereby incorporated into and made a part of this Contract, and shall be known as the Contract Documents. 2. Price and Work. For the monetary consideration of [Written Dollar Amount] dollars and [Written Cents Amount] cents ($[Amount]), as set forth in the Bid Proposal, Contractor promises and agrees to perform or cause to be performed, in a good and workmanlike manner, under the direction and to the satisfaction of the City’s “Engineer,” and in strict accordance with the Specifications, all of the work as set forth in the Contract Documents. 3. Payment. City accepts Contractor’s Bid Proposal as stated and agrees to pay the consideration stated, at the times, in the amounts, and under the conditions specified in the Contract Documents. The Contractor agrees to accept electronic payment from City. 4. Indemnification. To the furthest extent allowed by law including California Civil Code Section 2782, Contractor shall indemnify, hold harmless and defend City and each of its officers, officials, employees, agents and volunteers from any and all loss, liability, fines, penalties, forfeitures, costs and damages (whether in contract, tort or strict liability, including, but not limited to personal injury, death at any time and property damage) incurred by City, Contractor or any other person, and from any and all claims, demands and actions in law or equity (including attorney’s fees, litigation expenses, and cost to enforce), arising or alleged to have arisen directly or indirectly out of performance of this Contract. Contractor’s obligations under the preceding sentence shall apply regardless of whether City or any of its officers, officials, employees, agents, or volunteers are passively negligent, but shall not apply to any loss, liability, fines, penalties, forfeitures, costs, or damages caused by the active or sole negligence, or willful misconduct, of City or any of its officers, officials, employees, agents, or volunteers. If Contractor should subcontract all or any portion of the work to be performed under this Contract, Contractor shall require each subcontractor to indemnify, hold harmless and defend City and each of its officers, officials, employees, agents, and volunteers in accordance with the terms of the preceding paragraph. This section shall survive termination or expiration of this Contract. 5. Trench Shoring Detailed Plan. Contractor acknowledges the provisions of Section 6705 of the California Labor Code and, if said provisions are applicable to this Contract, agrees to comply therewith. 6. Worker’s Compensation Certification. In compliance with the provisions of Section 1861 of the California Labor Code, Contractor hereby certifies as follows: A230647 2023-03 DPWPLADivI 1.32 rev. 04-23 I am aware of the provisions of Section 3700 of the California Labor Code which require every employer to be insured against liability for worker’s compensation or to undertake self-insurance in accordance with the provisions of that Code, and I will comply with such provisions before commencing the performance of work of this Contract and will make my subcontractors aware of this provision. 7. The City Manager, or designee, is hereby authorized and directed to execute and implement this Agreement. The previous sentence is not intended to delegate any authority to the City Manager to administer the Agreement, any delegation of authority must be expressly included in the Agreement. [Signatures follow on the next page.] A230647 2023-03 DPWPLADivI 1.33 rev. 04-23 IN WITNESS WHEREOF, the parties have executed this Contract on the day and year here below written, of which the date of execution by City shall be subsequent to that of Contractor’s, and this Contract shall be binding and effective upon execution by both parties. [Contractor Name], [Legal Identity] By: Name: (Type or print written signature) Title: (If corporation or LLC., Board Chair, Pres., or Vice Pres.) Dated: By: Name: (Type or print written signature.) Title: (If corporation or LLC., CFO, Treasurer, Secretary or Assistant Secretary) Dated: CITY OF FRESNO, a California municipal corporation By: [Name], [Title] [Department] Dated: ATTEST: TODD STERMER, CMC City Clerk By: Date Deputy No signature of City Attorney required Standard Document #DPW-S Formal Bid Contract – PWI (01-2023) has been used without modification, as certified by the undersigned. By: [City Certifier Name] [City Certifier Title] Department of Public Works City Address: City of Fresno Attention: [Name], [Title] [Street Address] Fresno, CA [Zip] DocuSign Envelope ID: BC50AF2E-07CC-4FBD-80D1-7C1283562646 DocuSign Envelope ID: BC50AF2E-07CC-4FBD-80D1-7C1283562646 9/27/2023 X 09/28/2023 09/26/2023 X For: DocuSign Envelope ID: BC50AF2E-07CC-4FBD-80D1-7C1283562646 9/29/2023 DocuSign Envelope ID: BC50AF2E-07CC-4FBD-80D1-7C1283562646 DocuSign Envelope ID: BC50AF2E-07CC-4FBD-80D1-7C1283562646 Whites Bridge MapleBrawleyHerndon Bullard Shaw ClovisFowlerTemperanceWestPalmClovisFowlerTemperanceDe WolfShields McKinley Belmont ChestnutPeachAmerican CedarGrantlandHayesElmEastMarksWestWalnutCorneliaNorth California Jensen Ashlan GrantlandHayesCorneliaBrawleyMarksShaw Bullard Herndon Nees De WolfShields McKinley Belmont California Jensen North Kings Canyon AshlanPeachBehymer Copper Shepherd NeesBlackstoneFirstCedarChestnutGarfieldBryanPolkBlytheValentineVan NessFruitMaroaFresnoMillbrookMapleWillowDakota Clinton Olive Gettysburg Barstow Sierra Alluvial Nielsen Kearney Muscat Annadale Church WillowMinnewawaMalaga OrangeBryanSunnysideArmstrongLocanFigCherryHughesFruitPolkValentineBlytheAlluvial Sierra Barstow Perrin SunnysideArmstrongLocanClinton Olive Tulare Butler Church Annadale DakotaMinnewawaInternational Teague Project Location N 01.530.75 Miles Project ID: PW00910 Council District: 5 and 7 Tulare Complete Streets Project From 6th Avenue to Cedar Avenue VICINITY MAP DEPARTMENT OF PUBLIC WORKS District 5 District 7 City Limits City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID 23-1474 Agenda Date:10/19/2023 Agenda #: 1.-U. REPORT TO THE CITY COUNCIL FROM:RANDALL W. MORRISON, PE, Director Capital Projects Department SCOTT L. MOZIER, PE,Director Public Works Director BY:JESUS AVITIA, PE, Assistant Director Capital Projects Department, Transportation Project Management Division ISAAC CAMPOS, Engineer II Capital Projects Department, Transportation Project Management Division SUBJECT Approve an agreement for Professional Engineering Services with BKF Engineers,from Oakland, California in the amount of $149,773,with a $10,000 contingency,for the design and construction support services for the Shaw Avenue Roadway Improvements Project between Fruit Avenue and Palm Avenue (Council District 1 and 2). RECOMMENDATION Staff recommends the City Council approve an agreement for Professional Engineering Services with BKF Engineers,from Oakland,California in the amount of $149,773,with a $10,000 contingency,for design and construction support services for the Shaw Avenue Roadway Improvements Project between Fruit Avenue and Palm Avenue and authorized the Capital Projects Director or designee to sign the agreement on the City’s behalf. EXECUTIVE SUMMARY The City of Fresno has identified the need for a roadway restoration project on Shaw Avenue, spanning from Fruit Avenue to Palm Avenue.The main goal of this project is to extend the lifespan of a major street through pavement rehabilitation and full depth reconstruction while also achieving complete street goals.The proposed improvements will enhance safety and promote multimodal connectivity for both motorists and non-motorists.This project is funded with federal funds through the Surface Transportation Block Grant (STBG)program,along with allocated SB1 Road Maintenance and Rehabilitation Account (RMRA)funds as a local match.The total contract amount for this project is $149,733,with a $10,000 contingency,which will facilitate the design and construction support services necessary to complete the project. City of Fresno Printed on 10/30/2023Page 1 of 3 powered by Legistar™ File #:ID 23-1474 Agenda Date:10/19/2023 Agenda #: 1.-U. BACKGROUND The City of Fresno Public Works Department has identified the need for a pavement restoration project along Shaw Avenue,spanning 0.6 miles between Fruit Avenue and Palm Avenue.In September 2021,the City applied for STBG funds to encompass the design and construction support services of the Shaw Avenue Roadway Improvements.Along with pavement restoration,this project entails curb ramp improvements,median nose adjustments,traffic loop replacement,and updated signage and striping.With the approval granted from Caltrans in December 2022,the City is now authorized to proceed with the preliminary engineering phase. In accordance with Administrative Order (A.O.)6-19,staff sent out requests for Statements of Qualifications (SOQ)on June 09,2022 via Planet Bids,email,and published in the Business Journal. The Request For Qualification (RFQ)was advertised for four weeks,resulting in the receipt of eight SOQs.In July 2023,staff interviewed the top three qualified consultants and BKF Engineers was determined to be the most qualified and responsive.Staff negotiated a fee of $149,733,with a $10,000 contingency,for the preparation of the plans,specifications,cost estimates,bidding support services and construction support services for the project. Staff recommends that the City Council approve the agreement with BKF Engineers,Inc.for $149,733,with a $10,000 contingency,for the design of plans,cost estimates and general construction documents for the Shaw Avenue Roadway Improvements Project between Fruit Avenue and Palm Avenue and authorize the Capital Projects Director or designee to sign and execute the contract on behalf of the City of Fresno. The City Attorney's Office has reviewed and approved the consultant agreement as to form. ENVIRONMENTAL FINDINGS By the definition provided in the California Environmental Quality Act Guidelines Section 15378,this item does not qualify as a project as defined by the California Environmental Quality Act. LOCAL PREFERENCE Local preference was not implemented for this project because this project is federally funded,which precludes local preference. FISCAL IMPACT The Shaw Avenue Roadway Improvements Project between Fruit Avenue and Palm Avenue is located in Council District 1 and 2.This Project will not impact the General Fund as it is fully funded by a combination of federal STBG grant funds and local SB1 RMRA funding.All funds necessary for the contract award are included in the current fiscal year budget as previously adopted by the Council. Attachment(s): Consultant Agreement City of Fresno Printed on 10/30/2023Page 2 of 3 powered by Legistar™ File #:ID 23-1474 Agenda Date:10/19/2023 Agenda #: 1.-U. Vicinity Map City of Fresno Printed on 10/30/2023Page 3 of 3 powered by Legistar™ DPW-S FHWA Eng. CSA, Long Form Total Fee – Contingency (11-2022) Page 1 of 36 AGREEMENT CITY OF FRESNO, CALIFORNIA CONSULTANT SERVICES THIS AGREEMENT (Agreement) is made and entered into, effective __________________________, by and between the CITY OF FRESNO, a California municipal corporation (City), and BKF Engineers, a California Corporation (Consultant). RECITALS WHEREAS, the City desires to obtain professional engineering services for the design of plans and general construction contract documents for Shaw Avenue Roadway Improvements from Fruit Avenue to Palm Avenue (Project); and WHEREAS, the Consultant is engaged in the business of furnishing services as a Professional Engineer and hereby represents that it desires to and is professionally and legally capable of performing the services called for by this Agreement; and WHEREAS, the Consultant acknowledges that this Agreement is subject to the requirements of Fresno Municipal Code Section 4-107 and Administrative Order No. 6-19; and WHEREAS, this Agreement will be administered for the City by its Public Works Department Director (Director) or designee. AGREEMENT NOW, THEREFORE, in consideration of the foregoing and of the covenants, conditions, and promises hereinafter contained to be kept and performed by the respective parties, it is mutually agreed as follows: 1. Scope of Services. The Consultant shall perform the services described herein and in Exhibit A to complete the Project more fully described in Exhibit A, and this shall include all work incidental to, or necessary to perform, such services even though not specifically described in Exhibit A. The services of the Consultant shall consist of five Parts as described below. A separate Notice to Proceed will be issued for each of the aforementioned Parts. By entry into this Agreement and upon the City’s issuance of a written "Notice to Proceed," the City contracts for the services in Part One. The Consultant shall not perform any other Part of the Agreement, and this Agreement shall not be a contract for any other Part, until further performance is authorized by the City’s issuance of a written “Notice to Proceed.” It shall, however, remain the Consultant’s offer to perform all remaining parts described herein. In the event the Consultant performs services without the City’s prior written authorization, the Consultant will not be entitled to compensation for such services. (a) Part One. Schematic Design Phase. (1) The Consultant shall review the description of the Project set forth in Exhibit A and consult with designated representatives of the City to ascertain the requirements of the Project. (2) The Consultant shall conduct studies and investigations as DPW-S FHWA Eng. CSA, Long Form Total Fee – Contingency (11-2022) Page 2 of 36 necessary to confirm requirements of design including, but not limited to, (i) consulting with the various utility agencies, and (ii) obtaining all information and data from the respective responsible the City department/division that is available in the City’s records and is required by the Consultant in connection with the consulting services including, but not limited to, maps, surveys, reports, information, restrictions, and easements. The Consultant shall notify the City if a topographic survey is required. (3) The Consultant shall provide a preliminary evaluation of the Project taking into consideration the City’s estimate of the cost of construction (Construction Budget) of Two Million Two Hundred and Twenty-Six Thousand Nine Hundred and Thirty-Five Dollars ($2,226,935.00), including alternative approaches to design and construction of the Project. (4) Based upon the mutually agreed upon Project requirements and any adjustments authorized by the City in the Construction Budget, the Consultant shall design and prepare schematic design drawings and other documents for review, modification, if required, and acceptance by the City staff sufficient to show the concept and scope of the proposed Project and the scale and relationship of Project components. (5) The Consultant shall submit a preliminary estimate of construction cost for review and acceptance by the City. As used herein, "construction cost" means the cost of construction under the general construction contract and does not include the Consultant’s compensation as herein provided. Such estimate shall include, and shall separately state, the cost of any add or deduct alternatives, the cost of any work which may be let on a segregated bid basis and any equipment or fixtures which may be incorporated in or excluded from the general construction contract as may be necessary to stay within the Construction Budget. (6) The Consultant shall make as many submittals as may be necessary or desirable to obtain the acceptance by the City and shall assist the City in applying for and obtaining from applicable public agencies any approval permit, or waiver required by law, which assistance shall include, but not be limited to, making Project information available to the City. (7) The Consultant may not rely upon any as-builts provided by the City but shall investigate the existing conditions and ascertain the adequacy of such as-builts for the Consultant’s design. The Consultant shall bring to the City’s attention any discrepancies in the as-builts that are discovered by the Consultant’. The City makes no representations regarding any as-builts. (8) Services shall be undertaken and completed in a sequence assuring expeditious completion. All services shall be rendered, and deliverables submitted within seventy-five (75) calendar days from the issuance of a Notice to Proceed for this Part unless an extension of time is approved in writing by the Director. Re-submittals, as necessary to obtain the acceptance by the City, shall be submitted to the City within seven (7) calendar days from receipt of the City’s comments unless an extension of time is approved in writing by the Director. DPW-S FHWA Eng. CSA, Long Form Total Fee – Contingency (11-2022) Page 3 of 36 (b) Part Two. Design Development Phase. After review and acceptance of the schematic design phase and issuance of a written Notice to Proceed with this Part Two: (1) Based upon the accepted schematic design documents and the Construction Budget, including authorized revisions thereto, the Consultant shall prepare for review and acceptance by the City the design development documents consisting of drawings and other documents to fix and describe the size and character of the Project as necessary to show treatment of significant details. In addition, the Consultant shall provide outline specifications of the work as to kinds of materials, systems, and other such design elements as may be required. Such design development documents and specifications shall be subject to review and acceptance by the City. (2) The Consultant shall submit a revised estimate of construction cost for review and acceptance by the City. The revised estimate shall include, but shall separately state, the cost of any add or deduct alternates, any work which may be let on a segregated bid basis, and any furnishings, equipment or fixtures which may be incorporated in or excluded from the general construction contract as may be necessary to stay within the Construction Budget, including authorized revisions thereto. (3) In the event that the revised estimate of construction cost exceeds the preliminary estimate of construction cost previously accepted, excluding therefrom any add alternate, any work which may be let on a segregated bid basis and any furnishing, equipment or fixtures which was identified in Part 1 as that which may be excluded from the general construction contract, the City shall have the option of accepting or rejecting the revised estimate and the Consultant shall, at no additional cost to the City, make such design changes as may be necessary to reduce the revised estimate so that it shall not exceed the preliminary estimate of construction cost previously accepted by the City. The City shall not increase the scope of the Project except by modification of this Agreement which shall include an agreed upon increase in the Consultant’s compensation. (4) The Consultant shall make as many submittals as may be necessary or desirable to obtain the acceptance by the City and shall assist the City in applying for and obtaining from applicable public agencies any approval, permit, or waiver required by law, which assistance shall include, but not be limited to, making Project information available to the City. (5) Services shall be undertaken and completed in a sequence assuring expeditious completion. All services shall be rendered, and deliverables submitted within forty (40) calendar days from the issuance of a Notice to Proceed for this Part unless an extension of time is approved in writing by the Director. Re- submittals, as necessary to obtain the acceptance by the City, shall be submitted to the City within seven (7) calendar days from receipt of the City’s comments unless an extension of time is approved in writing by the Director. (c) Part Three. Construction Document Phase. After review and acceptance of the design development phase and issuance of a written Notice to Proceed DPW-S FHWA Eng. CSA, Long Form Total Fee – Contingency (11-2022) Page 4 of 36 with this Part Three: (1) The Consultant shall prepare from the accepted design development documents, detailed plans and specifications setting forth the complete work to be done, and the materials, workmanship, finishes and equipment, fixtures, and site work required. The Consultant shall also prepare necessary bidding information, general and special conditions of the general construction contract, technical specifications of the general construction contract, and the bid proposal and general construction contract forms. Such documents shall be subject to the review and acceptance by the City. The Consultant shall cooperate with, assist and be responsive to the City’s Purchasing Manager in preparation of all documents including, without limitation, slip-sheeting final documents for printing when requested. The City’s Standard Specifications must be used by the Consultant where possible. Final drawings shall be drawn, printed, or reproduced by a process providing a permanent record in black on vellum, tracing cloth, polyester base film, or high-quality bond copy. Bid, general conditions, contract and bond document forms or formats regularly used by the City shall be used by the Consultant unless the Director determines they would be impractical for this Project. The Consultant shall be responsible for assuring that the special conditions, technical specifications, and any other documents prepared by the Consultant are consistent with any documents regularly used by the City that are used for this Project. (2) Upon request of the City, the Consultant shall provide the calculations used to determine the general construction contract quantities; and structural calculations for the purpose of obtaining any building permits. (3) The Consultant shall make as many submittals as may be necessary or desirable to obtain the acceptance by the City and shall assist the City in applying for and obtaining from applicable public agencies any approval, permit, report, statement, or waiver required by law, which assistance shall include, but not be limited to, making Project information available to the City. (4) The Consultant shall provide the City with four (4) sets of completed plans and three (3) sets of completed specifications for review and final acceptance by the City. Should the plans and specifications as submitted by the Consultant not be accepted by the City, the Consultant shall revise the plans and specifications as needed to obtain final acceptance at no additional cost to the City. (5) After acceptance of final corrections, if any, the Consultant shall provide the City with one set of accepted reproducible tracings and bid documents for the Project. In addition, the Consultant shall provide the City with one complete set of CAD/System disk files of drawings and complete disk files of specifications in the following format: AutoCAD 2018 and Microsoft Word. (6) The Consultant shall submit a final estimate of construction cost for review and acceptance by the City. Such estimate shall be calculated as of the date all general construction contract documents are delivered to the City in final form ready for reproduction and advertising. Such estimate shall include, but DPW-S FHWA Eng. CSA, Long Form Total Fee – Contingency (11-2022) Page 5 of 36 shall separately state, the cost of any add or deduct alternates, any work which may be let on a segregated basis, and any equipment, or fixtures which may be incorporated in or excluded from the general construction contract. (7) In the event that the final estimate of construction cost exceeds the revised estimate of construction cost previously accepted, excluding therefrom any add alternate, any work which may be let on a segregated bid basis and any furnishings, equipment or fixtures which was identified in the final revised estimate in Part 2 as that which may be excluded from the general construction contract, the City shall have the option of accepting or rejecting the final estimate. If the City elects to reject the final estimate, the Consultant shall at no additional cost to the City, make such design changes as may be necessary to reduce the final estimate so that it shall not exceed the revised estimate of construction cost previously accepted by the City. (8) Services shall be undertaken and completed in a sequence assuring expeditious completion. All services shall be rendered, and deliverables submitted within thirty (30) calendar days from the issuance of a Notice to Proceed for this Part unless an extension of time is approved in writing by the Director. Re- submittals, as necessary to obtain the acceptance by the City, shall be submitted to the City within seven (7) calendar days from receipt of the City’s comments unless an extension of time is approved in writing by the Director. (d) Part Four. Bidding Phase. After review and acceptance of the construction document phase and if the City elects to proceed to bid, which shall constitute a written Notice to Proceed with this Part Four: (1) The Consultant shall assist the City in obtaining bids. The Consultant shall not communicate with potential bidders regarding this Project without the express prior written authorization of the City’s Purchasing Manager. (2) The Consultant shall, within 7 calendar days of any request by the City, expeditiously draft and promptly provide addendum as determined by the City to be reasonable or necessary for the bidding process. (3) If the lowest responsible bid received for the general construction contract exceeds by 10% or more the final estimate of construction cost previously accepted by the City, excluding therefrom any add alternate, any work which may be let on a segregated bid basis and any furnishings, equipment or fixtures which are excluded from the general construction contract, the Consultant shall, within 14 calendar days of any request by the City, revise the plans and specifications as may be necessary to stay within 10% of such final estimate of construction cost, at no additional cost to the City provided such bid is received within 180 calendar days after completion of services in Section 1(c) of this Agreement. The Consultant shall also submit such revised plans and specifications, together with a new final estimate of construction cost, to the City for review and acceptance. This procedure, using the latest accepted final estimate of construction cost, shall, upon written notice to the Consultant from the Director, be repeated until an acceptable bid is received that does not exceed the accepted final estimate of construction cost by more than 10%. DPW-S FHWA Eng. CSA, Long Form Total Fee – Contingency (11-2022) Page 6 of 36 (e) Part Five. Construction Phase and General Construction Contract Administration. The construction phase will begin with the award of the general construction contract, which shall constitute a written Notice to Proceed with this Part Five and will terminate when a Notice of Completion is filed. Upon award of a general construction contract for the Project and under the direction of the Director through the City’s designated Construction Manager for the Project: (1) The Consultant shall attend the pre-construction conference and, if called upon by the City, act on the City’s behalf in discussing the various aspects of the construction phase. (2) The Consultant shall review and recommend in writing to the City acceptance or non-acceptance of shop drawings, equipment and material submittals of the general construction contractor as required by the general construction contract and applicable laws and regulations in a timely manner. The period for The Consultant review shall be as specified in the general construction contract, except if such period is not so specified, the period shall be as determined in the pre-construction conference as mutually agreed upon by the City, the Consultant, and the general construction contractor. (3) The Consultant shall, at intervals appropriate to the state of construction, familiarize itself with the progress and quality of the work and determine in general if the work is proceeding in accordance with the general construction contract documents, and keep the City informed of the progress of the work. In the event that the Consultant’s visit to the site results in the discovery of any defect or deficiencies in the work of the general construction contractor, the Consultant shall immediately advise the City and document, in writing, the work the Consultant deems substandard, and make recommendations where appropriate to reject any work not conforming to the intended design or specifications. Based on the Consultant’s best knowledge, information and belief, the Consultant shall provide the City a general written assurance that the work covered by a payment application meets the standards in the general construction contract. As to technical aspects, the Consultant shall provide a written judgment of the acceptability of the work for payment applications and final acceptance, subject to the City’s right to overrule the Consultant. (4) Upon written request by the City, the Consultant shall render interpretations of the general construction contract documents necessary for the proper execution or progress of the work. (5) Upon written request by the City, the Consultant shall render written recommendations on change orders, claims, disputes, or other questions arising out of the general construction contract, in a timely manner. Recommendations by the Consultant in favor of a change order that is consequently accepted by the City shall constitute approval by the Consultant who shall then approve the change order in writing. The Consultant shall not unreasonably withhold written approval in the event the City accepts a change order that the Consultant recommended to be rejected. In the event of any technical disputes, the Consultant shall provide the City with the Consultant’s DPW-S FHWA Eng. CSA, Long Form Total Fee – Contingency (11-2022) Page 7 of 36 written interpretation of the contract documents. The period for the Consultant review shall be as specified in the general construction contract, except if such period is not so specified, the period shall be as determined in the pre- construction conference as mutually agreed upon by the City, the Consultant, and the general construction contractor. If the City, the Consultant, and the respective general construction contractor are unable to mutually agree on such period for the Consultant review, then the City will make the determination and that determination will be final. (6) Upon written request by the City, the Consultant shall provide such design and specification services as may be requested by the City to implement change orders necessary for clarification or interpretation of the general construction contract documents or which may have resulted from errors or omissions by the Consultant. (7) Where change orders arise as a result of an increase in the scope of work or are due to unforeseeable conditions, the parties may modify this Agreement, which modification shall include an agreed upon increase in the Consultant’s compensation. (8) Upon written request of the City, the Consultant shall assist the City in the preparation of Progress Payment Estimates and other related construction reports. (9) The Consultant shall provide the City with two sets of original as-grade plans wet-stamped and signed by the Consultant’s Engineer of Record for the Project submitted for final approval by the City’s Building and Safety Services Division of the Development and Resource Management Department on all projects located outside the Right of Way. (10) The Consultant shall prepare Record Drawings by updating the accepted general construction documents in Part 3 to reflect all changes or deviations that occurred during construction as reflected on or from each of the following: (i) the general construction contractor provided red-lined plans, (ii) those furnished by the City, (iii) the Consultant provided Request for Information responses, and (iv) any the Consultant bulletins, amendments, or clarifications. The Consultant shall provide the City with one set of vellum Record Drawings for the Project within twenty-one (21) calendar days from receipt of red-lined field markups unless an extension of time is approved in writing by the Director. Re- submittals, as necessary to obtain the acceptance by the City, shall be submitted to the City within seven (7) calendar days from receipt of the City comments unless an extension of time is approved in writing by the Director. In addition, the Consultant shall provide the City with one complete set of CAD/System disk files of Record Drawings in the following format: AutoCAD 2018. 2. The City’s responsibilities. The City will: (a) `Provide, upon request and cooperation of the Consultant, access to, and make all provisions necessary to, enter upon public or private lands as required for the Consultant to perform such services and inspections as are required in development DPW-S FHWA Eng. CSA, Long Form Total Fee – Contingency (11-2022) Page 8 of 36 of the Project; provided, however, if the City is unable to obtain access to enter upon public or private lands, the Consultant shall not be relieved from performing its services as to those public and private lands that are accessible. If the Consultant notifies the City that a topographic survey is required by the Consultant in connection with the consulting services, then the City will be responsible for conducting the topographic survey. (b) Manage and be responsible for all negotiations with owners in connection with land or easement acquisition and provide all required title reports and appraisals. (c) With the exception of preparing correspondence required for design, hold all required special meetings, serve all public and private notices, receive and act upon all protests, and perform all services customarily performed by owners as are necessary for the orderly progress of the work and the successful completion of the Project, and pay all costs incidental thereto. (d) Select the testing laboratory and pay the cost of borings, samplings, and other work involved in soils testing during construction. (e) Conduct onsite inspection during construction to check quality and quantity of work as conditions warrant and be responsible for assuring that the general construction contractor carries out all construction work in accordance with the plans and specifications. However, this does not release the Consultant from its responsibility to make periodic site visits under Section 1(e) for the purpose of observing the work to determine its general conformity with the plans and specifications and reporting its findings to the City. (f) Prepare all change orders during construction in cooperation with the Consultant. (g) Prepare all Progress Payment Estimates in cooperation with the Consultant following its general assurance that the work covered by a payment application meets the standards in the general construction contract documents based upon the Consultant’s best knowledge, information, and belief. (h) Pay, or cause to be paid, plan check fees, conditional use permit fees and site plan review fees. (i) Arrange for and pay, or cause to be paid, any fees associated with Environmental Impact Reports or Statements. (j) Give reasonably prompt consideration to all matters submitted by the Consultant for acceptance to the end that there will be no substantial delays in the Consultant’s program of work. For an acceptance, approval, authorization, a request, or any direction to the Consultant to be binding upon the City under the terms of this Agreement, such acceptance, approval, authorization, request, or direction must be in writing, duly authorized by the City and signed on behalf of the City by the Director. 3. Compensation. (a) the Consultant’s sole compensation for satisfactory performance of all services required or rendered pursuant to this Agreement shall be a total fee of One Hundred and Forty-Nine Thousand Seven Hundred Seventy-Three dollars ($149,773), DPW-S FHWA Eng. CSA, Long Form Total Fee – Contingency (11-2022) Page 9 of 36 and a contingency amount not to exceed Ten Thousand Dollars ($10,000) for any additional work rendered pursuant to Subsection (d) below and authorized in writing by the Director. Such fees include all expenses incurred by the Consultant in performance of such services. (b) Detailed statements shall be rendered monthly and will be payable in the normal course of the City business. Such statements shall be for an amount no greater than that attributable to the Part upon which the Consultant is then engaged as provided in Section 3(c) below. (c) For purposes of determining the division of the total compensation to the Consultant as provided in Section 3(a) above, or should performance of any succeeding Part not be authorized by the City as provided in Section 1 of this Agreement, it is agreed that the total compensation shall be allocated to the five Parts of the Consultant’s performance as follows: Part 1 – Fifty-Four precent (54%), Part 2 – Seventeen percent (17%), Part 3 – Fifteen percent (15%), Part 4 – Three percent (3%) and Part 5 – Eleven (11%). Prior to the award of a general construction contract for the Project, or should such contract not be awarded, the approved Parts as provided above shall be utilized for purposes of determining the fee due to the Consultant. (d) The parties may modify this Agreement to increase or decrease the scope of services or provide for the rendition of services not required by this Agreement, which modification shall include an adjustment to the Consultant’s compensation. Any change in the scope of services must be made by written amendment to the Agreement signed by an authorized representative for each party. The Consultant shall not be entitled to any additional compensation if services are performed prior to a signed written amendment. Subsequent to the date of completion of Part Three, changes due to Code revisions or enactments adopted after such date shall constitute additional work subject to this Section 3(d). 4. Termination, Remedies, Force Majeure, and Consolidation of Disputes. (a) This Agreement shall terminate without any liability of the City to the Consultant upon the earlier of: (i) the Consultant’s filing for protection under the federal bankruptcy laws, or any bankruptcy petition or petition for receiver commenced by a third party against the Consultant; (ii) 7 calendar days prior written notice with or without cause by the City to the Consultant; (iii) the City’s non-appropriation of funds sufficient to meet its obligations hereunder during any the City fiscal year of this Agreement, or insufficient funding for the Project; or (iv) expiration of this Agreement. (b) Immediately upon any termination or expiration of this Agreement, the Consultant shall (i) immediately stop all work hereunder; (ii) immediately cause any and all of its subcontractors to cease work; and (iii) return to the City any and all unearned payments and all properties and materials in the possession of the Consultant that are owned by the City. Subject to the terms of this Agreement, the Consultant shall be paid compensation for services satisfactorily performed prior to the effective date of termination. The Consultant shall not be paid for any work or services performed or costs incurred which reasonably could have been avoided. (c) In the event of termination due to failure of the Consultant to DPW-S FHWA Eng. CSA, Long Form Total Fee – Contingency (11-2022) Page 10 of 36 satisfactorily perform in accordance with the terms of this Agreement, the City may withhold an amount that would otherwise be payable as an offset to, but not in excess of, the City’s damages caused by such failure. In no event shall any payment by the City pursuant to this Agreement constitute a waiver by the City of any breach of this Agreement which may then exist on the part of the Consultant, nor shall such payment impair or prejudice any remedy available to the City with respect to the breach. (d) Upon any breach of this Agreement by the Consultant, the City may (i) exercise any right, remedy (in contract, law, or equity), or privilege which may be available to it under applicable laws of the State of California or any other applicable law; (ii) proceed by appropriate court action to enforce the terms of the Agreement; and/or (iii) recover all direct, indirect, consequential, economic, and incidental damages for the breach of the Agreement. If it is determined that the City improperly terminated this Agreement for default, such termination shall be deemed a termination for convenience. (e) The Consultant shall provide the City with adequate written assurances of future performance, upon the request of the Director or designee, in the event the Consultant fails to comply with any terms or conditions of this Agreement. (f) The Consultant shall be liable for default unless nonperformance is caused by an occurrence beyond the reasonable control of the Consultant and without its fault or negligence such as, acts of God or the public enemy, acts of the City in its contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes, unusually severe weather, and delays of common carriers. The Consultant shall notify the Director or designee in writing as soon as it is reasonably possible after the commencement of any excusable delay, setting forth the full particulars in connection therewith, and shall remedy such occurrence with all reasonable dispatch, and shall promptly give written notice to the Director or designee of the cessation of such occurrence. (g) the Consultant agrees that, notwithstanding any contrary provision in this Agreement, any dispute arising from or relating to this Agreement (including, without limitation, disputes based on contract, tort, equity, or statute) may, at the City’s option, be joined and consolidated with any other dispute or disputes arising from or relating to the Project so that all disputes arising from or relating to the Project may be resolved in a single proceeding. the Consultant hereby specifically waives any objection it may otherwise have to such joinder and consolidation and specifically consents to mediation, arbitration or any other dispute resolution mechanism, forum or proceeding necessary to effectuate the joinder and consolidation contemplated by this provision. (h) Any notice of termination sent to Consultant shall include the reason(s) for such termination or state that it is without cause. 5. Confidential Information, Ownership of Documents and Copyright License. (a) Any reports, information, or other data prepared or assembled by the Consultant pursuant to this Agreement shall not be made available to any individual or organization by the Consultant without the prior written approval of the City. During the term of this Agreement, and thereafter, the Consultant shall not, without the prior written consent of the City, disclose to anyone any Confidential Information. The term Confidential Information for the purposes of this Agreement shall include all proprietary DPW-S FHWA Eng. CSA, Long Form Total Fee – Contingency (11-2022) Page 11 of 36 and confidential information of the City, including but not limited to business plans, marketing plans, financial information, designs, drawings, specifications, materials, compilations, documents, instruments, models, source or object codes and other information disclosed or submitted, orally, in writing, or by any other medium or media. All Confidential Information shall be and remain confidential and proprietary in the City. i. Permission granted to the Consultant to disclose information on one occasion shall not authorize the Consultant to further disclose such information or any other information or disseminate the same on any other occasion. ii. The Consultant shall not comment publicly to the press or any other media regarding the Agreement or the City’s actions on the same, except to the City’s personnel or the Consultant’s personnel involved in the performance of this Agreement at public hearings or in response to questions from a Legislative committee. iii. The Consultant shall not issue any news releases or any public relations item of any nature, whatsoever, regarding work performed or to be performed under this Agreement without prior review of the contents thereof by the City and receipt of the City’s written permission. (b) Any and all original sketches, pencil tracings of working drawings, plans, computations, specifications, computer disk files, writings and other documents prepared or provided by the Consultant pursuant to this Agreement, in any form whatsoever, are the property of the City at the time of preparation and shall be turned over to the City upon expiration or termination of the Agreement or default by the Consultant. The Consultant grants the City a copyright license to use such drawings and writings. The Consultant shall not permit the reproduction or use thereof by any other person except as otherwise expressly provided herein. The City may modify the design including any drawings or writings. Any use by the City of the aforesaid sketches, tracings, plans, computations, specifications, computer disk files, writings, and other documents in completed form as to other projects or extensions of this Project, or in uncompleted form, without specific written verification by the Consultant will be at the City’s sole risk and without liability or legal exposure to the Consultant. The Consultant may keep a copy of all drawings and specifications for its sole and exclusive use. i. In the event of the copyright of any reports or other products prepared under this Agreement by the Consultant or any subcontractor, the Federal Highway Administration (FHWA) shall have the royalty-free, nonexclusive, and irrevocable right to reproduce, publish, or otherwise use, and to authorize others to use, the work for government purposes. (c) If the Consultant should subcontract all or any portion of the services to be performed under this Agreement, the Consultant shall cause each subcontractor to also comply with the requirements of this Section 5. (d) This Section 5 shall survive expiration or termination of this Agreement. DPW-S FHWA Eng. CSA, Long Form Total Fee – Contingency (11-2022) Page 12 of 36 6. Professional Skill. It is further mutually understood and agreed by and between the parties hereto that inasmuch as the Consultant represents to the City that the Consultant and its subcontractors, if any, are skilled in the profession and shall perform in accordance with the standards of said profession necessary to perform the services agreed to be done by it under this Agreement, the City relies upon the skill of the Consultant and any subcontractors to do and perform such services in a skillful manner and the Consultant agrees to thus perform the services and require the same of any subcontractors. Therefore, any acceptance of such services by the City shall not operate as a release of the Consultant or any subcontractors from said professional standards. 7. Indemnification. To the furthest extent allowed by law, including California Civil Code section 2782.8, the Consultant shall indemnify, hold harmless and defend the City and each of its officers, officials, employees, agents, and volunteers from any and all loss, liability, fines, penalties, forfeitures, costs and damages (whether in contract, tort or strict liability, including but not limited to personal injury, death at any time and property damage), and from any and all claims, demands and actions in law or equity (including reasonable attorney's fees, litigation expenses and cost to enforce this agreement) that arise out of, pertain to, or relate to the negligence, recklessness or willful misconduct of the Consultant, its principals, officers, employees, agents, or volunteers in the performance of this Agreement. If the Consultant should subcontract all or any portion of the services to be performed under this Agreement, the Consultant shall require each subcontractor to indemnify, hold harmless and defend the City and each of its officers, officials, employees, agents, and volunteers in accordance with the terms of the preceding paragraph. This section shall survive termination or expiration of this Agreement. 8. Insurance. (a) Throughout the life of this Agreement, the Consultant shall pay for and maintain in full force and effect all insurance as required in Exhibit B, which is incorporated into and part of this Agreement, with an insurance company(ies) either (i) admitted by the California Insurance Commissioner to do business in the State of California and rated no less than “A-VII” in the Best’s Insurance Rating Guide, or (ii) as may be authorized in writing by the City’s Risk Manager or designee at any time and in its sole discretion. The required policies of insurance as stated in Exhibit B shall maintain limits of liability of not less than those amounts stated therein. However, the insurance limits available to the City, its officers, officials, employees, agents, and volunteers as additional insureds, shall be the greater of the minimum limits specified therein or the full limit of any insurance proceeds to the named insured. (b) If at any time during the life of the Agreement or any extension, the Consultant or any of its subcontractors/sub-consultants fail to maintain any required insurance in full force and effect, all services and work under this Agreement shall be discontinued immediately, and all payments due or that become due to the Consultant shall be withheld until notice is received by the City that the required insurance has been DPW-S FHWA Eng. CSA, Long Form Total Fee – Contingency (11-2022) Page 13 of 36 restored to full force and effect and that the premiums therefore have been paid for a period satisfactory to the City. Any failure to maintain the required insurance shall be sufficient cause for the City to terminate this Agreement. No action taken by the City pursuant to this section shall in any way relieve the Consultant of its responsibilities under this Agreement. The phrase “fail to maintain any required insurance” shall include, without limitation, notification received by the City that an insurer has commenced proceedings, or has had proceedings commenced against it, indicating that the insurer is insolvent. (c) The fact that insurance is obtained by the Consultant shall not be deemed to release or diminish the liability of the Consultant, including, without limitation, liability under the indemnity provisions of this Agreement. The duty to indemnify the City shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Consultant. Approval or purchase of any insurance contracts or policies shall in no way relieve from liability nor limit the liability of the Consultant, its principals, officers, agents, employees, persons under the supervision of the Consultant, vendors, suppliers, invitees, consultants, sub-consultants, subcontractors, or anyone employed directly or indirectly by any of them. (d) If the Consultant should subcontract all or any portion of the services to be performed under this Agreement, the Consultant shall require each subcontractor/sub-consultant to provide insurance protection, as an additional insured, to the City and each of its officers, officials, employees, agents, and volunteers in accordance with the terms of this section, except that any required certificates and applicable endorsements shall be on file with the Consultant and the City prior to the commencement of any services by the subcontractor. the Consultant and any subcontractor/sub-consultant shall establish additional insured status for the City, its officers, officials, employees, agents, and volunteers by using Insurance Service Office (ISO) Form CG 20 10 11 85 or both CG 20 10 04 13 and CG 20 37 04 13 or by an executed manuscript company endorsement providing additional insured status as broad as that contained in ISO Form CG 20 10 11 85. 9. Conflict of Interest and Non-Solicitation. (a) Prior to the City’s execution of this Agreement, the Consultant shall complete a City of Fresno conflict of interest disclosure statement in the form as set forth in Exhibit C. During the term of this Agreement, the Consultant shall have the obligation and duty to immediately notify the City in writing of any change to the information provided by the Consultant in such statement. (b) the Consultant shall comply, and require its subcontractors to comply, with all applicable (i) professional canons and requirements governing avoidance of impermissible client conflicts; and (ii) federal, state, and local conflict of interest laws and regulations including, without limitation, 23 U.S.C. § 112, FHWA regulations applicable to design and engineering consulting contracts found at 23 C.F.R. 172.1 et seq., California Government Code Section 1090 et. seq., the California Political Reform Act (California Government Code Section 87100 et. seq.), the regulations of the Fair Political Practices Commission concerning disclosure and disqualification (2 California Code of Regulations Section 18700 et. seq.) and Section 4-112 of the Fresno Municipal DPW-S FHWA Eng. CSA, Long Form Total Fee – Contingency (11-2022) Page 14 of 36 Code (Ineligibility to Compete). At any time, upon written request of the City, the Consultant shall provide a written opinion of its legal counsel and that of any subcontractor that, after a due diligent inquiry, the Consultant and the respective subcontractor(s) are in full compliance with all laws and regulations. The Consultant shall take, and require its subcontractors to take, reasonable steps to avoid any appearance of a conflict of interest. Upon discovery of any facts giving rise to the appearance of a conflict of interest, the Consultant shall immediately notify the City of these facts in writing. (c) In performing the work or services to be provided hereunder, the Consultant shall not employ or retain the services of any person while such person either is employed by the City or is a member of any City council, commission, board, committee, or similar City body. This requirement may be waived in writing by the City Manager, if no actual or potential conflict is involved. (d) The Consultant represents and warrants that it has not paid or agreed to pay any compensation, lawful or unlawful, contingent, or otherwise, direct, or indirect, to any party to solicit or procure this Agreement or any rights/benefits hereunder. The City shall have the right, in its discretion, to deduct from any payment to the Consultant under this Agreement, or otherwise recover the full amount of, any rebate, kickback or other consideration paid by the Consultant in violation of any representation or warranty under this section. (e) Neither the Consultant, nor any firm affiliated with the Consultant, nor any of the Consultant’s subcontractors performing any services on this Project, shall bid for, assist anyone in the preparation of a bid for, or perform any services pursuant to, any other contract in connection with this Project with the exception of any subcontractor whose services are limited to providing surveying or materials testing information. the Consultant and any of its subcontractors shall have no interest, direct or indirect, in any other contract with a third party in connection with this Project unless such interest is in accordance with all applicable law and fully disclosed to and approved by the City Manager, in advance and in writing. An affiliated firm is one which is subject to the control of the same person(s) through joint-ownership or otherwise. (f) The Consultant shall disclose any financial, business, or other relationship with the City that may have an impact upon the outcome of this Agreement or any ensuing the City construction project. The Consultant shall also disclose any current clients who may have a financial interest in the outcome of this Agreement or any ensuing the City construction project, which will follow. (g) The Consultant hereby certifies that it does not now have, nor shall it acquire any financial or business interest that would conflict with the performance of services under this Agreement. (h) If the Consultant should subcontract all or any portion of the work to be performed or services to be provided under this Agreement, the Consultant shall include the provisions of this Section 9 in each subcontract and require its subcontractors to comply therewith. (i) This Section 9 shall survive expiration or termination of this Agreement. DPW-S FHWA Eng. CSA, Long Form Total Fee – Contingency (11-2022) Page 15 of 36 10. Recycling Program. In the event the Consultant maintains an office or operates a facility(ies), or is required herein to maintain or operate same, within the incorporated limits of the City of Fresno, the Consultant at its sole cost and expense shall: (a) Immediately establish and maintain a viable and ongoing recycling program, approved by the City’s Solid Waste Management Division, for each office and facility. Literature describing the City recycling programs is available from the City’s Solid Waste Management Division and by calling City of Fresno Recycling Hotline at (559) 621- 1111. (b) Immediately contact the City’s Solid Waste Management Division at (559) 621-1452 and schedule a free waste audit and cooperate with such Division in their conduct of the audit for each office and facility. (c) Cooperate with and demonstrate to the satisfaction of the City’s Solid Waste Management Division the establishment of the recycling program in paragraph (a) above and the ongoing maintenance thereof. 11. General Terms, Federal and State Assurances and Requirements. (a) Except as otherwise provided by law, all notices expressly required of the City within the body of this Agreement, and not otherwise specifically provided for, shall be effective only if signed by the Director or designee. (b) Records of the Consultant’s expenses pertaining to the Project shall be kept on a generally recognized accounting basis. The Consultant and its subcontractors shall maintain all books, documents, papers, accounting records, and other evidence pertaining to the performance of the Agreement including, but not limited to, the costs of administering the Agreement. The Consultant and its subcontractors shall make such materials available at their respective offices at all reasonable times during the period of this Agreement and for 3 years, or longer if required by law, from the date of final payment under the Agreement. the City, the State, the State Auditor, FHWA or any duly authorized representative of the federal government shall have access to any books, records, papers, accounting records and other documents of the Consultant and its subcontractors that are pertinent to the Agreement for audit, examinations, excerpts, and transcriptions. Copies thereof shall be furnished by the Consultant, if requested. If any litigation, claim, negotiations, audit, or other action is commenced before the expiration of the 3-year time period, all records shall be retained and made available until such action is resolved, or until the end of said time period whichever shall later occur. If the Consultant should subcontract all or any portion of the services to be performed under this Agreement, the Consultant shall cause each subcontractor to also comply with the requirements of this section and in the event a subcontract is entered into for an amount in excess of $25,000 the subcontract shall include this paragraph in its entirety. This Section 11(b) shall survive expiration or termination of this Agreement. (c) Prior to execution of this Agreement by the City, the Consultant shall have provided evidence to the City that the Consultant is licensed to perform the services called for by this Agreement (or that no license is required). If the Consultant should subcontract all or any portion of the work or services to be performed under this DPW-S FHWA Eng. CSA, Long Form Total Fee – Contingency (11-2022) Page 16 of 36 Agreement, the Consultant shall require each subcontractor to provide evidence to the City that subcontractor is licensed to perform the services called for by this Agreement (or that no license is required) before beginning work. (d) The Consultant’s services pursuant to this Agreement shall be provided under the supervision of Jason Kirchmann, PE, and he/she shall not assign another to supervise the Consultant’s performance of this Agreement without the prior written approval of the Director. (e) The City will carry out applicable federal requirements in the administration of this Agreement. Notwithstanding Section 25 herein, the Consultant agrees to comply with all applicable federal and state assurances and requirements identified in Exhibit D along with its Appendix A and require that each subcontract include the same assurances by each of its subcontractors. 12. Nondiscrimination. To the extent required by controlling federal, state, and local law, the Consultant shall not employ discriminatory practices in the provision of services, employment of personnel, or in any other respect on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era. Subject to the foregoing and during the performance of this Agreement, the Consultant agrees as follows: (a) the Consultant will comply with all applicable laws and regulations providing that no person shall, on the grounds of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era be excluded from participation in, be denied the benefits of, or be subject to discrimination under any program or activity made possible by or resulting from this Agreement. (b) The Consultant will not discriminate against any employee or applicant for employment because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, and ethnicity, status as a disabled veteran or veteran of the Vietnam era. The Consultant shall ensure that applicants are employed, and the employees are treated during employment, without regard to their race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, and ethnicity, status as a disabled veteran or veteran of the Vietnam era. Such requirement shall apply to the Consultant’s employment practices including, but not be limited to, the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The Consultant agrees to post in conspicuous places, available to employees and applicants for employment, notices setting forth the provision of this nondiscrimination clause. (c) the Consultant will, in all solicitations or advertisements for employees placed by or on behalf of the Consultant in pursuit hereof, state that all DPW-S FHWA Eng. CSA, Long Form Total Fee – Contingency (11-2022) Page 17 of 36 qualified applicants will receive consideration for employment without regard to race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era. (d) The Consultant will send to each labor union or representative of workers with which it has a collective bargaining agreement or other contract or understanding, a notice advising such labor union or workers' representatives of the Consultant’s commitment under this section and shall post copies of the notice in conspicuous places available to employees and applicants for employment. (e) If the Consultant should subcontract all or any portion of the services to be performed under this Agreement, the Consultant shall cause each subcontractor to also comply with the requirements of this Section 12. 13. Independent Contractor. (a) In the furnishing of the services provided for herein, the Consultant is acting solely as an independent contractor. Neither the Consultant, nor any of its officers, agents or employees shall be deemed an officer, agent, employee, joint venturer, partner or associate of the City for any purpose. The City shall have no right to control or supervise or direct the manner or method by which the Consultant shall perform its work and functions. However, the City shall retain the right to administer this Agreement so as to verify that the Consultant is performing its obligations in accordance with the terms and conditions thereof. (b) This Agreement does not evidence a partnership or joint venture between the Consultant and the City. The Consultant shall have no authority to bind the City absent the City’s express written consent. Except to the extent otherwise provided in this Agreement, the Consultant shall bear its own costs and expenses in pursuit thereof. (c) Because of its status as an independent contractor, the Consultant and its officers, agents, and employees shall have absolutely no right to employment rights and benefits available to the City employees. The Consultant shall be solely liable and responsible for all payroll and tax withholding and for providing to, or on behalf of, its employees all employee benefits including, without limitation, health, welfare, and retirement benefits. In addition, together with its other obligations under this Agreement, the Consultant shall be solely responsible, indemnify, defend and save the City harmless from all matters relating to employment and tax withholding for and payment of the Consultant’s employees, including, without limitation, (i) compliance with Social Security and unemployment insurance withholding, payment of workers’ compensation benefits, and all other laws and regulations governing matters of employee withholding, taxes and payment; and (ii) any claim of right or interest in the City employment benefits, entitlements, programs and/or funds offered employees of the City whether arising by reason of any common law, de facto, leased, or co-employee rights or other theory. It is acknowledged that during the term of this Agreement, the Consultant may be providing services to others unrelated to the City or to this Agreement. 14. Notices. Any notice required or intended to be given to either party under the terms of this DPW-S FHWA Eng. CSA, Long Form Total Fee – Contingency (11-2022) Page 18 of 36 Agreement shall be in writing and shall be deemed to be duly given if delivered personally, transmitted by facsimile followed by telephone confirmation of receipt, or sent by United States registered or certified mail, with postage prepaid, return receipt requested, addressed to the party to which notice is to be given at the party's address set forth on the signature page of this Agreement or at such other address as the parties may from time to time designate by written notice. Notices served by United States mail in the manner above described shall be deemed sufficiently served or given at the time of the mailing thereof. 15. Binding. Subject to Section 16 below, once this Agreement is signed by all parties, it shall be binding upon, and shall inure to the benefit of, all parties, and each parties' respective heirs, successors, assigns, transferees, agents, servants, employees, and representatives. 16. Assignment. (a) This Agreement is personal to the Consultant and there shall be no assignment by the Consultant of its rights or obligations under this Agreement without the prior written approval of the City Manager or designee. Any attempted assignment by the Consultant, its successors, or assigns, shall be null and void unless approved in writing by the City Manager or designee. (b) The Consultant hereby agrees not to assign the payment of any monies due the Consultant from the City under the terms of this Agreement to any other individual(s), corporation(s) or entity(ies). The City retains the right to pay any and all monies due the Consultant directly to the Consultant. 17. Compliance With Law. In providing the services required under this Agreement, the Consultant shall at all times comply with all applicable laws of the United States, the State of California and the City, and with all applicable regulations promulgated by federal, state, regional, or local administrative and regulatory agencies, now in force and as they may be enacted, issued, or amended during the term of this Agreement. 18. Waiver. The waiver by either party of a breach by the other of any provision of this Agreement shall not constitute a continuing waiver or a waiver of any subsequent breach of either the same or a different provision of this Agreement. No provisions of this Agreement may be waived unless in writing and signed by all parties to this Agreement. Waiver of any one provision herein shall not be deemed to be a waiver of any other provision herein. 19. Governing Law and Venue. This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of California, excluding, however, any conflict of laws rule which would apply the law of another jurisdiction. Venue for purposes of the filing of any action regarding the enforcement or interpretation of this Agreement and any rights and duties hereunder shall be Fresno County, California. DPW-S FHWA Eng. CSA, Long Form Total Fee – Contingency (11-2022) Page 19 of 36 20. Headings. The section headings in this Agreement are for convenience and reference only and shall not be construed or held in any way to explain, modify, or add to the interpretation or meaning of the provisions of this Agreement. 21. Severability. The provisions of this Agreement are severable. The invalidity, or unenforceability of any one provision in this Agreement shall not affect the other provisions. Interpretation. The parties acknowledge that this Agreement in its final form is the result of the combined efforts of the parties and that, should any provision of this Agreement be found to be ambiguous in any way, such ambiguity shall not be resolved by construing this Agreement in favor of or against either party, but rather by construing the terms in accordance with their generally accepted meaning. 22. Attorney's Fees. If either party is required to commence any proceeding or legal action to enforce or interpret any term, covenant or condition of this Agreement, the prevailing party in such proceeding or action shall be entitled to recover from the other party its reasonable attorney's fees and legal expenses. 23. Exhibits. Each exhibit and attachment referenced in this Agreement is, by the reference, incorporated into and made a part of this Agreement. 24. Precedence of Documents. In the event of any conflict between the body of this Agreement and any Exhibit or Attachment hereto, the terms and conditions of the body of this Agreement shall control and take precedence over the terms and conditions expressed within the Exhibit or Attachment. Furthermore, any terms or conditions contained within any Exhibit or Attachment hereto which purport to modify the allocation of risk between the parties, provided for within the body of this Agreement, shall be null and void. 25. Cumulative Remedies. No remedy or election hereunder shall be deemed exclusive but shall, wherever possible, be cumulative with all other remedies at law or in equity. 26. No Third-Party Beneficiaries. The rights, interests, duties, and obligations defined within this Agreement are intended for the specific parties hereto as identified in the preamble of this Agreement. Notwithstanding anything stated to the contrary in this Agreement, it is not intended that any rights or interests in this Agreement benefit or flow to the interest of any third parties. 27. Extent of Agreement. Each party acknowledges that they have read and fully understand the contents of this Agreement. This Agreement represents the entire and integrated agreement between the parties with respect to the subject matter hereof and supersedes all prior negotiations, representations, or agreements, either written or oral. This Agreement may be modified DPW-S FHWA Eng. CSA, Long Form Total Fee – Contingency (11-2022) Page 20 of 36 only by written instrument duly authorized and executed by both the City and the Consultant. 28. RFQ Document. Any Request for Qualifications and documents issued therewith (collectively referred to herein as “RFQ”) by the City that resulted in selection of the Consultant for entry into this Agreement are hereby incorporated into and made a part of this Agreement. In the event of a conflict between the RFQ and this Agreement (including any Exhibit hereto), this Agreement (including any Exhibit hereto) shall take precedence. 29. The City Manager, or designee, is hereby authorized and directed to execute and implement this Agreement. The previous sentence is not intended to delegate any authority to the City Manager to administer the Agreement, any delegation of authority must be expressly included in the Agreement. 30. The City Manager, or designee, is hereby authorized and directed to execute and implement this Agreement. The previous sentence is not intended to delegate any authority to the City Manager to administer the Agreement, any delegation of authority must be expressly included in the Agreement. [SIGNATURES FOLLOW ON THE NEXT PAGE.] DPW-S FHWA Eng. CSA, Long Form Total Fee – Contingency (11-2022) Page 21 of 36 IN WITNESS WHEREOF, the parties have executed this Agreement at Fresno, California, on the day and year first above written. CITY OF FRESNO, A California municipal corporation By: Randall W. Morrison, PE, MCE, Director Capital Projects Deparment ATTEST: TODD STERMER, CMC City Clerk By: Deputy No signature of City Attorney required. Standard Document #DPW-S FHWA Eng. CSA, Long Form Total Fee - Contingency (11-2022) has been used without modification, as certified by the undersigned. By: Isaac Campos, Engineer II Capital Projects Department REVIEWED BY: Jesus Avitia, PE, Assistant Director Public Works Department BKF Engineers, A California Corporation By: Name: Title: (If corporation or LLC., Board Chair, Pres. or Vice Pres.) By: Name: Title: (If corporation or LLC., CFO, Treasurer, Secretary or Assistant Secretary) Any Applicable Professional License: Number: Name: Date of Issuance: Addresses: CITY: City of Fresno Attention:Isaac Campos, Engineer II 2600 Fresno Street Fresno, CA 93721 Phone: (559) 621-8657 E-mail: Isaac.campos@fresno.gov CONSULTANT: BKF Engineers Attention: Jason Kirchmann, Principal 4675 MacArthur Court, Suite 400, Newport Beach, CA, 92560 Phone: (949) 526-8460 E-mail: Jkirchmann@bkf.com Attachments: 1. Exhibit A - Scope of Services 2. Exhibit B - Insurance Requirements 3. Exhibit C - Conflict of Interest Disclosure Form Jason Kirchmann Vice President Rebecca Dower C 80868 Chief Financial Officer Jean Chen Isaac Campos DPW-S FHWA Eng. CSA, Long Form Total Fee – Contingency (11-2022) Page 22 of 36 4. Exhibit D - Federal and State Assurances 5. Appendix A to Exhibit D DPW-S FHWA Eng. CSA, Long Form Total Fee – Contingency (11-2022) Exhibit A Page 23 of 36 EXHIBIT A SCOPE OF SERVICES Consultant Service Agreement between City of Fresno (City) and BKF Engineers (Consultant) Shaw Avenue Roadway Improvements from Fruit Avenue to Palm Avenue SCOPE OF SERVICES PART 1 – SCHEMATIC DESIGN PHASE 1. Project Management and Routine Project Team Meetings: Consultant will provide general project management and consultant oversight services including defining and tracking tasks, status updates, and general coordination. Consultant will schedule regular progress meeting to discuss the status of the project, upcoming efforts, issues, coordination items, and other relevant information. Agendas, action items log, progress reports with invoices, updated project schedules, and meeting minutes will be prepared and distributed. Consultant will also maintain frequent and timely communication with City staff throughout the duration of the project. 2. Project Kick-Off Meeting: Consultant will facilitate a project kick-off meeting. Consultant will prepare meeting minutes and distribute to all in attendance for review and concurrence following the kick-off meeting. 3. Site Investigation and Photo Diary: Consultant will facilitate a site investigation meeting with City staff and other pertinent stakeholders as identified by the City. During the course of the site walk, Consultant will collect photos within the project limits and develop a Photo Diary. This Photo Diary will have an index map showing the location/orientation of where the photos were taken, for future City and design team reference. 4. Utility Data Research and Coordination: Consultant will contact the City, County, and other utility (including, and not limited to water, sewer, storm, irrigation, and electric/gas) companies that have utilities within the streets. We will prepare Utility A Letters and distribute to utility purveyors present within the Project Limits. Consultant will develop and maintain a record of utility notifications including contact numbers, dates or transmittals, and materials transmitted in a Utility Communication Log, to be provided to the City along with each design milestone. 5. Utility Conflict Review and Resolution: Consultant will prepare a utility composite drawing, indicating the record locations of utilities within the project limits. Using this composite drawing, consultant will identify potential conflicts between the proposed improvements and the existing utilities. These potential conflicts will be identified on a colored Utility Conflict Exhibit and will be provided to and reviewed with City staff. 6. Pothole Exhibit: Consultant will develop an exhibit illustrating the desired locations for utility pothole data collection, by others. 7. Topographic Survey Data Processing: The City will prepare a topographic and boundary survey under the direction of a California Licensed Professional Land Surveyor which will be provided to DPW-S FHWA Eng. CSA, Long Form Total Fee – Contingency (11-2022) Exhibit A Page 24 of 36 the team for use during design. City will provide a CAD file with boundary linework, a topography, and control information. Consultant will utilize the CAD file as a background to our design drawings, modifying the display properties of the file. Consultant will also review CAD file and request any additional topographic survey as deemed necessary for design completion. 8. Geotechnical Investigation and Report: Consultant will provide new pavement structural sections and pavement rehabilitation recommendations for the proposed street improvements. Geotechnical investigation will include drilling seven (7) 5-foot deep borings within the project limits. Core samples of the existing pavement sections will be collected at each boring location. Based on the R-value test results, and the Traffic Index (TI) provided by City, a technical memorandum with determine pavement structural sections. 9. Right of Way Needs Exhibit: Under this task, consultant will develop a single, comprehensive exhibit of the project corridor, showing the mapped right of way (by others), the proposed project improvements, and the work areas outside of the right of way. 10. Legal Descriptions and Plats: Upon confirmation of the acquisition of easements and/or right of way, to be completed by City staff, consultant will prepare a legal description and plat to accompany each acquisition required. The legal description will provide a metes and bounds description (or other generally accepted land description method) of the property to be encumbered with a graphical plat. 11. Schematic Design (30%) Layout: Under this task, consultant will develop a conceptual-level design layout. To support our conceptual design, consultant, in conjunction with EMI, will develop a pavement rehabilitation matrix, identifying the rehabilitation options, considerations, limitations, and order-of-magnitude estimate. The package will include a graphical layout of the modified medians, new pedestrian push button poles, and replaced curb ramps (up to a total of 17 replacement ramps, based on the City provided graphic associated with the funding application). PART 2 – DESIGN DEVELOPMENT PHASE 1. Design Development (60%) Drawings: Based on the comments received on the conceptual design submittal, consultant will advance the design of the street improvements. Consultant will prepare the following drawings for the schematic design submittal:  Title Sheet  Notes & Legend  Typical Roadway Sections  Demolition Plans  Street Improvement Plan  Signage and Striping Plan  Curb Ramp Grading Enlargements  Construction Details 2. Engineer’s Opinion of Probable Construction Costs: An Engineer’s Opinion of Probable Construction Costs will be developed and updated with each design submittal. DPW-S FHWA Eng. CSA, Long Form Total Fee – Contingency (11-2022) Exhibit A Page 25 of 36 3. Specifications: Specifications will be developed using City standard boilerplate specification templates (UBIDS) and Caltran specifications. 4. Quality Assurance/Quality Control (QA/QC): Consultant will perform quality control checks for each submittal in accordance with consultant’s Quality Manual prior to submitting to the City. 5. Utility Coordination: Once consultant has identified all 3rd party utilities present in the project area, consultant will engage with the impacted utility companies, and as needed, will proceed with the Utility Certification requirements for the project, including the Relocation Claim Letter, Notice to Owner, and Utility Agreement forms. The consultant will prepare and distribute the Utility B and C Letters as part of our utility conflict resolution process. PART 3 – CONSTRUCTION DOCUMENTS PHASE 1. Construction Document (100%) Drawings: Consultant will finalize the plans and prepare the design for inclusion on the bid solicitation package. Consultant will prepare the following drawings for the construction documents submittal:  Title Sheet  Notes & Legend  Typical Roadway Sections  Demolition Plans  Street Improvement Plan  Signage and Striping Plan  Curb Ramp Grading Enlargements  Construction Details 2. Engineer’s Opinion of Probable Construction Costs: An Engineer’s Opinion of Probable Construction Costs will be developed and updated with each design submittal. 3. Specifications: Specifications will be developed using City standard boilerplate specification templates (UBIDS) and Caltran specifications. 4. Quality Assurance/Quality Control (QA/QC): Consultant will perform quality control checks for each submittal in accordance with consultant’s Quality Manual prior to submitting to the City. 5. Utility Coordination: Consultant will continue to engage with the impacted utility companies and coordinate utlity relocations, as needed. PART 4 – BIDDING PHASE  Bid Support: Consultant will assist the City during the construction bid solicitation process on an as-needed basis. Bid support services are anticipated to include the following: a. Addend pre-bid conference b. Respond to Requests for Information (RFIs) during the bid process c. Assist City with issuing bid addendum packages d. Summarizing and tabulating received bids DPW-S FHWA Eng. CSA, Long Form Total Fee – Contingency (11-2022) Exhibit A Page 26 of 36 PART 5 – CONSTRUCTION PHASE 1. Construction Support: Consultant will allocate time to support the contractor during the construction phase of the project. Anticipated services include written responses to RFIs, review of contractor submittals, review of contractor change orders and drawings revisions, as needed. Consultant will be available to attend meetings and visits to the project site with the contractor during the construction process. Anticipated meetings include the following: a. Pre-construction meeting b. Two (2) coordination meetings/site visits during construction 2. Project Close Out: Following completion of construction, consultant will prepare record drawings based on the Contractor’s as-builts to document the final location of the improvements. Final record drawings will be provided on Mylars and will include final CAD files. All project meeting minutes, design decisions, and other related project documentation will be packaged and turned over to the City for their records. SCOPE QUALIFICATIONS AND ASSUMPTIONS Consultant’s services are limited to those expressly set forth in the scope. The consultant will have no other obligations or responsibilities for the project except as provided in this proposal letter, or as otherwise agreed to in writing. Consultant will provide the scope of services consistent with, and limited to, the standard of care applicable to such services. Any participation in non-adversarial procedures, or other right to repair items, is considered as additional services. For the scope of work identified, some key assumptions are identified below: a) Topographic Survey: A current design topographic base map using ground surveying methods will be provided prior to the start of 30% design. This survey will include the location, rim, and invert of gravity utilities and location of ‘dry’ utility surface facilities within the project area along with evidence of other buried utilities. A boundary survey for the project for use in design will be part of the survey. b) Lighting Design & Photometric Analysis: Design or modification of street lighting is not currently included in our scope of work. Consultant can provide these services if the City finds this work to be needed. c) Traffic Signal Design: Design or modification of traffic signals is not currently included in our scope of work. Consultant can provide these services if the City finds this work to be needed. The re-establishment of Traffic Loop Detectors will be shown on the Signage and Striping Plans. d) Meetings: Routine meetings are assumed to be held via remote conference. Drawings: All drawings will be prepared in AutoCAD format. Submittals will be provided in PDF format and will also provide four (4) hard copies at each milestone. DPW-S FHWA Eng. CSA, Long Form Total Fee – Contingency (11-2022) Exhibit B Page 27 of 36 EXHIBIT B INSURANCE REQUIREMENTS Consultant Service Agreement between City of Fresno (City) and BKF Engineers (Consultant) Shaw Avenue Roadway Improvements from Fruit Avenue to Palm Avenue MINIMUM SCOPE OF INSURANCE Coverage shall be at least as broad as: 1. The most current version of Insurance Services Office (ISO) Commercial General Liability Coverage Form CG 00 01, providing liability coverage arising out of your business operations. The Commercial General Liability policy shall be written on an occurrence form and shall provide coverage for “bodily injury,” “property damage” and “personal and advertising injury” with coverage for premises and operations (including the use of owned and non-owned equipment), products and completed operations, and contractual liability (including, without limitation, indemnity obligations under the Agreement) with limits of liability not less than those set forth under “Minimum Limits of Insurance.” 2. The most current version of Commercial Auto Coverage Form CA 00 01, providing liability coverage arising out of the ownership, maintenance, or use of automobiles in the course of your business operations. The Automobile Policy shall be written on an occurrence form and shall provide coverage for all owned, hired, and non-owned automobiles or other licensed vehicles (Code 1- Any Auto). 3. Workers’ Compensation insurance as required by the State of California and Employer’s Liability Insurance. 4. Professional Liability (Errors and Omissions) insurance appropriate to the Consultant’s profession. MINIMUM LIMITS OF INSURANCE The Consultant, or any party the Consultant subcontracts with, shall maintain limits of liability of not less than those set forth below. However, insurance limits available to the City, its officers, officials, employees, agents, and volunteers as additional insureds, shall be the greater of the minimum limits specified herein or the full limit of any insurance proceeds available to the named insured: 1. COMMERCIAL GENERAL LIABILITY: (i) $1,000,000 per occurrence for bodily injury and property damage; (ii) $1,000,000 per occurrence for personal and advertising injury; (iii) $2,000,000 aggregate for products and completed operations; and, (iv) $2,000,000 general aggregate applying separately to the work performed under the Agreement. DPW-S FHWA Eng. CSA, Long Form Total Fee – Contingency (11-2022) Exhibit B Page 28 of 36 2. COMMERCIAL AUTOMOBILE LIABILITY: $1,000,000 per accident for bodily injury and property damage. 3. WORKERS’ COMPENSATION INSURANCE as required by the State of California with statutory limits. 4. EMPLOYER’S LIABILITY: (i) $1,000,000 each accident for bodily injury; (ii) $1,000,000 disease each employee; and, (iii) $1,000,000 disease policy limit. 5. PROFESSIONAL LIABILITY (Errors and Omissions): (i) $1,000,000 per claim/occurrence; and, (ii) $2,000,000 policy aggregate. UMBRELLA OR EXCESS INSURANCE In the event the Consultant purchases an Umbrella or Excess insurance policy(ies) to meet the “Minimum Limits of Insurance,” this insurance policy(ies) shall “follow form” and afford no less coverage than the primary insurance policy(ies). In addition, such Umbrella or Excess insurance policy(ies) shall also apply on a primary and non-contributory basis for the benefit of the City, its officers, officials, employees, agents, and volunteers. DEDUCTIBLES AND SELF-INSURED RETENTIONS The Consultant shall be responsible for payment of any deductibles contained in any insurance policy(ies) required herein and the Consultant shall also be responsible for payment of any self- insured retentions. Any deductibles or self-insured retentions must be declared to on the Certificate of Insurance, and approved by, the the City’s Risk Manager or designee. At the option of the City’s Risk Manager or designee, either: (i) The insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the City, its officers, officials, employees, agents, and volunteers; or (ii) The Consultant shall provide a financial guarantee, satisfactory to the City’s Risk Manager or designee, guaranteeing payment of losses and related investigations, claim administration and defense expenses. At no time shall the City be responsible for the payment of any deductibles or self- insured retentions. OTHER INSURANCE PROVISIONS/ENDORSEMENTS The General Liability and Automobile Liability insurance policies are to contain, or be endorsed to contain, the following provisions: 1. The City, its officers, officials, employees, agents, and volunteers are to be covered as additional insureds. the Consultant shall establish additional insured status for the City and for all ongoing and completed operations by use of ISO Form CG 20 10 11 85 or both CG 20 10 04 13 and CG 20 37 04 13 or by an executed manuscript insurance company endorsement providing additional insured status as broad as that contained in ISO Form DPW-S FHWA Eng. CSA, Long Form Total Fee – Contingency (11-2022) Exhibit B Page 29 of 36 CG 20 10 11 85. 2. The coverage shall contain no special limitations on the scope of protection afforded to the City, its officers, officials, employees, agents, and volunteers. Any available insurance proceeds in excess of the specified minimum limits and coverage shall be available to the Additional Insured. 3. For any claims relating to this Agreement, the Consultant’s insurance coverage shall be primary insurance with respect to the City, its officers, officials, employees, agents, and volunteers. Any insurance or self- insurance maintained by the City, its officers, officials, employees, agents, and volunteers shall be excess of the Consultant’s insurance and shall not contribute with it. the Consultant shall establish primary and non- contributory status by using ISO Form CG 20 01 04 13 or by an executed manuscript insurance company endorsement that provides primary and non-contributory status as broad as that contained in ISO Form CG 20 01 04 13. The Workers’ Compensation insurance policy is to contain, or be endorsed to contain, the following provision: the Consultant and its insurer shall waive any right of subrogation against the City, its officers, officials, employees, agents, and volunteers. If the Professional Liability (Errors and Omissions) insurance policy is written on a claims- made form: 1. The retroactive date must be shown and must be before the effective date of the Agreement or the commencement of work by the Consultant. 2. Insurance must be maintained, and evidence of insurance must be provided for at least five years after completion of the Agreement work or termination of the Agreement, whichever occurs first, or, in the alternative, the policy shall be endorsed to provide not less than a five-year discovery period. 3. If coverage is canceled or non-renewed, and not replaced with another claims- made policy form with a retroactive date prior to the effective date of the Agreement or the commencement of work by the Consultant, the Consultant must purchase “extended reporting” coverage for a minimum of five years after completion of the Agreement work or termination of the Agreement, whichever occurs first. 4. A copy of the claims reporting requirements must be submitted to the City for review. 5. These requirements shall survive expiration or termination of the Agreement. All policies of insurance required herein shall be endorsed to provide that the coverage shall not be cancelled, non-renewed, reduced in coverage or in limits except after thirty (30) calendar days written notice by certified mail, return receipt requested, has been given to the City. The Consultant is also responsible for providing written notice to the City under the same terms and conditions. Upon issuance by the insurer, broker, or agent of a notice of cancellation, non-renewal, or reduction in coverage or in limits, the DPW-S FHWA Eng. CSA, Long Form Total Fee – Contingency (11-2022) Exhibit B Page 30 of 36 Consultant shall furnish the City with a new certificate and applicable endorsements for such policy(ies). In the event any policy is due to expire during the work to be performed for the City, the Consultant shall provide a new certificate, and applicable endorsements, evidencing renewal of such policy not less than fifteen (15) calendar days prior to the expiration date of the expiring policy. Should any of the required policies provide that the defense costs are paid within the Limits of Liability, thereby reducing the available limits by any defense costs, then the requirement for the Limits of Liability of these polices will be twice the above stated limits. The fact that insurance is obtained by the Consultant shall not be deemed to release or diminish the liability of the Consultant, including, without limitation, liability under the indemnity provisions of this Agreement. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Consultant. Approval or purchase of any insurance contracts or policies shall in no way relieve from liability nor limit the liability of the Consultant, its principals, officers, agents, employees, persons under the supervision of the Consultant, vendors, suppliers, invitees, consultants, sub-consultants, subcontractors, or anyone employed directly or indirectly by any of them. VERIFICATION OF COVERAGE The Consultant shall furnish the City with all certificate(s) and applicable endorsements effecting coverage required hereunder. All certificates and applicable endorsements are to be received and approved by the City’s Risk Manager or designee prior to the City’s execution of the Agreement and before work commences. All non-ISO endorsements amending policy coverage shall be executed by a licensed and authorized agent or broker. Upon request of the City, the Consultant shall immediately furnish City with a complete copy of any insurance policy required under this Agreement, including all endorsements, with said copy certified by the underwriter to be a true and correct copy of the original policy. This requirement shall survive expiration or termination of this Agreement. SUBCONTRACTORS - If the Consultant subcontracts any or all of the services to be performed under this Agreement, the Consultant shall require, at the discretion of the City Risk Manager or designee, subcontractor(s) to enter into a separate side agreement with the City to provide required indemnification and insurance protection. Any required side agreement(s) and associated insurance documents for the subcontractor must be reviewed and preapproved by the City Risk Manager or designee. If no side agreement is required, the Consultant shall require and verify that subcontractors maintain insurance meeting all the requirements stated herein and the Consultant shall ensure that the City, its officers, officials, employees, agents, and volunteers are additional insureds. The subcontractors' certificates and endorsements shall be on file with the Consultant, and the City, prior to commencement of any work by the subcontractor. DPW-S FHWA Eng. CSA, Long Form Total Fee – Contingency (11-2022) Exhibit C Page 31 of 36 EXHIBIT C DISCLOSURE OF CONFLICT OF INTEREST Shaw Avenue Roadway Improvements from Fruit Avenue to Palm Avenue YES* NO 1 Are you currently in litigation with the City of Fresno or any of its agents? ☐ ☐ 2 Do you represent any firm, organization, or person who is in litigation with the City of Fresno? ☐ ☐ 3 Do you currently represent or perform work for any clients who do business with the City of Fresno? ☐ ☐ 4 Are you or any of your principals, managers, or professionals, owners or investors in a business which does business with the City of Fresno, or in a business which is in litigation with the City of Fresno? ☐ ☐ 5 Are you or any of your principals, managers, or professionals, related by blood or marriage to any City of Fresno employee who has any significant role in the subject matter of this service? ☐ ☐ 6 Do you or any of your subcontractors have, or expect to have, any interest, direct or indirect, in any other contract in connection with this Project? ☐ ☒ * If the answer to any question is yes, please explain in full below. Explanation: Signature Date ` Name Company Address City, State, Zip ☐ Additional page(s) attached. 9/29/2023 Jason Kirchmann BKF Engineers 4675 MacArthur Court, Suite 400 Newport Beach, CA 92560 X X X X X DPW-S FHWA Eng. CSA, Long Form Total Fee – Contingency (11-2022) Appendix A to Exhibit D Page 32 of 36 EXHIBIT D FEDERAL AND STATE ASSURANCES Consultant Service Agreement between City of Fresno (City) and BKF Engineers (Consultant) Shaw Avenue Roadway Improvements from Fruit Avenue to Palm Avenue 1. The Consultant shall comply with and require its Subcontractors to comply with the following: a. 23 USC §112 regarding Highways and the letting of contracts to Architects and Engineers; b. The provisions of the Fair Employment and Housing Act (Government Code Section 1290-0 et seq.), and the applicable regulations promulgated thereunder (California Code of Regulations, Title 2, Section 7285.0 et seq.). The applicable regulations of the Fair Employment and Housing Commission implementing Government Code Section 12900(a-f), set forth in Chapter of Division 4 of Title 2 of the California Code of Regulations are incorporated into this Agreement by reference and made a part hereof as if set forth in full. Give a written notice of their obligations under this clause to any labor organizations with which they have a collective bargaining or any other agreements as appropriate. INCLUDE THIS ENTIRE CLAUSE IN ANY AND ALL SUBCONTRACTS. c. Appendix A attached hereto and incorporated herein. 2. Cost Principles a. The Consultant agrees that the Contract Cost Principles and Procedures, 48 CFR, Federal Acquisition Regulations System, Chapter 1 Part 31.000 et seq., shall be used to determine the allowability of cost for individual items. b. The Consultant also agrees to comply with federal procedures in accordance with 49 CFR, Part 18, Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments. c. Any costs for which payment has been made to the Consultant that are determined by subsequent audit to be unallowable under 48 CFR, Federal Acquisition Regulations System, Chapter 1, Part 31.000 et seq., are subject to repayment by the Consultant to the City. 3. Subcontracting a. The Consultant shall perform the work contemplated with resources available within its own organization; and no portion of the work pertinent to this Agreement shall be subcontracted without written authorization by the City’s Contract Manager, except that, which is expressly identified in the approved Cost Proposal. b. Any subcontract in excess of $25,000 shall contain ALL the provisions stipulated in this Agreement to be applicable to subcontractors. c. Any substitution of subconsultants/subcontractors must be approved in writing DPW-S FHWA Eng. CSA, Long Form Total Fee – Contingency (11-2022) Appendix A to Exhibit D Page 33 of 36 by the City’s Contract Manager. 4. Equipment Purchase a. Prior authorization in writing, by the City’s Contract Manager shall be required before the Consultant enters into any unbudgeted purchase order, or subcontract exceeding $5,000 for supplies, equipment, or the Consultant services. The Consultant shall provide a written request which includes an evaluation of the necessity or desirability of incurring such costs, three competitive quotations obtained in the manner prescribed in the City’s Municipal Code Section 4-101(d) or 4-102 as applicable or a sole source justification as provided in the City’s Administrative Order No. 3-3. b. Any equipment purchased as a result of this Agreement is subject to the following: the Consultant shall maintain an inventory of all nonexpendable property. Nonexpendable property is defined as having a useful life of at least two years and an acquisition cost of $5,000 or more. If the purchased equipment needs replacement and is sold or traded in, the City shall receive a proper refund or credit at the conclusion of the Agreement, or if the Agreement is terminated, the Consultant may either keep the equipment and credit the City in an amount equal to its fair market value, or sell such equipment at the best price obtainable at a public or private sale, in accordance with established the City procedures; and credit the City in an amount equal to the sales price. If the Consultant elects to keep the equipment, fair market value shall be determined at the Consultant’s expense, on the basis of a competent independent appraisal of such equipment. Appraisals shall be obtained from an appraiser mutually agreeable to the City and the Consultant, if it is determined to sell the equipment, the terms and conditions of such sale must be approved in advance by the City. 49 CFR, Part 18 requires a credit to Federal funds when participating equipment with a fair market value greater than $5,000.00 is credited to the project. c. The above provisions shall be included in all subcontracts in excess of $25,000. 5. PROHIBITION OF EXPENDING the City STATE OR FEDERAL FUNDS FOR LOBBYING This section only applies to contracts where federal funding will exceed $100,000. A. The Consultant certifies to the best of his or her knowledge and belief that: 1. No state, federal or the City appropriated funds have been paid, or will be paid by-or-on behalf of the Consultant to any person for influencing or attempting to influence an officer or employee of any state or federal agency; a Member of the State Legislature or United States Congress; an officer or employee of the Legislature or Congress; or any employee of a Member of the Legislature or Congress, in connection with the awarding of any state or federal contract; the making of any state or federal grant; the making of any state or federal loan; the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any state or federal contract, grant, loan, or cooperative agreement. 2. If any funds other than federal appropriated funds have been paid, or DPW-S FHWA Eng. CSA, Long Form Total Fee – Contingency (11-2022) Appendix A to Exhibit D Page 34 of 36 will be paid to any person for influencing or attempting to influence an officer or employee of any federal agency; a Member of Congress; an officer or employee of Congress, or an employee of a Member of Congress; in connection with this federal contract, grant, loan, or cooperative agreement; the Consultant shall complete and submit Standard Form-LLL, "Disclosure Form to Report Lobbying," in accordance with its instructions. B. This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by Section 1352, Title 31, U.S. Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure. C. the Consultant also agrees by signing this document that he or she shall require that the language of this certification be included in all lower-tier subcontracts, which exceed $100,000, and that all such sub recipients shall certify and disclose accordingly. 6. NON-DISCRIMINATION CLAUSE During the performance of this Agreement, the Consultant and its subcontractors shall not unlawfully discriminate, harass, or allow harassment against any employee or applicant for employment because of sex, race, color, ancestry, religious creed, national origin, physical disability (including HIV and AIDS), mental disability, medical condition (e.g., cancer), age (over 40), marital status, and denial of family care leave. The Consultant and subcontractors shall insure that the evaluation and treatment of their employees and applicants for employment are free from such discrimination and harassment. the Consultant and subcontractors shall comply with the provisions of the Fair Employment and Housing Act (Gov. Code §12990 (a-f) et seq.) and the applicable regulations promulgated thereunder (California Code of Regulations, Title 2, Section 7285 et seq.). The applicable regulations of the Fair Employment and Housing Commission implementing Government Code Section 12990 (a-f), set forth in Chapter 5 of Division 4 of Title 2 of the California Code of Regulations, are incorporated into this Agreement by reference and made a part hereof as if set forth in full. The Consultant and its subcontractors shall give written notice of their obligations under this clause to labor organizations with which they have a collective bargaining or other Agreement. The Consultant shall include the nondiscrimination and compliance provisions of this clause in all subcontracts to perform work under the Agreement. DPW-S FHWA Eng. CSA, Long Form Total Fee – Contingency (11-2022) Appendix A to Exhibit D Page 35 of 36 APPENDIX A TO EXHIBIT D Consultant Service Agreement between City of Fresno (City) and BKF Engineers (Consultant) Shaw Avenue Roadway Improvements from Fruit Avenue to Palm Avenue (1) The Consultant shall comply with the regulations relative to nondiscrimination in federally assisted programs of the Department of Transportation, Title 49, Code of Federal Regulations, Part 21, as they may be amended from time to time, (hereinafter referred to as the REGULATIONS), which are herein incorporated by reference and made a part of this Agreement. (2) The Consultant, with regard to the work performed by it during the Agreement, shall not discriminate on the grounds of race, color, sex, national origin, religion, age, or disability in the selection and retention of sub-applicants, including procurements of materials and leases of equipment. The Consultant shall not participate either directly or indirectly in the discrimination prohibited by Section 21.5 of the REGULATIONS, including employment practices when the Agreement covers a program set forth in Appendix B of the REGULATIONS. (3) In all solicitations either by competitive bidding or negotiation made by the Consultant for work to be performed under a Sub-agreement, including procurements of materials or leases of equipment, each potential sub-applicant or supplier shall be notified by the Consultant of the Consultant’s obligations under this Agreement and the REGULATIONS relative to nondiscrimination on the grounds of race, color, or national origin. (4) The Consultant shall provide all information and reports required by the REGULATIONS, or directives issued pursuant thereto, and shall permit access to the Consultant’s books, records, accounts, other sources of information, and its facilities as may be determined by STATE or Federal Highway Administration (FHWA) to be pertinent to ascertain compliance with such REGULATIONS or directives. Where any information required of the Consultant is in the exclusive possession of another who fails or refuses to furnish this information, the Consultant shall so certify to the State of California (STATE) or the FHWA as appropriate and shall set forth what efforts the Consultant has made to obtain the information. (5) In the event of the Consultant’s noncompliance with the nondiscrimination provisions of this Agreement, STATE shall impose such agreement sanctions as it or the FHWA may determine to be appropriate, including, but not limited to: (a) withholding of payments to the City under the Agreement within a reasonable period of time, not to exceed 90 days; and/or (b) cancellation, termination, or suspension of the Agreement, in whole or in part. (6) The Consultant shall include the provisions of paragraphs (1) through (6) in every sub- agreement, including procurements of materials and leases of equipment, unless exempt by the REGULATIONS, or directives issued pursuant thereto. the Consultant shall take such action with respect to any sub-agreement or procurement as STATE or DPW-S FHWA Eng. CSA, Long Form Total Fee – Contingency (11-2022) Appendix A to Exhibit D Page 36 of 36 FHWA may direct as a means of enforcing such provisions including sanctions for noncompliance, provided, however, that, in the event the Consultant becomes involved in, or is threatened with, litigation with a sub- applicant or supplier as a result of such direction, the Consultant may request STATE enter into such litigation to protect the interests of STATE, and, in addition, the Consultant may request the United States to enter into such litigation to protect the interests of the United States. (7) the Consultant shall execute the following CERTIFICATION OF CONSULTANT, COMMISSIONS & FEES I HEREBY CERTIFY that I am , and duly authorized representative of the firm of whose address is , and that, except as hereby expressly stated, neither I nor the above firm that I represent have: (a) employed or retained for a commission, percentage, brokerage, contingent fee, or other consideration, any firm or person (other than a bona fide employee working solely for me or the above the Consultant) to solicit or secure this Agreement; nor (b) agreed, as an express or implied condition for obtaining this Agreement, to employ or retain the services of any firm or person in connection with carrying out the Agreement; nor (c) paid, or agreed to pay, to any firm, organization, or person (other than a bona fide employee working solely for me or the above the Consultant) any fee, contribution, donation, or consideration of any kind, for or in connection with, procuring or carrying out this Agreement. I acknowledge that this Certificate is to be made available to the California Department of Transportation (Caltrans) in connection with this Agreement involving participation of Federal-aid Highway funds, and is subject to applicable state and federal laws, both criminal and civil. (Date) (Signature) 9/29/2023 Jason Kirchmann BKF Engineers 4675 MacArthur Court, Suite 400, Newport Beach, CA 92560 Whites Bridge MapleBrawleyHerndon Bullard Shaw ClovisFowlerTemperanceWestPalmClovisFowlerTemperanceDe WolfShields McKinley Belmont ChestnutPeachAmerican CedarGrantlandHayesElmEastMarksWestWalnutCorneliaNorth California Jensen Ashlan GrantlandHayesCorneliaBrawleyMarksShaw Bullard Herndon Nees De WolfShields McKinley Belmont California Jensen North Kings Canyon AshlanPeachBehymer Copper Shepherd NeesBlackstoneFirstCedarChestnutGarfieldBryanPolkBlytheValentineVan NessFruitMaroaFresnoMillbrookMapleWillowDakota Clinton Olive Gettysburg Barstow Sierra Alluvial Nielsen Kearney Muscat Annadale Church WillowMinnewawaMalaga OrangeBryanSunnysideArmstrongLocanFigCherryHughesFruitPolkValentineBlytheAlluvial Sierra Barstow Perrin SunnysideArmstrongLocanClinton Olive Tulare Butler Church Annadale DakotaMinnewawaInternational Teague Project Location N 01.530.75 Miles Project ID: PW01011 Council District: 1 and 2 Shaw Avenue Roadway Improvements from Fruit Avenue to 950 feet East of Palm Avenue VICINITY MAP DEPARTMENT OF PUBLIC WORKS District 1 District 2 City Limits City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID 23-1516 Agenda Date:10/19/2023 Agenda #: 1.-V. REPORT TO THE CITY COUNCIL FROM:RANDALL W. MORRISON, PE, Director Capital Projects Department SCOTT L. MOZIER, PE, Director Public Works Department BY:JESUS AVITIA, PE, Assistant Director Capital Projects Department, Transportation Project Management Division MELISSA BLAU, Projects Administrator Capital Projects Department, Transportation Project Management Division SUBJECT Actions pertaining to the Audubon Drive and Del Mar Avenue Traffic Signal Installation (Bid File No. 12302647) (Council District 2): 1.RESOLUTION -adopting findings pursuant to California Environmental Quality Act (CEQA) guidelines sections 15091 and 15093 as required by CEQA guidelines section 15096 for the River West Eaton Trail Extension Project. 2.Award a construction contract in the amount of $1,016,680 to American Paving Company,of Fresno, California. RECOMMENDATIONS Staff recommends that the City Council (1)approve a Resolution adopting findings pursuant to California Environmental Quality Act (CEQA)guidelines sections 15091 and 15093 as required by CEQA guidelines section 15096 for the River West Eaton Trail Extension Project,and (2)award a construction contract with American Paving Company,of Fresno,California,in the amount of $1,016,680,as the lowest responsive and responsible bidder,and authorize the Capital Projects Director or designee to sign the construction contract on behalf of the City of Fresno. EXECUTIVE SUMMARY The City of Fresno seeks to install traffic signal improvements at the intersection of Audubon Drive and Del Mar Avenue to improve public safety efforts and reduce traffic impacts to the area.This would comply with the required mitigation measures identified in the Final Environmental Impact Report for the River West Eaton Trail Extension Project.City Staff recommends awarding a construction contract to American Paving Company,in the amount of $1,016,680.00 as the lowest City of Fresno Printed on 10/30/2023Page 1 of 4 powered by Legistar™ File #:ID 23-1516 Agenda Date:10/19/2023 Agenda #: 1.-V. responsive and responsible bidder. The project Construction Phase is funded by a State Grant through the San Joaquin River Conservancy (SJRC). BACKGROUND In 2018,the SJRC updated the San Joaquin River Parkway Interim Master Plan (Master Plan)that was originally adopted in 1997.The updated Master Plan describes public access and recreational improvements along a 22-mile stretch of the San Joaquin River between Friant Dam and Highway 99.This update provided a plan to guide future improvements that would improve public access and recreational facilities in the area located along the south side of the San Joaquin River just north of the Palm Bluffs,between Highway 41 and Spano Park near the intersection of Palm Avenue and Nees Avenue within Fresno City limits.The River West Eaton Trail Extension will provide increased public access to the river for residents of nearby disadvantaged communities,and for residents of the City of Fresno by extending the existing Lewis Eaton Trail from Woodward Park westward under Highway 41 and downstream along the San Joaquin River for about 2.4 miles and creating designated access points with parking areas at the following three locations spread throughout the project site: ·Highway 41 and Perrin Avenue ·Spano Park (near the intersection of Palm and Nees) ·Riverview Drive (near the intersection of Audubon and Del Mar) The design will create parking for 105 vehicles and 3 horse trailers and create a school bus drop off location along with new restrooms,park benches,approximately 3.0 miles of multiuse trails,and 2 viewing areas.The proposed design elements will generate opportunities for the public to engage in a variety of activities such as walking,jogging,trail running,biking,horseback riding,fishing,and wildlife viewing. As part of the Final Environmental Impact Report prepared for the project by the Lead Agency,the SJRC,identified by SCH No.2014061017,a traffic signal at the intersection of Audubon Drive and Del Mar Avenue was identified as Mitigation Measure Alt.1 -Traffic-1 to improve public safety efforts and reduce traffic impacts to the area.Other improvements to be installed with this project will include protected left turns for vehicles,high-visibility pavement striping,improvements to seven pedestrian curb ramps,and adequate signage to make all drivers aware of bike and pedestrian movements. The Notice Inviting Bids was published in the Business Journal on June 14,2023,and posted on the City's PlanetBids website.Two bid proposals were received and opened during a public bid opening on July 18,2023,with bids ranging from $1,016,680 to $1,254,000.The apparent low bid price was 20%below the Engineer’s Estimates.The City requested an extension from American Paving and the bids will expire on October 20, 2023, 94 days after the bid opening. Staff recommends awarding a construction contract to American Paving Company,in the amount of $1,016,680 to carry out the traffic signal improvements at the intersection of Audubon Drive and Del City of Fresno Printed on 10/30/2023Page 2 of 4 powered by Legistar™ File #:ID 23-1516 Agenda Date:10/19/2023 Agenda #: 1.-V. $1,016,680 to carry out the traffic signal improvements at the intersection of Audubon Drive and Del Mar Avenue,as the lowest responsive and responsible bidder,and to authorize the Capital Projects Director or designee to sign the standardized agreement on behalf of the City of Fresno.The Community Workforce Agreement (PLA),adopted by Council in September 2021,does not apply to this contract because the engineer’s estimate for this project was less than $1 million,pursuant to the terms of the PLA. The City Attorney’s Office has reviewed and approved this item as to form. ENVIRONMENTAL FINDINGS Pursuant to CEQA Guidelines Section 15381,“‘Responsible Agency’means a public agency which proposes to carry out or approve a project,for which a Lead Agency is preparing or has prepared an EIR or Negative Declaration.”The City is a Responsible Agency for the River West Fresno Eaton Trail Extension Project. CEQA Guidelines Section 15096 lays out the process required for a Responsible Agency when implementing a project,or any portion thereof.Under CEQA Guidelines Section 15096(f),a Responsible Agency must consider the environmental effects identified in the EIR prepared by the Lead Agency when preparing to implement any portion of a project for which the agency is responsible. The SJRC is the Lead Agency for the River West Fresno Eaton Trail Extension Project,as defined by CEQA Guidelines Section 15367.The SJRC prepared an EIR for the River West Fresno Eaton Trail Extension Project,identified by SCH No.2014061017 (the River West Fresno Project EIR).The River West Fresno Project EIR was certified on November 15,2017,and analyzed several components of the River West Fresno Eaton Trail Extension Project,including but not limited to installation of traffic safety infrastructure at Audubon Drive and Del Mar Avenue,identified as Mitigation Measure Alt.1 - Traffic-1 of the EIR.The City is the Responsible Agency for the purpose of implementing Mitigation Measure Alt.1 - Traffic-1. Pursuant to CEQA Guidelines Section 15096(f),a Responsible Agency must only prepare a subsequent EIR if it is required under CEQA Guidelines Section 15162.An analysis has been performed pursuant to CEQA Guidelines Section 15162 to determine whether a subsequent environmental review is required for this project.Based upon this analysis,the following findings are made to support the determination that no subsequent environmental review is required: 1.No substantial changes are proposed in the project which will require major revisions to the EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects because the project is being implemented as planned.Specifically,this item will implement Mitigation Measure Alt.1 -Traffic -1, as required by the EIR. 2.No substantial changes occurred with respect to the circumstances under which the project is undertaken which will require major revisions to the EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects. City of Fresno Printed on 10/30/2023Page 3 of 4 powered by Legistar™ File #:ID 23-1516 Agenda Date:10/19/2023 Agenda #: 1.-V. 3.There is no new information,which was not known and could not have been known at the time of the previous EIR showing that: a.The project will have one or more significant effects not discussed in the previous EIR; b.Significant effects previously examined will be substantially more severe than shown in the previous EIR; c.Mitigation measure or alternatives previously found to be not feasible are now feasible and would substantially reduce one or more significant effects of the project. Based upon these findings,it has been determined that a subsequent EIR is not required for this approval. The Resolution proposed for adoption,and the corresponding Exhibit,fulfills the City’s requirement to adopt findings pursuant to the requirements of CEQA Guidelines Sections 15091 and 15093,as specified by Section 15096(h),including ratification and adoption of the SJRC certified EIR for the River West Fresno Eaton Trail Extension Project. LOCAL PREFERENCE Local preference was not implemented for this project because this contract is state funded. FISCAL IMPACT The Audubon Drive and Del Mar Avenue Traffic Signal Installation project is located in Council District 2.The overall cost of the project is $1,318,400 and is primarily funded by the San Joaquin River Conservancy grant.Local Traffic Signal Mitigation Impact Fee funds were used to fund the design phase of the project.Of the overall budget of the project,$1,016,680 will be used for the construction contract award.The project will have no impact to the General Fund and is fully incorporated within the adopted FY24 budget for the Public Works Department. Attachment(s): Resolution Adopting CEQA Findings Standardized Agreement Bid Evaluation Fiscal Impact Statement Vicinity Map City of Fresno Printed on 10/30/2023Page 4 of 4 powered by Legistar™ DPW 23.0/01-06-12 DPW NO FED DIV I.pdf 1.18 rev. 04-21 CONTRACT CITY OF FRESNO, CALIFORNIA PUBLIC WORK OF IMPROVEMENT THIS CONTRACT is made and entered into by and between CITY OF FRESNO, a California municipal corporation (City), and [Contractor Name], [Legal Identity] (Contractor) as follows: 1. Contract Documents. The “Notice Inviting Bids,” “Instructions to Bidders,” “Bid Proposal,” and the “Specifications” including “General Conditions,” “Special Conditions,” and “Technical Specifications” for the following: [Title] (Bid File No. [Bid File No.]) [Alternates (if any)] copies of which are annexed hereto, together with all the drawings, plans, and documents specifically referred to in said annexed documents, including Performance and Payment Bonds, if required, and are hereby incorporated into and made a part of this Contract, and shall be known as the Contract Documents. 2. Price and Work. For the monetary consideration of [Written Dollar Amount] dollars and [Written Cents Amount] cents ($[Amount]), as set forth in the Bid Proposal, Contractor promises and agrees to perform or cause to be performed, in a good and workmanlike manner, under the direction and to the satisfaction of the City’s “Engineer,” and in strict accordance with the Specifications, all of the work as set forth in the Contract Documents. 3. Payment. City accepts Contractor’s Bid Proposal as stated and agrees to pay the consideration stated, at the times, in the amounts, and under the conditions specified in the Contract Documents. 4. Indemnification. To the furthest extent allowed by law including California Civil Code Section 2782, Contractor shall indemnify, hold harmless and defend City and each of its officers, officials, employees, agents and volunteers from any and all loss, liability, fines, penalties, forfeitures, costs and damages (whether in contract, tort or strict liability, including, but not limited to personal injury, death at any time and property damage) incurred by City, Contractor or any other person, and from any and all claims, demands and actions in law or equity (including attorney’s fees and litigation expenses), arising or alleged to have arisen directly or indirectly out of performance of this Contract. Contractor’s obligations under the preceding sentence shall apply regardless of whether City or any of its officers, officials, employees, agents or volunteers are passively negligent, but shall not apply to any loss, liability, fines, penalties, forfeitures, costs or damages caused by the active or sole negligence, or willful misconduct, of City or any of its officers, officials, employees, agents or volunteers. If Contractor should subcontract all or any portion of the work to be performed under this Contract, Contractor shall require each subcontractor to indemnify, hold harmless and defend City and each of its officers, officials, employees, agents and volunteers in accordance with the terms of the preceding paragraph. This section shall survive termination or expiration of this Contract. 5. Trench Shoring Detailed Plan. Contractor acknowledges the provisions of Section 6705 of the California Labor Code and, if said provisions are applicable to this Contract, agrees to comply therewith. 6. Worker’s Compensation Certification. In compliance with the provisions of Section 1861 of the California Labor Code, Contractor hereby certifies as follows: I am aware of the provisions of Section 3700 of the California Labor Code which require every employer to be insured against liability for worker’s compensation or to undertake self-insurance in accordance with the provisions of that Code, and I will comply with such provisions before commencing the performance of work of this Contract and will make my subcontractors aware of this provision. [Signatures follow on the next page.] DPW 23.0/01-06-12 DPW NO FED DIV I.pdf 1.19 rev. 04-21 IN WITNESS WHEREOF, the parties have executed this Contract on the day and year here below written, of which the date of execution by City shall be subsequent to that of Contractor’s, and this Contract shall be binding and effective upon execution by both parties. [Contractor Name], [Legal Identity] By: Name: (Type or print written signature.) Title: (If corporation or LLC, Board Chair, Pres. or Vice Pres.) Dated: By: Name: (Type or print written signature.) Title: (If corporation or LLC, CFO, Treasurer, Secretary or Assistant Secretary) Dated: CITY OF FRESNO, a California municipal corporation By: [Name], [Title] Department of Public Works Dated: ATTEST: 72''67(50(5&0& City Clerk By: Deputy No signature of City Attorney required. Standard Document #DPW 23.0 has been used without modification as certified by the undersigned. By: [City Certifier Name] [City Certifier Title] Department of Public Works City address: City of Fresno Attention: [Name], [Title] [Street Address] Fresno, CA [Zip] FISCAL IMPACT STATEMENT PROGRAM: Audubon and Del Mar Traffic Signal Installation 209900355 (PW01020), Bid # 12302647 TOTAL OR ANNUALIZED RECOMMENDATION CURRENT COST Direct Cost $1,016,680 Indirect Cost $ 301,720 TOTAL COST $1,318,400 Additional Revenue or Savings Generated $0 Net City Cost $1,318,400 Amount Budgeted (If none budgeted, identify source) $1,012,100 Indirect cost consists of the following: Preliminary Engineering $ 73,600 Construction Utilities $ 4,000 Construction Materials $ 12,900 Construction Engineering $109,600 Contingency $101,668 Total $301,720 The Audubon and Del Mar Traffic Signal Installation Project is grant funded by the San Joaquin River Conservancy grant. Local Traffic Signal Mitigation Impact Fee funded the design phase of the project. Whites Bridge MapleBrawleyHerndon Bullard Shaw ClovisFowlerTemperanceWestPalmClovisFowlerTemperanceDe WolfShields McKinley Belmont ChestnutPeachAmerican CedarGrantlandHayesElmEastMarksWestWalnutCorneliaNorth California Jensen Ashlan GrantlandHayesCorneliaBrawleyMarksShaw Bullard Herndon Nees De WolfShields McKinley Belmont California Jensen North Kings Canyon AshlanPeachBehymer Copper Shepherd NeesBlackstoneFirstCedarChestnutGarfieldBryanPolkBlytheValentineVan NessFruitMaroaFresnoMillbrookMapleWillowDakota Clinton Olive Gettysburg Barstow Sierra Alluvial Nielsen Kearney Muscat Annadale Church WillowMinnewawaMalaga OrangeBryanSunnysideArmstrongLocanFigCherryHughesFruitPolkValentineBlytheAlluvial Sierra Barstow Perrin SunnysideArmstrongLocanClinton Olive Tulare Butler Church Annadale DakotaMinnewawaInternational Teague Audubon and Del Mar Traffic Signal N 0 1.5 30.75 Miles Project ID: PW01020Council District: 2 Audubon and Del Mar Traffic SignalVICINITY MAP DEPARTMENT OFPUBLIC WORKS District 2 City Limits 1 | Page   Exhibit A Findings of Fact and Statement of Overriding Considerations for the River West Fresno Eaton Trail Extension Project 2 | Page   Table of Contents 1. Introduction 2. Project Description 2.1 Project Location and Setting 2.2 Project Background 2.3 Project Objectives 2.4 Project Features 3. Procedural Findings 4. Record of Proceedings 5. Findings Required Under CEQA 5.1 Summary of Findings 5.2 Mitigation Monitoring 6. Project Alternatives 7. Statement of Overriding Considerations 3 | Page   1. Introduction The purpose of these findings is to satisfy the requirements of Sections 15091, 15092, 15093 and 15096 of the California Environmental Quality Act (CEQA) Guidelines, associated with the construction of infrastructure necessary to provide traffic safety required at the intersection of Audubon Drive and Del Mar Avenue in the City of Fresno, pursuant to Mitigation Measure Alt. 1 – Traffic-1 of the Environmental Impact Report (EIR) certified for the River West Fresno Eaton Trail Extension Project, identified by SCH No. 2014061017. The City of Fresno is the Responsible Agency within the meaning of CEQA Guidelines Section 15381 for the purpose of installation of traffic safety infrastructure at Audubon Drive and Del Mar Avenue. The City is relying on the Findings of Fact adopted by the San Joaquin River Conservancy (Conservancy) for the River West Fresno, Eaton Trail Extension Project on December 13, 2017, as permitted by CEQA Guidelines Sections 15091 and 15096. The CEQA Statutes (California Public Resources Code [PRC] Sections 21000, et seq.) and Guidelines (California Code of Regulations [CCR] Sections 15000, et seq.) state that if it has been determined that a project may or will have significant impacts on the environment, then an environmental impact report (EIR) must be prepared. Prior to approval of the project, the EIR must be certified pursuant to CEQA Guidelines Section 15090. When an EIR has been certified that identifies one or more significant environmental impacts, the approving agency must make one or more of the following findings, accompanied by a brief explanation of the rationale, pursuant to CEQA Guidelines Section 15091, for each identified significant impact: A. Changes or alterations have been required in, or incorporated into, such project which avoid or substantially lessen the significant environmental effect as identified in the final EIR. B. Such changes or alterations are within the responsibility and jurisdiction of another public agency and not the agency making the finding. Such changes have been adopted by such other agency, or can and should be adopted by such other agency. C. Specific economic, legal, social, technological, or other considerations, including provision of employment opportunities for highly trained workers, make infeasible the mitigation measures or project alternatives identified in the final EIR. CEQA Guidelines Section 15092 states that after consideration of an EIR, and in conjunction with making the Section 15091 findings identified above, the lead agency may decide whether or how to approve or carry out the project. A project that would result in a significant environmental impact cannot be approved if feasible mitigation measures or feasible alternatives can avoid or substantially lessen the impact. However, in the absence of feasible mitigation, an agency may approve a project with significant and unavoidable impacts, if there are specific economic, legal, social, technological, or other considerations that outweigh the unavoidable adverse 4 | Page   environmental effects. CEQA Guidelines Section 15093 requires the lead agency to document and substantiate any such determination in a “statement of overriding considerations” as a part of the record. When the approval in question is proposed to be carried out by a Responsible Agency within the meaning of CEQA Guidelines Section 15381, then that agency must follow the process set forth in CEQA Guidelines Section 15096. Section 15096 requires that the Responsible Agency consider the Lead Agency’s EIR in light of CEQA Guidelines Section 15162 and determine if a subsequent or supplemental EIR is required. If a subsequent or supplemental EIR is not required, the Responsible Agency may rely on the analysis of the Lead Agency’s EIR. In so doing, the Responsible Agency must also make the findings required by Section 15091 for each significant effect of the project and must make findings pursuant to Section 15093 if necessary. These requirements are set forth in Section 15096(h). The requirements of CEQA Guidelines Sections 15091, 15092, and 15093 (as summarized above) are all addressed herein. This document summarizes the findings of fact and statement of overriding considerations authorized by those provisions of the CEQA Guidelines and by the PRC for the project as required by CEQA Guidelines Section 15096. 2. Project Description The San Joaquin River Conservancy (Conservancy) is the lead agency under CEQA. The Conservancy approved and administers the San Joaquin River Parkway Master Plan (Parkway Master Plan) which calls for the development of a multi-use trail extending the length of the parkway (designated the Lewis S. Eaton Trail within the City of Fresno) for the purpose of linking all recreation areas and natural reserves between Highway 99 and Friant Dam with a continuous, multipurpose trail on land, and with a canoe put-in, take- out, and rest areas along the river to create a recreation system with a variety of recreational opportunities within the Parkway. In implementing the Parkway Master Plan, the Conservancy in cooperation with the City of Fresno (City) proposes to extend the Lewis S. Eaton Trail (Eaton Trail) by constructing a multi-use extension approximately 2.4 miles from the Perrin Avenue alignment near State Route 41 on the east to Spano Park on the west within City limits on State owned property, referred to as the River West Fresno Project. The River West Project also includes provision of public access points, parking lots, pedestrian and bicycle access, and improvement of the trail surface and shoulders consistent with the Parkway Master Plan. The City is acting as a Responsible Agency here in implementing Mitigation Measure Alt. 1 – Traffic-1 to construct traffic safety infrastructure at the intersection of Audubon Drive and Del Mar Avenue. 2.1 Project Location and Setting The River West Fresno Project is located along the San Joaquin River (River) between SR 41 and Spano Park, within the city limits of Fresno. The boundary extends from the River south to the San Joaquin River Bluffs (bluffs) and westward from SR 41 to Spano Park, located near the intersection of Palm Avenue and Nees Avenue. The study area in the River West Fresno Project EIR is approximately 358 acres and is 5 | Page   located on the south side of the River. A majority of the land is owned by the State of California under the management and jurisdiction of the Conservancy. 2.2 Project Background The Conservancy first approved the Parkway Master Plan in December 1997 containing goals, objectives, and policies necessary to guide future development of specific projects implemented or sponsored by the Conservancy. The River West Fresno Project is one such project within the scope of the Parkway Master Plan and was assessed by an Environmental Impact Report (SCH No. 2014061017) consistent with the requirements of the California Environmental Quality Act. This project is included in the 2011 Federal Statewide Transportation Improvement Program and the Council of Fresno County of Governments 2011 Regional Transportation Plan. Funding is proposed from a variety of sources including the Fresno County Measure C Renewal sales tax program, development impact fees, and Federal Demonstration Funds. The San Joaquin River Parkway is included in the Fresno General Plan and support of the Parkway Master Plan is included as a specific policy of the Fresno General Plan, and extension of the Eaton Trail into the River West Fresno Project Area was contemplated by the Fresno General Plan. 2.3 Project Objectives The purpose of the project is as follows: • Extend the Eaton trail from Woodward Park for 2.4 miles downstream along the River across State-owned land and provide recreation amenities consistent with the Parkway Master Plan policies. • The broad purpose of the Conservancy is to link public recreational areas and natural reserves between SR 99 and Friant Dam with a continuous, multipurpose trail on land and with canoe put-in, take-out, and rest areas along the river. • To create a recreation system with a variety of recreational opportunities within the planned San Joaquin River Parkway. • Connect the multi-purpose trail with other local and regional trails consistent with the Parkway Master Plan Policies. • Provide congestion relief and improved traffic flow in northwest Fresno. 2.4 Project Features The Conservancy proposes to extend the existing Eaton Trail by constructing a multipurpose trail extension with ancillary recreation support features. The Eaton Trail would be extended approximately 2.4 miles, from the Perrin Avenue alignment near State Route (SR) 41 on the east to Spano Park on the west. The proposed trail would be about 22 feet wide, with a 12-foot-wide paved surface, a parallel 8-foot-wide hard natural surface for equestrian use, and a 2-foot shoulder (opposite the natural surface area) and generally would proceed from SR 41 to a point below the Spano Park overlook. 6 | Page   The City is responsible for the construction of a traffic signal at the three-way intersection of North Del Mar Avenue and West Audubon Drive in Fresno, California. This project is located within the immediate proximity of the Riverview Drive access point to the River West Eaton Trail Extension Project, which will serve as one of the primary public entrances to the San Joaquin River Parkway. The increased traffic to and from the Riverview Drive entrance will place further strain on the currently unprotected and over- loaded intersection. This project will improve public safety, specifically for residents, visitors to the River West Eaton Trail Extension Project and the Conservancy, by protecting vehicular turning movements, reducing vehicular delays, and improving pedestrian and bicycle access. Signalization of the Del Mar and Audubon intersection was addressed within the 2017 Final Environmental Impact Report prepared for the Conservancy for the River West Eaton Trail Extension, State Clearinghouse No. 2014061017, as a mitigation measure for Alternative 1, which included the addition of the West Riverview Drive entrance/trailhead. Due to increased traffic loading of trail users to and from the River West Eaton Trail Extension and uncertainty when mitigation measures could be completed, impacts to the Del Mar and Audubon intersection were considered significant and unavoidable. Construction of a traffic signal at the intersection would comply with the suggested mitigation measure listed in the Final Environmental Impact Report and would reduce the impacts to less than significant levels. The signalization would reduce wait times for traffic entering the intersection from Del Mar Avenue and would reduce the potential for traffic accidents. The construction of the traffic light signal does not directly impact nor benefit ecological systems. The structural elements of the project will be designed to withstand the elements and the signal equipment, lights and pavement markings will be maintained by the City of Fresno. 3. Procedural Findings Based on the nature and scope of the River West Fresno Project, the Conservancy, as Lead Agency determined that an EIR was appropriate for the project (the River West Fresno Project EIR). The River West Fresno Project EIR (State Clearinghouse No. 2014061017) was prepared, noticed, published, circulated, reviewed, and completed in full compliance with CEQA. It was certified by the Conservancy on November 15, 2017. Findings of Fact and a Mitigation and Monitoring and Reporting Program along with Alternative 5B were adopted on December 13, 2017. An Addendum to the River West Fresno Project EIR was adopted on August 12, 2020. As a Responsible Agency pursuant to CEQA Guidelines Section 15381, the City has considered the River West Fresno Project EIR prior to approval of a Grant Agreement between the San Joaquin River Conservancy and the City in the amount of $1,200,000 to develop Project plans, specifications, estimates, and secure permitting to make traffic safety and infrastructure improvements at the intersection of Audubon and Del Mar which is necessary to implement the overall River West Fresno Project, as set forth by CEQA Guidelines Section 15096. 7 | Page   4. Record of Proceedings In accordance with PRC Section 21167.6(e), the record of proceedings for the City’s decision on this approval includes the following documents, which are incorporated by reference and made part of the record supporting these findings: City of Fresno Documents:  City of Fresno staff reports and all attachments Conservancy Documents:  The DEIR and all appendices to the DEIR;  The Partially Revised DEIR and all appendices to the Partially Revised DEIR  The FEIR and all appendices to the FEIR, and all volumes that constitute the FIER;  Conservancy Resolution No. 17-01 Certifying the EIR;  Conservancy Resolution No. 17-02 adopting Alternative 5B, the Findings of Fact, and Mitigation Monitoring and Reporting Program;  All notices required by CEQA and presentation materials related to the project;  All comments submitted by agencies or members of the public during the comment period on the NOP, the DEIR, and the Partially Revised DEIR;  All studies conducted for the project and contained or referenced in the DEIR, the Partially Revised DEIR, and the FEIR;  All documents cited or referenced in the DEIR, the Partially Revised DEIR and the FEIR;  All public reports and documents related to the project prepared for the City and other agencies;  All other documents related to the project; and  Any additional items not included above if otherwise required by law. The City staff reports and attachments are available for review by interested members of the public during normal business hours at the City offices at 2600 Fresno Street, Room 3065, Fresno, CA. Conservancy documents may be reviewed by interested members of the public by contacting the San Joaquin River Conservancy at (559) 253-7324 or visiting https://sjrc.ca.gov/Eaton-Trail-Extension-EIR/. The DEIR, the Partially Revised DEIR, and FEIR are incorporated into these findings in their entirety, unless and only to the extent these findings expressly do not incorporate by reference the DEIR, Partially Revised DEIR, and FEIR. Without limitation, this incorporation is intended to elaborate on the scope and nature of mitigation measures, the basis for determining the significance of impacts, the comparative analysis of 8 | Page   alternatives, and the reasons for approving the project in spite of the potential for associated significant and unavoidable adverse physical environmental impacts. 5. Findings Required Under CEQA PRC Section 21002 provides that “public agencies should not approve projects as proposed if there are feasible alternatives or feasible mitigation measures available which would substantially lessen the significant environmental effects of such projects[.]” The same statute states that the procedures required by CEQA “are intended to assist public agencies in systematically identifying both the significant effects of projects and the feasible alternatives or feasible mitigation measures which will avoid or substantially lessen such significant effects.” Section 21002 of the PRC goes on to state that “in the event [that] specific economic, social, or other conditions make infeasible such project alternatives or such mitigation measures, individual projects may be approved in spite of one or more significant effects thereof.” The mandate and principles in PRC Section 21002 are implemented, in part, through the requirement that agencies must adopt findings before approving projects for which EIRs are required. For each significant environmental effect identified in an EIR for a project, the approving agency must issue a written finding reaching one or more of three permissible conclusions. The first such finding is that changes or alterations have been required in, or incorporated into, the project that avoid or substantially lessen the significant environmental effect as identified in the FEIR (CEQA Guidelines Section 15091(a)(1)). For purposes of these findings, the term “avoid” refers to the effectiveness of one or more mitigation measures to reduce an otherwise significant effect to a less-than-significant level. In contrast, the term “substantially lessen” refers to the effectiveness of such measure or measures to substantially reduce the severity of a significant effect, but not to reduce that effect to a less- than-significant level. The second permissible finding is that such changes or alterations are within the responsibility and jurisdiction of another public agency and not the agency making the finding, and that such changes have been adopted by such other agency or can and should be adopted by such other agency (CEQA Guidelines Section 15091(a)(2)). The third potential conclusion is that specific economic, legal, social, technological, or other considerations, including provision of employment opportunities for highly trained workers, make infeasible the mitigation measures or project alternatives identified in the DEIR, Partially Revised DEIR, and FEIR (EIR) (CEQA Guidelines Section 15091(a)(3)). “Feasible” means capable of being accomplished in a successful manner within a reasonable period of time, taking into account economic, environmental, social, legal, and technological factors (CEQA Guidelines Section 15364). The concept of “feasibility” also encompasses the question of whether a particular alternative or mitigation measure promotes the underlying goals and objectives of a 9 | Page   project. Moreover, “feasibility” under CEQA encompasses “desirability” to the extent that desirability is based on a reasonable balancing of the relevant economic, environmental, social, legal, and technological factors” (City of Del Mar v. City of San Diego (1982) 133 Cal.App.3d 410, 417). In the process of adopting mitigation measures, the City has made a determination regarding whether the mitigation proposed in the EIR is “feasible.” In some cases, modifications may have been made to the mitigation measures proposed in the EIR to update, clarify, streamline, or revise those measures. With respect to a project for which significant impacts are not avoided or substantially lessened, a lead agency, after adopting proper findings, may nevertheless approve the project if the agency first adopts a statement of overriding considerations setting forth the specific reasons in support of the finding that the project benefits outweigh its unavoidable adverse environmental effects. In the process of considering the EIR for certification, the City has recognized that impact avoidance is not possible in all instances. To the extent that significant adverse environmental impacts will not be reduced to a less-than- significant level with the adopted mitigation, the City has found that specific economic, social, and other considerations support approval of the project. Those findings are reflected herein in Section 5, “Findings Required Under CEQA,” and in Section 7, “Statement of Overriding Considerations,” below. 5.1 Summary of Findings The DEIR and Partially Revised DEIR identified a number of less-than-significant impacts associated with the project that do not require mitigation. The DEIR, and Partially Revised DEIR also identified a number of significant and potentially significant environmental effects (or impacts) that may be caused in whole or in part by the project. Through incorporation of best practices and the mitigation measures identified in the FEIR, the significant environmental effects have been reduced to less than significant. Nevertheless, the City has determined that implementation of Mitigation Measure Alt. 1 – Traffic-1, which is a necessary component of the overall River West Fresno, Eaton Trail Extension Project, confers economic, legal, technological, social, and other benefits, and furthers the General Plan policies listed in Section 7 below. The findings of the City with respect to the project’s significant effects and mitigation measures are set forth in the EIR and these Findings of Fact. The Summary of Findings does not attempt to replicate or restate the full analysis of each environmental impact contained in the EIR. Please refer to the DEIR, the Partially Revised DEIR, and FEIR for more detail. The following provides a summary description of each potentially significant and significant impact, describes the applicable mitigation measures identified in the FEIR and adopted by the City, and states the findings of the City regarding the 10 | Page   significance of each impact after imposition of the adopted mitigation measures. A full explanation of these environmental findings and conclusions can be found in the DEIR and FEIR and associated record (described herein), both of which are incorporated by reference. The City hereby ratifies, adopts, and incorporates the analysis and explanation in the record into these findings, and ratifies, adopts, and incorporates in these findings the determinations and conclusions of the EIR relating to environmental impacts and mitigation measures, except to the extent any such determinations and conclusions are specifically and expressly modified by these findings. To the extent any of the mitigation measures are within the jurisdiction of other agencies, the City finds those agencies can and should implement those measures within their jurisdiction and control (CEQA Guidelines Section 15091(a)(2)). Findings Regarding Less Than Significant Impacts (No Mitigation Required) The City agrees with the characterization in the DEIR, the Partially Revised DEIR, and FEIR of all project-specific impacts identified as “less than significant” and finds that those impacts have been described accurately and are either less than significant or have no impact, as described in the EIR. Section 15091 of the CEQA Guidelines does not require specific findings to address environmental effects that an EIR identifies as having no impact or a less-than-significant impact. The impact categories which contained an impact for which the project would result in either no impact or a less-than-significant impact, and which require no mitigation, are identified in the bulleted list below. Please refer to the DEIR, the Partially Revised DEIR, and FEIR for more detail. • Aesthetics • Agriculture and Forest Resources • Air Quality • Biological Resources • Cultural Resources • Geology and Soil • Greenhouse Gas Emissions • Hazards and Hazardous Materials • Hydrology and Water Quality • Land Use and Planning • Mineral Resources • Noise • Population and Housing • Public Service • Recreation 11 | Page   • Transportation • Utilities and Service Systems Findings Regarding Impacts Mitigated to a Level of Less than Significant The City hereby finds that feasible mitigation measures have been identified in the DEIR, the Partially Revised DEIR, and the FEIR and these Findings of Fact incorporate the feasible mitigation measures identified in those documents by reference and find that they will avoid or substantially lessen the potentially significant and significant environmental impacts to a less-than-significant level, in the impact categories listed below. Please refer to the DEIR, the Partially Revised DEIR, and the FEIR for more detail. • Aesthetics • Biological Resources • Cultural Resources • Geology and Soils • Hazards and Hazardous Materials • Hydrology and Water Quality • Noise Finding on Proposed Mitigation The City finds that, with implementation of the mitigation measures incorporated by reference above, changes or alterations have been required in, or incorporated into, the project that avoid or substantially lessen the impacts identified in the DEIR, the Partially Revised DEIR, and the FEIR. Significance after Mitigation The City finds that implementation of all mitigation measures incorporated by reference above would minimize their corresponding impacts to less than significant. Findings Regarding Environmental Impacts not Mitigated to Less-than-Significant Levels As described in Chapter 3, “Affected Environment, Environmental Consequences, and Mitigation Measures,” the proposed River West Fresno, Eaton Trail Extension Project would involve multiple potentially significant impacts. However, with the implementation of best management practices (BMPs) that have been incorporated into the project design (refer to Section 2.5.2, “Best Management Practices”) and with implementation of specific proposed mitigation measures where needed (e.g., for biological resources and aesthetic and visual resources), all potentially significant impacts associated with implementation of the project would be avoided and reduced to less-than-significant levels. 12 | Page   5.2 Mitigation Monitoring Mitigation Measures were made a condition of approval for the project when the River West Fresno Project was certified by the Conservancy. The City will coordinate with the Lead Agency to ensure compliance with all applicable mitigation measures and project conditions in implementing the River West Fresno Project. 6. Project Alternatives Where a lead agency has determined that, even after the adoption of all feasible mitigation measures, a project as proposed will still cause one or more significant environmental effects that cannot be substantially lessened or avoided, the agency, prior to approving the project as mitigated, must first determine whether, with respect to such impacts, there remains any project alternatives that are both environmentally superior and feasible within the meaning of CEQA. As noted under the heading “Findings Required under CEQA,” an alternative may be “infeasible” if it fails to achieve the lead agency’s underlying goals and objectives with respect to the project. Thus, “‘feasibility’ under CEQA encompasses ‘desirability’ to the extent that desirability is based on a reasonable balancing of the relevant economic, environmental, social, and technological factors” of a project (City of Del Mar v. City of San Diego (1982) 133 Cal.App.3d 401, 417). 6.1 Project Alternatives Considered The Lead Agency and their Project Development Team explored a number of alternatives for the River West Fresno Project. The alternatives summarized below were considered and evaluated in the EIR Alternative 1: the “Added Parking” alternative, was developed to provide convenient vehicle access for residents of the Fresno metropolitan area. Alternative 2: the “Bluff Trail Alignment” alternative was developed to reduce the circuitous alignment of the proposed trail and reduce potential impacts on riparian habitat and disturbance to nearby residences on the floodplain. Alternative 3: the “River’s Edge Trail Alignment” alternative was developed to provide multiuse trail access close to the River and to possibly reduce the potential effects of wildland fires on the residence locate on the bluffs. Alternative 4: the “No Parking” alternative was developed to address the potential side effects of parking at the project site including noise, vehicle traffic, and effects on safety. Alternative 5: the “Palm and Nees Access” alternative was developed to provide greater, more convenient vehicle access for residents of the Fresno metropolitan area, including increasing opportunities for equal access for disadvantaged communities, and to provide more parking capacity. 13 | Page   Alternative 5B: the “North Palm Avenue Access” was developed to provide additional options for addressing more convenient vehicle access for residents of the Fresno metropolitan area including increasing opportunities for equal access for disadvantaged communities, and to provide more parking capacity. Alternative 5B would provide an additional entrance proceeding from North Palm Avenue through Spano Park with a new access road descending the bluff, and an additional parking area located to the west of the project study area. Alternative 6: the “No Project” alternative, was included in accordance with CEQA Guidelines Section 15126.6(d)(3)(B). This alternative considers the effects if the project were not to proceed, and if no trail extension, or recreational amenities were constructed. Table 5.13-1 in the FEIR summarizes the environmental impacts with the impacts of the listed alternatives. The Conservancy selected Alternative 5B, which is an added off-site alternative that includes the proposed project itself. The Conservancy’s analysis of the alternatives, including its identification of a preferred alternative as set forth in the FEIR, are incorporated herein, in-full, by reference. The City concurs with the Conservancy’s analysis and findings with respect to the alternatives analysis and identification of a preferred alternative. 7. Statement of Overriding Considerations Pursuant to Section 21081 of the California Public Resources Code and Section 15093 of the CEQA Guidelines, the City adopts and makes the following statement of overriding considerations regarding the remaining significant unavoidable impacts of the project, as discussed above, and the anticipated economic, social, and other benefits of the project. Based on the record of proceedings, the City finds and determines that (1) the significant impacts of the project will be reduced to less-than-significant levels by implementation of the mitigation measures recommended in these findings; (2) due to the incorporation of Best Management Practices, there are no impacts that will remain significant and unavoidable. Therefore, a statement of overriding considerations as described in Section 15093 of the CEQA Guidelines is not required. Nevertheless, the implementation of the project does confer substantial economic, legal, social, technological, and other benefits to the City and its residents and is supported by the following Objectives and Policies of the Fresno General Plan: Policy POSS-7-g: San Joaquin River Parkway - River West Fresno Project Area. Support the extension of the Lewis Eaton Trail into the River West Fresno Project Area consistent with the San Joaquin River Parkway Master Plan. Policy POSS-7-h: Interlink City and San Joaquin River Parkway Trail Networks. Strive to connect the parkway trail network to other trails in the vicinity, in order to create a 14 | Page   community and regional trail system that offers a variety of different route combinations and enhances public access to the parkway. Policy POSS-7-I: Public Access to the San Joaquin River Parkway Trail Networks. Strive to provide public access to the parkway from public streets, roads, and rights-of-way immediately adjacent to parkway properties, facilities, and trails. Objective POSS-7: Support the San Joaquin River Conservancy in its collaborative, multiagency efforts to develop the San Joaquin River Parkway Supporting the implementation of the Parkway Master Plan and directly implementing the River West Fresno Project by constructing intersection improvements at Audubon Drive and Del Mar Avenue is in the best interests of the City. City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID 23-1490 Agenda Date:10/19/2023 Agenda #: 1.-W. REPORT TO THE CITY COUNCIL FROM:BROCK D. BUCHE, PE, PLS, Director Department of Public Utilities BY:JOSEPH DE GEORGE, MS, MBA, Project Manager Department of Public Utilities - Utilities Planning & Engineering SUBJECT Award a requirements contract to ScrubCan Inc.,a California corporation,to provide janitorial services at Department of Public Utilities facilities for an amount not to exceed $499,824 per year for one year with an optional one-year extension,plus annual Consumer Price Index adjustments (Bid File 12301773) (Council Districts 3, 4, 6, and 7). RECOMMENDATIONS Staff recommends that City Council (Council)award a requirements contract to ScrubCan Inc.,to provide janitorial services for Department of Public Utilities (DPU)facilities for an amount not to exceed $499,824 per year for one year with an optional one-year extension,plus annual Consumer Price Index (CPI)adjustments;and authorize the Director of Public Utilities,or designee,to execute the contract on behalf of the City of Fresno (City). EXECUTIVE SUMMARY DPU is seeking to award a requirements contract for janitorial services for seven (7)facilities citywide.Based on a committee evaluation of proposals,staff recommends the award of a one-year contract with an optional one-year extension to ScrubCan Inc.,for the amount of $499,824 per year plus annual Consumer Price Index adjustments.Funding for this contract is available within the adopted Fiscal Year 2024 Budget. BACKGROUND On August 15,2019,Council awarded a requirements contract for janitorial services to Geil Enterprises dba Janitorial Inc.,(Geil)at the Fresno-Clovis Regional Wastewater Reclamation Facility (RWRF)in the amount of $141,222 per year,for three years with an option for two,one-year extensions.Due to performance issues with the vendor,RWRF has opted not to extend the contract for the two additional one-year extensions and has decided to rebid the contract after the close of the initial three-year agreement.RWRF and the DPU Operations and Maintenance Facility are currently on a month-to-month agreement with Geil until a new vendor is selected.Solid Waste Management City of Fresno Printed on 10/20/2023Page 1 of 3 powered by Legistar™ File #:ID 23-1490 Agenda Date:10/19/2023 Agenda #: 1.-W. on a month-to-month agreement with Geil until a new vendor is selected.Solid Waste Management and all Water Division facilities are currently serviced by ScrubCan Inc. With RWRF not extending their janitorial contract,DPU Administration decided the best course of action was to have all DPU facilities serviced by a single vendor.DPU solicited a Request for Proposals (RFP)to provide janitorial services for seven (7)DPU facilities including:the DPU Operations and Maintenance Facility;Water Division service yard facilities;Northeast Surface Water Treatment Facility (NESWTF);T-3 Treatment Facility (T-3);Southeast Surface Water Treatment Facility (SESWTF);Solid Waste Management facilities;and RWRF facilities.Evaluation of janitorial firms’proposals were based on:the ability to meet the stated service requirements,conformance to the terms and conditions of the RFP,past performance based on references and experience shown on "Statement of Qualifications and Experience",qualifications of key personnel,employee training and supervision,self-monitoring (quality assurance),type and quality of equipment proposed as well as cost. In accordance with Fresno Municipal Code Chapter 4,Article 1,and Administrative Order 6-28,DPU conducted a competitive process for selecting a service provider to provide the requested non- professional services for this project.On April 12,2023,a Request for Proposals was published in the Business Journal and on the City’s Planet Bids website.On June 13,2023,six (6)proposals were received.A selection committee,consisting of representatives from DPU Utilities Planning and Engineering Division,Water Division,and Wastewater Management Division evaluated the proposals.Upon review of the qualifications for meeting the various criteria and analysis of the proposed fee,ScrubCan Inc.,was selected to perform the requested services.Staff recommends award of a requirements contract to ScrubCan Inc.,for these services for a total amount not to exceed $499,824 per year, with an optional one-year extension, plus annual CPI adjustments. At the direction of the City Manager,the term for this requirements contract has been updated to one year with an optional one-year extension from the advertised term of three years with two optional one-year extensions,so DPU may participate in the future citywide janitorial contract currently in development. The City Attorney’s Office has approved the attached agreement as to form.Upon approval by the City Council, the contract will be executed by the Director of Public Utilities or designee. ENVIRONMENTAL FINDINGS By the definition provided in the California Environmental Quality Act (CEQA)Guidelines Section 15378, this non-professional services agreement is not a project. LOCAL PREFERENCE Local preference is not applicable because local preference does not apply to contracts for non- professional services. FISCAL IMPACT There is no impact on the General Fund.This project is located in Council Districts 3,4,6,and 7. Funds are available in the FY 2024 Water,Wastewater,Solid Waste Enterprise Funds,and DPU City of Fresno Printed on 10/20/2023Page 2 of 3 powered by Legistar™ File #:ID 23-1490 Agenda Date:10/19/2023 Agenda #: 1.-W. Funds are available in the FY 2024 Water,Wastewater,Solid Waste Enterprise Funds,and DPU O&M Facility Internal Service Fund. Attachments: RFP Evaluation Form RFP Evaluation Report Sample Service Contract Vicinity Map City of Fresno Printed on 10/20/2023Page 3 of 3 powered by Legistar™ Department of Public Utilities RFP EVALUATION REPORT RFP 12301773: REQUIREMENTS CONTRACT FOR JANITORIAL SERVICES Committee Members 1. James Jackson, City of Fresno, General Services Department/Purchasing Division, Senior Procurement Specialist (Facilitator) 2. John Turnipseed, City of Fresno, Department of Public Utilities/Wastewater Management Division, Supervisor 3. Martin Wendels, City of Fresno, Department of Public Utilities/Water Division, Project Manager 4. Joseph De George, City of Fresno, Department of Public Utilities/Utilities Planning & Engineering Division, Project Manager The City of Fresno (City) Department of Public Utilities (DPU) issued Request for Proposal (RFP) 12301773. A total of six (6) responses were received by the evaluating committee. Background Information – Scope of Work DPU seeks JANITORIAL SERVICES as requested by all divisions and facilities. The offeror will be expected to provide services, including, but not limited to the following areas: 1. Provide janitorial services for several locations within DPU. Locations include the: a. Regional Wastewater Reclamation Facility (RWRF) b. DPU Operations and Maintenance Facility (DPU O&M) c. Water Division d. Northeast Surface Water Treatment Facility (NESWTF) e. Southeast Surface Water Treatment Facility (SESWTF) f. T3 Surface Water Treatment Facility (T3) g. Solid Waste Management 2. All locations are within the City of Fresno. 3. This request was advertised for a 3-year contract with 2 possible, 1-year extensions. At the direction of the City Manager, the term for this requirements contract has been updated to one year with an optional one-year extension from the advertised term of three years with two optional one-year extensions, so DPU may participate in the future citywide janitorial contract currently in development. Summary of Evaluation Committee The Evaluation Committee included representation from DPU Water Division, Wastewater Management Division, and Utilities Planning & Engineering Division. The Purchasing Division also served as the facilitator of the RFP process and the Evaluation Committee. Evaluation criteria were developed prior to the RFP distribution date. The Evaluation Point Table (Figure 1) summarizes all criteria used in scoring the proposals. Department of Public Utilities Figure 1 Item Evaluation Criteria Points 1 Cost as shown on the proposal 20 2 Ability to meet the stated service requirements 25 3 Past Performance/Prior Experience based on "Statement of Qualifications and Experience" 25 4 Conformance to the terms and conditions of the RFP 10 5 Financial Stability based on information provided in the Statement of Qualifications 15 6 Other related information 5 Total 100 The proposals were advertised on the City’s Planet Bids webpage. Proposals were due on June 13, 2023, at 3:00 PM (local time). After the initial evaluation of the six (6) proposals, in accordance with procurement guidelines and the RFP, all the proposals were determined to be the most responsive to the RFP requirements. The results of the Evaluation Committee are summarized by ranking below. Categories were first individually scored based on Figure 1. The highest total score is the recommended proposal (Figure 2). Figure 2 RANKING Janitorial INC. Richardson & Company LLC. Premier Property Preservation, LLC. Olympic Cleaning Service ScrubCan INC. Commercial Cleaning Systems 6 3 4 2 1 5 Based on the result of the scores the Evaluation Committee has recommended awarding the contract to Scrubcan Inc. Comments Although Janitorial Inc., was the lowest responsive bidder and is the current vendor for DPU, the company has delivered poor performance, failed to demonstrate leadership to correct the performance issues, and unsuccessfully delivered a high level of service to DPU. The Evaluation Committee thoroughly debated the proposals of Olympic Cleaning Services and ScrubCan Inc. Both companies demonstrated high levels of ability and provided detailed proposals that highlighted performance, experience, quality control measures, and customer service. Ultimately, Department of Public Utilities based on their current experience with the City along with current and prior affiliation with DPU, ScrubCan Inc., was selected over Olympic Cleaning Services. Evaluation report prepared by: Joseph De George MS, MBA Project Manager Department of Public Utilities – Utilities Planning & Engineering GSD-B Service Contract – Contractor (08-2023) - 1 - SERVICE CONTRACT THIS CONTRACT (Contract) is made and entered into by and between the CITY OF FRESNO, a California municipal corporation (City), and [Contractor Name], [Legal Identity] (Contractor), as follows: 1. CONTRACT DOCUMENTS. The "Notice Inviting Bids," "Instructions to Bidders," "Bid Proposal," and the "Specifications" including "General Conditions", "Special Conditions" and "Technical Specifications" for the following: [Title] (Bid File No. [Number]) [Alternates (if any)] copies of which are annexed hereto, together with all the drawings, plans, and documents specifically referred to in said annexed documents, and are hereby incorporated into and made a part of this Contract, and shall be known as the Contract Documents. 2. PRICE. For the monetary consideration of $[Dollar Amount], as set forth in the Bid Proposal, Contractor promises and agrees to furnish or cause to be furnished, in a new and working condition, and to the satisfaction of City, and in strict accordance with the Specifications, all of the items as set forth in the Contract Documents. 3. PAYMENT. City accepts Contractor's Bid Proposal as stated and agrees to pay the consideration stated, at the times, in the amounts, and under the conditions specified in the Contract Documents. 4. INDEMNIFICATION: To the furthest extent allowed by law, including California Civil Code section 2782 (if applicable), Contractor shall indemnify, hold harmless and defend City and each of its officers, officials, employees, agents and volunteers from any and all loss, liability, fines, penalties, forfeitures, costs and damages (whether in contract, tort or strict liability, including, but not limited to personal injury, death at any time and property damage) incurred by City, Contractor or any other person, and from any and all claims, demands and actions in law or equity (including reasonable attorney's fees, litigation expenses, and costs to enforce this agreement), arising or alleged to have arisen directly or indirectly out of performance of this Contract. Contractor's obligations under the preceding sentence shall apply regardless of whether City or any of its officers, officials, employees, agents or volunteers are passively negligent, but shall not apply to any loss, liability, fines, penalties, forfeitures, costs or damages caused by the active or sole negligence, or by the willful misconduct, of City or any of its officers, officials, employees, agents or volunteers. If Contractor should subcontract all or any portion of the work to be performed under this Contract, Contractor shall require each subcontractor to indemnify, hold harmless and defend City and each of its officers, officials, employees, agents and volunteers in accordance with the terms of the preceding paragraph. This section shall survive termination or expiration of this Contract. 5. The City Manager, or designee, is hereby authorized and directed to execute and implement this Agreement. The previous sentence is not intended to delegate any authority to the City Manager to administer the Agreement, any delegation of authority must be expressly included in the Agreement. [Signatures follow on the next page.] GSD-B Service Contract – Contractor (08-2023) - 2 - IN WITNESS WHEREOF, the parties have executed this Contract on the day and year here below written, of which the date of execution by City shall be subsequent to that of Contractor’s, and this Contract shall be binding and effective upon execution by both parties. CITY OF FRESNO, A California municipal corporation By: [Name] [Title] General Services Department APPROVED AS TO FORM: ANDREW JANZ City Attorney By: Date Supv./Senior Deputy City Attorney ATTEST: TODD STERMER, CMC City Clerk By: Date Deputy [CONTRACTOR'S NAME], [Legal Identity] By: Name: Title: (If corporation or LLC., Board Chair, Pres. or Vice Pres.) By: Name: Title: (If corporation or LLC., CFO, Treasurer, Secretary or Assistant Secretary) REVIEWED BY: Addresses: CITY: City of Fresno Attention: [Name], [Title] [Street Address] Fresno, CA [Zip] Phone: (559) [#] E-mail: [E-mail Address] CONTRACTOR: [Contractor Name] Attention: [Name], [Title] [Street Address] [City, State Zip] Phone: [area code and #] E-mail: [E-mail Address] G F 180 168 41 99 Council District 2 Council District 7 Council District 4 Council District 5 Council District 6 Council District 1 Council District 3 RFP FOR REQUIREMENTS CONTRACT FOR DEPARTMENT OF PUBLIC UTILITIES JANITORIAL SERVICES City of Fresno Department of Public Utilities Vicinity Map 0 10.5 Miles ¯ A Northeast Surface Water Treatment Facility T3 Site Southeast Surface Water Treatment Facility Water Department Yard Solid Waste Management Operations & Maintenance Facility Fresno-Clovis Regional Wastewater Reclamation Facility E D C B A C B D E F G City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID 23-1491 Agenda Date:10/19/2023 Agenda #: 1.-X. REPORT TO THE CITY COUNCIL FROM:BROCK D. BUCHE, PE, PLS, Director Department of Public Utilities BY:PETER A. MARACCINI, PE, PhD, Licensed Engineer Manager Department of Public Utilities - Utilities Planning & Engineering SUBJECT Approve the Fourth Amendment to the consultant services agreement with Water Systems Consulting,Inc.,to extend the term of the contract to December 31,2026,for the development of the Metropolitan Water Resources Management Plan,Programmatic Environmental Impact Report and 2020 Urban Water Management Plan (Citywide). RECOMMENDATION Staff recommends City Council approve the Fourth Amendment to the consultant services agreement with Water Systems Consulting,Inc.,to extend the term of the contract from October 18,2023,to December 31,2026,for the development of the Metropolitan Water Resources Management Plan, Programmatic Environmental Impact Report and 2020 Urban Water Management Plan;and authorize the Director of Public Utilities,or designee,to sign the amendment on behalf of the City of Fresno (City). EXECUTIVE SUMMARY The Department of Public Utilities (DPU)is currently working with Water Systems Consulting,Inc. (WSC)to renew its long-range water supply planning document known as the Metropolitan Water Resources Management Plan (Metro Plan)and its associated Programmatic Environmental Impact Report (PEIR).The current consultant services agreement expires October 18,2023,and the City desires to extend the agreement to December 31,2026,to allow for the completion of the Metro Plan and PEIR with necessary periods for environmental review,public comment,and adoption by City Council. The effective date of the Fourth Amendment is October 18, 2023. BACKGROUND In recognition of the vulnerability of the City’s water supply system,as highlighted in the late 1980s by widespread regional groundwater contamination from agricultural pesticides,City Council in 1990 directed City staff to prepare a long-range water supply plan.City staff,with assistance from water supply consultants,initiated a multi-year analysis of water resources and water supply alternatives. This analysis provided the basis for development of the Department’s 1996 and subsequent 2014 City of Fresno Printed on 10/30/2023Page 1 of 3 powered by Legistar™ File #:ID 23-1491 Agenda Date:10/19/2023 Agenda #: 1.-X. This analysis provided the basis for development of the Department’s 1996 and subsequent 2014 Metro Plans.This Metro Plan and associated PEIR is a continuation of the City’s near-term (1-10- year)and long-range (50-year projection)planning document that outlines water supply programs and proposed capital projects needed to meet the projected demands into the future. On June 18,2020,the City entered into a consultant services agreement with WSC to develop the Metro Plan,PEIR,and 2020 Urban Water Management Plan (UWMP)for a total amount not to exceed $2,005,762.WSC prepared the 2020 UWMP,which was adopted by City Council on July 15, 2021. Subsequently, the City and WSC have executed three amendments to the Agreement: On October 4,2021,the City and WSC executed the First Amendment to the Agreement to modify the scope of services to refine the final project deliverables. On November 15,2021,the City and WSC executed the Second Amendment to the Agreement to expand the scope of services to include the development of a United States Bureau of Reclamation Water Management Plan and increase the total fee to compensate for the expanded scope of services, which was paid by the available contract contingency. On May 5,2022,the City and WSC executed a Third Amendment to the Agreement to expand the scope of services to include the development of the Annual Water Supply and Demand Assessment according to guidance from the California Department of Water Resources,and increase the total fee to compensate for the expanded scope of services, paid by the available contract contingency. The Fourth Amendment extends the term of the agreement to December 31,2026,to retain WSC through the completion of the Metro Plan and associated PEIR. The City Attorney’s Office has reviewed and approved as to form this Fourth Amendment to the Agreement.Upon approval by the City Council,the Fourth Amendment to the Agreement will be executed by the Director of Public Utilities, or designee. ENVIRONMENTAL FINDINGS By the definition of the California Environmental Quality Act (CEQA)Guidelines Section 15378, amending of this consultant services agreement is not a “Project” for purposes of CEQA. LOCAL PREFERENCE Local preference does not apply to this action because this is an amendment to an existing consultant services agreement. FISCAL IMPACT There is no impact to the General Fund. The project is citywide. Attachments: Attachment 1 - Fourth Amendment to Agreement City of Fresno Printed on 10/30/2023Page 2 of 3 powered by Legistar™ File #:ID 23-1491 Agenda Date:10/19/2023 Agenda #: 1.-X. Attachment 2 - Third Amendment to Agreement Attachment 3 - Second Amendment to Agreement Attachment 4 - First Amendment to Agreement Attachment 5 - Original Agreement City of Fresno Printed on 10/30/2023Page 3 of 3 powered by Legistar™ 1 FOURTH AMENDMENT TO AGREEMENT THIS FOURTH AMENDMENT TO AGREEMENT (Amendment) made and entered into as of this ______ day of _______________ 2023, (Effective Date) amends the Consultant Services Agreement entered into between the City of Fresno, a California municipal corporation (City), and Water System Consulting, Inc., a California corporation (Consultant). RECITALS WHEREAS, City and Consultant entered into a Consultant Services Agreement on June 18, 2020, (Agreement) to provide professional engineering services for development of the 2020 Metropolitan Water Resources Management Plan and Programmatic Environmental Impact Report and 2020 Urban Water Management Plan (Project); and WHEREAS, City and Consultant executed a First Amendment to the Agreement on October 4, 2021, to modify the scope of services to align with the scope of services identified in Request for Proposal and Consultant’s proposal; and WHEREAS, City and Consultant executed a Second Amendment to the Agreement on November 15, 2021, to expand the scope of services to include the development of a United States Bureau of Reclamation Water Management Plan and increase the total fee to compensate for the expanded scope of services, paid by the available contract contingency; and WHEREAS, City and Consultant executed a Third Amendment to the Agreement on May 5, 2022, to expand the scope of services to include the development of the Annual Water Supply and Demand Assessment according to guidance from the California Department of Water Resources and increase the total fee to compensate for the expanded scope of services, paid by the available contract contingency; and WHEREAS, the Agreement is effective in full force through the earlier of complete rendition of the services or October 18, 2023; and WHEREAS, the City and the Consultant desire to extend the Agreement to December 31, 2026; and WHEREAS, with entry into this Agreement, the Consultant agrees the Consultant has no claim, demand, or dispute against the City. AGREEMENT NOW, THEREFORE, the Parties agree that the aforesaid Agreement be amended as follows: 1. The above recitals are incorporated and made part of this Amendment. 2. Section 2 of the Agreement shall be replaced, in its entirety, by the following: “This Agreement shall be effective from the date first set forth above and shall continue in full force and effect through the earlier of complete rendition of the services hereunder or December 31, 2026, DocuSign Envelope ID: B49EF8B4-02E0-4750-B553-3EAFC04D0814 2 subject to any earlier termination in accordance with this Agreement. The services of CONSULTANT as described in Exhibit A are to commence upon CITY’S issuance of a written “Notice to Proceed.” Work shall be undertaken and completed in a sequence assuring expeditious completion.” 3. The Consultant shall receive no additional compensation pursuant to this Amendment. 4. Except as otherwise provided herein, the Agreement entered into by the City and the Consultant on June 18, 2020, remains in full force and effect. [Signatures appear on the next page.] DocuSign Envelope ID: B49EF8B4-02E0-4750-B553-3EAFC04D0814 3 IN WITNESS WHEREOF, the parties have executed this Amendment at Fresno, California, the day and year first above written. CITY OF FRESNO, A municipal corporation By: Brock D. Buche, PE, PLS Director of Public Utilities APPROVED AS TO FORM: ANDREW JANZ City Attorney By: Jennifer M. Quintanilla Date Senior Deputy City Attorney ATTEST: TODD STERMER, CMC CITY Clerk By: Date Deputy Water Systems Consulting, Inc., a California Corporation By: Name: Title: (If corporation or LLC, Board Chair, Pres. or Vice Pres.) By: Name: Title: (If corporation or LLC, CFO, Treasurer, Secretary or Assistant Secretary) Addresses: CITY: City of Fresno Attention: Peter Maraccini, PE, PhD Licensed Engineer Manager 1626 E Street Fresno, CA 93706 Phone: (559) 621-1603 FAX: (559) 498-4126 CONSULTANT: Water Systems Consulting, Inc. Attention: Jeffrey Szytel, President P.O. Box 4255 San Luis Obispo, CA 93403 Phone: (805) 457-8833 FAX: (805) 888-2764 DocuSign Envelope ID: B49EF8B4-02E0-4750-B553-3EAFC04D0814 Robert A. Morrow Vice President 9/28/2023 9/28/2023 Jeroen Olthof Secretary 10/2/2023 Clerk Attesting 1 of 3 THIRD AMENDMENT TO AGREEMENT THIS THIRD AMENDMENT TO AGREEMENT (Amendment) made and entered into as of this ____ day of ____________, 2022, amends the Consultant Services Agreement entered into between the CITY OF FRESNO, a California municipal corporation (City), and Water Systems Consulting, Inc., a California corporation (Consultant). RECITALS WHEREAS, City and Consultant entered into a Consultant Services Agreement, dated June 18, 2020 (Agreement) to provide professional engineering services for the development of the 2020 Metropolitan Water Resource Management Plan and Programmatic Environmental Impact Report, and 2020 Urban Water Management Plan (Project) for a total fee of $1,823,762, with a contingency of $182,000; and WHEREAS, City and Consultant executed a First Amendment to the Agreement on October 4, 2021, to modify the scope of services to align with the scope of services identified in Request for Proposal and Consultant’s proposal; and WHEREAS, City and Consultant executed a Second Amendment to expand the scope of services to include the development of a United States Bureau of Reclamation (USBR) Water Management Plan and increase the total fee to compensate for the expanded scope of services to $1,846,292, paid by the available contract contingency; and WHEREAS, City desires to expand the scope of services to include the development of the Annual Water Supply and Demand Assessment according to guidance from the California Department of Water Resources; and WHEREAS, due to the need for these additional services, the Parties desire to increase the total compensation by an additional $21,970 to complete the expanded Scope of Services, to be paid by the available contract contingency; and WHEREAS, with entry into this Amendment, Consultant agrees that Consultant has no claim, demands, or disputes against City. AGREEMENT NOW, THEREFORE, the City and the Consultant agree that the aforesaid Agreement be amended as follows: 1. The above recitals are incorporated and made part of this Amendment. 2. The services of Consultant, as defined in Exhibit A of the Agreement, shall be amended to include the additional professional services described in Exhibit A3, attached hereto and incorporated herein by reference. 3. Consultant’s sole compensation for satisfactory performance of all services required or rendered pursuant to this Amendment shall be a total fee of $21,970.            2 of 3 4. Section 3(a) of the Agreement is amended in its entirety to read as follows: “(a) CONSULTANT'S sole compensation for satisfactory performance of all services required or rendered pursuant to this Agreement shall be a total fee not to exceed $1,868,262, paid on a time and materials basis in accordance with the schedule of fees contained in Exhibit A, and a contingency amount not to exceed $137,500 for any additional work rendered pursuant to Subsection (c) below and authorized in writing by the Director.” 5. In the event of any conflict between the body of this Amendment and any Exhibit or Attachment hereto, the terms and conditions of the body of this Amendment shall control and take precedence over the terms and conditions expressed within the Exhibit or Attachment. Furthermore, any terms or conditions contained within any Exhibit or Attachment hereto which purport to modify the allocation of risk between the parties, provided for within the body of this Amendment, shall be null and void. 6. Except as otherwise provided herein, the Agreement entered into by the City and the Consultant on June 18, 2020, the First Amendment, dated October 4, 2021, and the Second Amendment, dated November 17, 2021, remain in full force and effect. [SIGNATURES FOLLOW ON THE NEXT PAGE.]          3 of 3 IN WITNESS WHEREOF, the City and the Consultant have executed this Amendment at Fresno, California, the day and year first above written. CITY OF FRESNO, a California municipal corporation By: Georgeanne A. White City Manager Date:________________ APPROVED AS TO FORM: DOUGLAS T. SLOAN City Attorney By: Jennifer M. Quintanilla Senior Deputy City Attorney Date:________________ ATTEST: Todd Stermer, CMC City Clerk By: Deputy Date:________________ Water System Consulting, Inc., a California corporation By: Name: Title: (If corporation or LLC., Board Chair, Pres. Or Vice Pres.) Date:________________ By: Name: Title: (If corporation or LLC., CFO, Treasurer, Secretary or Assistant Secretary) Date:________________ Attachment: Exhibit A3                      1 of 2 EXHIBIT A3 ADDITIONAL PROFESSIONAL SERVICES Scope of Services TASK 7.0 2022 ANNUAL WATER SUPPLY AND DEMAND ASSESSMENT Analyze recently collected groundwater data for comparison with historical data and preparation of graphics, assess supply and demand in compliance with recently released guidance from the California Department of Water Sources (DWR), and populate reporting templates provided by DWR for compliance with the Annual Water Supply and Demand Assessment requirements. 7.1 Project Management x Project Administration o Provide project administration and coordination and perform quality control reviews of all deliverables. o Prepare monthly progress reports to be submitted with each monthly invoice. It is assumed that the Project duration is two months. x Meetings o WSC will plan, organize, and conduct a meeting to discuss initial assessment discussion. Meeting topics will be to: (1) define goals, objectives, and timeline; (2) establish roles and responsibilities; (3) review scope, schedule, and deliverables; (4) review available data and establish data needs; and (5) review requirements and methodology. o WSC will plan, organize, and conduct a working draft review meeting. The purpose of the meeting will be to: (1) review draft deliverables; (2) review outstanding data requests; (3) review City comments on the draft Annual Assessment; (4) and establish action items and next steps. DELIVERABLE(S): Electronic copies of agenda and meeting materials 7.2 Groundwater Assessment x Analyze recently collected groundwater data for comparison with historical data and preparation of graphics presenting this information. 7.3 Annual Assessment Evaluation x Table 1. Annual Assessment Information o Compile and review actual data compared to projected data from City’s 2020 UWMP Chapter 7 – Water Service Reliability and Drought Risk Assessment. o Assess latest evaluation criteria and data including water production by source, supply allocations, and water demand. x Table 2. Water Demands o Evaluate the hypothetical unconstrained demand without any water use restrictions (or demand reduction actions) currently in place for the current year. The Current Year’s demands will be based on known demands for          2 of 2 months prior to the assessment and predicted up to and including May before the June 1 submittal date. o Evaluate estimated demand in the next 12-months of the Dry Year, with adjustments for weather, growth, or other influencing factors. o Update the demand forecast with the most recent data received from its cities and private retail water agencies. x Table 3. Water Supplies o Evaluate available supply, considering hydrological and regulatory conditions in the current year and one dry year. o For the current year, evaluate water supplies as determined from the current year’s conditions, including such information as stored supplies, contracted supplies, and projected supplies based on current and recent historical influencing factors. For the Dry Year, adjust water supplies for assumed dry year conditions, which may affect availability of local surface and ground waters. o Provide a description of the infrastructure capabilities and any plausible constraints used to evaluate water supply reliability. x Table 4. Water Shortage Assessment o Compare the projected supplies to unconstrained demands, the comparison of which will identify any potential shortages. o Add in the benefits of the response actions both proposed and currently in place but subtracted from the unconstrained demand x Table 5. Planned Water Shortage Response Actions o Describe the anticipated shortage levels along with anticipated shortage response actions. These are the specific actions and their estimated benefits that were used to reduce the anticipated shortage gaps identified in DWR Table 4. 7.4 Annual Assessment Preparation x Draft Annual Assessment Preparation o Populate DWR’s Excel template for DWR Tables 1 to 5 considering the current year including descriptions of the data and assumptions used to characterize and quantify the water demand and supplies. o Populate DWR’s Excel template for DWR Tables 1 to 5 considering a following dry year including descriptions of the data and assumptions used to characterize and quantify the water demand and supplies. x Final Draft Annual Assessment Preparation o Incorporate comments and direction from the Draft Annual Assessment Review Meeting. Prepare the Final Draft copies of DWR’s Excel template for DWR Tables 1 to 5. DELIVERABLE(S): Draft and Final Draft versions of DWR’s Tables 1 to 5 in Excel for current year and following dry year          1 of 3 SECOND AMENDMENT TO AGREEMENT THIS SECOND AMENDMENT TO AGREEMENT (Amendment) made and entered into as of this ____ day of ____________, 2021, amends the Consultant Services Agreement entered into between the CITY OF FRESNO, a California municipal corporation (City), and Water Systems Consulting, Inc., a California corporation (Consultant). RECITALS WHEREAS, City and Consultant entered into a Consultant Services Agreement, dated June 18, 2020 (Agreement) to provide professional engineering services for the development of the 2020 Metropolitan Water Resource Management Plan and Programmatic Environmental Impact Report, and 2020 Urban Water Management Plan (Project) for a total fee of $1,823,762, with a contingency of $182,000; and WHEREAS, City and Consultant executed a First Amendment to the Agreement on October 4, 2021, to modify the scope of services to align with the scope of services identified in Request for Proposal and Consultant’s proposal; and WHEREAS, City desires to expand the scope of services to include the development of a United States Bureau of Reclamation (USBR) Water Management Plan according to guidance from the USBR; and WHEREAS, due to the need for these additional services, the Parties desire to increase the total compensation by an additional $22,530 to complete the expanded Scope of Services, to be paid by the available contract contingency; and WHEREAS, with entry into this Amendment, Consultant agrees that Consultant has no claim, demands, or disputes against City. AGREEMENT NOW, THEREFORE, the City and the Consultant agree that the aforesaid Agreement be amended as follows: 1. The above recitals are incorporated and made part of this Amendment. 2. The services of Consultant, as defined in Exhibit A of the Agreement, shall be amended to include the additional professional services described in Exhibit A2, attached hereto and incorporated herein by reference. 3. Consultant’s sole compensation for satisfactory performance of all services required or rendered pursuant to this Amendment shall be a total fee of $22,530. 4. Section 3(a) of the Agreement is amended in its entirety to read as follows: “(a) CONSULTANT'S sole compensation for satisfactory performance of all services required or rendered pursuant to this Agreement shall be a total          2 of 3 fee not to exceed $1,846,292, paid on a time and materials basis in accordance with the schedule of fees contained in Exhibit A, and a contingency amount not to exceed $159,470 for any additional work rendered pursuant to Subsection (c) below and authorized in writing by the Director.” 5. In the event of any conflict between the body of this Amendment and any Exhibit or Attachment hereto, the terms and conditions of the body of this Amendment shall control and take precedence over the terms and conditions expressed within the Exhibit or Attachment. Furthermore, any terms or conditions contained within any Exhibit or Attachment hereto which purport to modify the allocation of risk between the parties, provided for within the body of this Amendment, shall be null and void. 6. Except as otherwise provided herein, the Agreement entered into by the City and the Consultant on June 18, 2020, and the First Amendment, dated October 4, 2021, remain in full force and effect. [SIGNATURES FOLLOW ON THE NEXT PAGE.]         3 of 3 IN WITNESS WHEREOF, the City and the Consultant have executed this Amendment at Fresno, California, the day and year first above written. CITY OF FRESNO, a California municipal corporation By: Michael Carbajal, Director Department of Public Utilities APPROVED AS TO FORM: DOUGLAS T. SLOAN City Attorney By: Jennifer M. Quintanilla Date Senior Deputy City Attorney ATTEST: BRIANA PARRA, CMC Interim City Clerk By: Deputy Date Water System Consulting, Inc., a California corporation By: Name: Title: (If corporation or LLC., Board Chair, Pres. Or Vice Pres.) By: Name: Title: (If corporation or LLC., CFO, Treasurer, Secretary or Assistant Secretary) Attachment: Exhibit A2           !           ! 1 of 2 EXHIBIT A2 ADDITIONAL PROFESSIONAL SERVICES Scope of Services TASK 6.0 2021 USBR WATER MANAGEMENT PLAN Develop a Water Management Plan (WMP) according to guidance from the United States Bureau of Reclamation (USBR) – primarily the Water Management Planner (August 2020) and the UWMP/WMP crosswalk table provided by USBR. USBR now accepts an UWMP approved by California Department of Water Resources (DWR) in lieu of a USBR WMP if supplemental documentation is provided for USBR WMP requirements that are not included in the UWMP. The supplemental documentation is expected to come from existing documents or existing materials from City staff. 6.1 Project Management x Project Controls o Provide oversight, manage communication, assign resources, and coordinate work efforts of the Project Team. o Compile and monitor budget, cost and earned value information for the Project. o Monitor scope, including tracking approved out of scope work. o Prepare progress reports to be submitted with each monthly invoice. The reports will include a summary of activities accomplished in the current month. Track individual task budgets and the overall project budget. x Plan, organize, and conduct Kickoff Meeting to coordinate data collection and project implementation approach DELIVERABLE(S): Monthly Progress Reports. Quarterly Executive Status Updates, including presentation materials when appropriate. 6.2 Data Collection and Coordination x Compile and submit data request to the City x Review information received and submit revised requests, as needed 6.3 Admin Draft WMP x Prepare WMP consistent with USBR guidance, which will consist of the WMP/UWMP Crosswalk Table and Supplemental Documentation x Implement Water Systems Consulting, Inc. (WSC) Quality Assurance and Quality Control (QA/QC) practices. x Submit to the City for review and comment. DELIVERABLE(S): Seven (7) hard-copies and one electronic copy of the Admin Draft WMP.         2 of 2 6.4 Draft WMP x Prepare Draft WMP that incorporates comments from the City on the Admin Draft Report x Complete WSC QA/QC practices. x Submit Draft WMP to City for review and comment. x Submit Draft WMP to USBR for review and comment. DELIVERABLE(S): Seven (7) hard-copies and one electronic copy of the Draft WMP 6.5 Final WMP x Prepare Final WMP that incorporates comments from the City and USBR on the Draft Report. x Complete WSC QA/QC practices. x Submit to the City the Final WMP materials, which will consist of the WMP/UWMP Crosswalk Table and Supplemental Documentation. The City will submit the full package to USBR. DELIVERABLE(S): Ten (10) hard-copies and one electronic copy of the Final WMP         1 of 2 FIRST AMENDMENT TO AGREEMENT THIS FIRST AMENDMENT TO AGREEMENT (Amendment) made and entered into as of this ____ day of ____________, 2021, amends the Consultant Services Agreement entered into between the CITY OF FRESNO, a California municipal corporation (City), and Water Systems Consulting, Inc., a California corporation (Consultant). RECITALS WHEREAS, City and Consultant entered into an agreement, dated June 18, 2020 (Agreement) to provide professional engineering services for the development of the 2020 Metropolitan Water Resources Management Plan and Programmatic Environmental Impact Report, and 2020 Urban Water Management Plan; and WHEREAS, City and Consultant desire to modify the scope of services of the Agreement, as detailed in Exhibit A, to align with the scope of services identified in Request for Proposal and Consultant’s proposal; and WHEREAS, with entry into this Amendment, Consultant agrees that Consultant has no claim, demands, or disputes against City. AGREEMENT NOW, THEREFORE, the City and the CONSULTANT agree that the aforesaid Agreement be amended as follows: 1. The above recitals are incorporated and made part of this Amendment. 2. Exhibit A of the Agreement shall be replaced in its entirety by Exhibit A, attached hereto and incorporated herein. 3. Consultant shall receive no additional compensation pursuant to this Amendment. 4. Except as otherwise provided herein, the Agreement entered into by the City and the Consultant on June 18, 2020, remains in full force and effect. [SIGNATURES FOLLOW ON THE NEXT PAGE.]           2 of 2 IN WITNESS WHEREOF, the City and the Consultant have executed this Amendment at Fresno, California, the day and year first above written. CITY OF FRESNO, a California municipal corporation By: Michael Carbajal, Director Department of Public Utilities APPROVED AS TO FORM: DOUGLAS T. SLOAN City Attorney By: Jennifer M. Quintanilla Date Senior Deputy City Attorney ATTEST: BRIANA PARRA, CMC Interim City Clerk By: Deputy Date Water System Consulting, Inc., a California corporation By: Name: Title: (If corporation or LLC., Board Chair, Pres. Or Vice Pres.) By: Name: Title: (If corporation or LLC., CFO, Treasurer, Secretary or Assistant Secretary) Attachment: Exhibit A                      1 of 2 EXHIBIT A SCOPE OF SERVICES Consultant Service Agreement between City of Fresno (“City”) and Water Systems Consulting, Inc. (“Consultant”) 2020 Metropolitan Water Resources Management Plan and Programmatic Environmental Impact Report, and 2020 Urban Water Management Plan See Attached          2 of 2 SCHEDULE OF FEES [See Attached]          5/18/2020 2020 Metro Plan & 2020 UWMP Scope of Work The following scope of work is for the 2020 Metropolitan Water Resources Management Plan (Metro Plan) and the 2020 Urban Water Management Plan (UWMP). Contents Task 0.0 Project Management ............................................................................................................1 0.1 Project Controls ........................................................................................................................1 0.2 City Coordination (Regular Calls)..............................................................................................1 0.3 Internal Coordination (Regular Calls)........................................................................................1 Task 1.0 Phase 1 - Existing Water Supply System Assessment...........................................................2 1.1 Kickoff Meeting, Meetings (2) & Workshops (4) ......................................................................4 1.2 Urban Water Demands.............................................................................................................5 1.3 Urban Water Supplies...............................................................................................................6 1.4 Existing Water Resources Systems ...........................................................................................7 1.5 Institutional Arrangements.......................................................................................................8 1.6 Existing System Assessment......................................................................................................8 1.7 Admin Draft Report...................................................................................................................8 1.8 Draft Report..............................................................................................................................8 1.9 Final Report...............................................................................................................................8 Task 2.0 Phase 2 - Water Supply Alternatives Analysis.......................................................................9 2.1 Kick-off Meeting, Meetings (2) & Workshops (4).....................................................................9 2.2 Water Supply Elements Development and Screening............................................................10 2.3 Water Supply Alternatives Development ...............................................................................10 2.4 Alternatives Evaluation...........................................................................................................11 2.5 Admin Draft Report.................................................................................................................11 2.6 Draft Report............................................................................................................................11 2.7 Final Report.............................................................................................................................11 Task 3.0 Phase 3 - Future Water Supply Plan....................................................................................11 3.1 Kick-off Meeting, Meetings (2) & Workshops (3)...................................................................15 3.2 Future Water Supply Plan.......................................................................................................15 3.3 Future Supplies .......................................................................................................................15 3.4 Infrastructure to Support Future Water Supply Plan..............................................................16 3.5 Plan Implementation ..............................................................................................................16 3.6 Admin Draft Report.................................................................................................................16 3.7 Draft Report............................................................................................................................16 3.8 Final Report.............................................................................................................................17 Task 4.0 Phase 4 - Programmatic/Project Environmental Impact Report........................................17 4.1 Kickoff Meeting and Review of Available Studies...................................................................17 4.2 Project Description..................................................................................................................17          2020 Metro Plan & 2020 UWMP Scope of Work 5/18/2020 ii 4.3 Project Scoping .......................................................................................................................18 4.4 Plan/Project Alternatives........................................................................................................18 4.5 Technical Reports....................................................................................................................18 4.6 Admin Draft PEIR.....................................................................................................................22 4.7 Public Draft PEIR .....................................................................................................................32 4.8 Final PEIR and MMRP..............................................................................................................32 Task 5.0 2020 UWMP........................................................................................................................34 5.1 Kickoff Meeting & Workshops (3)...........................................................................................34 5.2 Preliminary UWMP Sections...................................................................................................34 5.3 Admin Draft UWMP................................................................................................................34 5.4 Public Draft UWMP.................................................................................................................34 5.5 Final Draft UWMP...................................................................................................................35 5.6 Final UWMP ............................................................................................................................35 Excluded Services........................................................................................................................................35 Optimatics Analysis.................................................................................................................................35 Hydraulic Modeling.................................................................................................................................35 Master Plans ...........................................................................................................................................35 Public Relations and Strategic Communications.....................................................................................35          2020 Metro Plan & 2020 UWMP Scope of Work 5/18/2020 1 TASK 0.0 PROJECT MANAGEMENT 0.1 Project Controls ¾Provide oversight, manage communication, assign resources, and coordinate work efforts of the Project Team. ¾Maintain and monitor the master project schedule. Produce updated schedules as required. ¾Compile and monitor budget, cost and earned value information for the Project. ¾Monitor scope, including tracking approved out of scope work. ¾Administer subcontracts. ¾Prepare progress reports to be submitted with each monthly invoice. The reports will include a summary of activities accomplished in the current month. Track individual task budgets and the overall project budget. ¾Prepare quarterly status updates that summarize the plan preparation status and major accomplishments that occurred over the last quarter for distribution to City executives and legislative members. The status updates may include PowerPoint presentations when appropriate. DELIVERABLE(S): Monthly Progress Reports. Quarterly Executive Status Updates, including presentation materials when appropriate. 0.2 City Coordination (Regular Calls) ¾Plan, organize, and conduct routine meetings/conference calls with City Staff to: (1) Provide updates on Project progress (2) Present interim results (3) Review progress since last meeting and planned work until next call (4) Discuss other topics of interest as the Project progresses ¾Assumptions: The budget is based on an assumed project phase duration of 30 months and City Coordination Calls will be held four times per month, on average, with a duration of up to 1 hour each. However, WSC will adapt the frequency and duration of the City Coordination Meetings to meet the specific needs of the project at the time, within the budgeted level of effort. 0.3 Internal Coordination (Regular Calls) ¾Plan, organize and conduct routine meetings/conference calls with the Consultant Team to: (1) Coordinate project activities (2) Review ongoing work and upcoming deliverables (3) Discuss data needs (4) Plan upcoming client meetings          2020 Metro Plan & 2020 UWMP Scope of Work 5/18/2020 2 ¾Assumptions: The budget is based on an assumed project phase duration of 30 months and Internal Coordination Calls will be held three times per month with a duration of 1 hour each. TASK 1.0 PHASE 1 - EXISTING WATER SUPPLY SYSTEM ASSESSMENT This phase entails conducting the work to develop the content and prepare the Prepare Phase 1 Report. The Phase 1 Report is expected to include the following topics: 1. Introduction 1.1. Project Purpose 1.2. Study Process 1.3. Previous Metro Plans 1.4. Planning Horizons 1.5. Study Area 2. Urban WaterDemands 2.1. Service Area 2.2. Significant WaterUse 2.3. Water System 2.4. Local Climate 2.5. Historical and Projected Water Service AreaPopulation 2.6. Existing and Projected Land Use 2.7. Historical Water Production andConsumption 2.7.1.Historical Water ProductionRecords 2.7.2.Unaccounted-ForWater 2.7.3.Historical Consumption 2.8. Historical Peaking Factors 2.8.1.Maximum Day Peaking Factor 2.8.2.Peak Hour Peaking Factor 2.9. Per Capita Based Potable Demand Projections 2.10. Land Use Based Potable Demand Projections 2.10.1. Development of Unit Demand Factors 2.10.2. Adjusted Unit Demand Factors 2.10.3. Projected Potable Demands by CustomerClass 2.10.4. Comparison of Per Capita and Land Use Based DemandProjections 2.11. Recommended Urban Water Demands 2.11.1. Projected 2045 and 2070 Demand Projections 3. Urban WaterSupplies 3.1. Existing Groundwater Supply 3.1.1.Basin Location 3.1.2.Area Geology 3.1.3.Aquifer Characteristics 3.1.4.Historic and Current WaterLevels 3.1.5.Groundwater Quality 3.1.6.Estimated Groundwater Yield 3.1.7.Existing Groundwater Production Capacity 3.2. Existing Surface WaterSupply          2020 Metro Plan & 2020 UWMP Scope of Work 5/18/2020 3 3.2.1.USBR Friant Division Contract Supply 3.2.1.1. Quality 3.2.1.2. Reliability 3.2.2.Fresno Irrigation District Supply 3.2.2.1. Quality 3.2.2.2. Reliability 3.2.3.Reclaimed Wastewater Exchange Supply 3.2.3.1. Quality 3.2.3.2. Reliability 3.2.4.East Fresno Stream Group Supply 3.2.4.1. Quality 3.2.4.2. Reliability 3.3. Recycled WaterSupply 3.3.1.1. Quality 3.3.1.2. Reliability 3.4. Demand Management 3.5. Storm Water 3.6. Exchanges or Transfers 3.7. Long-Term Water Supply Yield (NormalYear) 3.8. Comparison of Water Supply andDemand 3.8.1.Comparison of Historical Water Supply andDemand 3.8.2.Comparison of Supply and Demand in the CurrentYear 3.8.3.Comparison of Projected Supply and Demand 3.8.3.1. Normal Year 3.8.3.2. Critical-Low Year 3.8.3.3. Multiple Dry Years 3.9. Potential Impacts of Climate Change 3.10. Effects of Status Quo Water SupplyStrategy 3.10.1. Long-term Implications of Operating at “Status Quo” 3.10.2. Estimated Capital Costs of Operating at “StatusQuo” 4. Existing Water ResourcesSystems 4.1. Drinking WaterSystem 4.1.1.Service Area 4.1.2.Water Supply Sources 4.1.2.1. GroundwaterWells 4.1.2.2. Surface Water TreatmentFacilities 4.1.3.Water Distribution System & Storage Facilities 4.1.3.1. Pressures Zones 4.1.3.2. SCADA Zones 4.1.3.3. Water Pipelines 4.1.3.4. Treated Water Storage 4.1.3.5. Booster Stations 4.1.4.Water Distribution System Performance Criteria 4.1.4.1. Conveyance Sizing and Performance (RTM, TGM &Distribution) 4.1.4.1.1. Average Day Demand 4.1.4.1.2. Maximum Day Demand 4.1.4.1.3. Peak Hour Demand 4.1.5.Fresno Water System – Future Without ProjectEvaluation          2020 Metro Plan & 2020 UWMP Scope of Work 5/18/2020 4 4.2. Wastewater System 4.2.1.Collection System 4.2.2.Regional Wastewater ReclamationFacility 4.3. Recycled WaterSystem 4.3.1.Tertiary Facility 4.3.2.Extraction Wells 4.3.3.Distribution System 4.4. Flood Control and Groundwater Recharge System 4.4.1.Facilities 4.4.2.Water Rights 4.4.3.Groundwater Recharge 5. Institutional Arrangements 5.1. Water Systems 5.1.1.Water Suppliers 5.1.2.Water SystemInterconnections 5.1.3.Surface WaterSupply 5.2. Wastewater 5.2.1.Wastewater Recycling 5.3. Flood Control and Storm Drainage 5.3.1.Storm Water Basins 5.3.2.Storm Water DetentionReservoirs 5.4. Groundwater Management 5.4.1.Groundwater Management Plan 5.4.2.Integrated Regional WaterManagement 5.4.3.Fresno County Export ordinance 5.4.4.Groundwater Contamination 5.4.5.Sustainable Groundwater Management Act 5.5. Governor’s Water ResiliencePortfolio 5.6. Regional Land Use Planning ¾The outline above may be modified based on findings from the analysis in this phase, and with approval from the City. 1.1 Kickoff Meeting, Meetings (2) & Workshops (4) ¾Plan, organize, and conduct Meetings and Workshops to support Phase 1 Report development. Anticipated meetings for Phase 1 are: (1) Phase 1 Kickoff Meeting (a) Establish Roles and Responsibilities, (b) Develop project success factors and future water supply plan objectives and goals (c) Walk through overview of key Phase 1 components (i.e. Urban Demand Estimates, Urban Water Supplies, Existing Water Resources, and Institutional Arrangements) (d) Review preliminary data request and data management system (2) Phase 1 Admin Draft Review Meeting          2020 Metro Plan & 2020 UWMP Scope of Work 5/18/2020 5 (3) Phase 1 Draft Review Meeting Anticipated workshops for Phase 1 are: (4) Urban Demand Workshop (5) Urban Water Supplies Workshop (6) Existing Water Resources System Workshop (7) Institutional Arrangements Workshop ¾Assumptions. Workshops/Meetings will be held in-person (if possible under COVID19 response actions) and will last up to 4 hours, attended by up to 3 WSC staff. DELIVERABLE(S): Electronic copies of agenda and meeting materials at least five (5) working days prior to the meeting. Summary of action items within five (5) working days following the meeting. 1.2 Urban Water Demands ¾Review reference documents, compile relevant information, and develop description of City’s existing Water Demands. ¾Analyze data sources for land use based demands, which are assumed to be available from the City’s planning department. ¾Update City’s demand peaking factors. ¾Prepare per capita water demand analysis for Senate Bill x 7-7 compliance and for the purposes of comparison to land use based demand estimates. ¾Develop population projections and demand projections for immediate, near-, and long-term periods ¾Assumptions. The City will provide historical data and the methodology used to determine demand factors and demand projections in the previous 2015 UWMP and the North Kings GSA Groundwater Sustainability Plan. Recent historical and growth data not included in previous demand estimates will be developed from the City’s General Plan and State Department of Finance projections to update previous demand factors and growth projections. Up to eight (8) hours is assumed to conform water consumption data to associate it with a land use and land use intensity unit (e.g., dwelling unit, acres, etc). ¾To supplement potable water projections, prepare recycled water demand projections based on existing customers and planned customer connections. Review historical recycled water use information to document past use by customer, including monthly, daily, and hourly variability, if the information is available. If applicable, document discharge flow commitments.          2020 Metro Plan & 2020 UWMP Scope of Work 5/18/2020 6 1.3 Urban Water Supplies ¾Review reference documents, compile relevant information, and develop description of City’s existing Water Supplies. Description of water supply availability will include assessment of the following Water Supply components: (1) Existing Groundwater Supply (a) Assessment of existing groundwater supply will include developing descriptions of: Basin Location; Area Geology; Aquifer Characteristics; Historic and Current Water Levels; Groundwater Quality; and Existing Groundwater Production Capacity (i) Assessment of these parameters will be based on readily available reference documents and information provided by the City. This task will not include new detailed evaluation of these parameters. (b) Existing Groundwater Yield – Estimates of existing groundwater yield will be developed utilizing a water budget analysis for a hydrologic base period that will include the following items: groundwater inflow; seepage from canals; seepage from intermittent streams; intentional recharge; deep percolation from irrigation; groundwater pumpage; consumptive use; and sewer export. (i) It is anticipated that the urban areas will be divided into several quadrants to perform a more granular water budget analysis. (ii) An additional water budget will be prepared for the Regional Wastewater Reclamation Facility that will include the following items: groundwater outflow; effluent percolation from ponds; deep percolation from effluent irrigation; recover well pumping; canal seepage; deep percolation from agriculture irrigation; and private well pumpage. (2) Existing Surface Water Supply - Assessment of existing surface water supply will include developing descriptions and evaluation of the quality and reliability of the City’s: USBR Friant Division Contract Supply; Fresno Irrigation District Supply; Reclaimed Wastewater Exchange Supply; and East Fresno Stream Group Supply (a) Assumption: Assessment of these parameters will be based on readily available reference documents and information that quantify and provide estimates for historic and future water supply availability from these sources. (3) Recycled Water Supply – Review available wastewater flow data and projections, including seasonal variations. Coordinate wastewater flow projections with demand projections in Task 1.2. Document quality of recycled water sources (percolation ponds and tertiary treatment systems) for constituents of concern for reuse – particularly salinity.          2020 Metro Plan & 2020 UWMP Scope of Work 5/18/2020 7 (4) Demand Management Measures (DMM)- Update and provide a narrative description of the DMMs implemented by the City based on any changes to DMM implementation since the 2015 UWMP and revised DWR requirements. It is assumed data will be provided to update tables and figures from the 2015 UWMP. (5) Stormwater - Assessment of stormwater resources will include evaluation of the City’s, Fresno Metropolitan Flood Control District and Fresno Irrigation District’s existing and planned stormwater infrastructure and operational data. (a) Assumption: Assessment of these parameters will be based on readily available reference documents and information that quantify and provide estimates of stormwater capture and recharge capacity. (6) Exchanges or Transfers – Assessment of existing Exchanges or Transfers will include evaluation of existing or previously completed exchanges or transfer agreements that City has entered into. (7) Long-Term Water Supply Yield - Develop estimates of long-term water supply yield based on analysis of the City’s existing water supply portfolio. Incorporate supply reliability estimates based on historic hydrology and available estimates of anticipated future water supply reliability for the City’s water sources. (8) Climate Change – Evaluate potential impacts climate change may have on City water supplies. (a) Assumption: Climate change impact assessments will be based on previously completed studies on impacts of climate change on City and other water supplies. 1.4 Existing Water Resources Systems ¾Review reference documents, compile relevant information, and develop description of City’s existing Water Resources Systems. Description of water resource systems will include developing summaries of existing and planned infrastructure the following elements: (1) Drinking Water System (2) Wastewater System (3) Recycled Water System (4) Flood Control and Groundwater Recharge System ¾Assumption: Assessment of City Water Resource Systems will not include hydraulic modeling. It is understood that hydraulic modeling needed to support assessment of the existing systems will be performed under a separate contract. Additionally, assessments of deficiencies in the existing Water Resource systems will be provided from previously completed studies or assessments.          2020 Metro Plan & 2020 UWMP Scope of Work 5/18/2020 8 1.5 Institutional Arrangements ¾Review reference documents, compile relevant information, and develop description of City’s existing Institutional Arrangements. Institutional Arrangements documentation will include description of existing and planned contractual or other arrangements for the following systems: (1) Water Systems (2) Wastewater Systems (3) Flood Control and Storm Drainage (4) Groundwater Quality and Management (5) Local, State and Federal Water management regulatory and guidance documents (6) Regional Land Use Planning 1.6 Existing System Assessment ¾Analyze City’s current water supply projections versus demand projections (e.g., status quo or no project alternative). Evaluate based on performance measures such as cost, supply yield, energy intensity/GHG emissions/environmental impact, and others. ¾Develop Supply/Demand Evaluation Tool that incorporates historic and future estimates of water supply availability for the City’s existing water supply sources and water demand. ¾Perform a gap analysis to determine any differences between the City’s supply yield and projected demands. Identify any potential surpluses or shortfalls in the City’s water supply portfolio. 1.7 Admin Draft Report ¾Prepare Admin Draft Report that summarizes the work completed in Phase 1. ¾Implement WSC Quality Assurance and Quality Control (QA/QC) practices. ¾Submit Admin Draft Report for City review and comment. DELIVERABLE(S): Seven (7) hard-copies and one electronic copy of the Admin Draft Report. 1.8 Draft Report ¾Prepare Draft Report that incorporates comments from the City on the Admin Draft Report. ¾Complete WSC QA/QC practices. ¾Submit Draft Report for City and stakeholder review and comments. DELIVERABLE(S): Fifteen (15) hard-copies and one electronic copy of the Draft Report. 1.9 Final Report ¾Prepare Final Report that incorporates comments from the City and stakeholders on the Draft Report.          2020 Metro Plan & 2020 UWMP Scope of Work 5/18/2020 9 DELIVERABLE(S): Fifteen (15) hard-copies and one electronic copy of the Final Report. TASK 2.0 PHASE 2 - WATER SUPPLY ALTERNATIVES ANALYSIS This phase includes assembling supply and infrastructure elements into alternatives to meet near-term and long-range demands, alternatives evaluation, and identification of the preferred alternative(s). The effort will be documented in the Phase 2 Report. The Phase 2 Report is expected to include the following topics: 1. Alternatives Development 1.1. Water Supply Elements 1.2. Element Screening 1.3. Alternative Formulation 2. Alternative Evaluation 2.1. Evaluation Criteria 2.2. Alternatives Evaluation 2.3. Economic Analysis 2.4. Multi-Criteria Analysis 2.5. Sensitivity Analysis 3. Preferred Alternative Summary The outline above may be modified based on findings from the analysis in this phase, and with approval from the City. 2.1 Kick-off Meeting, Meetings (2) & Workshops (4) Plan, organize, and conduct Meetings and Workshops to support Phase 2 Report development. Anticipated meetings for Phase 2 are: (1) Phase 2 Kickoff Meeting (a) Establish element screening and alternatives evaluation criteria (b) Review water supply elements to validate applicability (c) Preview potential alternative themes (2) Phase 2 Admin Draft Review Meeting (3) Phase 2 Draft Review Meeting ¾Anticipated workshops for Phase 2 are: (1) Preliminary Element Screening and Alternative Development Workshop (2) Alternative Review Workshop (3) Alternative Evaluation Workshop (4) Preferred Alternative Review Workshop          2020 Metro Plan & 2020 UWMP Scope of Work 5/18/2020 10 ¾Assumptions. It is assumed that the Workshops/Meetings will be held in-person (if possible under COVID19 response actions) and will last for a duration of 4 hours attended by up to 4 WSC staff. DELIVERABLE(S): Electronic copies of agenda and meeting materials at least five (5) working days prior to the meeting. Summary of action items within five (5) working days following the meeting. 2.2 Water Supply Elements Development and Screening ¾Establish screening criteria for water supply elements, such as maximum high-level cost, minimum yield, reliability and feasibility. ¾Develop and summarize Water Supply Elements for potential incorporation into Water Supply Alternatives (1) Up to 20 Water Supply Elements will be identified and characterized. Based on the RFP, the following elements will comprise the initial list of elements: 1 – Wastewater Reuse; 2 – Satellite Wastewater Reuse; 3 – Scattered Wells; 4 – Focused Recharge and Well Field; 5 – Plume Management; 6 – Intentional Recharge; 7 – Regional Surface Water Treatment Facilities; 8 – Small Package Surface Water Treatment Facilities; 9 – Water Conservation; 10 – Wastewater Reuse on Agricultural Lands; 11 – Untreated Surface Water Use for Public Landscape Irrigation; 12 – Additional Storage in the Kings River System; 13 – Additional Storage in the San Joaquin System; 14 – Adapting Flood Control Storage for Storage of Surface Supplies; 15 – Large-scale Water Importation; 16 – Cloud- seeding/Weather Modification; 17 – Desalination of Brackish Agricultural Drainage; 18 – Desalination of Seawater; 19 – Graywater; 20 – Other. (2) Characterize high level cost, yield, and reliability ¾Screen water supply elements for potential inclusion in Water Supply Alternatives 2.3 Water Supply Alternatives Development ¾Establish screening criteria for water supply alternatives. Based on the RFP, the following criteria will be considered: 1: Capital Costs; 2: Approximate Rate Impacts; 3: Water Budget Impacts; 4: Drought Resiliency; 5: Groundwater Response (qualitative); 6: Response to Regulatory Changes; 7: Compatibility with Phased Construction; 8: Ease of Implementation; 9: Environmental and Socioeconomic Impacts; 10: Ability to Accommodate Changing Land-Use Plans; 11: Maximize Availability of Supplies ¾Develop and summarize different Water Supply Alternatives. Develop initial alternatives based on themes, such as surface water emphasis or recycled water emphasis, using screened elements. Alternatives must meet minimum level of service goals established in Phase 1, such as minimum drought yield and maximum unit cost. (1) Up to 10 alternatives or sub-alternatives are assumed, including Status Quo (No Project)          2020 Metro Plan & 2020 UWMP Scope of Work 5/18/2020 11 ¾Define alternatives characteristics to support multi-criteria evaluation, such as lifecycle cost, yield, reliability, permitting, phasing, and implementation considerations. Alternative descriptions will include operational considerations and physical facilities. 2.4 Alternatives Evaluation ¾Conduct multi-criteria analysis of water supply alternatives ¾Review findings with the City and select up to 3 alternatives for sensitivity and resiliency analysis. The process is iterative, and alternatives will likely be refined as they are evaluated prior to selection of a preferred alternative. ¾Conduct sensitivity analysis that considers different criteria weightings and resiliency analysis that considers potential future scenarios, such as climate change or natural disasters. If a portfolio scores well in a sensitivity analysis, the analysis demonstrates the strength of the portfolio independent of weighting factors or scoring. ¾Identify recommended alternative 2.5 Admin Draft Report ¾Prepare Admin Draft Report that summarizes the work completed in Phase 2. ¾Implement WSC QA/QC practices. ¾Submit Admin Draft Report for City review and comment. DELIVERABLE(S): Seven (7) hard-copies and one electronic copy of the Admin Draft Report. 2.6 Draft Report ¾Prepare Draft Report that incorporates comments from the City on the Admin Draft Report. Complete WSC QA/QC practices. ¾Submit Draft Report for City and stakeholder review and comments. DELIVERABLE(S): Fifteen (15) hard-copies and one electronic copy of the Draft Report. 2.7 Final Report ¾Prepare Final Report that incorporates comments from the City and stakeholders on the Draft Report. DELIVERABLE(S): Fifteen (15) hard-copies and one electronic copy of the Final Report. TASK 3.0 PHASE 3 - FUTURE WATER SUPPLY PLAN This task entails conducting the work to develop the content and prepare the Prepare Phase 3 Report. The Phase 2 Report is expected to include the following topics:: 1. Future Water SupplyPlan 1.1. Summary of Current Supply and DemandConditions          2020 Metro Plan & 2020 UWMP Scope of Work 5/18/2020 12 1.1.1.2019 Demand 1.1.2.2019 Supply 1.1.3.2019 Groundwater Recharge 1.2. Summary of Projected Water Demands and AvailableSupplies 1.2.1.Projected Future WaterDemands 1.2.2.Future Available WaterSupplies 1.3. Future Water Supply Plan Objectives andGoals 1.4. Future Supply Components 1.4.1.Water Conservation 1.4.2.Groundwater 1.4.3.SurfaceWater 1.4.4.Recycled Water 1.4.5.Future New Water 2. Future Additional Water ConservationMeasures 2.1. Future Water Conservation Program Objectives, Goals, andPolicies 2.1.1.Water Conservation Objectives 2.1.2.Water Conservation Goals 2.1.3.Water Conservation Policies 2.2. Potential Future Water ConservationMeasures 2.2.1.Conservation Measure1 2.2.2.Etc. 2.3. Recommended Conservation Priorities 3. Future Groundwater 3.1. Future Groundwater Objectives, Goals, and Policies 3.1.1.Groundwater Objectives 3.1.2.Groundwater Goals 3.1.3.Groundwater Policies 3.2. Future Groundwater Use 3.2.1.Projected Future Groundwater Pumpage 3.2.2.Projected Groundwater Quality and TreatmentNeeds 3.3. Future Groundwater Recharge 3.3.1.Natural Groundwater Recharge 3.3.2.Required Future Intentional GroundwaterRecharge 3.4. Future Groundwater Response 4. Future SurfaceWater 4.1. Future Surface Water Objectives, Goals, andPolicies 4.1.1.Surface WaterObjectives 4.1.2.Surface WaterGoals 4.1.3.Surface WaterPolicies 4.2. Future Surface WaterUse 4.2.1.Future Surface Water Treatment and DirectUse 4.2.2.Future Intentional Groundwater Recharge 4.2.3.Future Groundwater Banking 5. Future RecycledWater 5.1. Future Recycled Water Objectives, Goals, andPolicies 5.1.1.Recycled WaterObjectives 5.1.2.Recycled WaterGoals 5.1.3.Recycled WaterPolicies          2020 Metro Plan & 2020 UWMP Scope of Work 5/18/2020 13 5.2. Future Recycled WaterUse 5.2.1.Future Recycled Water Use Areas 5.2.2.Projected Future Recycled WaterDemand 5.2.3.Future Tertiary Plant 5.3. Recycled Water MasterPlan 6. Future New Water SupplySources 6.1. New Water Supply Objectives, Goals, andPolicies 6.1.1.New Water SupplyObjectives 6.1.2.New Water Supply Goals 6.1.3.New Water Supply Policies 6.2. Potential New WaterSupplies 6.2.1.Additional Surface Water Supplies fromFID 6.2.2.New Surface Water supplies from Temperance Flat ReservoirProject 6.2.3.Groundwater Banking 6.2.4.Water Supply Purchases on the OpenMarket 6.2.5.Additional Recycled Water 6.2.6.Additional WaterConservation 6.3. Incorporation of Future New WaterSupplies 6.3.1.New Surface WaterSupplies 6.3.2.Groundwater Banking 6.3.3.Additional Recycled Water Supplies 7. Required infrastructure to Support Future Water SupplyPlan 7.1. Surface WaterTreatment 7.2. Groundwater Production and Treatment 7.2.1.Groundwater Production 7.2.2.Groundwater Treatment 7.3. Potable WaterSystem 7.3.1.Potable Regional Water Transmission and Transmission Grid MainSystem 7.3.2.Potable Water Distribution SystemStorage 7.4. Recycled Water Treatment, Storage, and TGMSystem 7.4.1.Estimated Recycled WaterDeliveries 7.4.2.Recycled WaterDistribution 7.4.3.Recycled Water SeasonalStorage 7.5. Recharge Facilities 7.6. Capital Costs for Required Infrastructure 7.6.1.Surface WaterTreatment 7.6.2.Groundwater Production 7.6.3.Groundwater Treatment 7.6.4.Regional Water System Transmission and Transmission Grid MainSystem 7.6.5.Treated WaterStorage 7.6.6.Recycled WaterFacilities 7.6.7.Recharge Facilities 7.6.8.Summary of Capital Costs 7.7. Operation and Maintenance Costs for RequiredInfrastructure 7.7.1.Surface WaterTreatment 7.7.2.Groundwater Production 7.7.3.Groundwater Treatment 7.7.4.Recycled Water Treatment and Seasonal StorageFacilities          2020 Metro Plan & 2020 UWMP Scope of Work 5/18/2020 14 7.7.5.Groundwater Recharge Facilities 7.7.6.Summary of O&M Costs 8. Plan Implementation 8.1. Recommended Facility Prioritization and OperationalStrategies 8.1.1.Overview of Recommended Water supplyPlan 8.1.2.Recommended Implementation Priorities 8.1.2.1. Water Conservation 8.1.2.2. Surface Water Treatment Facilities 8.1.2.3. Major Transmission Mains and Transmission Grid Mains 8.1.2.4. Groundwater Production and Wellhead TreatmentFacilities 8.1.2.5. Groundwater Recharge 8.1.2.6. Recycled WaterFacilities 8.1.2.7. New Water SupplyFacilities 8.1.3.Recommended Water System OperationalStrategies 8.1.3.1. Operational Strategy for Use of Treated SurfaceWater in Conjunction with Groundwater 8.1.3.2. Operational Strategy for Groundwater RechargeBasins 8.2. Allocation of Future Water Supply Plan FacilityCosts 8.2.1.Estimated Costs for the Future Water SupplyPlan 8.2.1.1. Capital Costs 8.2.1.2. Operational and MaintenanceCosts 8.2.2.Cost Allocation to Existing Rate Payers and New Growth 8.2.2.1. Allocation Methodology 8.2.2.2. Allocation to Existing Rate Payers 8.2.2.3. Allocation to New Growth 8.3. Required Cash Flow 8.4. Potential Funding Sources 8.4.1.Potential Financing Options 8.4.2.Potential Cost-Sharing Opportunities 8.4.3.Potential Grant and Loan Opportunities 8.4.3.1. Federal Funding Programs 8.4.3.2. State Funding Programs 8.4.3.3. Other Potential Funding Programs 8.4.3.4. Applicability to the City’s Future Water Supply PlanProjects 8.4.4.Funding Recommendations 8.4.4.1. Future Water System RevenueBonds 8.4.4.2. Additional Studies 8.4.4.3. Pursuit of Available Grants and Loans 8.5. Institutional Plan 8.5.1.Institutional Plan Elements 8.5.2.Lead Agency Designation 8.5.3.Owner for Key CIP/O&MComponents 8.5.4.Required Agreements 8.5.5.Key Planning and Policychanges 8.5.6.New Required Staff 8.5.7.ImplementationSchedule          2020 Metro Plan & 2020 UWMP Scope of Work 5/18/2020 15 The outline above may be modified based on findings from the analysis in this phase, and with approval from the City. 3.1 Kick-off Meeting, Meetings (2) & Workshops (3) ¾Plan, organize and conduct Meetings and Workshops to support Phase 3 Report development. ¾Anticipated meetings for Phase 3 are: (1) Phase 3 Kickoff Meeting (a) Review preferred alternative (b) Develop vision for future water supply plan (2) Phase 3 Admin Draft Review Meeting (3) Phase 3 Draft Review Meeting ¾Anticipated workshops for Phase 3 are: (1) Future Water Supply Plan Workshop (2) Future Water System Workshop (3) Implementation Plan Workshop ¾Assumptions. It is assumed that the Workshops/Meetings will be held in-person (if possible under COVID19 response actions) and will last for a duration of 4 hours, attended by up to 4 WSC staff. DELIVERABLE(S): Electronic copies of agenda and meeting materials at least five (5) working days prior to the meeting. Summary of action items within five (5) working days following the meeting. 3.2 Future Water Supply Plan ¾Develop summary of current and future water supply and demand conditions. ¾Develop summary of future water supply planning objectives and goals. ¾Refine Supply/Demand Analysis Tool for submittal to City and inclusion with Phase 3 report. 3.3 Future Supplies ¾Develop program specific elements from the Preferred Water Supply Alternative and the Future Water Supply Plan for the following supply components: (1) Additional Water Conservation Measures (2) Groundwater (3) Surface Water (4) Recycled Water (5) New Water Supply Sources          2020 Metro Plan & 2020 UWMP Scope of Work 5/18/2020 16 (6) Others (if applicable) 3.4 Infrastructure to Support Future Water Supply Plan ¾Develop summary of the required infrastructure required to support the individual components of the Preferred Water Supply Alternative and the Future Water Supply Plan. ¾WSC will coordinate with the hydraulic model consultant to perform various model scenarios to validate alternative project(s). WSC will provide the model consultant data, shapefiles, and other information needed to perform the necessary modeling scenarios. The hydraulic model consultant has a fully operational model of the City’s water system. ¾Develop project Capital and Operations and Maintenance cost estimates for each of the required infrastructure components. ¾Assumption: Any hydraulic modeling necessary to support the development of the Infrastructure to Support Future Water Supply Plan and other required tasks will be performed under a separate contract. 3.5 Plan Implementation ¾Develop an implementation plan that includes: (1) implementation actions, including any potential challenges (2) prioritized list of projects and a detailed 5-year CIP for near-term projects (3) a timeline, including any triggers that would necessitate future water supply projects (4) allocation of costs between existing rate payers and new development (5) identification of financing options (6) institutional planning needs (7) recommended policies that can be used to guide City’s water program 3.6 Admin Draft Report ¾Prepare Admin Draft Report that summarizes the work completed in Phase 3. ¾Implement WSC QA/QC practices. ¾Submit Admin Draft Report for City review and comment. DELIVERABLE(S): Seven (7) hard-copies and one electronic copy of the Admin Draft Report. 3.7 Draft Report ¾Prepare Draft Report that incorporates comments from the City on the Admin Draft Report. Complete WSC QA/QC practices. ¾Submit Draft Report for City and stakeholder review and comments. DELIVERABLE(S): Fifteen (15) hard-copies and one electronic copy of the Draft Report.          2020 Metro Plan & 2020 UWMP Scope of Work 5/18/2020 17 3.8 Final Report ¾Prepare Final Report that incorporates comments from the City and stakeholders on the Draft Report. ¾Submit GIS shapefiles used to develop the report figures and Excel-based tool sets developed during preparing of Phase 1, Phase 2, and Phase 3 works, including: Groundwater Water Balance Tool, Decision Support Tool, and Supply / Demand Analysis Tool. ¾Prepare PowerPoint Presentation for City Council. Make presentations to City Council. DELIVERABLE(S): Fifteen (15) hard-copies and one electronic copy of the Final Report. Electronic copy of PowerPoint presentation for City Council. TASK 4.0 PHASE 4 - PROGRAMMATIC/PROJECT ENVIRONMENTAL IMPACT REPORT 4.1 Kickoff Meeting and Review of Available Studies ¾This task includes the steps needed to initiate the CEQA environmental review process, including the kickoff meeting and data gathering. As part of this task, we will undertake ongoing environmental coordination with the City. ¾We will prepare for and organize a kickoff meeting with City staff. This meeting will occur at the opportune time in the Plan development process to maximize its value. This meeting will serve as a forum to review and confirm study objectives and establish an operational protocol. Working schedules will be finalized and details for scheduled tasks will be discussed. We will use this opportunity to collect any relevant studies and information not already transmitted. A communication plan will be presented during the kickoff meeting. 4.2 Project Description ¾Prepare a Project Description for evaluation in the PEIR. ¾Textual, tabular, and graphic presentation will be used as necessary to facilitate a thorough understanding of the proposed Plan Update and the specific projects considered. Any potential state or federal permit or consultation requirements will be noted. The project description will discuss features that have been incorporated into the Plan to minimize potential environmental or land use conflicts. A brief discussion of the environmental setting will also be provided. Up to 6 figures will be provided. The project description will include the following elements: (1) The location and boundaries of the proposed plan (2) A statement of objectives sought by the proposed plan, including the underlying purpose of the plan (3) A comprehensive project description and scope (4) A discussion of the benefits of the project          2020 Metro Plan & 2020 UWMP Scope of Work 5/18/2020 18 (5) A statement briefly describing the intended uses of the PEIR, including a list of the agencies that are expected to use the PEIR in their decision making; a list of permits and other approvals required to implement the project; and a list of related environmental review (6) Consultation requirements required by federal, state, or local laws, regulations, or policies ¾Assumption: This scope assumes two rounds of review / comment revisions from the City to be provided in a consolidated and electronic, editable format (i.e. track changes in MS Word) 4.3 Project Scoping ¾As directed by the RFP, we have included preparation of a Notice of Preparation (NOP) as part of this scope. When an EIR is determined to be necessary, the lead agency need not prepare an Initial Study (Section 15060 (d) of the State CEQA Guidelines). Given the fact that the City has already determined that an EIR is required and the expeditious schedule for the Plan and accompanying CEQA document it is recommended that an Initial Study not be prepared. The NOP will be distributed to relevant responsible and trustee agencies, all cities and counties bordering the city of Fresno, and interested organizations and individuals; the distribution list for the NOP will be determined in coordination between the CEQA team, the Plan team and the City. Publication of the NOP will initiate a 30-day public scoping period for the PEIR. ¾Attend and lead a public scoping meeting for the PEIR. We will prepare a sign-in sheet, comment cards, and a PowerPoint presentation for the meeting. We will review responses to the NOP, summarize the NOP comments in the PEIR, and incorporate responses to the comments into the development of the PEIR. If desired, coordination of a scoping meeting can be provided on a time and materials basis, if authorized in advance by the City. ¾Assumption: This scope assumes one round of review and consolidated comments from the City on the NOP and draft distribution list. 4.4 Plan/Project Alternatives ¾We will participate with City staff during the development of project alternatives. It is assumed that the City and WSC will select a “Preferred Plan Alternative” to be analyzed in depth in the PEIR and up to five (5) specific projects. State CEQA Guidelines require that the PEIR identify and develop a range of reasonable alternatives to the proposed project that meet most of the project objectives and reduce environmental impacts. The Alternatives section of the PEIR will consider the other alternatives as well as the No Project Alternative. The alternatives will be analyzed at a sufficient level of detail so that they could be adopted as the project if needed. ¾Assumption: This scope of work assumes analysis of up to two (2) Plan-level alternatives, in addition to the No Project Alternative along with two alternatives aimed at reducing impacts associated with the specific projects included in the Plan Update. 4.5 Technical Reports ¾This task involves the preparation of City-compliant technical studies in support of the PEIR. Detailed technical reports may be required for specific resource areas. This scope assumes that          2020 Metro Plan & 2020 UWMP Scope of Work 5/18/2020 19 technical studies to be prepared will consist of a Biological Resources Evaluation and a Cultural Resources Survey Report. Preparation of the technical reports will include consultation with applicable federal and state agencies with jurisdiction over resources in the project area. ¾Traffic Impact Assessment – Depending on the type and size of the individual projects, a traffic impact assessment may be needed to support the CEQA analysis. However, because water infrastructure projects typically do not generate high levels of vehicle trips during operation it is anticipated that the traffic study would not be needed. If needed, the study would focus on impacts occurring during construction activities, including: a) calculation of vehicle miles traveled from construction worker trips as well as material transport to and from the site and b) impacts to traffic flow and resulting impacts on emergency access and roadway users from lane closures, staging areas, etc. The specific details around the size, type and location of specific projects, which are not known at this time, will determine whether a traffic impact assessment is necessary as well as the associated cost. For the purposes of this proposed scope of work, we have included a cost estimate of $20,000 for a future potential traffic impact assessment if needed. ¾This list of technical studies represents our best professional estimate at this time regarding the studies likely required to be completed to support the PEIR. However, this list is subject to change through the project scoping process. We will notify the City immediately if additional environmental studies are determined to be necessary. If the public review process leads to a determination that additional issues are required for examination or that particular issues require a greater depth of analysis than proposed, additional budget and a modified scope may be required. ¾Biological Resources Assessment - The scope for a biological resources assessment has been developed which represents the industry’s standard requirements for a typical biological resources investigation. The scope for a biological resources assessment consists of data procurement, literature and database reviews, field surveys, and report preparation that would include a summary of our findings upon completion of the survey efforts. The objectives of the resultant biological report are to support analysis of impacts and development of avoidance, minimization and mitigation measures in accordance with CEQA. (1) Data Procurement. Obtain and evaluate baseline data (e.g., aerial photograph, topographic quadrangle, soil survey).          2020 Metro Plan & 2020 UWMP Scope of Work 5/18/2020 20 (2) Literature and Database Reviews. Review and evaluate background information regarding biological resources in the 2020 Metro Plan area (e.g., previously prepared reports, primary literature, Rincon project files, resource agency guidelines and technical reports). Review the official online species list from the United States Fish and Wildlife Service identifying federally listed, proposed, or candidate species that may potentially occur, or be affected by projects, in the Plan area. Review the California Department of Fish and Wildlife Rare Find (otherwise known as the California Natural Diversity Data Base) for reported occurrences of special status species within the 2020 Metro Plan area. In addition to the aforementioned database reviews, we will review the California Native Plant Society Inventory of Rare and Endangered Plants of California for reported occurrences of special status plant species within the study area. (3) Field Survey. For areas identified as low potential for impact to biological resources, a vegetation map and potential species occurrence assessment will be generated based on desktop analysis only. Examples of these areas include urban, residential, and industrial areas, which have a low likelihood to support special-status species. We will conduct a reconnaissance-level biological survey of areas with proposed modifications to existing facilities or new planned facilities that are in areas identified as having moderate or high potential for special status species occurrence. Habitat types present and their suitability to support special status species will be documented. The identification and mapping of potential special-status wildlife species or habitat will be based on a suitability analysis only and does not include definitive presence/absence surveys of the species potentially present. That level of analysis would be premature at this time given the programmatic nature of the analysis. (4) Reporting. We will prepare a comprehensive report describing the methods and results of the biological resources assessment, including a figure depicting terrestrial vegetation communities, habitat types and other biological features observed during the field reconnaissance survey. The intent of this report is to assist with future project design and/or mitigation planning efforts. A draft report will be submitted to the City for review and comment. (5) Assumptions: It is assumed the project area to be surveyed is no more than 200 acres in size (assumes five project sites up to 40 acres each or a combination of five sites of various sizes totaling 200 acres or 40 miles of unpaved pipeline corridor at less than a 30% slope) and that the survey can be completed by two biologists over a period of two days. In each of these cases it is assumed the survey area is located in areas dominated by urban or suburban development or agricultural resources. If pipelines are located within paved areas, such as along roadway rights-of-way, a greater number of miles could be covered in the same amount of time because the survey would be done via windshield. This scope assumes two rounds of review / comment revisions on the draft report from the City to be provided in a consolidated and electronic, editable format (i.e. track changes in MS Word).          2020 Metro Plan & 2020 UWMP Scope of Work 5/18/2020 21 ¾Cultural Resources Evaluation - The Cultural Resources Technical Report will include a discussion of the archaeological and historical characteristics of the 2020 Metro Plan area, based upon readily available information. We will summarize applicable federal, state and local cultural resources regulations. The analysis will assess the existing setting information, and qualitatively determine the likelihood of impacting resources within the 2020 Metro Plan area as a result of future projects. As an industry standard, cultural resources studies are considered valid for up to five years; therefore, future projects within the current study area occurring more than five years from now may require reanalysis. The programmatic analysis does not include site visits or formal pedestrian surveys of the study area. (1) For the five specific projects included in the 2020 Metro Plan, we will prepare a project- level assessment at a level of detail commensurate with the level of detail and information available for each project at the time. (2) Cultural Resources Background Search. We will conduct a California Historical Resources Information System records search of the 2020 Metro Plan area at the Southern San Joaquin Valley Information Center (SSJVIC) located at California State University, Bakersfield. The primary purpose of the records search is to identify any previously recorded cultural resources known to exist within or near the Plan area. In addition to the archaeological inventory records and reports, an examination will be made of historical maps, the National Register of Historic Places, California Register of Historical Resources, the California Historical Resources Inventory, and the listing of California Historical Landmarks. The records search will also reveal the nature and extent of any cultural resources work previously conducted within the Plan area and adjacent vicinity. A map showing the results of the literature search including areas previously inventoried and previously recorded sites will be provided. We assume the SSJVIC will conduct this records search within a maximum direct expense of $1500. As part of the background research, we will request a records search of the Sacred Lands File from the Native American Heritage Commission (NAHC) and will contact individuals and/or organizations who may have knowledge of, or concerns with, historic properties in the area. As many as two telephone calls will be made to each of the contacts from the NAHC and local organizations to document “good-faith” efforts to follow-up and the results will be documented in a table.          2020 Metro Plan & 2020 UWMP Scope of Work 5/18/2020 22 (3) Cultural Resources Technical Study. Upon completion of the records search and literature review, we will conduct a survey of the five project-level site locations. Upon completion of the survey effort, we will prepare a technical report documenting the results of the cultural resources analysis, as well as provide programmatic management recommendations for cultural resources within the 2020 Metro Plan area. The report will be prepared following the California Office of Historic Preservation’s Archaeological Resource Management Reports: Recommended Contents and Format, and will include a historic context, methods and impacts considerations. The report will include figures depicting the area surveyed and studied for cultural resources. Draft copies of the report (digital pdf) will be submitted to the lead agency for review and approval. We assume two rounds of comments from the local and federal lead agencies will be necessary. Once reviewed, digital copies of the final report will be prepared and submitted. (4) Assumptions: No cultural resources requiring recordation or updating will be identified by the records search or field survey at any of the project-specific locations. Up to 50% of the specific project area will be in undeveloped or rural areas and will be surveyed on foot; the remainder of the specific project area will be in urban or built up areas and will be surveyed via windshield survey only. The cultural resources survey can be conducted by one cultural resources specialist over a period of five days and the survey will not identify any archaeological resources that require recordation or updating. A maximum of three built environment resources will be recorded and evaluated from the field survey. Included in this assumption is that up to 50% of the specific project area will be in undeveloped or rural areas and will be surveyed on foot; the remainder of the specific project area will be in urban or built up areas and will be surveyed via windshield survey only. The cultural resources survey can be conducted by one cultural resources specialist over a period of five days and the survey will not identify any archaeological resources that require recordation or updating. This equates to either 200 acres or approximately 40 miles of pipeline route. This estimate assumes the pipeline route is unpaved and is in terrain in less than 30 degrees slope. For pipeline located within paved areas, such as along roadway right-of-way, a greater number of miles could be covered in the same amount of time because the survey would be done via windshield. Should any additional cultural resources be identified during the survey, the budget would need to be augmented to record or update the resources. No subsurface testing will be conducted, nor will any artifacts, samples, or specimens be collected. 4.6 Admin Draft PEIR ¾The PEIR will be prepared in accordance with the State CEQA Guidelines, which set the standards for adequacy of an EIR. Specifically, the State CEQA Guidelines declare that:          2020 Metro Plan & 2020 UWMP Scope of Work 5/18/2020 23 ¾An EIR should be prepared with a sufficient degree of analysis to provide decision-makers with information which enables them to make a decision which intelligently takes account of environmental consequences. An evaluation of the environmental effects of a proposed project need not be exhaustive, but the sufficiency of an EIR is to be reviewed in light of what is reasonably feasible. ¾The analysis will rely on available technical reports to streamline the analytical effort, including the previous certified EIR for the Metro Plan. The overall approach to the analysis will be to verify and utilize existing data, supplemented where necessary with new information or modeling, to create a PEIR that maximizes the use of performance standards and/or policies to ensure that implementation of future projects under the 2020 Metro Plan requires minimal or no subsequent environmental review as the design progresses. ¾Prepare an Admin Draft PEIR for review by the City. This shall include completion of a table of contents, preparers and reference chapters. This scope assumes two rounds of review by the City, with all comments in each round being provided in a compiled and editable format (i.e. track changes). ¾Meet with the City to discuss any concerns, modifications, and input to the analysis and proposed mitigation measures. We assume all comments will clearly indicate the requested changes. It will be the responsibility of City staff to resolve internal inconsistencies among the various commenters. ¾Executive Summary - We will prepare a summary of the proposed project and associated environmental consequences. This information will be presented in tabular format to simplify review by decision-makers and the general public. This section will summarize project impacts and proposed mitigation measures. The summary will also note areas of known controversy and will summarize the alternatives reviewed and their associated impacts. The summary will also identify the environmentally superior alternative and rationale for its selection as such. ¾Introduction and Environmental Setting - We will prepare an Introduction and Environmental Setting for inclusion in the PEIR. This section will introduce the proposed project and summarize the PEIR process and purpose/use of the PEIR. This section will also explain how the PEIR will be used for subsequent environmental reviews of projects under the 2020 Metro Plan. In addition, the Introduction will provide relevant background information discussion, including but not limited to the organization of the PEIR and previous planning efforts. The environmental setting will provide narrative and map descriptions of the existing environment. The 2020 Metro Plan area and facilities will be illustrated on mapping. In addition, the geographic character of the area will be described and illustrated here, including land use/zoning, vegetation, wetlands, floodplains and wildland fire hazard zones. ¾Environmental Impact Analysis - Each environmental issue addressed in the PEIR will have four main subsections: (a) Setting          2020 Metro Plan & 2020 UWMP Scope of Work 5/18/2020 24 (b) Impact analysis (c) Mitigation measures (d) Level of significance after mitigation The prelude to the topic-specific environmental analysis will include an explanation of how the impact analysis will proceed. It is important to set forth the general analytical framework for addressing the potential impacts and mitigation of future projects under the 2020 Metro Plan. The PEIR will evaluate impacts of the overall program, and detailed impacts of up to five specific projects for a hybrid analysis approach. Where possible, impacts will be quantified. If existing data does not allow definitive quantification, reasonable assumptions will be used to qualitatively forecast potential impacts. Mitigation will take the form of a mitigation framework for future projects in conjunction with the subsequent environmental review process, as needed, and will be based upon mitigation measures identified in the 2014 PEIR for the 2014 Metro Plan, where practicable. All environmental topics identified in the 2020 CEQA Guidelines will be addressed in the PEIR for the 2020 Metro Plan. The discussion below provides an overview of the approach and anticipated impact types for each environmental topic. As each impact analysis section is prepared, we will compile source reports and other data for inclusion in the administrative record. The State CEQA Guidelines include the following topics: (1) Aesthetics (2) Agricultural Resources (3) Air Quality (4) Biological Resources (5) Cultural Resources (6) Energy (7) Geology and Soils (8) Greenhouse Gas Emissions (9) Hazards and Hazardous Materials (10) Hydrology and Water Quality (11) Land Use/Policy Consistency (12) Mineral Resources (13) Noise (14) Population/Housing (15) Public Services          2020 Metro Plan & 2020 UWMP Scope of Work 5/18/2020 25 (16) Recreation (17) Transportation (18) Tribal Cultural Resources (19) Utilities and Service Systems (20) Wildfire The technical approach to analyzing each potential environmental issue is described below. Based on our understanding of the project, the following environmental issues will be addressed in detail in the EIR: Aesthetics, Agricultural Resources, Air Quality, Biological Resources, Cultural Resources, Greenhouse Gas Emissions, Hazards and Hazardous Materials, Hydrology and Water Quality, Land Use, Noise, Public Services and Utilities and Service Systems. The remaining issue areas will be address in a section termed Effects Found Not to be Significant. ¾Aesthetics, Light and Glare - Construction of the projects considered in the 2020 Metro Plan may cause impacts to the visual environment due to the presence of construction vehicles and equipment. In general, project components are anticipated to be visually compatible with existing and surrounding land uses once constructed. Aesthetic impacts will be evaluated from public viewpoints. The analysis will include review of the visual resource sensitivity of the Plan area, including any scenic resources identified in local planning documents (such as scenic vistas, and scenic highway designation). Photos showing views of the five project sites will be provided to help depict the visual character of the specific sites and the immediate project areas. If necessary, mitigation measures may include screening to buffer views of the project sites from nearby sensitive resources. (1) Assumptions: This scope does not include preparation of visual simulations for any of specific projects included in the Plan. ¾Agriculture and Forestry Resources - The majority of the service area is designated as “Urban- Built Up Land.” The PEIR will confirm whether there will be an effect on farmland or forestland and whether the 2020 Metro Plan would convert such lands to another use. The analysis will be based on a desktop review only and no field work is anticipated to be required. ¾Air Quality - The air quality section will be prepared in accordance with the methodologies outlined in the San Joaquin Valley Air Pollution Control District (SJVAPCD) guidelines. The PEIR will include a detailed discussion of the current air quality setting within the local airshed along with local climatic and air pollution data from local air monitoring stations. Emission factor data, when not identified in the SJVAPCD guidelines, will be obtained from EPA AP-42, Compilation of Air Pollutant Emissions Factors, Third Edition, and any updates published by the U.S. EPA. The motor vehicle constituents of concern include reactive organic gases, nitrogen oxide, carbon monoxide, and particulate matter. Significance criteria will be based on SJVAPCD thresholds. Construction emissions will be estimated for the Preferred Alternative using estimates of the types of equipment needed for individual construction projects for the worst-case day during construction using the California Emissions Estimator Model (CalEEMod) software. It is          2020 Metro Plan & 2020 UWMP Scope of Work 5/18/2020 26 anticipated that the worst-case day analysis at the Plan level will provide a reasonably conservative estimate of the emissions also associated with the five specific projects and a separate air quality model run for each project will not be required. The section will include a qualitative discussion and analysis of odor or improvements to control due to types of facilities expected to be proposed. Where necessary, the PEIR will identify programmatic measures required to mitigate air quality impacts identified, such as: (1) Dust control measures during construction (2) Measures to minimize or avoid stationary source emission impacts (3) Proposed measures to minimize odor impacts (4) Community Plan design guidelines or standards to promote alternative trip modes (5) Measures to minimize engine idling (6) Development of an air impact fee program ¾Biological Resources - The impact analysis will be based on the Biological Resources Assessment and will evaluate the Plan’s impacts relative to both state and federal requirements as well as locally recognized thresholds of significance. It will include analysis of both direct and indirect impacts as well as temporary impacts that may occur during construction of projects envisioned by the Plan. The Biological Resources Assessment prepared under Task 5.1 will inform the analysis in this section of the PEIR. Avoidance, minimization, and mitigation measures will be developed for all impacts identified. Mitigation measures will focus on measures that will be required to ensure the proposed project adequately avoids, minimizes, and mitigates potential impacts to regulated biological resources. ¾Cultural Resources - The PEIR section will be based on the Cultural Resources Study described previously and will include a discussion of the archaeological and historical setting of the Plan area along with the sites of the five projects identified in the Plan, a description of impacts based on the cultural resources technical report and any additional information, and identification of mitigation measures for identified impacts. The section will summarize applicable federal, state and local cultural resources regulations. The analysis will assess the existing setting information and qualitatively determine the likelihood of impacting resources resulting from Plan implementation. Mitigation measures will be proposed, as appropriate, to reduce potential impacts to cultural resources, where practicable.          2020 Metro Plan & 2020 UWMP Scope of Work 5/18/2020 27 ¾Energy - As of January 3, 2019, Appendix G of the State CEQA Guidelines now requires a discussion of the energy impacts of proposed projects, with an emphasis on avoiding or reducing wasteful consumption of energy and supporting applicable renewable energy plans. The analysis will consider at a programmatic level the Plan’s energy requirements and quantify, as feasible, the energy use efficiencies by amount and fuel type at a programmatic level, including construction and operation of the individual projects, and the degree to which the Plan complies with existing energy standards and local plans for energy efficiency. This analysis will describe program commitments, design features, and mitigation measures, if necessary, to minimize and reduce the Plan’s consumption of fuel and energy. ¾Geology and Soils - The 2020 Metro Plan area is largely previously disturbed and developed. The analysis in the PEIR will summarize the results of existing geotechnical investigations prepared for previous projects, if available, and identify existing regional and site-specific geology and soils constraints (such as liquefaction, compressible soils, and subsidence). Under the 2020 CEQA Guidelines, Paleontological Resources will also be addressed under Geology and Soils. We will conduct a paleontological resources assessment to identify the geologic units within the 2020 Metro Plan area, determine the paleontological sensitivity of geologic units, assess potential for impacts to paleontological resources, and recommend mitigation measures to avoid, minimize or mitigate impacts to scientifically significant paleontological resources. We will conduct a formal paleontological locality search to provide documentation of any previously recorded paleontological resources from within the Plan area or within outcrops of the same geologic units that occur in the vicinity. Published and unpublished literature and geologic maps will be reviewed in order to assess the paleontological resource potential of the study area. The analysis of paleontological resources will discuss the regulatory setting for paleontological resources, the geology of the project area in terms of paleontological sensitivity, present the results of the paleontological sensitivity analysis, summarize and discuss previously recorded fossil localities within the project areas (if any), provide an assessment of potential impacts to paleontological resources from project development, and present paleontological resource mitigation recommendations. (1) Assumption: Direct cost of the formal locality search will not exceed $500 and no paleontological field survey will be required. ¾Greenhouse Gas Emissions - The PEIR will evaluate impacts related to greenhouse gases (GHGs) and climate change. We will analyze impacts associated with construction and operational GHG from the project, as well as project consistency with available local plans. The analysis will quantitatively assess project-related GHG emissions using CalEEMod. We will briefly describe the status of applicable regulations such as Assembly Bill 32 (Global Warming Solutions Act), Senate Bill 97, and Senate Bill 32, taking into account the Senate Bill 32 GHG reduction target of 40 percent below 1990 levels by 2030. If significant GHG emissions impacts are identified, mitigation measures will be developed to avoid, minimize or mitigate such impacts to less than significant levels, if feasible.          2020 Metro Plan & 2020 UWMP Scope of Work 5/18/2020 28 The scientific knowledge, governmental regulations, and case law surrounding the analysis of GHG emissions under CEQA is constantly evolving and is currently being litigated in a variety of court cases across California. Additionally, lead agencies have discretion to develop their preferred approach to performing climate change analysis for projects and may adjust their views on acceptable methodologies on pace with changes in scientific knowledge and regulatory schemes. As such, the appropriate methodologies to evaluate the significance of project-level GHG emissions are subject to change at any time. This scope represents our best understanding of currently accepted methodologies. We will work closely with the City to coordinate information regarding sustainability features that may be included in the projects considered under the Plan. If the projects will include features to reduce energy use at the site, GHG emissions reductions from project sustainability features will be calculated using CalEEMod, and the net decrease in total Plan GHG emissions will be identified. ¾Hazards and Hazardous Materials - Hazard conditions associated with the proposed project will be examined in the PEIR, based upon publicly available data from agency databases, field observations, and technical studies provided by the City, if any. This scope does not include site- specific soil contamination studies due to the programmatic nature of the PEIR. Should analysis of the existing environment for hazards indicate that study of site-specific soil contamination conditions is warranted for future work on a given project site, we will recommend that analysis be conducted at a project level, rather than programmatic. We will provide program-level mitigation, if needed, establishing performance standards to address hazardous materials concerns if site-specific analysis is to be conducted at a later date. (1) Assumption: No site-specific soil contamination studies will be prepared. ¾Hydrology and Water Quality - We will summarize existing water quality conditions in the Plan area. The characteristics of the local watershed will be characterized, impaired streams within the watershed will be identified, and flood hazard zones will be described using FEMA and other publicly available mapping. We will assess existing runoff conditions and character of surface water features and will programmatically evaluate the impacts of the Plan on surface runoff and changes in drainage patterns. Changes to the groundwater table as a result of Plan implementation will be based on the results of the water budget analysis. We will summarize the hydrologic and water quality setting, relevant regulatory framework, potential impacts, level of significance, and mitigation measures necessary to reduce impacts. ¾Land Use/Policy Consistency - This section will discuss general land use compatibility, as necessary, but will focus on the consistency of the 2020 Metro Plan with the applicable local and regional planning documents, such as the City of Fresno General Plan. The 2020 Metro Plan projects are expected to be consistent with existing policies and ordinances, and this will be confirmed in the analysis.          2020 Metro Plan & 2020 UWMP Scope of Work 5/18/2020 29 ¾Mineral Resources - According to the City of Fresno General Plan EIR, the San Joaquin River resource area, which contains a high concentration of aggregate materials, is located in the City’s sphere of influence. This section will discuss impacts to mineral resources and will determine whether any project elements of the 2020 Metro Plan overlap with the San Joaquin River resource area. Impacts to mineral resources are not anticipated based on information from applicable plans and regulations. ¾Noise - No long-term increase in peak hour trip generation is anticipated from the 2020 Metro Plan; therefore, the analysis will focus on long-term changes to equipment noise throughout the Plan area. The analysis will review applicable City noise and land use compatibility criteria for the Plan area. For each of the five specific projects, up to three short-term noise level measurements will be conducted on and around the sites (up to 15 total measurements). Construction noise will be estimated at nearby sensitive receptors and evaluated in terms of maximum levels (Lmax) and hourly equivalent continuous noise levels (Leq). Impacts associated with construction vehicular traffic will be assessed using the U.S. Federal Highway Traffic Noise Model (TNM) based on information to be provided by the City. In some cases, the individual components of the proposed projects may contribute to an overall reduction in noise generated by on-site equipment, given ongoing improvements in technology. Mitigation measures will be provided as necessary that establish noise performance standards to reduce impacts to less than significant levels. (1) Assumption: Up to 15 short-term noise measurements will be conducted; 24-hour noise measurements are not anticipated to be required and are not included in this scope. ¾Population/Housing - Implementation of the 2020 Metro Plan would occur in line with the current City of Fresno General Plan, including with respect to growth projections for population and housing. The PEIR will provide information and analysis to demonstrate that the 2020 Metro Plan would not result in growth inducement or residential displacement. ¾Public Services - This analysis will evaluate the 2020 Metro Plan’s effects related to the provision of services, including fire, law enforcement, educational, and recreational services. Data sources will include readily available documents, including contact with local service providers. The 2020 Metro Plan is not anticipated to impede or require expanded or revised public services. ¾Recreation - The PEIR will assess potential impacts of the 2020 Metro Plan to nearby recreational resources and opportunities. The 2020 Metro Plan is not anticipated to affect recreational facilities, resources, or opportunities.          2020 Metro Plan & 2020 UWMP Scope of Work 5/18/2020 30 ¾Transportation - The PEIR will qualitatively describe traffic and transportation conditions in the 2020 Metro Plan service area. This section will qualitatively analyze anticipated operational and construction-related impacts resulting from implementation of the 2020 Metro Plan. Operation of projects considered by the Plan are anticipated to result in trip generating uses similar to current conditions. However, construction of the project could have the potential to create temporary increases in trips, and temporary impacts to transportation facilities (e.g. lane closures associated with installation of in-road facilities). Mitigation is likely to focus on control measures, such as coordination with agencies and effective development and implementation of traffic control plans during construction. Also, given the timing of the EIR a vehicle-miles traveled (VMT) analysis will be required per the updated State CEQA Guidelines. While VMT increases are anticipated to short-term and temporary and related primarily to construction activities, the analysis will make an estimate of construction-related VMT and characterize this construction phase impact; anticipated to be less than significant. (1) Assumption: Based on information available at this time it is assumed a qualitative analysis will be sufficient to inform the analysis of the project and a quantitative traffic impact analysis prepared by a traffic engineering firm will not be required. However, if based on discussions with the City and/or the scoping process it is determined a full traffic impact analysis is needed, we have established relationships with a number of local traffic firms who we would bring on in a subconsultant role to assist with this effort. ¾Tribal Cultural Resources - Tribal cultural resources were not addressed in the 2014 PEIR and will be addressed in accordance with the 2020 CEQA Guidelines. Under Assembly Bill 52, the CEQA lead agency is required to begin consultation with California Native American tribes traditionally and culturally affiliated with the project area prior to the release of the CEQA document. We will assist the City with undertaking a good faith effort at consultation for Assembly Bill 52 as described below. (1) Preparation of the Tribal Cultural Resources section of the PEIR will analyze the 2020 Metro Plan’s potential impacts on tribal cultural resources. To prepare this analysis, we will review the draft plan and proposed future projects as well as information obtained during Assembly Bill 52 consultation between the City and interested tribes. We will assist the City with government-to-government Native American consultation as follows: (a) Prepare the Assembly Bill 52 consultation letters to be placed on City letterhead (b) Prepare and submit a Native American Heritage Commission (NAHC) Sacred Lands File request (c) Prepare a tracking sheet and instructions to be provided to the City; instructions will include details regarding schedule and timelines associated with Assembly Bill 52 to ensure timely consultation          2020 Metro Plan & 2020 UWMP Scope of Work 5/18/2020 31 (d) If meetings with Native Americans are necessary, we will be available to provide additional assistance on a time-and-materials basis, if requested. We will collect regional background information on tribal cultural resources that could be affected by the 2020 Metro Plan. The collected information will include the NAHC Sacred Lands File Search, reviews of regional ethnographic information, information from relevant past projects, and information provided through government-to-government tribal consultation in accordance with Assembly Bill 52. We are acutely sensitive to tribal concerns in the area and will provide the support necessary to facilitate a communicative and streamlined consultation process. ¾Utilities and Service Systems - The PEIR will evaluate the 2020 Metro Plan’s potential impacts to existing infrastructure, including with respect to water, wastewater, and solid waste facilities. Construction activities would temporarily generate solid waste such as soil, concrete, and other removed materials; the PEIR will describe that solid waste generated by construction of individual projects would be disposed of in accordance with all applicable statutes and regulations and will evaluate whether nearby landfills have the capacity to accept solid waste generated by project construction activities. This section will further discuss how the project relates to conformance with applicable Regional Water Quality Control Board wastewater treatment requirements, the impacts on-or of- any related utility improvements (e.g. stormwater improvements), required water supply entitlements, or wastewater expansion. ¾Wildfire - This section will include a discussion of the Plan area along with mapping of very high fire hazard severity zones with respect to facilities included in the Plan. This section will address the potential for implementation of the Plan to impair an emergency response plan or emergency evacuation plan; exacerbate wildfire risks due to slope, prevailing winds or other factors; require installation or maintenance of infrastructure which may exacerbate fire risk; expose people or structures to downstream flooding or landslides from postfire slope instability or drainage changes. ¾Alternatives - The alternatives developed as described above will be evaluated at a level of detail that will provide decision-makers and the public adequate information to decide among alternatives. For each of the selected alternatives, each environmental issue area will be briefly evaluated in a qualitative manner to determine whether the alternative would have the potential to result in greater, similar, or reduced environmental impacts when compared to the impacts of the preferred alternative. Where appropriate and feasible, quantitative comparisons will be provided. The results of the alternatives analysis will be summarized graphically in a comparison matrix. This section will also identify the “environmentally superior alternative.” If the No Project Alternative is determined to be environmentally superior, the PEIR will identify the environmentally superior alternative among the remaining scenarios. ¾Other CEQA-Required Sections - The PEIR will include all other sections required by the State CEQA Guidelines, including growth inducing impacts and irreversible significant effects.          2020 Metro Plan & 2020 UWMP Scope of Work 5/18/2020 32 The growth-inducing impacts section of the PEIR will focus on the extent to which implementation on the 2020 Metro Plan will serve as the removal of a barrier to growth. This evaluation will be based on project growth trends relative to infrastructure capacity, as coordinated in local and regional planning documents, such as the General Plan and its PEIR. DELIVERABLE(S): Seven (7) hard-copies and one electronic copy of the Admin Draft PEIR. 4.7 Public Draft PEIR ¾After receiving comments regarding the Administrative Draft PEIR, we will revise the PEIR to address comments, and produce the public Draft PEIR with Technical Appendices. Upon receiving clearance, we will print and deliver 15 printed copies, one electronic PDF file and one electronic MS Word document. We will be responsible for posting of all notices, including posting the Notice of Availability with the County Clerk and State Clearinghouse. We will coordinate with the City to prepare a list of recipients of the Notice of Availability and prepare the Notice of Availability, which can also function as the newspaper notice. ¾The consultant team shall prepare for and attend two public hearings or meeting in support of the project. The public hearings/meetings will include a presentation of environmental components of the PEIR and a response to technical questions that arise during the public hearing. Following the public hearings/meetings, meeting notes will be prepared, and written and oral comments will be collected and summarized for submittal to the City for review. ¾Assumption: This scope includes up to two rounds of consolidated comments from the City on the Administrative Draft PEIR prior to preparation of the Public Review Draft PEIR. We assume the City will be responsible for publication of the Notice of Availability in a newspaper of general circulation and payment of any publication and filing fees. We can coordinate these efforts, if desired, for an additional cost. ¾Complete WSC QA/QC practices. DELIVERABLE(S): Fifteen (15) hard-copies and one electronic copy of the Public Review Draft PEIR. 4.8 Final PEIR and MMRP The final formal stages of the PEIR process involve responding to comments, public hearings, and final publication tasks. ¾Response to Comments/Administrative Final PEIR - Following the close of the public review period, we will review the comments and schedule a meeting with the City to discuss key comments and approaches for response. Comment letters will be annotated to relate comments with responses. Responses will focus on comments raising an environmental concern and generally rely on substantial evidence already in the Draft PEIR, as well as supplemental clarification or explanation. We will prepare draft Response to Comments for City review. Revisions to the Draft PEIR will be in an Errata format/section indicating what section is being modified, with content changes identified in a strikeout (for deletions) and underline format (for additions).          2020 Metro Plan & 2020 UWMP Scope of Work 5/18/2020 33 (1) Assumption: No more than 20 comment letters will be received, and no more than 60 hours of professional time will be required to respond to public comments on the Draft PEIR. This scope assumes two rounds of review/comment revisions from the City, with comments provided in a consolidated and editable format (i.e. track changes). ¾Publication of the Final PEIR - We will revise the Final PEIR based on City comments. We will distribute the responses to comment to agencies which commented on the Draft PEIR, via certified mail or other trackable delivery means. In accordance with CEQA requirements, distribution will take place at least 10-days prior to certification of the PEIR by the City. We will provide 15 printed copies, one electronic PDF file and one electronic MS Word document. (1) Assumption: The consultant team shall prepare for and attend one public hearing on the Final PEIR. ¾Findings of Fact - We will prepare the CEQA findings for the project. CEQA Guidelines §15091 requires that no public agency approve or carry out a project, for which an EIR has been completed and identifies one or more significant effects, unless the public agency prepares findings for each significant effect. The findings will include information related to whether those significant impacts identified in the PEIR will be reduced to below a level of significance by mitigation measures identified in the PEIR. CEQA Guidelines §15093 requires when an agency approves a project which will have a significant adverse environmental effect that is unavoidable, the agency must make a Statement of Overriding Considerations. If a significant and unavoidable impact is identified in the PEIR, we will prepare the Statement of Overriding Considerations. We will provide an administrative draft of the CEQA findings to the City for review and comment, and then incorporate one round of consolidated City comments into a final document. ¾Notice of Determination - We will prepare and file the Notice of Determination with the County Clerk and the State Clearinghouse in conjunction with the City. We assume the City will provide the required administrative and California Department of Fish and Wildlife filing fees prior to filing. ¾Mitigation Monitoring and Reporting Program - A Mitigation Monitoring and Reporting Program (MMRP) will be prepared in accordance with CEQA. The MMRP will be provided as a separately bound document from the Final PEIR. The MMRP will be prepared with the Final PEIR, to capture potential revisions associated with reviews of the Draft PEIR. The MMRP will include implementation measures appropriate for future projects under the 2020 Metro Plan, and will identify the appropriate party responsible for implementation, monitoring, capital costs, and confirmation of implementation. The MMRP will be designed to facilitate accomplishment of the 2020 Metro Plan goals. (2) Assumption: This scope assumes two rounds of review / comment revisions from the City to be provided in a consolidated and electronic, editable format (i.e. track changes in MS Word). DELIVERABLE(S): Fifteen (15) hard-copies and one electronic copy of the Draft Report.          2020 Metro Plan & 2020 UWMP Scope of Work 5/18/2020 34 TASK 5.0 2020 UWMP Develop a 2020 UWMP according to the 2020 DWR UWMPs Guidebook for Urban Water Suppliers and meet all requirements of California Water Code, §10610-10656 and §10608. The guidebook has not been released. Therefore, the scope and level of effort are based on our understanding of potential requirements. This may need to be revisited once the guidebook is released. ¾Assumption: It is assumed that the City’s existing Water Shortage Contingency Plan (WSCP) and related information will be used to update the WSCP. WSC will provide suggestions for modifying the WSCP to the City on how the existing plan might be modified to be consistent with guidelines established by DWR. It is assumed that WSC will adapt existing information to DWR’s new requirements to the extent possible with information provided by the City. Any additional analysis or information needed to meet DWR’s requirements is not included within the Cost Proposal for this task. 5.1 Kickoff Meeting & Workshops (3) ¾By January 2021, plan, organize, and conduct Kickoff Meeting (1) Discuss and agree on assumptions for use in the UWMP knowing that the Phase 2 Metro Plan work will not be complete in time for full incorporation into the UWMP. Key assumptions include: supply projections and priorities; conservation measures ¾Attend and conduct up to three (3) workshops with City staff to develop chapters, concepts, goals. 5.2 Preliminary UWMP Sections ¾Prepare UWMP sections as the content is developed during Phase 1 Metro Plan activities. 5.3 Admin Draft UWMP ¾Compile full UWMP report consistent with legislative and DWR guideline requirements. ¾Implement WSC Quality Assurance and Quality Control (QA/QC) practices. ¾Submit to the City for review and comment. DELIVERABLE(S): Seven (7) hard-copies and one electronic copy of the Admin Draft UWMP. 5.4 Public Draft UWMP ¾Prepare Public Draft UWMP that incorporates comments from the City on the Admin Draft Report. Complete WSC QA/QC practices. ¾Submit Public Draft UWMP to City for distribution. ¾Prepare PowerPoint Presentation for Public Outreach Events. DELIVERABLE(S): Twenty (20) hard-copies and one electronic copy of the Public Draft UWMP                   AGREEMENT CITY OF FRESNO, CALIFORNIA CONSUL TANT SERVICES THIS AGREEMENT is made and entered into effective the 18th day of June, 2020, by and between the CITY OF FRESNO, a California municipal corporation (hereinafter referred to as "CITY"), and Water Systems Consulting, Inc., a California corporation (hereinafter referred to as "CONSULTANT"). RECITALS WHEREAS, CITY desires to obtain professional engneering services for development of the 2020 Metropolitan Water Resources Management Plan and Programmatic Environmental Impact Report, and 2020 Urban Water Management Plan , hereinafter referred to as the "Project;" and WHEREAS, CONSULTANT is engaged in the business of furnishing services as a professional engineer and hereby represents that it desires to and is professionally and legally capable of performing the services called for by this Agreement; and WHEREAS, CONSULTANT acknowledges that this Agreement is subject to the requirements of Fresno Municipal Code Section 4-107 and Administrative Order No. 6-19; and WHEREAS, this Agreement will be administered for CITY by its Director of Public Utilities (hereinafter referred to as "Director") or his/her designee. AGREEMENT NOW, THEREFORE, in consideration of the foregoing and of the covenants, conditions, and promises hereinafter contained to be kept and performed by the respective parties, it is mutually agreed as follows: 1. Scope of Services. CONSULTANT shall perform to the satisfaction of CITY the services described in Exhibit A, including all work incidental to, or necessary to perform, such services even though not specifically described in Exhibit A. 2. Term of Agreement and Time for Performance . This Agreement shall be effective from the date first set forth above and shall continue in full force and effect through the earlier of complete rendition of the services hereunder or October 18, 2023, subject to any earlier termination in accordance with this Agreement. The services of CONSUL TANT as described in Exhibit A are to commence upon CITY'S issuance of a written "Notice to Proceed." Work shall be undertaken and completed in a sequence assuring expeditious completion, but in any event, all such services shall be completed within 914 consecutive calendar days from such authorization to proceed. 3. Compensation. (a) CONSULTANT'S sole compensation for satisfactory performance of all services required or rendered pursuant to this Agreement shall be a total fee not to exceed $1,823,762, paid on a time and materials basis in accordance with the schedule of fees contained in Exhibit A, and a contingency amount not to exceed $182,000 for any additional work rendered pursuant to Subsection (c) below and authorized in writing by the Director. DPU-S 8.3 /03-24-14 -1- (b) Detailed statements shall be rendered monthly and will be payable in the normal course of CITY business. CITY shall not be obligated to reimburse any expense for which it has not received a detailed invoice with applicable copies of representative and identifiable receipts or records substantiating such expense. (c) The parties may modify this Agreement to increase or decrease the scope of services or provide for the rendition of services not required by this Agreement, which modification shall include an adjustment to CONSULTANT'S compensation. Any change in the scope of services must be made by written amendment to the Agreement signed by an authorized representative for each party. CONSUL TANT shall not be entitled to any additional compensation if services are performed prior to a signed written amendment. 4. Termination, Remedies and Force Majeure. (a) This Agreement shall terminate without any liability of CITY to CONSUL TANT upon the earlier of: (i) CONSULTANT'S filing for protection under the federal bankruptcy laws, or any bankruptcy petition or petition for receiver commenced by a third party against CONSUL TANT; (ii) 7 calendar days prior written notice with or without cause by CITY to CONSUL TANT; (iii) CITY'S non-appropriation of funds sufficient to meet its obligations hereunder during any CITY fiscal year of this Agreement, or insufficient funding for the Project; or (iv) expiration of this Agreement. (b) Immediately upon any termination or expiration of this Agreement, CONSUL TANT shall (i) immediately stop all work hereunder; (ii) immediately cause any and all of its subcontractors to cease work; and (iii) return to CITY any and all unearned payments and all properties and materials in the possession of CONSULTANT that are owned by CITY. Subject to the terms of this Agreement, CONSUL TANT shall be paid compensation for services satisfactorily performed prior to the effective date of termination. CONSUL TANT shall not be paid for any work or services performed or costs incurred which reasonably could have been avoided. (c) In the event of termination due to failure of CONSUL TANT to satisfactorily perform in accordance with the terms of this Agreement, CITY may withhold an amount that would otherwise be payable as an offset to, but not in excess of, CITY'S damages caused by such failure. In no event shall any payment by CITY pursuant to this Agreement constitute a waiver by CITY of any breach of this Agreement which may then exist on the part of CONSUL TANT, nor shall such payment impair or prejudice any remedy available to CITY with respect to the breach. (d) Upon any breach of this Agreement by CONSUL TANT, CITY may (i) exercise any right, remedy (in contract, law or equity), or privilege which may be available to it under applicable laws of the State of California or any other applicable law; (ii) proceed by appropriate court action to enforce the terms of the Agreement; and/or (iii) recover all direct, indirect, consequential, economic and incidental damages for the breach of the Agreement. If it is determined that CITY improperly terminated this Agreement for default, such termination shall be deemed a termination for convenience. (e) CONSUL TANT shall provide CITY with adequate written assurances of future performance, upon Director's request, in the event CONSUL TANT fails to comply with any terms or conditions of this Agreement. DPU-S 8.3 /03-24-14 -2 - (f) CONSUL TANT shall be liable for default unless nonperformance is caused by an occurrence beyond the reasonable control of CONSUL TANT and without its fault or negligence such as, acts of God or the public enemy, acts of CITY in its contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes, unusually severe weather, and delays of common carriers. CONSUL TANT shall notify Director in writing as soon as it is reasonably possible after the commencement of any excusable delay, setting forth the full particulars in connection therewith, and shall remedy such occurrence with all reasonable dispatch, and shall promptly give written notice to Director of the cessation of such occurrence. 5. Confidential Information, Ownership of Documents and Copyright License. (a) Any reports, information, or other data prepared or assembled by CONSUL TANT pursuant to this Agreement shall not be made available to any individual or organization by CONSUL TANT without the prior written approval of CITY. During the term of this Agreement, and thereafter, CONSULTANT shall not, without the prior written consent of CITY, disclose to anyone any Confidential Information. The term Confidential Information for the purposes of this Agreement shall include all proprietary and confidential information of CITY, including but not limited to business plans, marketing plans, financial information, designs, drawings, specifications, materials, compilations, documents, instruments, models, source or object codes and other information disclosed or submitted, orally, in writing, or by any other medium or media. All Confidential Information shall be and remain confidential and proprietary in CITY. (b) Any and all original sketches, pencil tracings of working drawings, plans, computations, specifications, computer disk files, writings and other documents prepared or provided by CONSULTANT pursuant to this Agreement are the property of CITY at the time of preparation and shall be turned over to CITY upon expiration or termination of the Agreement or default by CONSULTANT. CONSULTANT grants CITY a copyright license to use such drawings and writings. CONSUL TANT shall not permit the reproduction or use thereof by any other person except as otherwise expressly provided herein. CITY may modify the design including any drawings or writings. Any use by CITY of the aforesaid sketches, tracings, plans, computations, specifications, computer disk files, writings and other documents in completed form as to other projects or extensions of this Project, or in uncompleted form, without specific written verification by CONSUL TANT will be at CITY'S sole risk and without liability or legal exposure to CONSULTANT. CONSULTANT may keep a copy of all drawings and specifications for its sole and exclusive use. (c) If CONSUL TANT should subcontract all or any portion of the services to be performed under this Agreement, CONSUL TANT shall cause each subcontractor to also comply with the requirements of this Section 5. (d) This Section 5 shall survive expiration or termination of this Agreement. 6. Professional Skill. It is further mutually understood and agreed by and between the parties hereto that inasmuch as CONSUL TANT represents to CITY that CONSUL TANT and its subcontractors, if any, are skilled in the profession and shall perform in accordance with the standards of said profession necessary to perform the services agreed to be done by it under this Agreement, CITY relies upon the skill of CONSUL TANT and any subcontractors to do and perform such services in a skillful manner and CONSUL TANT agrees to thus perform the services and require the same of any subcontractors. Therefore, any acceptance of such DPU-S 8 .3 /03-24-14 -3- services by CITY shall not operate as a release of CONSULTANT or any subcontractors from said professional standards. 7. Indemnification. To the furthest extent allowed by law, CONSULTANT shall indemnify, hold harmless and defend CITY and each of its officers, officials, employees, agents and volunteers from any and all loss, liability, fines, penalties, forfeitures, costs and damages (whether in contract, tort or strict liability, including but not limited to personal injury, death at any time and property damage), and from any and all claims, demands and actions in law or equity (including reasonable attorney's fees and litigation expenses) that arise out of, pertain to, or relate to the negligence, recklessness or willful misconduct of CONSUL TANT, its principals, officers, employees, agents or volunteers in the performance of this Agreement. If CONSULTANT should subcontract all or any portion of the services to be performed under this Agreement, CONSUL TANT shall require each subcontractor to indemnify, hold harmless and defend CITY and each of its officers, officials, employees, agents and volunteers in accordance with the terms of the preceding paragraph. This section shall survive termination or expiration of this Agreement. 8. Insurance. (a) Throughout the life of this Agreement, CONSUL TANT shall pay for and maintain in full force and effect all insurance as required in Exhibit B, which is incorporated into and part of this Agreement, with an insurance company(ies) either (i) admitted by the California Insurance Commissioner to do business in the State of California and rated no less than "A-VII" in the Best's Insurance Rating Guide, or (ii) as may be authorized in writing by CITY'S Risk Manager or his/her designee at any time and in his/her sole discretion. The required policies of insurance as stated in Exhibit B shall maintain limits of liability of not less than those amounts stated therein. However, the insurance limits available to CITY, its officers, officials, employees, agents and volunteers as additional insureds, shall be the greater of the minimum limits specified therein or the full limit of any insurance proceeds to the named insured. (b) If at any time during the life of the Agreement or any extension, CONSUL TANT or any of its subcontractors/sub-consultants fail to maintain any required insurance in full force and effect, all services and work under this Agreement shall be discontinued immediately, and all payments due or that become due to CONSUL TANT shall be withheld until notice is received by CITY that the required insurance has been restored to full force .and effect and that the premiums therefore have been paid for a period satisfactory to CITY. Any failure to maintain the required insurance shall be sufficient cause for CITY to terminate this Agreement. No action taken by CITY pursuant to this section shall in any way relieve CONSUL TANT of its responsibilities under this Agreement. The phrase "fail to maintain any required insurance" shall include, without limitation, notification received by CITY that an insurer has commenced proceedings, or has had proceedings commenced against it, indicating that the insurer is insolvent. (c) The fact that insurance is obtained by CONSUL TANT shall not be deemed to release or diminish the liability of CONSUL TANT, including, without limitation, liability under the indemnity provisions of this Agreement. The duty to indemnify CITY shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by CONSUL TANT. Approval or purchase of any insurance contracts or policies shall in no way relieve from liability nor limit the liability of CONSUL TANT, its principals, officers, agents, employees, persons under DPU-S 8.3 /03-24-14 -4- the supervision of CONSUL TANT, vendors, suppliers, invitees, consultants, sub-consultants, subcontractors, or anyone employed directly or indirectly by any of them. (d) If CONSUL TANT should subcontract all or any portion of the services to be performed under this Agreement, CONSUL TANT shall require each subcontractor/sub- consultant to provide insurance protection, as an additional insured, to the CITY and each of its officers, officials, employees, agents and volunteers in accordance with the terms of this section, except that any required certificates and applicable endorsements shall be on file with CONSUL TANT and CITY prior to the commencement of any services by the subcontractor. CONSUL TANT and any subcontractor/sub-consultant shall establish additional insured status for CITY, its officers, officials, employees, agents and volunteers by using Insurance Service Office (ISO) Form CG 20 10 11 85 or both CG 20 10 10 01 and CG 20 37 10 01 or by an executed manuscript company endorsement providing additional insured status as broad as that contained in ISO Form CG 20 10 11 85. 9. Conflict of Interest and Non-Solicitation. (a) Prior to CITY'S execution of this Agreement, CONSUL TANT shall complete a City of Fresno conflict of interest disclosure statement in the form as set forth in Exhibit C. During the term of this Agreement, CONSUL TANT shall have the obligation and duty to immediately notify CITY in writing of any change to the information provided by CONSUL TANT in such statement. (b) CONSUL TANT shall comply, and require its subcontractors to comply, with all applicable (i) professional canons and requirements governing avoidance of impermissible client conflicts; and (ii) federal, state and local conflict of interest laws and regulations including, without limitation, California Government Code Section 1090 et. seq., the California Political Reform Act (California Government Code Section 87100 et. seq.), the regulations of the Fair Political Practices Commission concerning disclosure and disqualification (2 California Code of Regulations Section 18700 et. seq.) and Section 4-112 of the Fresno Municipal Code (Ineligibility to Compete). At any time, upon written request of CITY, CONSUL TANT shall provide a written opinion of its legal counsel and that of any subcontractor that, after a due diligent inquiry, CONSUL TANT and the respective subcontractor(s) are in full compliance with all laws and regulations. CONSUL TANT shall take, and require its subcontractors to take, reasonable steps to avoid any appearance of a conflict of interest. Upon discovery of any facts giving rise to the appearance of a conflict of interest, CONSUL TANT shall immediately notify CITY of these facts in writing . (c) In performing the work or services to be provided hereunder, CONSUL TANT shall not employ or retain the services of any person while such person either is employed by CITY or is a member of any CITY council, commission, board, committee, or similar CITY body. This requirement may be waived in writing by the City Manager, if no actual or potential conflict is involved. (d) CONSUL TANT represents and warrants that it has not paid or agreed to pay any compensation, contingent or otherwise, direct or indirect, to solicit or procure this Agreement or any rights/benefits hereunder. (e) Neither CONSUL TANT, nor any of CONSULTANT'S subcontractors performing any services on this Project, shall bid for, assist anyone in the preparation of a bid for, or perform any services pursuant to, any other contract in connection with this Project. DPU-S 8 .3 /03-24-14 -5- CONSUL TANT and any of its subcontractors shall have no interest, direct or indirect, in any other contract with a third party in connection with this Project unless such interest is in accordance with all applicable law and fully disclosed to and approved by the City Manager, in advance and in writing. (f) If CONSUL TANT should subcontract all or any portion of the work to be performed or services to be provided under this Agreement, CONSUL TANT shall include the provisions of this Section 9 in each subcontract and require its subcontractors to comply therewith. (g) This Section 9 shall survive expiration or termination of this Agreement. 10. Recycling Program. In the event CONSULTANT maintains an office or operates a facility(ies), or is required herein to maintain or operate same, within the incorporated limits of the City of Fresno, CONSUL TANT at its sole cost and expense shall: (i) Immediately establish and maintain a viable and ongoing recycling program, approved by CITY'S Solid Waste Management Division, for each office and facility. Literature describing CITY recycling programs is available from CITY'S Solid Waste Management Division and by calling City of Fresno Recycling Hotline at (559) 621-1111. (ii) Immediately contact CITY'S Solid Waste Management Division at (559) 621-1452 and schedule a free waste audit, and cooperate with such Division in their conduct of the audit for each office and facility. (iii) Cooperate with and demonstrate to the satisfaction of CITY'S Solid Waste Management Division the establishment of the recycling program in paragraph (i) above and the ongoing maintenance thereof. 11. General Terms. (a) Except as otherwise provided by law, all notices expressly required of CITY within the body of this Agreement, and not otherwise specifically provided for, shall be effective only if signed by the Director or his/her designee. (b) Records of CONSULTANT'S expenses pertaining to the Project shall be kept on a generally recognized accounting basis and shall be available to CITY or its authorized representatives upon request during regular business hours throughout the life of this Agreement and for a period of three years after final payment or, if longer, for any period required by law. In addition, all books, documents, papers, and records of CONSUL TANT pertaining to the Project shall be available for the purpose of making audits, examinations, excerpts, and transcriptions for the same period of time. If any litigation, claim, negotiations, audit or other action is commenced before the expiration of said time period, all records shall be retained and made available to CITY until such action is resolved, or until the end of said time period whichever shall later occur. If CONSUL TANT should subcontract all or any portion of the services to be performed under this Agreement, CONSUL TANT shall cause each subcontractor to also comply with the requirements of this paragraph. This Section 11 (b) shall survive expiration or termination of this Agreement. DPU-S 8 .3 /03-24-14 -6- (c) Prior to execution of this Agreement by CITY, CONSUL TANT shall have provided evidence to CITY that CONSUL TANT is licensed to perform the services called for by this Agreement (or that no license is required). If CONSUL TANT should subcontract all or any portion of the work or services to be performed under this Agreement, CONSUL TANT shall require each subcontractor to provide evidence to CITY that subcontractor is licensed to perform the services called for by this Agreement (or that no license is required) before beginning work. 12. Nondiscrimination. To the extent required by controlling federal, state and local law, CONSUL TANT shall not employ discriminatory practices in the provision of services, employment of personnel, or in any other respect on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era. Subject to the foregoing and during the performance of this Agreement, CONSUL TANT agrees as follows: (a) CONSULTANT will comply with all applicable laws and regulations providing that no person shall, on the grounds of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era be excluded from participation in, be denied the benefits of, or be subject to discrimination under any program or activity made possible by or resulting from this Agreement. (b) CONSUL TANT will not discriminate against any employee or applicant for employment because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era. CONSUL TANT shall ensure that applicants are employed, and the employees are treated during employment, without regard to their race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era. Such requirement shall apply to CONSULTANT'S employment practices including, but not be limited to, the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. CONSUL TANT agrees to post in conspicuous places, available to employees and applicants for employment, notices setting forth the provision of this nondiscrimination clause. (c) CONSUL TANT will, in all solicitations or advertisements for employees placed by or on behalf of CONSUL TANT in pursuit hereof, state that all qualified applicants will receive consideration for employment without regard to race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era. (d) CONSUL TANT will send to each labor union or representative of workers with which it has a collective bargaining agreement or other contract or understanding, a notice advising such labor union or workers' representatives of CONSULTANT'S commitment under this section and shall post copies of the notice in conspicuous places available to employees and applicants for employment. DPU-S 8.3 /03-24-14 -7- (e) If CONSUL TANT should subcontract all or any portion of the services to be performed under this Agreement, CONSUL TANT shall cause each subcontractor to also comply with the requirements of this Section 12. 13. l.ndependent Contractor. (a) In the furnishing of the services provided for herein, CONSUL TANT is acting solely as an independent contractor. Neither CONSUL TANT, nor any of its officers, agents or employees shall be deemed an officer, agent, employee, joint venturer, partner or associate of CITY for any purpose. CITY shall have no right to control or supervise or direct the manner or method by which CONSUL TANT shall perform its work and functions. However, CITY shall retain the right to administer this Agreement so as to verify that CONSUL TANT is performing its obligations in accordance with the terms and conditions thereof. (b) This Agreement does not evidence a partnership or joint venture between CONSULTANT and CITY. CONSULTANT shall have no authority to bind CITY absent CITY'S express written consent. Except to the extent otherwise provided in this Agreement, CONSUL TANT shall bear its own costs and expenses in pursuit thereof. (c) Because of its status as an independent contractor, CONSUL TANT and its officers, agents and employees shall have absolutely no right to employment rights and benefits available to CITY employees. CONSULTANT shall be solely liable and responsible for all payroll and tax withholding and for providing to, or on behalf of, its employees all employee benefits including, without limitation, health, welfare and retirement benefits. In addition, together with its other obligations under this Agreement, CONSUL TANT shall be solely responsible, indemnify, defend and save CITY harmless from all matters relating to employment and tax withholding for and payment of CONSULTANT'S employees, including, without limitation, (i) compliance with Social Security and unemployment insurance withholding, payment of workers' compensation benefits, and all other laws and regulations governing matters of employee withholding, taxes and payment; and (ii) any claim of right or interest in CITY employment benefits, entitlements, programs and/or funds offered employees of CITY whether arising by reason of any common law, de facto, leased, or co-employee rights or other theory. It is acknowledged that during the term of this Agreement, CONSUL TANT may be providing services to others unrelated to CITY or to this Agreement. 14. Notices. Any notice required or intended to be given to either party under the terms of this Agreement shall be in writing and shall be deemed to be duly given if delivered personally, transmitted by facsimile followed by telephone confirmation of receipt, or sent by United States registered or certified mail, with postage prepaid, return receipt requested, addressed to the party to which notice is to be given at the party's address set forth on the signature page of this Agreement or at such other address as the parties may from time to time designate by written notice. Notices served by United States mail in the manner above described shall be deemed sufficiently served or given at the time of the mailing thereof. 15. Binding. Subject to Section 16, below, once this Agreement is signed by all parties, it shall be binding upon, and shall inure to the benefit of, all parties, and each parties' respective heirs, successors, assigns, transferees, agents, servants, employees and representatives. DPU-S 8.3 /03-24-14 -8- 16. Assignment. (a) This Agreement is personal to CONSUL TANT and there shall be no assignment by CONSULTANT of its rights or obligations under this Agreement without the prior written approval of the City Manager or his/her designee. Any attempted assignment by CONSUL TANT, its successors or assigns, shall be null and void unless approved in writing by the City Manager or his/her designee. (b) CONSUL TANT hereby agrees not to assign the payment of any monies due CONSUL TANT from CITY under the terms of this Agreement to any other individual(s), corporation(s) or entity(ies). CITY retains the right to pay any and all monies due CONSULTANT directly to CONSULTANT. 17. Compliance With Law. In providing the services required under this Agreement, CONSUL TANT shall at all times comply with all applicable laws of the United States, the State of California and CITY, and with all applicable regulations promulgated by federal, state, regional, or local administrative and regulatory agencies, now in force and as they may be enacted, issued, or amended during the term of this Agreement. 18. Waiver. The waiver by either party of a breach by the other of any provision of this Agreement shall not constitute a continuing waiver or a waiver of any subsequent breach of either the same or a different provision of this Agreement. No provisions of this Agreement may be waived unless in writing and signed by all parties to this Agreement. Waiver of any one provision herein shall not be deemed to be a waiver of any other provision herein. 19. Governing Law and Venue. This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of California, excluding, however, any conflict of laws rule which would apply the law of another jurisdiction. Venue for purposes of the filing of any action regarding the enforcement or interpretation of this Agreement and any rights and duties hereunder shall be Fresno County, California. 20. Headings. The section headings in this Agreement are for convenience and reference only and shall not be construed or held in any way to explain, modify or add to the interpretation or meaning of the provisions of this Agreement. 21. Severability. The provisions of this Agreement are severable. The invalidity, or unenforceability of any one provision in this Agreement shall not affect the other provisions. 22. Interpretation. The parties acknowledge that this Agreement in its final form is the result of the combined efforts of the parties and that, should any provision of this Agreement be found to be ambiguous in any way, such ambiguity shall not be resolved by construing this Agreement in favor of or against either party, but rather by construing the terms in accordance with their generally accepted meaning. 23. Attorney's Fees. If either party is required to commence any proceeding or legal action to enforce or interpret any term, covenant or condition of this Agreement, the prevailing party in such proceeding or action shall be entitled to recover from the other party its reasonable attorney's fees and legal expenses. 24. Exhibits. Each exhibit and attachment referenced in this Agreement is, by the reference, incorporated into and made a part of this Agreement. DPU-S 8.3 /03-24-14 25. Precedence of Documents. In the event of any conflict between the body of this Agreement and any Exhibit or Attachment hereto, the terms and conditions of the body of this Agreement shall control and take precedence over the terms and conditions expressed within the Exhibit or Attachment. Furthermore, any terms or conditions contained within any Exhibit or Attachment hereto which purport to modify the allocation of risk between the parties, provided for within the body of this Agreement, shall be null and void. 26 . Cumulative Remedies. No remedy or election hereunder shall be deemed exclusive but shall, wherever possible, be cumulative with all other remedies at law or in equity. 27. No Third Party Beneficiaries. The rights, interests, duties and obligations defined within this Agreement are intended for the specific parties hereto as identified in the preamble of this Agreement. Notwithstanding anything stated to the contrary in this Agreement, it is not intended that any rights or interests in this Agreement benefit or flow to the interest of any third parties. 28 . Extent of Agreement. Each party acknowledges that they have read and fully understand the contents of this Agreement. This Agreement represents the entire and integrated agreement between the parties with respect to the subject matter hereof and supersedes all prior negotiations, representations or agreements, either written or oral. This Agreement may be modified only by written instrument duly authorized and executed by both CITY and CONSULTANT. II I I II I II DPU-S 8.3 /03-24-14 -10- . 1.N WITNESS WHEREOF, the parties have executed this Agreement at Fresno, Callforn,a, the day and year first above written. CffY OF FRESNO, a Ca'lifomia municipal corporation By :~~~~ Director Department of Public Utilities ATTEST YVONNE SPENCE, CMC City Clerk By a/;/i-t,,/;f/uJ. D puty B~n:J ~z No signature of City Attorney required. Standard Document #DPU-S 8.3 has been used without modification, as certified by the undersigned. By · =F ✓ lernrn A. Kna •,PE upervis i ng Professional Enginee r Department of Public Utilities Brock 0. Buche,PE, LS , Assistant Direct Department of Public Utilities Addresses: CffY-: City of Fresno Attention: Glenn A Knapp, PE, Supervising Professional Engineer 2101 G. Street, Building A Fresno, CA '93706 Phone: (559) 621-1624 fAX: '('559.) 559-49.8-4126 Attachments: Exhibit A -Scope of Services Exhibit B -Insurance Requirements Water Systems Consulting, Inc., a California c ora tion Title : wce,,&,W (if corporation or LLC, Board ~:es. or Vice Pres.) By ~ Name: ,/~y ~'ttfL ' Title: film~ A,-/ O J FC.,e €".,-,l,t,"f (if corporation or LLC, CFO, Treasurer, Secretary or Assistant Secretary) Any Applicable Professional License: Number: C. 6 ?o o 4- Name: C IV/I,. FN,✓rFRe. Date of Issuance: i ZS: /too z I I CONSUL TANT: Water Systems Consultants, Inc . Attention: Jeffery Szytel, President P.O. Box 4255 San Luis Obispo, CA 93403 Phone: 805-457-8833 FAX: 805-888-2764 L 2 . 3 . Exhibit C -Conflict of Interest Disclosure Form DPU-S 8 3 /03-24-14 Exhibit A SCOPE OF SERVICES Consultant Service Agreement between City of Fresno {"City") and Water Systems Consulting, Inc. {"Consultant") 2020 Metropolitan Water Resources Management Plan, Urban Water Resources Plan and Programmatic Environmental Impact Report PROJECT TITLE See Attached DPU-S B,3 /03-24-14 Page 1 of 2 \NSC WATEM SvsJF.\1S CONSUi IING, INC. 2020 Metro Plan & 2020 UWMP Scope of Work The following scope of work is for the 2020 Metropolitan Water Resources Management Plan (Metro Plan) and the 2020 Urban Water Management Plan (UWMP). Contents Task 0 .0 Project Management ............................................................................................................ 1 0.1 Project Controls ........................................................................................................................ 1 0.2 City Coordination (Regular Calls) .............................................................................................. 1 0.3 Internal Coordination (Regular Calls) ........................................................................................ 1 Task 1.0 Phase 1 -Existing Water Supply System Assessment ........................................................... 2 1.1 Kickoff Meeting, Meetings (2) & Workshops (4) ...................................................................... 2 1.2 Urban Water Demands ............................................................................................................. 2 1.3 Urban Water Supplies ............................................................................................................... 3 1.4 Existing Water Resources Systems ............................................................................................ 4 1.5 Institutional Arrangements ....................................................................................................... 5 1.6 Existing System Assessment ...................................................................................................... 5 1.7 Admin Draft Report ................................................................................................................... 5 1.8 Draft Report .............................................................................................................................. 6 1.9 Final Report ............................................................................................................................... 6 Task 2.0 Phase 2 -Water Supply Alternatives Analysis ....................................................................... 6 2.1 Kick-off Meeting, Meetings (2) & Workshops (4) ..................................................................... 6 2.2 Water Supply Elements Development and Screening .............................................................. 7 2.3 Water Supply Alternatives Development ................................................................................. 7 2.4 Alternatives Evaluation ............................................................................................................. 7 2.5 Ad min Draft Report ................................................................................................................... 8 2.6 Draft Report .............................................................................................................................. 8 2.7 Final Report ............................................................................................................................... 8 Task 3.0 Phase 3 -Future Water Supply Plan ...................................................................................... 9 3.1 Kick-off Meeting, Meetings (2) & Workshops (3) ..................................................................... 9 3.2 Future Water Supply Plan ......................................................................................................... 9 3.3 Future Supplies ......................................................................................................................... 9 3.4 Infrastructure to Support Future Water Supply Plan .............................................................. 10 3.5 Plan lmplementation ................................................................................................................ 10 3.6 Ad min Draft Report ................................................................................................................. 10 3.7 Draft Report ............................................................................................................................ 10 3.8 Final Report ............................................................................................................................. 11 Task 4.0 Phase 4 -Programmatic/Project Environmental Impact Report ........................................ 11 4.1 Kickoff Meeting and Review of Available Studies ................................................................... 11 4.2 Project Description .................................................................................................................. 11 2020 Metro Plan & 2020 UWMP Scope of Work \IVSC WATER SYSTEMS (ONSlJlllNG, INC 4.3 Project Scoping ........................................................................................................................ 12 4.4 Plan/Project Alternatives ........................................................................................................ 12 4.5 Technical Reports .................................................................................................................... 13 4.6 Ad min Draft PEIR ..................................................................................................................... 16 4.7 Public Draft PEIR ..................................................................................................................... 25 4.8 Final PEIR and MMRP .............................................................................................................. 26 Task 5.0 2020 UWMP ........................................................................................................................ 27 5.1 Kickoff Meeting & Workshops (3) ........................................................................................... 27 5.2 Preliminary UWMP Sections ................................................................................................... 28 5.3 Ad min Draft UWMP ................................................................................................................ 28 5.4 Public Draft UWMP ................................................................................................................. 28 5.5 Final Draft UWMP ................................................................................................................... 28 5.6 Final UWMP ............................................................................................................................ 28 Task 6.0 USBR Water Management Plan .......................................................................................... 29 6.1 Kickoff Meeting & Workshops {3) ........................................................................................... 29 6.2 Ad min Draft WMP ........................................................................ , .......................................... 29 6.3 Public Draft WMP .................................................................................................................... 30 6.4 Final Draft WMP ...................................................................................................................... 30 6.5 FinalWMP ............................................................................................................................... 30 Excluded Services ........................................................................................................................................ 31 Optimatics Analysis ................................................................................................................................. 31 Hydraulic Modeling ................................................................................................................................. 31 Master Plans ............................................................................................................................................ 31 Public Relations and Strategic Communications ..................................................................................... 31 i i 2020 Metro Plan & 2020 UWMP Scope of Work \i\lSC WATER SYSTEMS (ONSUl TING, INC. TASK 0.0 PROJECT MANAGEMENT 0.1 Project Controls ► Provide oversight, manage communication, assign resources, and coordinate work efforts of the Project Team. ► Maintain and monitor the master project schedule. Produce updated schedules as required. ► Compile and monitor budget, cost and earned value information for the Project. ► Monitor scope, including tracking approved out of scope work. ► Administer subcontracts. ► Prepare progress reports to be submitted with each monthly invoice. The reports will include a summary of activities accomplished in the current month. Track individual task budgets and the overall project budget. ► Prepare quarterly status updates that summarize the plan preparation status and major accomplishments that occurred over the last quarter for distribution to City executives and legislative members. 0.2 City Coordination (Regular Calls) ► Plan, organize, and conduct routine meetings/conference calls with City Staff to: ► Provide updates on Project progress ► Present interim results ► Review progress since last meeting and planned work until next call ► Discuss other topics of interest as the Project progresses ► Assumptions: The budget is based on an assumed project phase duration of 30 months and City Coordination Calls will be held four times per month, on average, with a duration of up to 1 hour each. However, WSC will adapt the frequency and duration of the City Coordination Meetings to meet the specific needs of the project at the time, within the budgeted level of effort. 0.3 Internal Coordination (Regular Calls) ► Plan, organize and conduct routine meetings/conference calls with the Consultant Team to: (1) Coordinate project activities (2) Review ongoing work and upcoming deliverables (3) Discuss data needs (4) Plan upcoming client meetings ► Assumptions: The budget is based on an assumed project phase duration of 30 months and Internal Coordination Calls will be held three times per month with a duration of 1 hour each. 1 2020 Metro Plan & 2020 UWMP Scope of Work --\t\/SC WAnR Svsni\,s CoNSUtHNc., INC TASK 1.0 PHASE 1-EXISTING WATER SUPPLY SYSTEM ASSESSMENT 1.1 Kickoff Meeting, Meetings (2) & Workshops (4) ► Plan, organize, and conduct Meetings and Workshops to support Phase 1 Report development. Anticipated meetings for Phase 1 are: (1) Phase 1 Kickoff Meeting (a) Establish Roles and Responsibilities, (b) Develop project success factors and future water supply plan objectives and goals (c) Walk through overview of key Phase 1 components (i.e . Urban Demand Estimates, Urban Water Supplies, Existing Water Resources and Institutional Arrangements) (d) Review preliminary data request and data management system (2) Phase 1 Admin Draft Review Meeting (3) Phase 1 Draft Review Meeting Anticipated workshops for Phase 1 are: (4) Urban Demand Workshop (S) Urban Water Supplies Workshop (6) Existing Water Resources System Workshop (7) Institutional Arrangements Workshop ► Assumptions. Workshops/Meetings will be held in -person (if possible under COVID19 response actions) and will last up to 4 hours, attended by up to 3 WSC staff. DELIVERABLE(S): Electronic copies of agenda and meeting materials at least two (2) working days prior to the meeting. Summary of action items within Jive (5) working days following the meeting. 1.2 Urban Water Demands ► Review reference documents, compile relevant information, and develop description of City's existing Water Demands. ► Analyze data sources for land use based demands, which are assumed to be available from the City's planning department. ► Prepare per capita water demand analysis for Senate Bill x 7-7 compliance and for the purposes of comparison to land use based demand estimates. ► Review historical recycled water use information to document past use by customer, including monthly, daily, and hourly variability, if the information is available. If applicable, document discharge flow commitments. Develop recycled water demand projections based on existing customers and planned customer connections. 2 2020 Metro Plan & 2020 UWMP Scope of Work \VSC WAHR SYSTFMS (ONSUll\NG, INC, ► Assumptions. The City will provide historical data and the methodology used to determine demand factors and demand projections in the previous 2015 UWMP and the North Kings GSA Groundwater Sustainability Plan. Recent historical and growth data not included in previous demand estimates will be provided to update previous demand factors and growth projections. Up to eight (8) hours is assumed to conform water consumption data to associate it with a land use and land use intensity unit (e.g., dwelling unit, acres, etc). 1.3 Urban Water Supplies ► Review reference documents, compile relevant information, and develop description of City's existing Water Supplies. Description of water supply availability will include assessment of the following Water Supply components: (1) Existing Groundwater Supply (a) Assessment of existing groundwater supply will include developing descriptions of: Basin Location; Area Geology; Aquifer Characteristics; Historic and Current Water Levels; Groundwater Quality; and Existing Groundwater Production Capacity (i) Assessment of these parameters will be based on readily available reference documents and information provided by the City. This task will not include new detailed evaluation of these parameters. (b) Existing Groundwater Yield -Estimates of existing groundwater yield will be developed utilizing a water budget analysis for a hydrologic base period that will include the following items: groundwater inflow; seepage from canals; seepage from intermittent streams; intentional recharge; deep percolation from irrigation; groundwater pumpage; consumptive use; and sewer export. (i) It is anticipated that the urban areas will be divided into several quadrants to perform a more granular water budget analysis. (ii) An additional water budget will be prepared for the Regional Wastewater Reclamation Facility that will include the following items: groundwater outflow; effluent percolation from ponds; deep percolation from effluent irrigation; recover well pumping; canal seepage; deep percolation from agriculture irrigation; and private well pumpage. (2) Existing Surface Water Supply -Assessment of existing surface water supply will include developing descriptions and evaluation of the quality and reliability of the City's: USBR Friant Division Contract Supply; Fresno Irrigation District Supply; Reclaimed Wastewater Exchange Supply; and East Fresno Stream Group Supply (a) Assumption: Assessment of these parameters will be based on readily available reference documents and information that quantify and provide estimates for historic and future water supply availability from these sources. 3 2020 Metro Plan & 2020 UWMP Scope of Work \t\lSC WAHR SYSTEMS CONSULTING, INC.. (3) Recycled Water Supply-Review available wastewater flow data and projections, including seasonal variations. Coordinate wastewater flow projections with demand projections in Task 1.2. Document quality of recycled water sources (percolation ponds and tertiary treatment systems) for constituents of concern for reuse -particularly salinity. (4) Demand Management Measures (DMM)-Update and provide a narrative description of the DMMs implemented by the City based on any changes to DMM implementation since the 2015 UWMP and revised DWR requirements. It is assumed data will be provided to update tables and figures from the 2015 UWMP. (5) Storm water -Assessment of stormwater resources will include evaluation of the City's, Fresno Metropolitan Flood Control District and Fresno Irrigation District's existing and planned stormwater infrastructure and operational data. (a) Assumption: Assessment of these parameters will be based on readily available reference documents and information that quantify and provide estimates of stormwater capture and recharge capacity. (6) Exchanges or Transfers -Assessment of existing Exchanges or Transfers will include evaluation of existing or previously completed exchanges or transfer agreements that City has entered into. (7) Long-Term Water Supply Yield -Develop estimates of long-term water supply yield based on analysis of the City's existing water supply portfolio. Incorporate supply reliability estimates based on historic hydrology and available estimates of anticipated future water supply reliability for the City's water sources. (8) Climate Change -Evaluate potential impacts climate change may have on City water supplies. (a) Assumption: Climate change impact assessments will be based on previously completed studies on impacts of climate change on City and other water supplies. 1.4 Existing Water Resources Systems ► Review reference documents, compile relevant information, and develop description of City's existing Water Resources Systems. Description of water resource systems will include developing summaries of existing and planned infrastructure the following elements: (1) Drinking Water System (2) Wastewater System (3) Recycled Water System (4) Flood Control and Groundwater Recharge System 4 2020 Metro Plan & 2020 UWMP Scope of Work \'\/SC WATER 5VSHMS (ONSUlllNG, INC. ► Assumption: Assessment of City Water Resource Systems will not include hydraulic modeling. It is understood that hydraulic modeling needed to support assessment of the existing systems will be performed under a separate contract. Additionally, assessments of deficiencies in the existing Water Resource systems will be provided from previously completed studies or assessments. 1.5 Institutional Arrangements ► Review reference documents, compile relevant information, and develop description of City's existing Institutional Arrangements. Institutional Arrangements documentation will include description of existing and planned contractual or other arrangements for the following systems: (1) Water Systems (2) Wastewater Systems (3) Flood Control and Storm Drainage (4) Groundwater Quality and Management (5) Local, State and Federal Water management regulatory and guidance documents (6) Regional Land Use Planning 1.6 Existing System Assessment ► Analyze City's current water supply projections versus demand projections (e.g., status quo or no project alternative). Evaluate based on performance measures such as cost, supply yield, energy intensity/GHG emissions/environmental impact, and others. ► Develop Supply/Demand Evaluation Tool that incorporates historic and future estimates of water supply availability for the City's existing water supply sources and water demand. ► Perform a gap analysis to determine any differences between the City's supply yield and projected demands. Identify any potential surpluses or shortfalls in the City's water supply portfolio. 1.7 Admin Draft Report ► Prepare Ad min Draft Report that summarizes the work completed in Phase 1. ► Report content includes: 1. Introduction 2. Urban Water Demands 3. Urban Water Supplies 4. Existing Water Resources Systems 5. Institutional Arrangements ► Implement WSC Quality Assurance and Quality Control (QA/QC) practices. ► Submit Ad min Draft Report for City review and comment. 5 2020 Metro Plan & 2020 UWMP Scope of Work wsc \VAHR SvsnMs CON.SUI TING, INC~ DELIVERABLE[SJ: Seven (7) hard-copies and one electronic copy of the Adm in Draft Report. 1.8 Draft Report ► Prepare Draft Report that incorporates comments from the City on the Ad min Draft Report. ► Complete WSC QA/QC practices. ► Submit Draft Report for City review and comments. DELIVERABLE(S): Fifteen (15) hard-copies and one electronic copy of the Draft Report. 1.9 Final Report ► Prepare Final Report that incorporates comments from the City on the Draft Report. DELIVERABLE(S): Fifteen (15) hard-copies and one electronic copy of the Final Report. TASK 2.0 PHASE 2 -WATER SUPPLY ALTERNATIVES ANALYSIS This phase includes assembling supply and infrastructure elements into alternatives to meet near-term and long-range demands, alternatives evaluation, and identification of the preferred alternative(s}. 2.1 Kick-off Meeting, Meetings (2) & Workshops (4) Plan, organize, and conduct Meetings and Workshops to support Phase 2 Report development. Anticipated meetings for Phase 2 are: (1) Phase 2 Kickoff Meeting (a} Establish element screening and alternatives evaluation criteria (b} Review water supply elements to validate applicability (c} Preview potential alternative themes (2) Phase 2 Admin Draft Review Meeting (3) Phase 2 Draft Review Meeting ► Anticipated workshops for Phase 2 are: (1) Preliminary Element Screening and Alternative Development Workshop (2) Alternative Review Workshop (3) Alternative Evaluation Workshop (4) Preferred Alternative Review Workshop ► Assumptions. It is assumed that the Workshops/Meetings will be held in-person (if possible under COVID19 response actions} and will last for a duration of 4 hours attended by up to 4 WSC staff. 6 2020 Metro Plan & 2020 UWMP Scope of Work \!\/SC WATER SvsTF,\tS (ONWI TING, INC. DELIVERABLE(S): Electronic copies of agenda and meeting materials at least two (2) working days prior to the meeting. Summary of action items within five (5) working days following the meeting. 2.2 Water Supply Elements Development and Screening ► Establish screening criteria for water supply elements, such as maximum high-level cost, minimum yield, reliability and feasibility. ► Develop and summarize Water Supply Elements for potential incorporation into Water Supply Alternatives (1) Up to 20 Water Supply Elements will be identified and characterized. Based on the RFP, the following elements will comprise the initial list of elements: 1-Wastewater Reuse; 2 -Satellite Wastewater Reuse; 3 -Scattered Wells; 4 -Focused Recharge and Well Field; 5 -Plume Management; 6 -Intentional Recharge; 7 -Regional Surface Water Treatment Facilities; 8 -Small Package Surface Water Treatment Facilities; 9 -Water Conservation; 10 -Wastewater Reuse on Agricultural Lands; 11 -Untreated Surface Water Use for Public Landscape Irrigation; 12 -Additional Storage in the Kings River System; 13 -Additional Storage in the San Joaquin System; 14 -Adapting Flood Control Storage for Storage of Surface Supplies; 15 -Large-scale Water Importation; 16 -Cloud- seeding/Weather Modification; 17 -Desalination of Brackish Agricultural Drainage; 18 - Desalination of Seawater; 19 -Graywater; 20 -Other. (2) Characterize high level cost, yield, and reliability ► Screen water supply elements for potential inclusion in Water Supply Alternatives 2.3 Water Supply Alternatives Development ► Establish screening criteria for water supply alternatives. Based on the RFP, the following criteria will be considered: 1: Capital Costs; 2: Approximate Rate Impacts; 3: Water Budget Impacts; 4: Drought Resiliency; 5: Groundwater Response (qualitative); 6: Response to Regulatory Changes; 7: Compatibility with Phased Construction; 8: Ease of Implementation; 9: Environmental and Socioeconomic Impacts; 10: Ability to Accommodate Changing Land-Use Plans; 11: Maximize Availability of Supplies ► Develop and summarize different Water Supply Alternatives. Develop initial alternatives based on themes, such as surface water emphasis or recycled water emphasis, using screened elements. Alternatives must meet minimum level of service goals established in Phase 1, such as minimum drought yield and maximum unit cost. (1) Up to 10 alternatives or sub-alternatives are assumed, including Status Quo (No Project) ► Define alternatives characteristics to support multi-criteria evaluation, such as lifecycle cost, yield, reliability, permitting, phasing, and implementation considerations. Alternative descriptions will include operational considerations and physical facilities. 2.4 Alternatives Evaluation ► Conduct multi-criteria analysis of water supply alternatives 7 2020 Metro Plan & 2020 UWMP Scope of Work \.VS C WATER SYSTEMS CONSUL TING, INC. ► Review findings with the City and select up to 3 alternatives for sensitivity and resiliency analysis. The process is iterative, and alternatives will likely be refined as they are evaluated prior to selection of a preferred alternative. ► Conduct sensitivity analysis that considers different criteria weightings and resiliency analysis that considers potential future scenarios, such as climate change or natural disasters. If a portfolio scores well in a sensitivity analysis, the analysis demonstrates the strength of the portfolio independent of weighting factors or scoring. ► Identify recommended alternative 2.5 Admin Draft Report ► Prepare Admin Draft Report that summarizes the work completed in Phase 2. ► Report contents include: 1. Alternatives Development 1.1. Water Supply Elements 1.2. Element Screening 1.3. Alternative Formulation 2. Alternative Evaluation 2.1. Evaluation Criteria 2.2. Alternatives Evaluation 2.3. Economic Analysis 2.4. Multi-Criteria Analysis 2.5. Sensitivity Analysis 3. Preferred Alternative Summary ► Implement WSC QA/QC practices. ► Submit Ad min Draft Report for City review and comment . DELIVERABLE(S): Seven (7) hard-copies and one electronic copy of the Admin Draft Report. 2.6 Draft Report ► Prepare Draft Report that incorporates comments from the City on the Admin Draft Report. Complete WSC QA/QC practices. ► Submit Draft Report for City review and comments. DELIVERABLE(S): Fifteen (15) hard-copies and one electronic copy of the Draft Report. 2. 7 Final Report ► Prepare Final Report that incorporates comments from the City on the Draft Report. DELIVERABLE(S): Fifteen (15) hard-copies and one electronic copy of the Final Report. 8 2020 Metro Plan & 2020 UWMP Scope of Work \IVSC WAUR 5YSlfMS CONSUi JING, INC. TASK 3.0 PHASE 3 -FUTURE WATER SUPPLY PLAN 3.1 Kick-off Meeting, Meetings (2) & Workshops (3) Plan, organize and conduct Meetings and Workshops to support Phase 3 Report development. Anticipated meetings for Phase 3 are: (1) Phase 3 Kickoff Meeting (a) Review preferred alternative (b) Develop vision for future water supply plan (2) Phase 3 Admin Draft Review Meeting (3) Phase 3 Draft Review Meeting ► Anticipated workshops for Phase 3 are: (1) Future Water Supply Plan Workshop (2) Future Water System Workshop (3) Implementation Plan Workshop ► Assumptions. It is assumed that the Workshops/Meetings will be held in-person (if possible under COVID19 response actions) and will last for a duration of 4 hours, attended by up to 4 WSC staff. DELIVERABLE(S): Electronic copies of agenda and meeting materials at least two (2) working days prior to the meeting. Summary of action items within five (5) working days following the meeting. 3.2 Future Water Supply Plan ► Develop summary of current and future water supply and demand conditions. ► Develop summary of future water supply planning objectives and goals. ► Refine Supply/Demand Analysis Tool for submittal to City and inclusion with Phase 3 report. 3.3 Future Supplies ► Develop program specific elements from the Preferred Water Supply Alternative and the Future Water Supply Plan for the following supply components: (1) Additional Water Conservation Measures (2) Groundwater (3) Surface Water (4) Recycled Water (5) New Water Supply Sources (6) Others (if applicable) 9 2020 Metro Plan & 2020 UWMP Scope of Work \NSC W,\TER SvsnMs C0Nsuu1Nc1 INC. 3.4 Infrastructure to Support Future Water Supply Plan ► Develop summary of the required infrastructure required to support the individual components of the Preferred Water Supply Alternative and the Future Water Supply Plan. ► Develop project Capital and Operations and Maintenance cost estimates for each of the required infrastructure components. ► Assumption: Any hydraulic modeling necessary to support the development of the Infrastructure to Support Future Water Supply Plan and other required tasks will be performed under a separate contract. 3.5 Plan Implementation ► Develop an implementation plan that includes: (1) implementation actions, including any potential challenges (2) prioritized list of projects and a detailed 5-year CIP for near-term projects (3) a timeline, including any triggers that would necessitate future water supply projects (4) allocation of costs between existing rate payers and new development (5) identification of financing options (6) institutional planning needs (7) recommended policies that can be used to guide City's water program 3.6 Admin Draft Report ► Prepare Adm in Draft Report that summarizes the work completed in Phase 3. ► Report contents include: 1. Future Water Supply Plan 2. Future Additional Water Conservation Measures 3. Future Groundwater 4. Future Surface Water 5. Future Recycled Water 6. Required infrastructure to Support Future Water Supply Plan 7. Plan Implementation ► Implement WSC QA/QC practices. ► Submit Ad min Draft Report for City review and comment. DELIVERABLE(S): Seven (7) hard-copies and one electronic copy of the Adm in Draft Report. 3. 7 Draft Report ► Prepare Draft Report that incorporates comments from the City on the Ad min Draft Report. Complete WSC QA/QC practices. ► Submit Draft Report for City review and comments. 10 2020 Metro Plan & 2020 UWMP Scope of Work \.VSC \VAHR 5YSTIMS CONSUi TING, INC. DELIVERABLE(S): Fifteen (15) hard-copies and one electronic copy of the Draft Report. 3.8 Final Report ► Prepare Final Report that incorporates comments from the City on the Draft Report. ► Submit GIS shapefiles used to develop the report figures and Excel-based tool sets developed during preparing of Phase 1, Phase 2, and Phase 3 works, including: Groundwater Water Balance Tool, Decision Support Tool, and Supply/ Demand Analysis Tool DELIVERABLE(S): Fifteen (15) hard-copies and one electronic copy of the Final Report. TASK 4.0 PHASE 4-PROGRAMMATIC/PROJECT ENVIRONMENTAL IMPACT REPORT 4.1 Kickoff Meeting and Review of Available Studies ► This task includes the steps needed to initiate the CEQA environmental review process, including the kickoff meeting and data gathering. As part of this task, we will undertake ongoing environmental coordination with the City. ► We will prepare for and organize a kickoff meeting with City staff. This meeting will occur at the opportune time in the Plan development process to maximize its value. This meeting will serve as a forum to review and confirm study objectives and establish an operational protocol. Working schedules will be finalized and details for scheduled tasks will be discussed. We will use this opportunity to collect any relevant studies and information not already transmitted. A communication plan will be presented during the kickoff meeting. 4.2 Project Description ► Prepare a Project Description for evaluation in the PEIR. ► Textual, tabular, and graphic presentation will be used as necessary to facilitate a thorough understanding of the proposed Plan Update and the specific projects considered. Any potential state or federal permit or consultation requirements will be noted. The project description will discuss features that have been incorporated into the Plan to minimize potential environmental or land use conflicts. A brief discussion of the environmental setting will also be provided . Up to 6 figures will be provided. The project description will include the following elements: (1) The location and boundaries of the proposed plan (2) A statement of objectives sought by the proposed plan, including the underlying purpose of the plan (3) A comprehensive project description and scope (4) A discussion of the benefits of the project 11 2020 Metro Plan & 2020 UWMP Scope of Work \NS C WAlfR .SY~HMS (ONSI.JLTING, INC. (S) A statement briefly describing the intended uses of the PEIR, including a list of the agencies that are expected to use the PEIR in their decision making; a list of permits and other approvals required to implement the project; and a list of related environmental review (6) Consultation requirements required by federal, state, or local laws, regulations, or policies ► Assumption: This scope of work (SOW) assumes two rounds of review/ comment revisions from the City to be provided in a consolidated and electronic, editable format (i.e. track changes in MS Word) 4.3 Project Scoping ► As directed by the RFP, we have included preparation of a Notice of Preparation (NOP) as part of this SOW. When an EIR is determined to be necessary, the lead agency need not prepare an Initial Study (Section 15060 (d) of the State CEQA Guidelines). Given the fact that the City has already determined that an EIR is required and the expeditious schedule for the Plan and accompanying CEQA document it is recommended that an Initial Study not be prepared. The NOP will be distributed to relevant responsible and trustee agencies, all cities and counties bordering the city of Fresno, and interested organizations and individuals; the distribution list for the NOP will be determined in coordination between the CEQA team, the Plan team and the City. Publication of the NOP will initiate a 30-day public scoping period for the PEIR. ► Attend and lead a public scoping meeting for the PEIR. We will prepare a sign-in sheet, comment cards, and a PowerPoint presentation for the meeting. We will review responses to the NOP, summarize the NOP comments in the PEIR, and incorporate responses to the comments into the development of the PEIR. If desired, coordination of a scoping meeting can be provided on a time and materials basis, if authorized in advance by the City. ► Assumption: This SOW assumes one round of review and consolidated comments from the City on the NOP and draft distribution list. 4.4 Plan/Project Alternatives ► We will participate with City staff during the development of project alternatives. It is assumed that the City and WSC will select a "Preferred Plan Alternative" to be analyzed in depth in the PEIR and up to five (S) specific projects. State CEQA Guidelines require that the PEIR identify and develop a range of reasonable alternatives to the proposed project that meet most of the project objectives and reduce environmental impacts. The Alternatives section of the PEIR will consider the other alternatives as well as the No Project Alternative. The alternatives will be analyzed at a sufficient level of detail so that they could be adopted as the project if needed. ► Assumption: This SOW of work assumes analysis of up to two (2) Plan-level alternatives, in addition to the No Project Alternative along with two alternatives aimed at reducing impacts associated with the specific projects included in the Plan Update . 12 2020 Metro Plan & 2020 UWMP ScoJ:l.e of Work wsc WAHR Svsn~,s CoNSULllNG, INC. 4.5 Technical Reports ► This task involves the preparation of City-compliant technical studies in support of the PEIR. Detailed technical reports may be required for specific resource areas. This SOW assumes that technical studies to be prepared will consist of a Biological Resources Evaluation and a Cultural Resources Survey Report. Preparation of the technical reports will include consultation with applicable federal and state agencies with jurisdiction over resources in the project area. ► This list of technical studies represents our best professional estimate at this time regarding the studies likely required to be completed to support the PEIR. However, this list is subject to change through the project scoping process. We will notify the City immediately if additional environmental studies are determined to be necessary. If the public review process leads to a determination that additional issues are required for examination or that particular issues require a greater depth of analysis than proposed, additional budget and a modified SOW may be required. ► Biological Resources Assessment -The SOW for a biological resources assessment has been developed which represents the industry's standard requirements for a typical biological resources investigation. The SOW for a biological resources assessment consists of data procurement, literature and database reviews, field surveys, and report preparation that would include a summary of our findings upon completion of the survey efforts. The objectives of the resultant biological report are to support analysis of impacts and development of avoidance, minimization and mitigation measures in accordance with CEQA. (1) Data Procurement. Obtain and evaluate baseline data (e.g., aerial photograph, topographic quadrangle, soil survey). (2) Literature and Database Reviews. Review and evaluate background information regarding biological resources in the 2020 Metro Plan area (e.g., previously prepared reports, primary literature, Rincon project files, resource agency guidelines and technical reports). Review the official online species list from the United States Fish and Wildlife Service identifying federally listed, proposed, or candidate species that may potentially occur, or be affected by projects, in the Plan area. Review the California Department of Fish and Wildlife Rare Find (otherwise known as the California Natural Diversity Data Base) for reported occurrences of special status species within the 2020 Metro Plan area. In addition to the aforementioned database reviews, we will review the California Native Plant Society Inventory of Rare and Endangered Plants of California for reported occurrences of special status plant species within the study area. 13 2020 Metro Plan & 2020 UWMP Scope of Work \NSC WAnR SYSTEMS CONSULllNC.~ INC (3) Field Survey. For areas identified as low potential for impact to biological resources, a vegetation map and potential species occurrence assessment will be generated based on desktop analysis only. Examples of these areas include urban, residential, and industrial areas, which have a low likelihood to support special-status species. We will conduct a reconnaissance-level biological survey of areas with proposed modifications to existing facilities or new planned facilities that are in areas identified as having moderate or high potential for special status species occurrence. Habitat types present and their suitability to support special status species will be documented . The identification and mapping of potential special-status wildlife species or habitat will be based on a suitability analysis only and does not include definitive presence/absence surveys of the species potentially present. That level of analysis would be premature at this time given the programmatic nature of the analysis. (4) Reporting . We will prepare a comprehensive report describing the methods and results of the biological resources assessment, including a figure depicting terrestrial vegetation communities, habitat types and other biological features observed during the field reconnaissance survey. The intent of this report is to assist with future project design and/or mitigation planning efforts. A draft report will be submitted to the City for review and comment. (5) Assumptions: It is assumed the project area to be surveyed is no more than 200 acres in size and that the survey can be completed by two biologists over a period of two days. This SOW assumes two rounds of review/ comment revisions on the draft report from the City to be provided in a consolidated and electronic, editable format (i .e. track changes in MS Word). ► Cultural Resources Evaluation -The Cultural Resources Technical Report will include a discussion of the archaeological and historical characteristics of the 2020 Metro Plan area, based upon readily available information. We will summarize applicable federal, state and local cultural resources regulations. The analysis will assess the existing setting information, and qualitatively determine the likelihood of impacting resources within the 2020 Metro Plan area as a result of future projects. As an industry standard, cultural resources studies are considered valid for up to five years; therefore, future projects within the current study area occurring more than five years from now may require reanalysis . The programmatic analysis does not include site visits or formal pedestrian surveys of the study area. (1) For the five specific projects included in the 2020 Metro Plan, we will prepare a project- level assessment at a level of detail commensurate with the level of detail and information available for each project at the time. 14 2020 Metro Plan & 2020 UWMP Scope of Work wsc WATER SvsHMS (ONSUlllNG, INC. (2) Cultural Resources Background Search. We will conduct a California Historical Resources Information System records search of the 2020 Metro Plan area at the Southern San Joaquin Valley Information Center (SSJVIC) located at California State University, Bakersfield. The primary purpose of the records search is to identify any previously recorded cultural resources known to exist within or near the Plan area. In addition to the archaeological inventory records and reports, an examination will be made of historical maps, the National Register of Historic Places, California Register of Historical Resources, the California Historical Resources Inventory, and the listing of California Historical Landmarks. The records search will also reveal the nature and extent of any cultural resources work previously conducted within the Plan area and adjacent vicinity. A map showing the results of the literature search including areas previously inventoried and previously recorded sites will be provided. We assume the SSJVIC will conduct this records search within a maximum direct expense of $1500. As part of the background research, we will request a records search of the Sacred Lands File (SLF) from the Native American Heritage Commission (NAHC) and will contact individuals and/or organizations who may have knowledge of, or concerns with, historic properties in the area. As many as two telephone calls will be made to each of the contacts from the NAHC and local organizations to document "good-faith" efforts to follow-up and the results will be documented in a table. (3) Cultural Resources Technical Study. Upon completion of the records search and literature review, we will conduct a survey of the five project-level site locations. Upon completion of the survey effort, we will prepare a technical report documenting the results of the cultural resources analysis, as well as provide programmatic management recommendations for cultural resources within the 2020 Metro Plan area. The report will be prepared following the California Office of Historic Preservation's Archaeological Resource Management Reports (ARMR): Recommended Contents and Format, and will include a historic context, methods and impacts considerations. The report will include figures depicting the area surveyed and studied for cultural resources. Draft copies of the report (digital pdf) will be submitted to the lead agency for review and approval. We assume two rounds of comments from the local and federal lead agencies will be necessary. Once reviewed, digital copies of the final report will be prepared and submitted. 15 2020 Metro Plan & 2020 UWMP Scope of Work \\/S.C WATER 5YSHMS (ONSlJLIINC.., INC. (4) Assumptions: No cultural resources requiring recordation or updating will be identified by the records search or field survey at any of the project-specific locations. It is assumed that 50% of the specific project area will be in undeveloped or rural areas and will be surveyed on foot; the remainder of the specific project area will be in urban or built up areas and will be surveyed via windshield survey only. It is assumed the cultural resources survey can be conducted by one cultural resources specialist over a period of five days. It is assumed that the survey will not identify any archaeological resources that require recordation or updating . A maximum of three built environment resources will be recorded and evaluated as a result of the field survey. Should any additional cultural resources be identified during the survey, the budget would need to be augmented to record or update the resources. No subsurface testing will be conducted, nor will any artifacts, samples, or specimens be collected during the survey. 4.6 Admin Draft PEIR ► Prepare and Admin Draft PEIR for review by the City. This shall include completion of a table of contents, preparers and reference chapters . This SOW assumes two rounds of review/ comment revisions by the City, with all comments in each round being provided in a compiled and editable format (i.e. track changes). ► The PEIR will be prepared in accordance with the State CEQA Guidelines, which set the standards for adequacy of an EIR. Specifically, the State CEQA Guidelines declare that: ► An EIR should be prepared with a sufficient degree of analysis to provide decision-makers with information which enables them to make a decision which intelligently takes account of environmental consequences . An evaluation of the environmental effects of a proposed project need not be exhaustive, but the sufficiency of an EIR is to be reviewed in light of what is reasonably feasible. ► The analysis will rely on available technical reports to streamline the analytical effort, including the previous certified EIR for the Metro Plan. The overall approach to the analysis will be to verify and utilize existing data, supplemented where necessary with new information or modeling, to create a PEIR that maximizes the use of performance standards and/or policies to ensure that implementation of future projects under the 2020 Metro Plan requires minimal or no subsequent environmental review as the design progresses. ► We will provide seven printed copies and one digital copy of the Administrative Draft PEIR for City and Project Team review. Thereafter, key consultant team members will meet with the review team in order to discuss any concerns, modifications, and input to the analysis and proposed mitigation measures. We assume all comments will clearly indicate the requested changes. It will be the responsibility of City staff to resolve internal inconsistencies among the various commenters. 16 2020 Metro Plan & 2020 UWMP Scope of Work \NSC WAHR SvsTFMs CoNSlJlllNG, INC. ► Executive Summary -We will prepare a summary of the proposed project and associated environmental consequences. This information will be presented in tabular format to simplify review by decision-makers and the general public. This section will summarize project impacts and proposed mitigation measures. The summary will also note areas of known controversy and will summarize the alternatives reviewed and their associated impacts. The summary will also identify the environmentally superior alternative and rationale for its selection as such. ► Introduction and Environmental Setting -We will prepare an Introduction and Environmental Setting for inclusion in the PEIR. This section will introduce the proposed project and summarize the PEIR process and purpose/use of the PEIR. This section will also explain how the PEIR will be used for subsequent environmental reviews of projects under the 2020 Metro Plan. In addition, the Introduction will provide relevant background information discussion, including but not limited to the organization of the PEIR and previous planning efforts. The environmental setting will provide narrative and map descriptions of the existing environment. The 2020 Metro Plan area and facilities will be illustrated on mapping. In addition, the geographic character of the area will be described and illustrated here, including land use/zoning, vegetation, wetlands, floodplains and wildland fire hazard zones. ► Environmental Impact Analysis -Each environmental issue addressed in the PEIR will have four main subsections: (a) Setting (b) Impact analysis (c) Mitigation measures (d) Level of significance after mitigation The prelude to the topic-specific environmental analysis will include an explanation of how the impact analysis will proceed. It is important to set forth the general analytical framework for addressing the potential impacts and mitigation of future projects under the 2020 Metro Plan. The PEIR will evaluate impacts of the overall program, and detailed impacts of up to five specific projects for a hybrid analysis approach. Where possible, impacts will be quantified. If existing data does not allow definitive quantification, reasonable assumptions will be used to qualitatively forecast potential impacts. Mitigation will take the form of a mitigation framework for future projects in conjunction with the subsequent environmental review process, as needed, and will be based upon mitigation measures identified in the 2014 PEIR for the 2014 Metro Plan, where practicable. All environmental topics identified in the 2020 CEQA Guidelines will be addressed in the PEIR for the 2020 Metro Plan. The discussion below provides an overview of the approach and anticipated impact types for each environmental topic. As each impact analysis section is prepared, we will compile source reports and other data for inclusion in the administrative record. The State CEQA Guidelines include the following topics: 17 2020 Metro Plan & 2020 UWMP Scope of Work \VS C WAHR Svsn.is CONSULTING, INC. (1) Aesthetics (2) Agricultural Resources (3) Air Quality (4) Biological Resources (5) Cultural Resources (6) Energy (7) Geology and Soils (8) Greenhouse Gas Emissions (9) Hazards and Hazardous Materials (10) Hydrology and Water Quality (11) Land Use/Policy Consistency (12) Mineral Resources (13) Noise (14) Population/Housing (15) Public Services (16) Recreation (17) Transportation (18) Tribal Cultural Resources (19) Utilities and Service Systems (20) Wildfire The technical approach to analyzing each potential environmental issue is described below. Based on our understanding of the project, the following environmental issues will be addressed in detail in the EIR: Aesthetics, Agricultural Resources, Air Quality, Biological Resources, Cultural Resources, Greenhouse Gas Emissions, Hazards and Hazardous Materials, Hydrology and Water Quality, Land Use, Noise, Public Services and Utilities and Service Systems. The remaining issue areas will be address in a section termed Effects Found Not to be Significant. 18 2020 Metro Plan & 2020 UWMP Scope of Work W'SC WAnH Svsn~ts CoNSULTINC., INC. ► Aesthetics, Light and Glare -Construction of the projects considered in the 2020 Metro Plan may cause impacts to the visual environment due to the presence of construction vehicles and equipment. In general, project components are anticipated to be visually compatible with existing and surrounding land uses once constructed. Aesthetic impacts will be evaluated from public viewpoints . The analysis will include review of the visual resource sensitivity of the Plan area, including any scenic resources identified in local planning documents (such as scenic vistas, and scenic highway designation). Photos showing views of the five project sites will be provided to help depict the visual character of the specific sites and the immediate project areas. If necessary, mitigation measures may include screening to buffer views of the project sites from nearby sensitive resources. (1) Assumptions: This SOW does not include preparation of visual simulations for any of specific projects included in the Plan . ► Agriculture and Forestry Resources -The majority of the service area is designated as "Urban- Built Up Land ." The PEIR will confirm whether there will be an effect on farmland or forestland and whether the 2020 Metro Plan would convert such lands to another use . The analysis will be based on a desktop review only and no field work is anticipated to be required. ► Air Quality -The air quality section will be prepared in accordance with the methodologies outlined in the San Joaquin Valley Air Pollution Control District (SJVAPCD) guidelines. The PEIR will include a detailed discussion of the current air quality setting within the local airshed along with local climatic and air pollution data from local air monitoring stations. Emission factor data, when not identified in the SJVAPCD guidelines, will be obtained from EPA AP-42, Compilation of Air Pollutant Emissions Factors, Third Edition, and any updates published by the U.S. EPA. The motor vehicle constituents of concern include reactive organic gases, nitrogen oxide, carbon monoxide, and particulate matter. Significance criteria will be based on SJVAPCD thresholds. Construction emissions will be estimated for the Preferred Alternative using estimates of the types of equipment needed for individual construction projects for the worst-case day during construction using the California Emissions Estimator Model (CalEEMod) software. It is anticipated that the worst-case day analysis at the Plan level will provide a reasonably conservative estimate of the emissions also associated with the five specific projects and a separate air quality model run for each project will not be required. The section will include a qualitative discussion and analysis of odor or improvements to control due to types of facilities expected to be proposed. Where necessary, the PEIR will identify programmatic measures required to mitigate air quality impacts identified, such as: (1) Dust control measures during construction (2) Measures to minimize or avoid stationary source emission impacts (3) Proposed measures to minimize odor impacts 19 2020 Metro Plan & 2020 UWMP Scope of Work wsc WATER SYSTEMS (ONSUITING, INC. (4) Community Plan design guidelines or standards to promote alternative trip modes (5) Measures to minimize engine idling (6) Development of an air impact fee program ► Biological Resources -The impact analysis will be based on the Biological Resources Assessment and will evaluate the Plan's impacts relative to both state and federal requirements as well as locally recognized thresholds of significance. It will include analysis of both direct and indirect impacts as well as temporary impacts that may occur during construction of projects envisioned by the Plan. The Biological Resources Assessment prepared under Task 5.1 will inform the analysis in this section of the PEIR. Avoidance, minimization, and mitigation measures will be developed for all impacts identified. Mitigation measures will focus on measures that will be required to ensure the proposed project adequately avoids, minimizes, and mitigates potential impacts to regulated biological resources. ► Cultural Resources -The PEIR section will be based on the Cultural Resources Study described previously and will include a discussion of the archaeological and historical setting of the Plan area along with the sites of the five projects identified in the Plan, a description of impacts based on the cultural resources technical report and any additional information, and identification of mitigation measures for identified impacts. The section will summarize applicable federal, state and local cultural resources regulations. The analysis will assess the existing setting information and qualitatively determine the likelihood of impacting resources resulting from Plan implementation. Mitigation measures will be proposed, as appropriate, to reduce potential impacts to cultural resources, where practicable. ► Energy -As of January 3, 2019, Appendix G of the State CEQA Guidelines now requires a discussion of the energy impacts of proposed projects, with an emphasis on avoiding or reducing wasteful consumption of energy and supporting applicable renewable energy plans. The analysis will consider at a programmatic level the Plan's energy requirements and quantify, as feasible, the energy use efficiencies by amount and fuel type at a programmatic level, including construction and operation of the individual projects, and the degree to which the Plan complies with existing energy standards and local plans for energy efficiency. This analysis will describe program commitments, design features, and mitigation measures, if necessary, to minimize and reduce the Plan's consumption of fuel and energy. ► Geology and Soils -The 2020 Metro Plan area is largely previously disturbed and developed. The analysis in the PEIR will summarize the results of existing geotechnical investigations prepared for previous projects, if available, and identify existing regional and site-specific geology and soils constraints (such as liquefaction, compressible soils, and subsidence). Under the 2020 CEQA Guidelines, Paleontological Resources will also be addressed under Geology and Soils. We will conduct a paleontological resources assessment to identify the geologic units within the 2020 Metro Plan area, determine the paleontological sensitivity of geologic units, assess potential for impacts to paleontological resources, and recommend mitigation measures to avoid, minimize or mitigate impacts to scientifically significant 20 2020 Metro Plan & 2020 UWMP Scope of Work \!\/SC \VATER S'r'STF,\1S CONSUi TING, INC. paleontological resources. We will conduct a formal paleontological locality search to provide documentation of any previously recorded paleontological resources from within the Plan area or within outcrops of the same geologic units that occur in the vicinity. Published and unpublished literature and geologic maps will be reviewed in order to assess the paleontological resource potential of the study area. The analysis of paleontological resources will discuss the regulatory setting for paleontological resources, the geology of the project area in terms of paleontological sensitivity, present the results of the paleontological sensitivity analysis, summarize and discuss previously recorded fossil localities within the project areas (if any), provide an assessment of potential impacts to paleontological resources from project development, and present paleontological resource mitigation recommendations. (1) Assumption: Direct cost of the formal locality search will not exceed $500 and no paleontological field survey will be required. ► Greenhouse Gas Emissions -The PEIR will evaluate impacts related to greenhouse gases (GHGs) and climate change. We will analyze impacts associated with construction and operational GHG from the project, as well as project consistency with available local plans. The analysis will quantitatively assess project-related GHG emissions using CalEEMod. We will briefly describe the status of applicable regulations such as Assembly Bill 32 (Global Warming Solutions Act), Senate Bill 97, and Senate Bill 32, taking into account the Senate Bill 32 GHG reduction target of 40 percent below 1990 levels by 2030. If significant GHG emissions impacts are identified, mitigation measures will be developed to avoid, minimize or mitigate such impacts to less than significant levels, if feasible. The scientific knowledge, governmental regulations, and case law surrounding the analysis of GHG emissions under CEQA is constantly evolving and is currently being litigated in a variety of court cases across California. Additionally, lead agencies have discretion to develop their preferred approach to performing climate change analysis for projects and may adjust their views on acceptable methodologies on pace with changes in scientific knowledge and regulatory schemes. As such, the appropriate methodologies to evaluate the significance of project-level GHG emissions are subject to change at any time. This SOW represents our best understanding of currently accepted methodologies. We will work closely with the City to coordinate information regarding sustainability features that may be included in the projects considered under the Plan. If the projects will include features to reduce energy use at the site, GHG emissions reductions from project sustainability features will be calculated using CalEEMod, and the net decrease in total Plan GHG emissions will be identified. 21 2020 Metro Plan & 2020 UWMP Scope of Work \.\/SC WAHR SYSTEMS CONSUi rlNG, INC. ► Hazards and Hazardous Materials -Hazard conditions associated with the proposed project will be examined in the PEIR, based upon publicly available data from agency databases, field observations, and technical studies provided by the City, if any. This SOW does not include site- specific soil contamination studies due to the programmatic nature of the PEIR. Should analysis of the existing environment for hazards indicate that study of site-specific soil contamination conditions is warranted for future work on a given project site, we will recommend that analysis be conducted at a project level, rather than programmatic. We will provide program-level mitigation, if needed, establishing performance standards to address hazardous materials concerns if site-specific analysis is to be conducted at a later date. (1) Assumption: No site-specific soil contamination studies will be prepared. ► Hydrology and Water Quality -We will summarize existing water quality conditions in the Plan area. The characteristics of the local watershed will be characterized, impaired streams within the watershed will be identified, and flood hazard zones will be described using FEMA and other publicly available mapping. We will assess existing runoff conditions and character of surface water features and will programmatically evaluate the impacts of the Plan on surface runoff and changes in drainage patterns. Changes to the groundwater table as a result of Plan implementation will be based on the results of the water budget analysis. We will summarize the hydrologic and water quality setting, relevant regulatory framework, potential impacts, level of significance, and mitigation measures necessary to reduce impacts. ► Land Use/Policy Consistency -This section will discuss general land use compatibility, as necessary, but will focus on the consistency of the 2020 Metro Plan with the applicable local and regional planning documents, such as the City of Fresno General Plan. The 2020 Metro Plan projects are expected to be consistent with existing policies and ordinances, and this will be confirmed in the analysis. ► Mineral Resources -According to the City of Fresno General Plan EIR, the San Joaquin River resource area, which contains a high concentration of aggregate materials, is located in the City's sphere of influence. This section will discuss impacts to mineral resources and will determine whether any project elements of the 2020 Metro Plan overlap with the San Joaquin River resource area. Impacts to mineral resources are not anticipated based on information from applicable plans and regulations. ► Noise -No long-term increase in peak hour trip generation is anticipated from the 2020 Metro Plan; therefore, the analysis will focus on long-term changes to equipment noise throughout the Plan area. The analysis will review applicable City noise and land use compatibility criteria for the Plan area. For each of the five specific projects, up to three short-term noise level measurements will be conducted on and around the sites (up to 15 total measurements). Construction noise will be estimated at nearby sensitive receptors and evaluated in terms of maximum levels (Lmax) and hourly equivalent continuous noise levels (Leq). Impacts associated with construction vehicular traffic will be assessed using the U.S. Federal Highway Traffic Noise Model (TNM) based on information to be provided by the City. In some cases, the individual components of the proposed projects may contribute to an overall reduction in noise generated 22 2020 Metro Plan & 2020 UWMP Scope of Work \NSC WAHR 5YSTIMS (ONSUlllNG, )NC. by on-site equipment, given ongoing improvements in technology. Mitigation measures will be provided as necessary that establish noise performance standards to reduce impacts to less than significant levels. (1) Assumption: Up to 15 short-term noise measurements will be conducted; 24-hour noise measurements are not anticipated to required and are not included in this SOW. ► Population/Housing -Implementation of the 2020 Metro Plan would occur in line with the current City of Fresno General Plan, including with respect to growth projections for population and housing. The PEIR will provide information and analysis to demonstrate that the 2020 Metro Plan would not result in growth inducement or residential displacement . ► Public Services -This analysis will evaluate the 2020 Metro Plan's effects related to the provision of services, including fire, law enforcement, educational, and recreational services. Data sources will include readily available documents, including contact with local service providers. The 2020 Metro Plan is not anticipated to impede or require expanded or revised public services. ► Recreation -The PEIR will assess potential impacts of the 2020 Metro Plan to nearby recreational resources and opportunities. The 2020 Metro Plan is not anticipated to affect recreational facilities, resources, or opportunities. ► Transportation -The PEIR will qualitatively describe traffic and transportation conditions in the 2020 Metro Plan service area. This section will qualitatively analyze anticipated operational and construction-related impacts resulting from implementation of the 2020 Metro Plan. Operation of projects considered by the Plan are anticipated to result in trip generating uses similar to current conditions . However, construction of the project could have the potential to create temporary increases in trips, and temporary impacts to transportation facilities (e.g. lane closures associated with installation of in-road facilities). Mitigation is likely to focus on control measures, such as coordination with agencies and effective development and implementation of traffic control plans during construction. Also, given the timing of the EIR a vehicle-miles traveled (VMT) analysis will be required per the updated State CEQA Guidelines. While VMT increases are anticipated to short-term and temporary and related primarily to construction activities, the analysis will make an estimate of construction-related VMT and characterize this construction phase impact; anticipated to be less than significant . (1) Assumption: Based on information available at this time it is assumed a qualitative analysis will be sufficient to inform the analysis of the project and a quantitative traffic impact analysis prepared by a traffic engineering firm will not be required. However, if based on discussions with the City and/or the scoping process it is determined a full traffic impact analysis is needed, we have established relationships with a number of local traffic firms who we would bring on in a subconsultant role to assist with this effort. 23 2020 Metro Plan & 2020 UWMP Scope of Work \t\lSC W,\nR SvsnMs CoNsuLT1Nc., INC. ► Tribal Cultural Resources -Tribal cultural resources were not addressed in the 2014 PEIR and will be addressed in accordance with the 2020 CEQA Guidelines. Under Assembly Bill 52, the CEQA lead agency is required to begin consultation with California Native American tribes traditionally and culturally affiliated with the project area prior to the release of the CEQA document. We will assist the City with undertaking a good faith effort at consultation for Assembly Bill 52 as described below. (1) Preparation of the Tribal Cultural Resources section of the PEIR will analyze the 2020 Metro Plan's potential impacts on tribal cultural resources. To prepare this analysis, we will review the draft plan and proposed future projects as well as information obtained during Assembly Bill 52 consultation between the City and interested tribes. We will assist the City with government-to-government Native American consultation as follows: (a) Prepare the Assembly Bill 52 consultation letters to be placed on City letterhead (b) Prepare and submit a Native American Heritage Commission (NAHC) Sacred Lands File request (c) Prepare a tracking sheet and instructions to be provided to the City; instructions will include details regarding schedule and timelines associated with Assembly Bill 52 to ensure timely consultation (d) If meetings with Native Americans are necessary, we will be available to provide additional assistance on a time-and-materials basis, if requested. We will collect regional background information on tribal cultural resources that could be affected by the 2020 Metro Plan. The collected information will include the NAHC Sacred Lands File Search, reviews of regional ethnographic information, information from relevant past projects, and information provided through government-to-government tribal consultation in accordance with Assembly Bill 52. We are acutely sensitive to tribal concerns in the area and will provide the support necessary to facilitate a communicative and streamlined consultation process. ► Utilities and Service Systems -The PEIR will evaluate the 2020 Metro Plan's potential impacts to existing infrastructure, including with respect to water, wastewater, and solid waste facilities. Construction activities would temporarily generate solid waste such as soil, concrete, and other removed materials; the PEIR will describe that solid waste generated by construction of individual projects would be disposed of in accordance with all applicable statutes and regulations and will evaluate whether nearby landfills have the capacity to accept solid waste generated by project construction activities. This section will further discuss how the project relates to conformance with applicable Regional Water Quality Control Board wastewater treatment requirements, the impacts on-or of-any related utility improvements (e.g. stormwater improvements), required water supply entitlements, or wastewater expansion. 24 2020 Metro Plan & 2020 UWMP Scope of Work wsc WAHR SYSTEMS CONSUi.YiNG, INC. ► Wildfire -This section will include a discussion of the Plan area along with mapping of very high fire hazard severity zones with respect to facilities included in the Plan. This section will address the potential for implementation of the Plan to impair an emergency response plan or emergency evacuation plan; exacerbate wildfire risks due to slope, prevailing winds or other factors; require installation or maintenance of infrastructure which may exacerbate fire risk; expose people or structures to downstream flooding or landslides from postfire slope instability or drainage changes. ► Alternatives -The alternatives developed as described above will be evaluated at a level of detail that will provide decision-makers and the public adequate information to decide among alternatives. For each of the selected alternatives, each environmental issue area will be briefly evaluated in a qualitative manner to determine whether the alternative would have the potential to result in greater, similar, or reduced environmental impacts when compared to the impacts of the preferred alternative. Where appropriate and feasible, quantitative comparisons will be provided. The results of the alternatives analysis will be summarized graphically in a comparison matrix. This section will also identify the "environmentally superior alternative." If the No Project Alternative is determined to be environmentally superior, the PEIR will identify the environmentally superior alternative among the remaining scenarios. ► Other CEQA-Required Sections -The PEIR will include all other sections required by the State CEQA Guidelines, including growth inducing impacts and irreversible significant effects. The growth-inducing impacts section of the PEIR will focus on the extent to which implementation on the 2020 Metro Plan will serve as the removal of a barrier to growth. This evaluation will be based on project growth trends relative to infrastructure capacity, as coordinated in local and regional planning documents, such as the General Plan and its PEIR. DELIVERABLE(S): Seven (7) hard-copies and one electronic copy of the Adm in Draft PEIR. 4.7 Public Draft PEIR ► After receiving comments regarding the Administrative Draft PEIR, we will revise the PEIR to address comments, and produce the public Draft PEIR with Technical Appendices. Upon receiving clearance, we will print and deliver 15 printed copies, one electronic PDF file and one electronic MS Word document. We will be responsible for posting of all notices, including posting the Notice of Availability with the County Clerk and State Clearinghouse. We will coordinate with the City to prepare a list of recipients of the Notice of Availability and prepare the Notice of Availability, which can also function as the newspaper notice. ► The consultant team shall prepare for and attend two public hearings or meeting in support of the project. The public hearings/meetings will include a presentation of environmental components of the PEIR and a response to technical questions that arise during the public hearing. Following the public hearings/meetings, meeting notes will be prepared, and written and oral comments will be collected and summarized for submittal to the City for review. 25 2020 Metro Plan & 2020 UWMP Scope of Work \,\/SC WATER SYSTEMS CONSULTING, INC. ► Assumption: This SOW includes up to two rounds of consolidated comments from the City on the Administrative Draft PEIR prior to preparation of the Public Review Draft PEIR. We assume the City will be responsible for publication of the Notice of Availability in a newspaper of general circulation and payment of any publication and filing fees. We can coordinate these efforts, if desired, for an additional cost. ► Complete WSC QA/QC practices. DELIVERABLE(SJ: Fifteen (15) hard-copies and one electronic copy of the Public Review Draft PEIR. 4.8 Final PEIR and MMRP The final formal stages of the PEIR process involve responding to comments, public hearings, and final publication tasks. ► Response to Comments/Administrative Final PEIR -Following the close of the public review period, we will review the comments and schedule a meeting with the City to discuss key comments and approaches for response. Comment letters will be annotated to relate comments with responses. Responses will focus on comments raising an environmental concern and generally rely on substantial evidence already in the Draft PEIR, as well as supplemental clarification or explanation. We will prepare draft Response to Comments for City review. Revisions to the Draft PEIR will be in an Errata format/section indicating what section is being modified, with content changes identified in a strikeout (for deletions) and underline format (for additions). (1) Assumption: No more than 20 comment letters will be received, and no more than 60 hours of professional time will be required to respond to public comments on the Draft PEIR. This SOW assumes two rounds of review/comment revisions from the City, with comments provided in a consolidated and editable format (i.e. track changes). ► Publication of the Final PEIR -We will revise the Final PEIR based on City comments. We will distribute the responses to comment to agencies which commented on the Draft PEIR, via certified mail or other trackable delivery means. In accordance with CEQA requirements, distribution will take place at least 10-days prior to certification of the PEIR by the City. We will provide 15 printed copies, one electronic PDF file and one electronic MS Word document. (1) Assumption: The consultant team shall prepare for and attend one public hearing on the Final PEIR. ► Findings of Fact -We will prepare the CEQA findings for the project. CEQA Guidelines §15091 requires that no public agency approve or carry out a project, for which an EIR has been completed and identifies one or more significant effects, unless the public agency prepares findings for each significant effect. The findings will include information related to whether those significant impacts identified in the PEIR will be reduced to below a level of significance by mitigation measures identified in the PEIR. CEQA Guidelines §15093 requires when an agency approves a project which will have a significant adverse environmental effect that is 26 2020 Metro Plan & 2020 UWMP Scope of Work \NSC WAI ER SYSTFMS (ONSlH IING, INC. unavoidable, the agency must make a Statement of Overriding Considerations. If a significant and unavoidable impact is identified in the PEIR, we will prepare the Statement of Overriding Considerations. We will provide an administrative draft of the CEQA findings to the City for review and comment, and then incorporate one round of consolidated City comments into a final document. ► Notice of Determination -We will prepare and file the Notice of Determination with the County Clerk and the State Clearinghouse in conjunction with the City. We assume the City will provide the required administrative and California Department of Fish and Wildlife filing fees prior to filing. ► Mitigation Monitoring and Reporting Program -A Mitigation Monitoring and Reporting Program (MMRP) will be prepared in accordance with CEQA. The MMRP will be provided as a separately bound document from the Final PEIR. The MMRP will be prepared with the Final PEIR, to capture potential revisions associated with reviews of the Draft PEIR. The MMRP will include implementation measures appropriate for future projects under the 2020 Metro Plan, and will identify the appropriate party responsible for implementation, monitoring, capital costs, and confirmation of implementation. The MMRP will be designed to facilitate accomplishment of the 2020 Metro Plan goals . (2) Assumption: This SOW assumes two rounds of review/ comment revisions from the City to be provided in a consolidated and electronic, editable format (i.e. track changes in MS Word). DELIVERABLE(S): Fifteen (15) hard-copies and one electronic copy of the Draft Report. TASK 5.0 2020 UWMP Develop a 2020 UWMP according to the 2020 DWR UWMPs Guidebook for Urban Water Suppliers and meet all requirements of California Water Code, §10610-10656 and §10608. The guidebook has not been released . Therefore, the scope and level of effort are based on our understanding of potential requirements. This may need to be revisited once the guidebook is released. Assumption: It is assumed that the City's existing Water Shortage Contingency Plan (WSCP) and related information will be used to update the WSCP. WSC will provide suggestions for modifying the WSCP to the City on how the existing plan might be modified to be consistent with guidelines established by DWR. It is assumed that WSC will adapt existing information to DWR's new requirements to the extent possible with information provided by the City. Any additional analysis or information needed to meet DWR's requirements is not included within the Cost Proposal for this task. 5.1 Kickoff Meeting & Workshops (3) ► By January 2021, plan, organize, and conduct Kickoff Meeting 27 2020 Metro Plan & 2020 UWMP Scope of Work \NS C WAHR SvsnMs CoNsu, TING, INC. (1) Discuss and agree on assumptions for use in the UWMP knowing that the Phase 2 Metro Plan work will not be complete in time for full incorporation into the UWMP. Key assumptions include: supply projections and priorities; conservation measures ► Attend and conduct up to three (3) workshops with City staff to develop chapters, concepts, goals. 5.2 Preliminary UWMP Sections ► Prepare UWMP sections as the content is developed during Phase 1 Metro Plan activities. 5.3 Admin Draft UWMP ► Compile full UWMP report consistent with legislative and DWR guideline requirements. Implement WSC Quality Assurance and Quality Control (QA/QC) practices. Submit to the City for review and comment. DELIVERABLE(S): Seven (7) hard-copies and one electronic copy of the Adm in Draft UWMP. 5.4 Public Draft UWMP ► Prepare Public Draft UWMP that incorporates comments from the City on the Admin Draft Report. Complete WSC QA/QC practices. ► Submit Public Draft UWMP to City for distribution. ► Prepare PowerPoint Presentation for Public Outreach Events. DELIVERABLE(S): Twenty (20) hard-copies and one electronic copy of the Public Draft UWMP 5.5 Final Draft UWMP ► Review comments on the Public Draft UWMP with the City. Prepare the Final Draft UWMP that incorporates agreed upon comments. Complete WSCQA/QC practices . ► Submit Final Draft UWMP to City for City review and comment. ► Prepare PowerPoint Presentation for City Council. Make presentations to City Council for Public Hearing and subsequent plan adoption. 5.6 Final UWMP ► Prepare Final UWMP that incorporates comments from the City on the Final Draft Report. Complete WSC QA/QC practices. ► Submit Final UWMP and Excel tables to the City for posting to DWR. ► Submit UWMP database for modification for future reporting requirements. ► Revise UWMP to address comments from DWR, if any, and provide copies of revised chapters DELIVERABLE(S): Twenty (20) hard-copies and one electronic copy of the Final UWMP 28 2020 Metro Plan & 2020 UWMP Scope of Work \,\/SC WATER SYSTIMS CONSUlllNG, INC. TASK 6.0 USBR WATER MANAGEMENT PLAN The City's CVP contract requires a Water Management Plan (WMP) to be submitted to USBR every five years. The WMP is an analysis of the City's water usage, a summary of prior water conservation efforts, and a description of future water conservation activities to implement. USBR will accept a UWMP approved by DWR in lieu of a Federal Plan if the City submits the WMP and appropriate Supplemental Documentation. Supplemental Documentation includes USBR WMP requirements not met within the WMP. WMP compliance requires submission of: • Final UWMP • Acceptance letter from DWR stating that the plan was accepted • Supplemental Documentation • Crosswalk Table WSC will prepare Supplemental Documentation and a Crosswalk Table with 2020 WMP Standard Criteria. Note that the Standard Criteria is currently a draft document and the 2020 Water Management Planner has not been released. Therefore, the scope and level of effort are based on the draft Standard Criteria requirements. This may need to be revisited once the Planner is released. 6.1 Kickoff Meeting & Workshops (3) ► USBR WMP topics of interest will be added to the 2020 UWMP Kickoff Meeting ► USBR WMP topics of interest will be added to UWMP workshops with City staff. Up to three (3) workshops are assumed. 6.2 Admin Draft WMP ► Prepare Supplemental Documentation and Crosswalk Table based on USBR guidance documents. Based on review of the draft 2020 Standard Criteria, the following supplemental documentation is anticipated: (1) Location and Facilities -Flow measurement methods and locations (2) Natural and cultural resources (3) Operating rules and regulations (4) Source water quality monitoring practices (S) Outflow from the District (6) Water accounting (by month) (7) Education programs (8) 5-Year budget (for BMPs) ► Implement WSC Quality Assurance and Quality Control (QA/QC) practices. ► Submit to the City for review and comment. DELIVERABLE(S): Four (4) hard-copies and one electronic copy of the Adm in Draft WMP. 29 2020 Metro Plan & 2020 UWMP Scope of Work \\/SC WAHR Svsn11.1s C0Nsu1 TING, INC. 6.3 Public Draft WMP ► Prior to adopting a plan, the City must make the plan available for public inspection and hold a public hearing. This process is assumed to occur along with the 2020 UWMP public process. ► Prepare Public Draft WMP that incorporates comments from the City on the Adm in Draft Report. Complete WSC QA/QC practices. ► Submit Public Draft WMP to City for distribution. ► If requested, modify PowerPoint Presentation for 2020 UWMP to include WMP content. DELIVERABLE(S): Four (4) hard-copies and one electronic copy of the Public Draft WMP 6.4 Final Draft WMP ► Review comments on the Public Draft WMP with the City. Prepare the Final Draft WMP that incorporates agreed upon comments. Complete WSC QA/QC practices. ► Submit Final Draft WMP to City for City review and comment. ► Prepare PowerPoint Presentation for City Council. Make presentations to City Council for Public Hearing and subsequent plan adoption. DELIVERABLE(S): One electronic copy of the Final Draft WMP 6.5 Final WMP ► Prepare Final WMP that incorporates comments from the City on the Final Draft Report. Complete WSC QA/QC practices. ► Submit Final WMP to the City for submission to USBR. ► Revise WMP to address comments from USBR, if any, and provide copies of revised content DELIVERABLE(S): Four (4) hard-copies and one electronic copy of the Final WMP 30 2020 Metro Plan & 2020 UWMP Scope of Work Excluded Services Optimatics Analysis \,\/SC WAlER SYSTEMS (ONSlJlllNC, INC. ► This scope of work does not include the use of Optimatics optimization techniques to support the water supply alternatives analysis. Hydraulic Modeling ► This scope of work does not include detailed hydraulic modeling to support to the evaluation of the existing water resource systems or potential future alternatives. Master Plans ► This scope of work does not include completion of detailed Master Plans for the Water, Wastewater, Recycled Water, Stormwater or other water related treatment and conveyance systems. Public Relations and Strategic Communications ► This scope of work does not include public relations or strategic communications support, including Council or Commission hearing presentations or attendance, informational handouts, etc. It is assumed that City Staff will lead public and elected official outreach efforts related to the development of the update Metro Plan. 31 SCHEDULE OF FEES [See Attached] DPU-S 8 .3 /03-24-14 Page 2 of 2 WMER SvsnMs CoNSUUING, INC. 2020 Classifications and Rates Labor Classiflcatlon Hourly Rate Engineers / Project Managers / Planners / Hydrogeologlsts Eng ineering Intern $115 Assistant $135 Staff I $145 Staff II $155 Staff Ill $165 Associate I $180 Associate II $190 Associate Ill $200 Senior I $220 Senior II $230 Senior Ill $240 Princip al I $250 Principal II $280 Princ ipal Ill $305 Outreach and Communications Communications Support I $120 Communications Support II $140 Communications Support Ill $160 Outreach Specialist/Facilitator I $175 Outreach Specialist/Facilitator II $220 Outreach Specialist/Facilitator Ill $265 CAD Design Services Technician/Designer I $120 Technician/De signer II $135 Technician/D esigne r Ill $155 Inspection Services Insp ector I $125 Inspector II $140 Inspe ctor Ill $165 Inspector (Prevailing Wage) $170 Administrative Services Administration/Clerical I $120 Administration/Clerica l II $130 Administration/Clerical Ill $145 10% mark-up on direct expenses; 10% mark-up for sub-contracted services Standard mileage rate $0.57 per mile (or current Federal Mileage Reimbursement Rate) Airplane mileage rate $1.27 per mile (or current Federal Airplane Mileage Reimbursement Rate) Rates are subject to revision as of January 1 each year. 805 Aerovista Place, Suite 201, San Luis Obispo, CA 93401 www .expectwsc.com Exhibit B INSURANCE REQUIREMENTS Consultant Service Agreement between City of Fresno {"CITY") and Water Systems Consulting, Inc. {"CONSULTANT") 2020 Metropolitan Water Resources Management Plan , Urban Water Resources Plan and Programmatic Environmental Impact Report PROJECT TITLE MINIMUM SCOPE OF INSURANCE Coverage shall be at least as broad as : 1. The most current version of Insurance Services Office (ISO) Commercial General Liability Coverage Form CG 00 01, providing liability coverage arising out of your business operations. The Commercial General Liability policy shall be written on an occurrence form and shall provide coverage for "bodily injury," "property damage" and "personal and advertising injury" with coverage for premises and operations (including the use of owned and non-owned equipment), products and completed operations, and contractual liability (including, without limitation, indemnity obligations under the Agreement) with limits of liability not less than those set forth under "Minimum Limits of Insurance." 2 . The most current version of ISO *Commercial Auto Coverage Form CA 00 01, providing liability coverage arising out of the ownership, maintenance or use of automobiles in the course of your business operations. The Automobile Policy shall be written on an occurrence form and shall provide coverage for all owned, hired, and non-owned automobiles or other licensed vehicles (Code 1-Any Auto). 3. Workers' Compensation insurance as required by the State of California and Employer's Liability Insurance. 4. Professional Liability (Errors and Omissions) insurance appropriate to CONSULTANT'S profession. MINIMUM LIMITS OF INSURANCE CONSUL TANT, or any party the CONSUL TANT subcontracts with, shall maintain limits of liability of not less than those set forth below. However, insurance limits available to CITY, its officers, officials, employees, agents and volunteers as additional insureds, shall be the greater of the minimum limits specified herein or the full limit of any insurance proceeds available to the named insured: 1. COMMERCIAL GENERAL LIABILITY: (i) $1,000,000 per occurrence for bodily injury and property damage; (ii) $1,000,000 per occurrence for personal and advertising injury; (iii) $2,000,000 aggregate for products and completed operations; and, (iv) $2,000,000 general aggregate applying separately to the work performed under the Agreement. 2 . COMMERCIAL AUTOMOBILE LIABILITY: $1,000,000 per accident for bodily injury and property damage. 3. WORKERS' COMPENSATION INSURANCE as required by the State of California with statutory limits . 4. EMPLOYER'S LIABILITY: (i) $1,000,000 each accident for bodily injury; (ii) $1,000,000 disease each employee; and, (iii) $1,000,000 disease policy limit. 5. PROFESSIONAL LIABILITY (Errors and Omissions): (i) $2 ,000 ,000 per claim/occurrence; and, (ii) $4 ,000 ,000 policy aggregate. UMBRELLA OR EXCESS INSURANCE In the event CONSULTANT purchases an Umbrella or Excess insurance policy(ies) to meet the "Minimum Limits of Insurance," this insurance policy(ies) shall "follow form" and afford no less coverage than the primary insurance policy(ies). In addition, such Umbrella or Excess insurance policy(ies) shall also apply on a primary and non-contributory basis for the benefit of the CITY, its officers, officials, employees, agents and volunteers. DEDUCTIBLES AND SELF-INSURED RETENTIONS CONSUL TANT shall be responsible for payment of any deductibles contained in any insurance policy(ies) required herein and CONSUL TANT shall also be responsible for payment of any self- insured retentions. Any deductibles or self-insured retentions must be declared to on the Certificate of Insurance, and approved by, the CITY'S Risk Manager or his/her designee. At the option of the CITY'S Risk Manager or his/her designee, either: (i) The insurer shall reduce or eliminate such deductibles or self-insured retentions as respects CITY, its officers, officials, employees, agents and volunteers; or (ii) CONSUL TANT shall provide a financial guarantee, satisfactory to CITY'S Risk Manager or his/her designee, guaranteeing payment of losses and related investigations, claim administration and defense expenses. At no time shall CITY be responsible for the payment of any deductibles or self- insured retentions. OTHER INSURANCE PROVISIONS/ENDORSEMENTS The General Liability and Automobile Liability insurance policies are to contain, or be endorsed to contain, the following provisions: 1. CITY, its officers, officials, employees, agents and volunteers are to be covered as additional insureds. CONSUL TANT shall establish additional insured status for the City and for all ongoing and completed operations by use of ISO Form CG 20 10 11 85 or both CG 20 10 10 01 and CG 20 37 10 01 or by an executed manuscript insurance company endorsement providing additional insured status as broad as that contained in ISO Form CG 20 10 11 85. 2 . The coverage shall contain no special limitations on the scope of protection afforded to CITY, its officers, officials, employees, agents and volunteers. Any available insurance proceeds in excess of the specified minimum limits and coverage shall be available to the Additional Insured. 3. For any claims relating to this Agreement, CONSULTANT'S insurance coverage shall be primary insurance with respect to the CITY, its officers, officials, employees, agents and volunteers. Any insurance or self-insurance maintained by the CITY, its officers, officials, employees, agents and volunteers shall be excess of CONSULTANT'S insurance and shall not contribute with it. CONSUL TANT shall establish primary and non-contributory status by using ISO Form CG 20 01 04 13 or by an executed manuscript insurance company endorsement that provides primary and non-contributory status as broad as that contained in ISO Form CG 20 01 04 13. The Workers ' Compensation insurance policy is to contain, or be endorsed to contain, the following provision: CONSUL TANT and its insurer shall waive any right of subrogation against CITY, its officers, officials, employees, agents and volunteers. If the Professional Liability (Errors and Omissions) insurance policy is written on a claims-made form: 1. The retroactive date must be shown, and must be before the effective date of the Agreement or the commencement of work by CONSULTANT. 2. Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after completion of the Agreement work or termination of the Agreement, whichever occurs first, or, in the alternative, the policy shall be endorsed to provide not less than a five (5) year discovery period. 3. If coverage is canceled or non-renewed, and not replaced with another claims- made policy form with a retroactive date prior to the effective date of the Agreement or the commencement of work by CONSULTANT, CONSULTANT must purchase "extended reporting" coverage for a minimum of five (5) years completion of the Agreement work or termination of the Agreement, whichever occurs first. 4. A copy of the claims reporting requirements must be submitted to CITY for review. 5. These requirements shall survive expiration or termination of the Agreement. All policies of insurance required herein shall be endorsed to provide that the coverage shall not be cancelled, non-renewed, reduced in coverage or in limits except after thirty (30) calendar days written notice by certified mail, return receipt requested, has been given to CITY. CONSUL TANT is also responsible for providing written notice to the CITY under the same terms and conditions. Upon issuance by the insurer, broker, or agent of a notice of cancellation, non-renewal, or reduction in coverage or in limits, CONSULTANT shall furnish CITY with a new certificate and applicable endorsements for such policy(ies). In the event any policy is due to expire during the work to be performed for CITY, CONSUL TANT shall provide a new certificate, and applicable endorsements, evidencing renewal of such policy not less than fifteen (15) calendar days prior to the expiration date of the expiring policy. Should any of the required policies provide that the defense costs are paid within the Limits of Liability, thereby reducing the available limits by any defense costs, then the requirement for the Limits of Liability of these polices will be twice the above stated limits. The fact that insurance is obtained by CONSULTANT shall not be deemed to release or diminish the liability of CONSUL TANT, including, without limitation, liability under the indemnity provisions of this Agreement. The policy limits do not act as a limitation upon the amount of indemnification to be provided by CONSUL TANT. Approval or purchase of any insurance contracts or policies shall in no way relieve from liability nor limit the liability of CONSUL TANT, its principals, officers, agents, employees, persons under the supervision of CONSUL TANT, vendors, suppliers, invitees, consultants, sub-consultants, subcontractors, or anyone employed directly or indirectly by any of them. VERIFICATION OF COVERAGE CONSUL TANT shall furnish CITY with all certificate(s) and applicable endorsements effecting coverage required hereunder. All certificates and applicable endorsements are to be received and approved by the CITY'S Risk Manager or his/her designee prior to CITY'S execution of the Agreement and before work commences. All non-ISO endorsements amending policy coverage shall be executed by a licensed and authorized agent or broker. Upon request of CITY, CONSUL TANT shall immediately furnish City with a complete copy of any insurance policy required under this Agreement, including all endorsements, with said copy certified by the underwriter to be a true and correct copy of the original policy. This requirement shall survive expiration or termination of this Agreement. SUBCONTRACTORS-If CONSULTANT subcontracts any or all of the services to be performed under this Agreement, CONSUL TANT shall require, at the discretion of the CITY Risk Manager or designee, subcontractor(s) to enter into a separate Side Agreement with the City to provide required indemnification and insurance protection. Any required Side Agreement(s) and associated insurance documents for the subcontractor must be reviewed and preapproved by CITY Risk Manager or designee . If no Side Agreement is required, CONSUL TANT will be solely responsible for ensuring that it's subcontractors maintain insurance coverage at levels no less than those required by applicable law and is customary in the relevant industry. I 1 2 3 4 5 6 Exhibjt C DISCLOSURE OF CONFLICT OF INTEREST 2 0 20 Metropolitan Water Resou rces Management Plan, Urban Water Resources Plan and P ro g rammati c E m,~rcm ment al Im p act Report PROJECT TffLE YES* NO Are you currently ,in litigation with the City of Fresno or any of its agents? . '>< Do YOUI represent any firm, organization or person who is in x litigat~on with fhe City of Fresno? Oo you currentJy represent or perform work for any clients who do business with the City of Fresno? K I Are you or any of your principals, managers or professionals, , owners or investors in a business which does business with the '/4_ Oity of F resno, or an a business which 1s in litigation with the City of Fresno? Are you or any of your principals, managers or professionals, · x r:e1ated by blood or marriage to any City of Fresno employee who has any significant role in the subject matter of this service? Do you or any of your subcontractors have, or expect to have, any x interest, direct or indirect, in any other contract in connection with 11 this Project? * •If the answer to any question is yes, please explain in full below. Explanation: G Add itiona'I page(s) attached . IV/Iii - Sig o,a turf ., Date ' . ~t Sz:t7:n (name) W'~ .fY~'nFl"'f~ u:?~t-1'Nt~ 11\.C (com pany ) . l'-6. ~ox 91~ (address) S,4r.1 WI! ¢1.~1'0 cA '? 31o:J (city state zlp) City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID 23-1496 Agenda Date:10/19/2023 Agenda #:1.-Y. REPORT TO THE CITY COUNCIL FROM:BROCK D. BUCHE, PE, PLS, Director Department of Public Utilities BY:AHMAD ALKHAYYAT, PE, MBA, Assistant Director Department of Public Utilities - Solid Waste Management Division LORENZO NADORA, Solid Waste Manager Department of Public Utilities - Solid Waste Management Division SUBJECT Approve the Third Amendment to the consultant services agreement with CDM Smith,Inc.,to expand the scope of services,extend the agreement to June 30,2025,and increase the contract amount by $644,753 for a total amount of $1,390,403 for Groundwater and Landfill Remediation Services at the City of Fresno Sanitary Landfill (Council District 3). RECOMMENDATION Staff recommends City Council approve the Third Amendment to the consultant services agreement (Agreement)with CDM Smith,Inc.(CDM),to expand the scope of services,extend the agreement to June 30,2025,and increase the compensation amount by $644,753 for a total not to exceed amount of $1,390,403 for the Groundwater and Landfill Remediation Services at the City of Fresno Sanitary Landfill (FSL);and authorize the Director of Public Utilities,or designee,to sign the Third Amendment on behalf of the City of Fresno (City). EXECUTIVE SUMMARY The Department of Public Utilities (DPU)has contracted with CDM to provide professional consulting services for Environmental Groundwater Remedial Action and Regrading Design for the FSL Superfund Site.To meet the requirements from the United States Environmental Protection Agency (EPA)for additional vapor intrusion investigation activities and for groundwater remediation services, it is necessary to expanded scope of services and budget.The Third Amendment increases the Agreement amount by $644,753,for an amended total amount of $1,390,403.The deadline to submit the 2023 annual fourth quarter performance monitoring program must be performed and submitted to the EPA no later than October 31, 2023. BACKGROUND On February 1,2022,Council awarded a consultant service agreement to CDM based on a uniquely qualified finding determination dated January 27,2022,based on the Consultant’s experience, City of Fresno Printed on 10/30/2023Page 1 of 3 powered by Legistar™ File #:ID 23-1496 Agenda Date:10/19/2023 Agenda #:1.-Y. qualified finding determination dated January 27,2022,based on the Consultant’s experience, knowledge of the FSL,and ongoing efforts toward groundwater monitoring,remedial action services and overall regrading and rehabilitation.The agreement allowed the Consultant to perform groundwater monitoring and remedial action services through December 31,2022,and to finalize designs for the regrading and rehabilitation for the FSL. The cost for these efforts was $429,850. On December 20,2022,Council approved the First Amendment and extended the contract to December 31,2023.The agreement included Phase 1 design of the FSL regarding and rehabilitation project.Consultant is the engineer-of-record,and their involvement is essential during the construction phase of this project,which was originally anticipated to occur during the summer months of 2023.The First Amendment allowed the Consultant to continue the monitoring program, system operations assistance,and ongoing reporting required for the FSL and the ongoing groundwater remediation through December 31, 2023. The Cost for these efforts is $230,600. During the week of October 3,2022,Consultant conducted the first round of Vapor Intrusion investigation activities with the EPA and their oversight consultant.The Regulatory agency commented that a one-time data set “may not”be sufficient and that seasonal variations should be considered thus requiring a second round of Vapor Intrusion sampling. The Second Amendment allowed CDM to perform work activities for planning and implementation of the second round of the vapor intrusion (VI)investigation,which was conducted in March 2023.The cost for these efforts is $85,200 adjusting the contract amount to $745,650. Following submittal of the report in July 2023,which documented the second round of the VI,the EPA has required an additional round of VI investigation to be performed.The Third Amendment scope of services includes planning and implementation of round 3 of VI investigation activities.This work will be performed during the next construction season (May 1-October 31,2024)as approved by the EPA.Additionally,this scope of work includes quarterly groundwater sampling activities to be performed beginning in October 2023.Groundwater sampling field activities had previously been performed by City staff,who are no longer available to support this effort.The City has requested interim support to perform these field activities.Bid period and construction period services in support of the Landfill Regrading Design Number 1 are also included in this scope of work. City Attorney has reviewed the Third Amendment and approved to form. ENVIRONMENTAL FINDINGS By the definition provided in the California Environmental Quality Act (CEQA)Guidelines Section 15378, this is not a “project” for the purposes of CEQA. LOCAL PREFERENCE Local Preference was not implemented because this is an amendment to an existing consultant services agreement. FISCAL IMPACT There is no impact to the General Fund.Funding for the expanded consultant services is included in the approved Fiscal Year 2024 budget from Solid Waste Operating fund for $489,461 and $155,292City of Fresno Printed on 10/30/2023Page 2 of 3 powered by Legistar™ File #:ID 23-1496 Agenda Date:10/19/2023 Agenda #:1.-Y. the approved Fiscal Year 2024 budget from Solid Waste Operating fund for $489,461 and $155,292 will be encumbered in Solid Waste Operating fund in Fiscal Year 2025.The FSL is in Council District 3. Attachments: Attachment 1 - Third Amendment Attachment 2 - Second Amendment Attachment 3 - First Amendment Attachment 4 - Consultant Service Agreement with CDM Smith Inc City of Fresno Printed on 10/30/2023Page 3 of 3 powered by Legistar™ THIRD AMENDMENT TO AGREEMENT THIS THIRD AMENDMENT TO AGREEMENT (Amendment) made and entered into as of this _____ day of _________ 2023, amends the Consultant Services Agreement entered into between the CITY OF FRESNO, a California municipal corporation (hereinafter referred to as CITY), and CDM Smith, Inc., a Massachusetts Corporation (hereinafter referred to as CONSULTANT). RECITALS WHEREAS, the CITY and CONSULTANT entered into a Consultant Services Agreement on February 1, 2022 (Agreement), as amended on December 20, 2022 (First Amendment) to provide professional consulting services for Environmental Groundwater Remedial Action and Regrading Design for the Fresno Sanitary Landfill Superfund Site for a total fee of $660,450; and WHEREAS, the CITY and CONSULTANT entered into a Second Amendment to the Agreement on March 31, 2023 (Second Amendment) to expand the scope of services for a total fee of $745,650; and WHEREAS, the CITY and CONSULTANT desire to expand the scope of services and extend the agreement to June 30, 2025, to complete the expanded requirements from the US Environmental Protection Agency; and WHEREAS, due to the need for additional services, the parties desire to increase the total compensation by an additional $644,753 to complete the expanded Scope of Services; and WHEREAS, with entry into this Amendment, CONSULTANT agrees that it has no claim, demands, or disputes against the CITY. AGREEMENT NOW, THEREFORE, the CITY and the CONSULTANT agree that the aforesaid Agreement be amended as follows: 1. Exhibit A of the Agreement is amended to expand the scope of services as indicated in Exhibit A, attached hereto, and incorporated herein by reference. 2. Section 3(a) of the Agreement is amended in its entirety to read as follows: “(a) CONSULTANT'S sole compensation for satisfactory performance of all services required or rendered pursuant to this Agreement shall be a total fee of One Million Three Hundred Ninety Thousand Four Hundred and Three Dollars ($1,390,403). Such fee includes all expenses incurred by CONSULTANT in performance of the services.” 3. Except as otherwise provided herein, the Agreement, First Amendment and Second Amendment entered into by the City and Consultant, remain in full force and effect. [SIGNATURES FOLLOW ON THE NEXT PAGE.] DocuSign Envelope ID: D8A7EB3C-5ACB-4215-A891-E6A17CF1288B IN WITNESS WHEREOF, the CITY and the CONSULTANT have executed this Third Amendment at Fresno, California, the day, and year first above written. CITY OF FRESNO, a California municipal corporation By: Brock D. Buche, PE, PLS Director of Public Utilities APPROVED AS TO FORM: ANDREW JANZ City Attorney By: Angela M. Karst Date Deputy City Attorney ATTEST: TODD STERMER, CMC City Clerk By: Deputy Date CDM Smith, Inc., a Massachusetts corporation By: Name: Title: (If corporation or LLC., Board Chair, Pres. Or Vice Pres.) By: Name: Title: (If corporation or LLC., CFO, Treasurer, Secretary or Assistant Secretary) Attachment: Exhibit A – Scope of Services DocuSign Envelope ID: D8A7EB3C-5ACB-4215-A891-E6A17CF1288B Hala Titus Senior Vice President 10/3/2023 Servando Molina Vice President 10/3/202310/3/2023 Clerk Attesting 2300 Clayton Rd, Suite 950 Concord, California 94520 Tel: +1 925 933-2900 fax: +1 925 246-9819 September 29, 2023 Mr. Ahmad Alkhayyat Assistant Director Department of Public Utilities Solid Waste Management Division Fresno, California 93706 Subject: Fresno Sanitary Landfill Superfund Site Proposal – Revised Scope of Work and Budget for Groundwater and Landfill Remediation Services - October 2023 through June 2025 Dear Mr. Alkhayyat: Per your discussion on September 27, 2023 with John P. Nyznyk, P.E. of CDM Smith, CDM Smith has revised the scope of work submitted on August 28, 2023, to extend services through June 2025 to align with the City’s fiscal year. Attached is the proposed scope of work and budget for an extension to the existing contract between the City of Fresno and CDM Smith for the Environmental Groundwater and Landfill Remediation Services project at the Fresno Sanitary Landfill Superfund Site. This proposal serves as a request to supplement the existing 2023 budget due to a requirement from the U.S. Environmental Protection Agency for additional vapor intrusion investigation activities and for groundwater and landfill remediation services from October 2023 through June 2025. We are pleased to have the opportunity to continue to work with the City on this project. If you have questions or would like to discuss the proposed scope or budget, please do not hesitate to contact Kassandra Tzou at 925-296-8023. Very Truly Yours, Kassandra Tzou, P.E., PMP Servando Molina, P.E. Project Manager Vice President CDM Smith Inc. CDM Smith Inc. cc: Lorenzo Nadora, City of Fresno John P. Nyznyk, P.E., CDM Smith Vibhav Mankad, P.E., CDM Smith DocuSign Envelope ID: D8A7EB3C-5ACB-4215-A891-E6A17CF1288B 1 Exhibit A SCOPE OF SERVICES Consultant Services Agreement between City of Fresno (“City”) And CDM Smith Inc. (“Consultant”) Fresno Sanitary Landfill Groundwater and Landfill Remediation Services PROJECT TITLE Fresno Sanitary Landfill Scope of Work and Budget for Year 2023 (supplemental) through June 2025 Introduction Provided below are descriptions of work tasks to be performed by CDM Smith Inc. (Consultant) on behalf of the City of Fresno (City) as part of ongoing operations at the Fresno Sanitary Landfill Superfund Site (“FSL” or “Site”). Ongoing activities are being performed as part of Operable Unit No. 1 (OU-1 – landfill control system operations, maintenance, and reporting) and OU-2 (groundwater remediation system operations, maintenance, and reporting). The ultimate objective of the continued work is to achieve regulatory formal closure of the FSL Superfund Site under the oversight of the U.S. Environmental Protection Agency (EPA). This scope of work presented below describes work to be performed during the third and fourth quarters of 2023 and extends through June 2025 (end of City fiscal year 2025). Consultant is currently performing work for the City under Amendments No. 1 and No. 2 to the existing agreement. Amendment No. 1 reflected work activities to perform during 2023 to support the monitoring program, system operations assistance, and ongoing reporting required for the FSL and the ongoing groundwater remediation. Amendment No. 2 covered work activities for planning and implementation of the second round of the vapor intrusion (VI) investigation, which was performed in March 2023. Following submittal of the report in July 2023 which documented the second round of the VI, EPA has required an additional round of VI investigation to be performed. This work will be performed during the next construction season (May 1-October 31, 2024) as approved by EPA in their September 26, 2023 email. The scope of work presented below includes planning and implementation of round 3 of VI investigation activities. Additionally, this scope of work includes quarterly groundwater sampling activities to be performed beginning in October 2023. Groundwater sampling field activities had previously been performed by City staff, who are no longer available to support this effort. The City has requested support to perform these field activities. Bid period and construction period services in support of the Landfill Regrading Design #1 is also included in this scope of work. Additionally, this scope of work includes work activities to be performed during 2023 through June 2025. These scope of work activities are a continuation of work performed under the existing contract with the City (dated 2022) and under Amendment No. 1 (for work performed in 2023) and Amendment No. 2 (for the Spring 2023 VI investigation). Work described below is defined in terms of the five project tasks listed below: DocuSign Envelope ID: D8A7EB3C-5ACB-4215-A891-E6A17CF1288B 2 Task 1 – Performance Monitoring Program Task 2 – Remedial Action Systems Operations Assistance Task 3 – Site Delisting Discussions (no work is planned under this Task 3 during 2023 through 2025) Task 4 – Field Investigation Activities (OU-1) Task 5 – Project Management/Project Meetings Task 6 – Landfill Regrading Program – Bid Period and Construction Period Services Table A-1 consists of a summary of the estimated costs for this scope of work. The total cost for this work is $644,753 for the 21-month period of performance (October 2023 through June 2025). Task 1 – Performance Monitoring Program Objectives  Perform monitoring activities for the annual performance monitoring program, including 2023 (Quarter 4) and 2024 (Quarter 1, Quarter 2, Quarter 3, and Quarter 4) and 2025 (Quarter 1 and Quarter 2) as part of the Groundwater Remedial Action at the FSL.  Monitor and evaluate progress of groundwater remediation.  Document the performance monitoring activities and laboratory analytical results in an annual report and an interim data transmittal to the EPA.  Prepare responses to review comments from EPA (and other State regulatory agencies). Activities  The Groundwater Monitoring Program at the FSL has been ongoing for many years. The City requested that Consultant perform groundwater monitoring activities (quarterly, semi- annual, and annual monitoring events). Consultant has enlisted a subcontractor to assist with sampling services. Task activities will include coordinating with analytical laboratories (e.g., analyses to be performed, numbers and types of sampling containers, delivery of sampling containers to the Site), and sample collection from the groundwater monitoring wells, groundwater extraction wells, residential water supply wells, and the groundwater treatment plant (GTP) influent and effluent sampling ports. Consultant will coordinate with the City in the ongoing implementation of this program. Field activities to be performed, laboratory analysis, and regulatory agency reporting are described below:  Field Activities. CDM Smith will perform groundwater monitoring, utilizing Blaine Tech Services, Inc (Blaine Tech), with limited assistance from City staff. The plan for sampling and analysis (Table 4-1 of the Spring 2023 Annual Performance Monitoring Program DocuSign Envelope ID: D8A7EB3C-5ACB-4215-A891-E6A17CF1288B 3 Report) defines the sampling schedule, number of samples and analytical methods for this quarterly sampling event.  Schedule. Monitoring events will be performed during 2023 (October), during 2024 (January, April, July, and October), and during 2025 (January and April). Listing of the sampling locations are defined in Table 4-1 of the Annual Performance Monitoring Program Report (July 2023 submittal to EPA).  Laboratory Analysis. Analysis of water samples will be performed by two laboratories, including Fresno Wastewater Management Division Analytical Laboratory (WMD; analysis for volatile organic compounds) and BSK Associates Engineers & Laboratories (BSK) in Fresno under direct bill contract with the City (analysis for inorganic compounds). Analysis of water samples include volatile organic compounds and inorganic compounds for targeted wells.  Reporting. On an annual basis, prepare two deliverables associated with the Groundwater Monitoring Program, including Interim Data Transmittal (January 2024 and January 2025) and the Annual Performance Monitoring Program Report (July 2023). These deliverables are described below (under Deliverables).  Coordinate with Laboratories. Identify and work to resolve issues that arise regarding laboratory analytical results (e.g., apparent mislabeling between 2 sample locations, investigate what appears to be anomalous analytical data, etc.).  Environmental Database – Maintain the environmental database, including upload of analytical data upon receipt from the analytical laboratory following each quarterly sampling round. Database management will include performing data queries and preparing data summary tables that will be included in the interim data transmittal (electronic transmittal) and the annual performance monitoring program report (hard copy submittal and/or electronic transmittal).  Responses to Regulatory Agency Review Comments (RTCs) – EPA and the State regulatory agencies typically submit review comments on a range of project submittals. This task will involve preparing RTCs for technical deliverables scheduled for submittal to EPA including the OU-1 Annual Report, OU-2 Interim Data Transmittal, and OU-2 Annual Performance Monitoring Program Report. Assumptions  Consultant will utilize a subcontractor (Blaine Tech) to assist in the groundwater monitoring rounds.  City staff will assist, as requested by Consultant, in several groundwater monitoring activities, including:  Assist in locating on-site and off-site groundwater monitoring well locations, as requested. DocuSign Envelope ID: D8A7EB3C-5ACB-4215-A891-E6A17CF1288B 4  Ensure access agreements are in-place for off-site monitoring wells and residential wells.  Coordinate with off-site property owners to allow access to groundwater monitoring wells and residential water supply wells included in the monitoring program.  City staff will be responsible for ensuring access agreements are in-place for off-site monitoring wells and residential wells.  Analysis of organic constituents is currently being performed by BSK Associates Engineers & Laboratories (BSK) in Fresno, CA under direct bill contract with the City. The analytical laboratory may be changed at the discretion of the City.  Analysis of inorganic constituents is currently being performed by the City of Fresno Wastewater Management Division Analytical Laboratory (WMD) in Fresno, CA, under direct bill arrangements with the City. Deliverables 1. OU-2 Interim Data Transmittal – The Interim Data Transmittal will consist of data summary tables and figures for the July and October groundwater monitoring events. The Interim Data Transmittal will be submitted directly to EPA via e-mail in January 2024 and in January 2025. 2. OU-2 Annual Performance Monitoring Program Report (Annual Report) – The Annual Report will cover the July and October 2023 and the January and April 2024 groundwater monitoring events. A draft document will be submitted to City staff for review. Consultant will incorporate revisions from City staff and prepare final report for submittal to the EPA. The Annual Report will be submitted to EPA in July 2024. The Annual Report to be submitted in July 2025 is not included in this scope of work. Work activities for the Annual Report will include the following elements:  Compilation of quarterly monitoring data (field and analytical laboratory data) and GTP operational data.  Preparation of data summary tables and graphics. Data summary tables will include groundwater extraction well operational data, groundwater treatment unit performance monitoring data, volatile organic compound (VOC) mass removal, groundwater level measurements, head differential measurements (well clusters), VOC analytical data, inorganic constituent data, and quality control data. Graphics will include groundwater elevation contours for 2 of the quarterly monitoring events and VOC concentration trend plots.  Based on the Long-Term Monitoring Optimization Plan (Plan) (CDM Smith, 2007), Consultant will perform an evaluation of the groundwater monitoring wells included in the monitoring program and will propose changes to the monitoring program in accordance with the criteria defined in the Plan. This evaluation will be completed following each April groundwater monitoring event. The results of this evaluation will be documented in the Annual Report. DocuSign Envelope ID: D8A7EB3C-5ACB-4215-A891-E6A17CF1288B 5 Task 2 – Remedial Action Systems Operations Assistance Objectives  Support the City’s high-quality performance of the landfill environmental control systems, including the landfill cover, landfill gas (LFG) control, and stormwater management systems.  Assist City staff in the ongoing operations, monitoring, and maintenance of the groundwater remediation system and the landfill control systems at the FSL. Activities Under this task, Consultant will assist the City in ongoing operations and maintenance activities associated with the groundwater treatment system and the landfill control systems. This task will consist of on-site and office activities necessary to maintain effective operation of the groundwater collection and treatment system, the LFG control system, and the function of the final landfill cover/stormwater management systems. This task includes the following activities:  Operable Unit 1 Annual Report (Annual Activity) – Consultant will prepare a report, which is intended to document operations and maintenance activities associated with the landfill (LFG) control elements, including the landfill cover, stormwater management, and LFG control systems. The OU-1 Annual Report, to be submitted to EPA in February 2024 and February 2025, will address operations during the prior year. The OU-1 Annual Report will consist of the following elements:  Summary of LFG flare operating data. This summary would include a listing of the LFG flare downtimes, including downtimes resulting in operation of the GTP in LFG flare bypass mode.  Compilation of perimeter LFG monitoring probe data.  Assessment of the condition of the landfill cover system and the stormwater management system. The assessment would rely on information generated during inspections of the landfill cover and stormwater management system performed by Consultant and/or City staff. Of particular importance is the inspection scheduled early fall, prior to onset of rainy weather.  Overview of maintenance activities performed on the landfill control systems and description of repairs or equipment replacements.  Surface Emissions Monitoring (SEM) – Consultant prepared the SEM Work Plan in October 2022, and the City performed SEM in May 2023. City staff will be responsible for performing the SEM on a quarterly basis, with the next monitoring rounds in October 2023, January 2024, and April 2024. Federal guidelines allow a reduction in frequency to annual monitoring if methane is not detected above 500 ppm for three consecutive quarters. It is expected that there will be a single SEM event in 2025. Consultant will be available to provide input to City staff in terms of refinements to the SEM program at the FSL and to prepare a brief technical memorandum following each monitoring period. The objectives of the technical memorandum are to document the SEM program activities and to present the monitoring data. Each technical memorandum will be submitted to EPA, following draft document submittal to City staff for review and Consultant incorporation of revisions from City staff. DocuSign Envelope ID: D8A7EB3C-5ACB-4215-A891-E6A17CF1288B 6  Landfill Inspection and Maintenance Assistance – Activities to be performed under this subtask will be focused on assisting the City in planning and performing landfill inspection and maintenance activities.  Annual Landfill Inspection (Annual Activity) – The annual landfill inspection will be performed during the Fall of 2023 and Fall of 2024. At the request of the City, additional inspections may be performed following heavy precipitation events that could impact landfill control systems function. A description of landfill inspection activities/procedures is provided below:  Focus of the inspections will be on the landfill control system elements, including landfill cover system, surface water management system, and LFG control system.  Highlight the need for performing routine maintenance activities related to the landfill control systems.  Highlight the need for performing corrective action activities to address damage, inoperable conditions, or failure of the landfill control systems. The descriptions will be specific to each of the landfill control system elements.  Prepare report to document inspection and to describe maintenance, repair, and corrective actions.  Identify landfill regrading needs identified as part of the landfill inspections.  Wet Weather Inspections – Inspections will be performed during wet weather months (considered to be October through March). City staff will be responsible for performing these inspections, including completing the inspection form for submittal to Consultant who will review and submit to EPA.  Quarterly Inspections – Given overlap with the other scheduled landfill inspections (Annual and wet weather Inspections, only one quarterly inspection during the year (June). City staff will be responsible for performing this inspection, including completing the inspection form for submittal to Consultant who will review and submit to EPA.  Annual Evaluation of Extraction Well Performance (Annual Activity) – Consultant will perform an evaluation of the performance of each extraction well on an annual basis. Performance factors to be considered during the performance evaluation will include specific capacity (pumping rate per foot of drawdown) and changes in pumping rate and drawdown over time, with comparison to historical data.  New Well Evaluations (Periodic Activity) – Consultant will perform groundwater modeling evaluations of proposed new water supply wells (agricultural and residential) in the vicinity of the FSL. The purpose of the new well evaluations is to assess the potential for impact to the existing groundwater remediation system at the FSL from operation of proposed new wells. Under the current arrangement, the County of Fresno, Department of Public Health, Environmental Health Division (Fresno County) notifies the City when a permit application for a new or replacement water supply well is submitted in a location within the well assessment zone. Based on groundwater modeling results, Consultant will either recommend that the well not be installed or recommend design modifications for the proposed well (e.g., depth of well, depth of annular seal, and length of screen zone). It is assumed that Consultant will perform two evaluations per year for the duration of the period of performance. DocuSign Envelope ID: D8A7EB3C-5ACB-4215-A891-E6A17CF1288B 7  Groundwater Modeling – Based on discussions during recent technical meetings with EPA (most recent was held August 23, 2023), we anticipate that groundwater modeling will be required to address questions from EPA. In consultation with the City, Consultant will perform groundwater monitoring in responding to EPA comments/questions. It is assumed that this task is limited to 100 labor hours during the period October 2023 through June 2025. Assumptions  SEM event will be performed in October 2023, January 2024, and April 2024. It is assumed that the City will not detect methane at concentrations above 500 ppb, which will allow the quarterly monitoring program to be reduced to annual monitoring. Therefore, the cost estimate was developed with the assumption that three SEM technical memoranda will be prepared during 2023-2024 and one SEM technical memorandum in 2025.  With monthly requests from Consultant, City staff will provide Consultant with information listed below in a timely manner. The requested information constitutes critical information for reporting to EPA (e.g., Quarterly Progress Reports, OU-2 Annual Performance Monitoring Report, OU-1 Annual Report).  Downloads of the SCADA system in Excel with operations data for the groundwater remediation system (data from extraction well operations and groundwater treatment plant operations) and for the landfill gas (LFG) flare system (LFG flare operations). Consultant will compile these data and make necessary assumptions and calculations for filling data gaps.  Weekly maintenance summaries for the groundwater remediation system and the LFG flare. Deliverables 1. OU-1 Annual Report (Annual Deliverable). A draft report will be submitted to the City for review. The report will be revised based on review comments from the City and finalized for submittal to EPA. Two OU-1 Annual Reports will be prepared under this scope of work, with submittal dates of February 2024 and February 2025. 2. Annual Extraction Well Performance Evaluation Technical Memorandum (Annual Deliverable). The technical memorandum, which will document the performance evaluation on each of the groundwater extraction wells, will be submitted to the City. This technical memorandum is not intended as a formal submittal to EPA. One Extraction Well Performance Evaluation will be prepared under this scope of work, with a submittal date of July 2024. 3. New Well Evaluations (Periodic Deliverables). At the conclusion of each new well evaluation that is performed, a letter to the City will be prepared for submittal to the City which documents groundwater modeling results and provides well construction recommendations. 4. SEM Technical Memorandum. A technical memorandum will be prepared to document each quarterly monitoring event. It is expected that three SEM technical memoranda will be prepared during 2023-2024 and one annual report during 2025. DocuSign Envelope ID: D8A7EB3C-5ACB-4215-A891-E6A17CF1288B 8 Task 3 – Superfund Site Delisting Pathway – Planning and Implementation There will be no Task 3 services performed during 2023, 2024, or 2025. Task 4 – Vapor Intrusion Investigation – Round 3 (OU-1) Objective  Plan and implement the third round of vapor intrusion (VI) sampling to further assess the risk to human health from migrating LFG at locations in the areas of concern near the landfill identified in the July 2023 VI report. Activities The third round of sampling (to be performed in Spring 2024) will be consistent with air sample collection performed during Round 1 (Fall 2022) and Round 2 (Spring 2023), as defined in the VI Investigation Work Plan (approved by EPA in October 2022) and the Vapor Intrusion Investigation Work Plan Addendum for the Fresno Municipal Sanitary Landfill Superfund Site, dated September 15, 2023 (approved by EPA in September 21, 2023) with four additional soil gas locations and one additional ambient air sample.  Collect indoor air samples at the Groundwater Treatment System (GTP)/Landfill Gas (LFG) Flare Control Building and an elevated trailer used by the City Parks Department (located north of the FSL near Jensen Avenue). Sample collection will be performed under conditions of HVAC system operating and HVAC system not operating.  Collect outdoor air samples in conjunction with indoor air samples to assess ambient and background air conditions. A new background outdoor location (different than the location used in the Rounds 1 and 2) will be selected with the approval of EPA.  Collect a crawlspace air sample from the space under the City Parks Department trailer.  Collect an air sample from a sewer manhole near the intersection of North Avenue and West Avenue. Note that a traffic safety services subcontractor during sampling at the sewer manhole.  Conduct utility clearance of the new soil vapor probe locations with CDM Smith’s subcontractor, Foresite Engineering Surveys, Inc. of Pleasant Hill, California.  Drill and install sets of soil gas probes at 5-foot and 15-foot depths at 4 new locations near the southeast corner of the landfill property, including to the west of the South Retention Basin (SG-6), east of the South Retention Basin near West Avenue (SG-7), due south of the SG-5 location near North Avenue (SG-8), and near a sewer line along West Avenue outside of the property to the south of the site (SG-9). The soil gas probes will be installed by a California C-57 licensed drilling subcontractor using a hollow-stem auger drill rig. No soil or groundwater samples will be collected and submitted for laboratory analysis. A traffic safety services subcontractor will be required during drilling operations of the soil probe and sampling of the soil probe located adjacent to North Avenue.  Collect soil gas samples from SG-6, SG-7, SG-8, and SG-9 at 5-foot and 15-foot depths. DocuSign Envelope ID: D8A7EB3C-5ACB-4215-A891-E6A17CF1288B 9  Collect soil gas samples at 5-foot and 15-foot depths from existing soil gas probes (SG-2, SG-3, and SG-5) installed during Rounds 1 and 2.  Collect two perimeter probe samples (MMW-2 and MMW-3) at the 25-foot depth.  Indoor air and outdoor air samples will be collected by CDM Smith personnel, while soil gas samples and perimeter probe samples will be collected by CDM Smith subcontractor H&P Mobile Geochemistry of Carlsbad, California and traffic control will be provided by Safety Network Traffic Services of Bakersfield, California.  Indoor air samples and soil gas samples will be collected in laboratory-supplied Summa canisters and analyzed in accordance with the following methods:  Indoor air, outdoor air, and crawlspace and manhole samples for VOCs by EPA Method TO-15-SIM.  Soil gas samples for VOCs by EPA Method TO-15.  Soil gas samples for Helium by modified ASTM D-1945 – atmospheric gas analysis. Assumptions  EPA will not require additional indoor air or soil gas sampling beyond the third round of sampling described above.  EPA will have one round of review comments in response to the VI Evaluation Report. These comments will include a compilation of comments from the State regulatory agencies.  Utility clearance, field sampling, and soil vapor probe installation will take a week and a half including:  1 day of utility clearance performed by CDM Smith’s subcontractor, overseen by CDM Smith field staff.  2 days of installation of the new soil vapor probes and sample collection performed by CDM Smith’s subcontractor, overseen by CDM Smith field staff.  Standby days to allow for ambient air and soil vapor equilibration following probe installation and under conditions of HVAC system operating and HVAC system not operating.  3 days for Indoor and outdoor air sampling performed by a two-person CDM Smith field team.  2 days of traffic control performed by CDM Smith’s subcontractor; no overtime assumed. DocuSign Envelope ID: D8A7EB3C-5ACB-4215-A891-E6A17CF1288B 10 Deliverables  Round 3 VI Investigation Work Plan Addendum. This addendum will consist of a letter describing the Round 3 VI rationale and activities. The Work Plan was submitted to EPA in September 2023.  Vapor Intrusion Evaluation Report. This Report will describe the investigation activities performed during Round 3 (in Spring 2024) and present data generated during the investigation activities. The analytical results will be compared to ESLs and RSLs, and an evaluation of the potential risk to human health. The Report will be submitted to EPA.  Technical calls/meetings with EPA. Consultant will participate in calls with EPA during preparation for field activities, evaluation of data, and preparing responses to EPA review comments on the VI Evaluation Report. Formal written responses to EPA comments (RTCs) on the VI Evaluation Report will be prepared. If requested from EPA, a final report that incorporates EPA’s input will be prepared for submittal to EPA. Task 5 –Project Management/Project Meetings Objectives  Meet project scope, schedule, and budget requirements.  Maintain effective communication with the City, EPA, and other regulatory agency staff on key project issues. Activities The activities described below are to be performed during 2023 through June 2025.  Perform routine project management activities, which will include staff oversight, budget management, invoicing and coordination with the City on budget and scope of work development.  Prepare schedule updates, as needed.  Participate in project meetings and project conference calls, including prepare meeting agendas and other handouts.  Prepare quarterly reports providing status updates regarding remedial actions implemented at the FSL. Consultant will submit draft quarterly reports to the City.  Prepare contracting documents for multiple subcontractors.  Interact with EPA in preparation for and during implementation of the field activities. Assumptions  The City will finalize the quarterly reports with transmittal to EPA.  The budget reflects participation in only one monthly project conference call during 2024 and 2025. In addition, there will be one project status meeting at the FSL Site during 2024. DocuSign Envelope ID: D8A7EB3C-5ACB-4215-A891-E6A17CF1288B 11 Deliverables 1. Monthly invoices to the City documenting Consultant work performed. 2. Agenda and handouts for periodic project meetings or teleconferences. 3. Quarterly Project Reports prepared during 2023 (October), 2024 (January, April, July, and October), and 2025 (January and April). Task 6 – Landfill Regrading/Landfill Control Systems Repair – Design, Bid Period, and Construction Period Services (OU-1) The City began implementation of a Landfill Regrading Program to address differential settlement that has occurred on the landfill. The Landfill Regrading Program was developed as two design projects described below:  Landfill Regrading Design #1 – The Design #1 addresses settlement along the eastern side slopes, eastern perimeter drainage channel and eastern access road. Repairs of the landfill gas control system are also included.  Landfill Regrading Design #2 – Design #2 addresses settlement of the remaining portions of the FSL, including the southern, northern, and western side slopes and the top deck of the landfill. Design #2 activities are not currently included in the scope and budget for 2024. This scope of work does not include any activities for Design #2 (Subtask 6.2). The descriptions below address Subtask 6.1 – Design #1. Subtask 6.1 – Landfill Regrading Program - Design #1: Drainage Channel Regrading and Gas Control System Maintenance Subtask 6.1 – Landfill Regrading Program Design #1– Design for the project titled East Slope Drainage Regrading and Gas System Upgrades Project was initiated in 2021 and completed in 2022 with submittal of the 100% design documents in June 2022. Objectives  Provide bid period and construction period support services associated with construction of Design #1. Activities Bid Period Services Bid Period Services for Design #1 is expected to be performed during October or November 2023. This subtask will include participation in the City’s pre-bid conference and preparation of responses to Bid Period requests-for-information (RFIs). It is assumed that this task will be limited to 50 labor hours. Construction Period Services Construction Period Services are expected to be performed beginning in Spring 2023. This subtask will consist of Contractor submittal review, preparing responses to construction RFIs, and periodic construction oversight. Construction oversight can include specialty inspection, targeted participation in construction meetings, assistance in change order preparation, DocuSign Envelope ID: D8A7EB3C-5ACB-4215-A891-E6A17CF1288B 12 assistance in claims support, and assistance in preparation of a project punch list. It is assumed that this task is limited to 100 labor hours. Reporting This subtask will consist of preparing a Tech Memo to document the Task 6 construction efforts. The Tech Memo is intended for submittal to the USEPA. Given that this construction project is a maintenance project, the report will be less detailed than the Interim Remedial Action Report that had been prepared to document past remedial action construction activities performed at the FSL. Assumptions  Up to two visits to the FSL by CDM Smith staff during the Bid Period.  Up to five visits to the FSL by CDM Smith staff during the Construction Period. Deliverables  Prepare responses to Contractor RFIs during and following the bid period.  Prepare a tech memo to document the Design #1 construction activities. Schedule The scope of work and budget presented above reflects project duration from September 2023 through December 2024. The schedule for project deliverables is provided below: Annual and or Periodic Deliverables 1. Quarterly Reports – October 2023; January, April, July, and October 2024; and January and April 2025. 2. OU-2 Regulatory Interim Data Transmittal – January 31, 2024 and January 31, 2025 3. OU-1 Annual Report – February 31, 2024 and February 31, 2025. 4. Technical Memorandum to document the annual well performance evaluation – July 2024. 5. OU-2 Annual Performance Monitoring Program Report – July 31, 2024. 6. New Well Evaluations – The results of groundwater modeling to evaluate proposed new agricultural or domestic water supply wells will be documented in a brief letter report to the City. This work will be performed on an as-needed basis throughout the contract period. – As needed. 7. Responses to Comments from EPA on technical deliverables – As needed. One-time Deliverables 1. Vapor Intrusion Evaluation Report of Findings – Within 3 months following receipt of all analytical data. 2. Task 6.1 Design Deliverables: DocuSign Envelope ID: D8A7EB3C-5ACB-4215-A891-E6A17CF1288B 13  Responses to Construction Contractor Requests for Information (RFIs) during pre- construction activities – As needed.  Design #1 Construction Completion Tech Memo Budget – 2 months following construction completion. The cost for the work described above is $644,753. A cost breakdown is shown on Table 1 – Groundwater and Landfill Remediation Services, Budget for Year 2023 (Supplemental) through June 2025, Fresno Sanitary Landfill (OU-1 and OU-2). This estimate constitutes the budget for services during Year 2023 (Supplemental) through June 2025. DocuSign Envelope ID: D8A7EB3C-5ACB-4215-A891-E6A17CF1288B Task Description Labor ODCs OPs Total $$$$ Task 1 Performance Monitoring Program $192,996 $23,270 $70,480 $286,747 GW Monitoring Activities $85,796 $20,812 $67,124 $178,129 Monitoring Assistance $28,650 $1,050 $0 $29,753 Environmental Database Management $10,650 $0 $0 $10,650 Responses to Comments $28,200 $0 $0 $28,200 OU-2 Annual Report (submittal date: July)$23,100 $300 $0 $23,415 OU-2 Regulatory Data Transfer (submittal date: January)$16,600 $0 $0 $16,600 Task 2 Remedial Action Systems Operations Assistance $79,100 $840 $0 $79,940 Annual Evaluation of Extraction Well Performance $11,800 $0 $0 $11,800 OU-1 Annual Report $26,000 $400 $0 $26,420 New Water Supply Well Evaluations $17,250 $0 $0 $17,250 Landfill Inspection and Maintenance Assistance $5,300 $400 $0 $5,720 Groundwater Modeling $18,750 $0 $0 $18,750 Task 3 Superfund Site Delisting Pathway -- Planning $0 $0 $0 $0 Task 4 Field Investigation Activities $81,500 $4,200 $35,700 $121,400 Subtask 4.1 Vapor Intrusion Investigation - Round 3 Work Plan Addendum $14,300 $0 $0 $14,300 Pre-field planning $6,000 $0 $0 $6,000 Sampling fieldwork $27,500 $4,000 $34,000 $67,400 VI Results Letter Report $20,000 $0 $0 $20,000 Subtask 4.2 SEM Program SEM Consulting $4,200 $0 $0 $4,200 SEM Reporting $9,500 $0 $0 $9,500 Task 5 Project Management/Project Meetings $91,950 $3,497 $0 $95,447 Project Management -- January through December $51,000 $1,530 $0 $52,607 Project Meetings -- January through December $26,250 $900 $0 $27,195 Quarterly Progress Reports $14,700 $900 $0 $15,645 Task 6 Landfill Regrading/Control Systems Repair Design $58,700 $2,520 $0 $61,220 Subtask 6.1 Design #1 Bid Period Services $17,000 $600 $0 $17,630 Construction Period Services $41,700 $1,800 $0 $43,590 TOTALS $504,246 $34,327 $106,180 $644,753 Notes: 1. CDM Smith will complete the tasks listed in the table on a time and materials basis, not to exceed a total of $644,753. 2. Labor costs will be billed at actual salary rates times a 3.05 multiplier. 3. 'Other Direct Costs' (ODCs) and 'Outside Professional' (OPs) charges will be billed with a 5% mark-up. Table 1 Groundwater and Landfill Remediation Services Budget for Year 2023 (Supplemental) through June 2025 Fresno Sanitary Landfill (Operable Unit-1 and Operable Unit-2) DocuSign Envelope ID: D8A7EB3C-5ACB-4215-A891-E6A17CF1288B SECOND AMENDMENT TO AGREEMENT THIS SECOND AMENDMENT TO AGREEMENT (Amendment) made and entered into as of this ______ day of _________________, 2023, amends the Consultant Services Agreement entered into between the CITY OF FRESNO, a California municipal corporation (hereinafter referred to as CITY), and CDM Smith, Inc., a Massachusetts Corporation (hereinafter referred to as CONSULTANT). RECITALS WHEREAS, the CITY and the CONSULTANT entered into a Consultant Services Agreement on February 1, 2022 (Agreement), as amended on December 20, 2022 (First Amendment) to provide professional consulting services for Environmental Groundwater Remedial Action and Regrading Design for the Fresno Sanitary Landfill Superfund Site for a total fee of $660,450; and WHEREAS, the CITY and the CONSULTANT expanded the scope of services and extend the agreement to December 31, 2023, to expand requirements from the US Environmental Protection Agency; and WHEREAS, due to the need for additional services, the parties desire to increase the total compensation by an additional $85,200 to complete the expanded Scope of Services; and WHEREAS, with entry into this Amendment, CONSULTANT agrees that it has no claim, demands, or disputes against the CITY. AGREEMENT NOW, THEREFORE, the CITY and the CONSULTANT agree that the aforesaid Agreement be amended as follows: 1.Exhibit A of the Agreement is amended to expand the scope of services as indicated in Exhibit A2, attached hereto, and incorporated herein by reference. 2.Section 3(a) of the Agreement is amended in its entirety to read as follows: “(a) CONSULTANT'S sole compensation for satisfactory performance of all services required or rendered pursuant to this Agreement shall be a total fee of Seven Hundred Forty Five Thousand Six-Hundred Fifty Dollars ($745,650.00). Such fee includes all expenses incurred by CONSULTANT in performance of the services.” 3. Except as otherwise provided herein, the Agreement and First Amendment entered into by the City and Consultant, remain in full force and effect. [SIGNATURES FOLLOW ON THE NEXT PAGE.] DocuSign Envelope ID: 1772CAE7-9EEB-45B6-B380-B3362BFDB51C 31 March IN WITNESS WHEREOF, the CITY and the CONSULTANT have executed this Second Amendment at Fresno, California, the day and year first above written. CITY OF FRESNO, a California municipal corporation By: Brock D. Buche, PE, PLS Director of Public Utilities APPROVED AS TO FORM: ANDREW JANZ City Attorney By: Angela M. Karst Date Deputy City Attorney ATTEST: TODD STERMER, CMC City Clerk By: Deputy Date CDM Smith, Inc., a Massachusetts corporation By: Name: Title: (If corporation or LLC., Board Chair, Pres. Or Vice Pres.) By: Name: Title: (If corporation or LLC., CFO, Treasurer, Secretary or Assistant Secretary) Attachment: Exhibit A2 – Supplemental Scope of Services DocuSign Envelope ID: 1772CAE7-9EEB-45B6-B380-B3362BFDB51C Hala Titus 3/9/2023 Senior Vice President Servando Molina 3/9/2023 Vice President 3/9/2023 3/31/2023 3/31/2023 Tina M. Your 1  Exhibit A2 SUPPLEMENTAL SCOPE OF SERVICES Consultant Services Agreement between City of Fresno (“City”) And CDM Smith Inc. (“Consultant”) Round 2 Vapor Intrusion Investigation Fresno Sanitary Landfill PROJECT TITLE Supplemental Scope of Work and Budget for 2023 Fresno Sanitary Landfill Introduction Provided below are descriptions of work tasks to be performed by CDM Smith Inc. (Consultant) on behalf of the City of Fresno (City) as part of ongoing operations at the Fresno Sanitary Landfill Superfund Site (“FSL” or “Site”). Ongoing activities are being performed as part of Operable Unit No. 1 (OU-1 – landfill control system operations and maintenance) and OU-2 (groundwater remediation system operations and maintenance). The ultimate objective of the continued work is to achieve formal closure of the FSL Superfund Site under the oversight of the U.S. Environmental Protection Agency (EPA). The existing agreement between the City and Consultant includes work activities to be performed during 2023 (City Council approval on December 15, 2022). This Supplemental scope of work and budget consists of planning and implementation of a second round of a vapor intrusion investigation. The first round had been performed October 2022. Additional scope and budget for the Project Management task is also included. Work described below is defined in terms of the two of the existing five project tasks: Task 4 – Vapor Intrusion Investigation – Round 2 (OU-1) Task 5 – Project Management/Project Meetings Table A-1 consists of a summary of the estimated costs for this scope of work. The total cost for this work is $85,200. Task 4 – Vapor Intrusion Investigation – Round 2 (OU-1) Objective Plan and implement the second round of vapor intrusion sampling to assess the risk to human health from migrating LFG at locations near the landfill. Activities The second round of sampling will be consistent with air sample collection performed during Round 1 (implemented in October 2022), as defined in the Vapor Intrusion (VI) Investigation Work Plan (approved by EPA in October 2022). DocuSign Envelope ID: 1772CAE7-9EEB-45B6-B380-B3362BFDB51C 2  Collect indoor air samples at the Groundwater Treatment System (GTP)/Landfill Gas (LFG) Flare Control Building and an elevated trailer used by the City PARCS Department (located north of the FSL near Jensen Avenue). Sample collection will be performed under conditions of HVAC system operating and HVAC system not operating. Outdoor air samples will also be collected in conjunction with indoor air samples to assess ambient and background air conditions. Drill and install a 15-foot deep soil gas probe near the southeast corner of the landfill property near North Avenue (at the SG-5 location). The soil gas probe will be installed by a California C-57 licensed drilling subcontractor using a hollow-stem auger drill rig. No soil or groundwater samples will be collected and submitted for laboratory analysis. Collect a soil gas sample from SG-5 at 15-foot depth. In addition to the newly installed soil gas probe described above, soil gas samples will be collected from SG-2 at 5-foot and 15-foot depths, SG-3 at 5-foot and 15-foot depths, and SG-5 at 5-foot depth. Indoor air and outdoor air samples will be collected by Consultant's personnel, while soil gas samples will be collected by Consultant's subcontractor H&P Mobile Geochemistry of Carlsbad, California. Indoor air samples and soil gas samples will be collected in laboratory-supplied Summa canisters and analyzed in accordance with the following methods: 1.Indoor air and outdoor air samples for VOCs by Environmental Protection Agency Method TO-15 (SIM). 2.Soil gas samples for VOCs by EPA Method TO-15. 3.Soil gas samples for Helium by modified ASTM D-1945 – atmospheric gas analysis Deliverables Round 2 VI Investigation Work Plan. This work plan will consist of an e-mail describing the Round 2 VI activities Vapor Intrusion Evaluation Report. This Report will describe the investigation activities performed during Round 1 (2022) and Round 2 (2023) and present data generated during these investigation activities. The analytical results will be compared to ESLs and RSLs, and an evaluation of the potential risk to human health. The Report will be submitted to EPA. Technical calls/meetings with EPA. Consultant will participate in calls with EPA during preparation for field activities, evaluation of data, and preparing responses to EPA review comments on the VI Evaluation Report. Formal written responses to EPA comments (RTCs) DocuSign Envelope ID: 1772CAE7-9EEB-45B6-B380-B3362BFDB51C 3  on the VI Evaluation Report will be prepared. If requested from EPA, a final report that incorporates EPA’s input will be prepared for submittal to EPA. Assumptions EPA will not require additional indoor air or soil gas sampling beyond the second round of sampling described above. EPA will have one round of review comments in response to the VI Evaluation Report. These comments will include a compilation of comments from the State regulatory agencies. Task 5 –Project Management/Project Meetings The Task 5 activities are supplemental to the Project Management activity descriptions provided in the existing agreement between the City and the Consultant. Budget was added to account for additional project management effort associated with the VI Investigation planning, implementation, reporting, and meeting with EPA. Schedule The schedule information presented below applies to the scope of work associated with the VI Investigation described above. Deliverables and Activities Associated with the VI Investigation 1.Round 2 Work Plan for the VI Investigation – March 2023 2.Round 2 VI Investigation – March 31, 2023 3.VI Evaluation Report – 60 days following receipt of final analytical reports 4.Response to EPA Comments on the VI Evaluation Report – 30 days following receipt of compiled regulatory agency comments from EPA Budget The cost for the work described above is $85,200. A cost breakdown is provided on Table A-1 – Groundwater and Landfill Remediation Services, Supplemental Budget for Year 2023 – Round 2 VI Investigation. This cost estimate constitutes the budget for the supplemental services associated with Round 2 of the VI Investigation during 2023. DocuSign Envelope ID: 1772CAE7-9EEB-45B6-B380-B3362BFDB51C Table A-1Groundwater and Landfill Remediation ServicesSupplemental Budget for Year 2023 - Round 2 Vapor Intrusion InvestigationFresno Sanitary Landfill (Operable Unit-1 and Operable Unit-2)Task DescriptionLabor ODCs OPs Total$$$$Task 1 Performance Monitoring Program$0$0$0 $0Task 2 Remedial Action Systems Operations Assistance0000Task 3 Superfund Site Delisting Pathway -- Planning$0$0$0 $0Task 4 Field Investigation Activities$47,900 $5,250 $22,050 $75,200Subtask 4.1Vapor Intrusion Investigation - Round 2Round 2 - Field Activities$20,900 $5,250 $22,050 $48,200Vapor Intrusion Evaluation Report$20,000$0$0 $20,000Meetings with EPA$7,000$0$0 $7,000Task 5 Project Management/Project Meetings$10,000 $0$0 $10,000Project Management -- March through August$10,000$0$0 $10,000Project Meetings -- March through August$0$0$0$0TOTALS$57,900 $5,250 $22,050 $85,200Notes:1.Consultant will complete the tasks listed in the table on a time and materials basis, not to exceed a total of $85,200.2.Labor costs will be billed at actual salary rates times a 3.05 multiplier.3.'Other Direct Costs' (ODCs) and 'Outside Professional' (OPs) charges will be billed with a 5% mark-up.DocuSign Envelope ID: 1772CAE7-9EEB-45B6-B380-B3362BFDB51C 1 FIRST AMENDMENT TO AGREEMENT THIS FIRST AMENDMENT TO AGREEMENT (Amendment) made and entered into as of this ____ day of ____________, 2022, amends the Consultant Services Agreement entered into between the CITY OF FRESNO, a California municipal corporation (hereinafter referred to as CITY), and CDM Smith, Inc., a Massachusetts Corporation (hereinafter referred to as CONSULTANT). RECITALS WHEREAS, the CITY and the CONSULTANT entered into a Consultant Services Agreement on February 1, 2022 (Agreement) to provide professional consulting services for Environmental Groundwater Remedial Action and Regrading Design for the Fresno Sanitary Landfill Superfund Site for a total fee of $429,850; and WHEREAS, the CITY and the CONSULTANT now desire to expand the scope of services and extend the agreement to December 31, 2023, to expand requirements from the US Environmental Protection Agency; and WHEREAS, due to the need for additional services, the parties desire to increase the total compensation by an additional $230,600 to complete the expanded Scope of Services; and WHEREAS, with entry into this Amendment, CONSULTANT agrees that it has no claim, demands, or disputes against the CITY. AGREEMENT NOW, THEREFORE, the CITY and the CONSULTANT agree that the aforesaid Agreement be amended as follows: 1. Exhibit A of the Agreement is amended to expand the scope of services and extend the Agreement to December 31, 2023, as indicated in Exhibit A2, attached hereto and incorporated herein by reference. 2. Section 3(a) of the Agreement is amended in its entirety to read as follows: “(a) CONSULTANT'S sole compensation for satisfactory performance of all services required or rendered pursuant to this Agreement shall be a total fee of Six Hundred Sixty Thousand Four-Hundred Fifty Dollars ($660,450.00). Such fee includes all expenses incurred by CONSULTANT in performance of the services.” 3. Except as otherwise provided herein, the Agreement entered into by the CITY and the CONSULTANT on February 01, 2022, remains in full force and effect. [SIGNATURES FOLLOW ON THE NEXT PAGE.] DocuSign Envelope ID: 75CFBA11-5CF2-4D73-96D1-CF82848BAF2F 20th December 2 IN WITNESS WHEREOF, the CITY and the CONSULTANT have executed this First Amendment at Fresno, California, the day and year first above written. CITY OF FRESNO, a California municipal corporation By: Brock D. Buche, PE PLS Director of Public Utilities APPROVED AS TO FORM: RINA M. GONZALES Interim City Attorney By: Angela M. Karst Date Deputy City Attorney ATTEST: TODD STERMER, CMC City Clerk By: Deputy Date CDM Smith, Inc., a Massachusetts corporation By: Name: Title: (If corporation or LLC., Board Chair, Pres. Or Vice Pres.) By: Name: Title: (If corporation or LLC., CFO, Treasurer, Secretary or Assistant Secretary) Attachment: Exhibit A2 – Additional Professional Services DocuSign Envelope ID: 75CFBA11-5CF2-4D73-96D1-CF82848BAF2F Hala Titus 12/4/2022 Senior Vice President Servando Molina Vice President 12/5/202212/5/2022 12/20/2022 12/20/2022 Tina M. Your 1 EXHIBIT A2 ADDITIONAL PROFESSIONAL SERVICES Supplemental Scope of Work and Budget for Year 2022 (supplemental) and Budget for Year 2023 - Revised Fresno Sanitary Landfill Introduction Provided below are descriptions of work tasks to be performed by CDM Smith Inc. (Consultant) on behalf of the City of Fresno (City) as part of ongoing operations at the Fresno Sanitary Landfill Superfund Site (“FSL” or “Site”). Ongoing activities are being performed as part of Operable Unit No. 1 (OU-1 – landfill control system operations and maintenance) and OU-2 (groundwater remediation system operations and maintenance). The ultimate objective of the continue d work is to achieve formal closure of the FSL Superfund Site under the oversight of the U.S. Environmental Protection Agency (EPA). This scope of work presented below describes work to be performed during the fourth quarter of 2022 and extends through the end of 2023. The existing agreement between the City and Consultant reflects work activities to be performed during 2022. One of these work activities consisted of planning and implementation of a vapor intrusion investigation to be performed in the vicinity of the FSL. During development of the work plan for this field investigation, EPA required an expansion of the scope for the field investigation with the addition of several work elements. The scope of work presented below reflects the expanded investigation requirements. Additionally, this scope of work includes work activities to be performed during Year 2023. These scope of work activities are a continuation of work performed under the previous contract with the City during the four-year period 2016 through 2019 and during the Year 1 Extension (2020) and the Year 2 Extension (2021). Work described below is defined in terms of the five project tasks listed below: Task 1 – Performance Monitoring Program Task 2 – Remedial Action Systems Operations Assistance Task 3 – This task will not be used during 2023. Task 4 – Field Investigation Activities (OU-1) Task 5 – Project Management/Project Meetings Task 6 – Landfill Regrading Program – Pre-Construction Period Services Table A-1 consists of a summary of the estimated costs for this scope of work. The total cost for this work is $230,600 for the fourteen -month period of performance (November 2022 through December 2023). Task 1 – Performance Monitoring Program Objectives ▪ Provide oversight during implementation of the annual performance monitoring program as part of the Groundwater Remedial Action at the FSL. ▪ Monitor and evaluate progress of groundwater remediation. DocuSign Envelope ID: 75CFBA11-5CF2-4D73-96D1-CF82848BAF2F 2 ▪ Document the performance monitoring activities and laboratory analytical results in an annual report and an interim data transmittal to the EPA. ▪ Prepare responses to review comments from EPA (and other State regulatory agencies). Activities ▪ Groundwater Monitoring Program – The Groundwater Monitoring Program at the FSL has been ongoing for several years. City personnel performs the quarterly field sampling activities, including making arrangements with the analytical laboratory (e.g., analyses to be performed, sampling containers, delivery of sampling containers to the Site) and sample collection from the groundwater monitoring wells, groundwater extraction wells, and the groundwater treatment plant (GTP) influent and effluent sampling ports. Consultant will coordinate with the City in the ongoing implementation of this program. The activities described below are to be performed during the year 2023. Quarterly sampling events are scheduled to be performed during January, April, July, and October. As part of this task, Consultant will be responsible for the following activities: − Coordinate with City field personnel during field sampling events to be performed in January, April, July, and October. This includes making City staff aware of modifications to the performance monitoring program activities. Recommended modifications to the sampling program (e.g., increasing/decreasing frequency of sampling for individual monitoring wells) are to be proposed as part of the annual performance monitoring report. − Identify and work to resolve issues that come up regarding laboratory analytical results (e.g., apparent mislabeling between two sample locations, investigate what appears to be anomalous analytical data, etc.). − Prepare the two deliverables associated with the Groundwater Monitoring Program, including the Interim Data Transmittal and the Annual Performance Monitoring Program Report. These deliverables are described below. ▪ Environmental Database – Maintain the environmental database, including upload of analytical data upon receipt from the analytical laboratory following each quarterly sampling round. Database management will include performing data queries and preparing data summary tables that will be included in the interim data transmittal (electronic transmittal) and the annual performance monitorin g program report (hard copy submittal and/or electronic transmittal). ▪ Responses to Regulatory Agency Review Comments (RTCs) – EPA and the State regulatory agencies typically submit review comments on a range of project submittals. This task will involve preparing RTCs for technical deliverables scheduled for submittal to EPA including the OU-1 Annual Report, OU-2 Interim Data Transmittal, and OU-2 Annual Performance Monitoring Program Report. DocuSign Envelope ID: 75CFBA11-5CF2-4D73-96D1-CF82848BAF2F 3 Assumptions ▪ Analysis of organic constituents is currently being performed by BSK Associates Engineers & Laboratories (BSK) in Fresno, CA under direct bill contract with the City. The analytical laboratory may be changed at the discretion of the City. ▪ Analysis of inorganic constituents is currently being performed by the City of Fresno Wastewater Management Division Analytical Laboratory (WMD) in Fresno, CA, under direct bill arrangements with the City. Deliverables 1. Interim Data Transmittal – The Interim Data Transmittal will consist of data summary tables and figures for the July and October groundwater monitoring events. The Interim Data Transmittal will be submitted directly to EPA via e-mail in January 2022. 2. Annual Performance Monitoring Program Report (Annual Report) – The Annual Report will cover the July and October 2022 and the January and April 2023 groundwater monitoring events. A draft document will be submitted to City staff for review. Consultant will incorporate revisions from City staff and prepare final report for submittal to the EPA. The Annual Report, to be submitted to EPA in July 2023, will include the following elements: − Compilation of quarterly monitoring data (field and analytical laboratory data) and GTP operational data. − Preparation of data summary tables and graphics. Data summary tables will include groundwater extraction well operational data, groundwater treatm ent unit performance monitoring data, volatile organic compound (VOC) mass removal, groundwater level measurements, head differential measurements (well clusters), VOC analytical data, inorganic constituent data, and quality control data. Graphics will include groundwater elevation contours for two of the quarterly monitoring events and VOC concentration trend plots. − Based on the Long Term Monitoring Optimization Plan (Plan) (CDM Smith, 2007), Consultant will perform an evaluation of the groundwater moni toring wells included in the monitoring program and will make recommendations in accordance with the criteria defined in the Plan. This evaluation will be completed following the April performance groundwater monitoring event. The results of this evaluatio n will be documented in the Annual Report. Task 2 – Remedial Action Systems Operations Assistance Objectives ▪ Support the high-quality performance of the landfill environmental control systems, including the landfill cover, landfill gas (LFG) control, and stormwater management systems. ▪ Assist City staff in the ongoing operations, monitoring, and maintenance of the groundwater remediation system and the landfill control systems at the FSL. DocuSign Envelope ID: 75CFBA11-5CF2-4D73-96D1-CF82848BAF2F 4 Activities Under this task, Consultant will assist the City in ongoing operations and maintenance of the groundwater treatment system and the landfill control systems. This task will consist of on -site and office activities necessary to maintain effective operation of the groundwater collection and treatment system, the LFG control system, and the function of the final landfill cover/stormwater management systems. This task includes the following activities: ▪ Operable Unit 1 Annual Report (Annual Activity) – Consultant will prepare a report, which is intended to document operations and maintenance activities associated with the landfill (LFG) control elements, including the landfill cover, stormwater management, and LFG control systems. The OU-1 Annual Report, to be submitted to EPA in February, will address operations during the prior year. The OU-1 Annual Report will consist of the following elements: − Summary of LFG flare operating data. This summary would include a listing of the LFG flare downtimes, including downtimes resulting in operation of the GTP in LFG flare bypass mode. − Compilation of perimeter LFG monitoring probe data. − Assessment of the condition of the landfill cover system and the stormwater management system. The assessment would rely on information generated during inspections of the landfill cover and stormwater management system performed by Consultant and/or City staff. Of particular importance is the inspection scheduled early fall, prior to onset of rainy weather. − Overview of maintenance activities performed on the landfill control systems and description of repairs or equipment replacements. ▪ Surface Emissions Monitoring (SEM) – Consultant is currently preparing the SEM Work Plan (to be submitted in October 2022) for the City’s use in implementation of the SEM program at the FSL. City staff will be responsible for performing the SEM on a quarterly basis. Federal guidelines allow a reduction in frequency to annual monitoring if methane is not detected above 500 ppm for three consecutive quarters. Consultant will be available to provide input to City staff in terms of refinements to the SEM program at the FSL and to prepare a brief technical memorandum following each monitoring period. The objectives of the technical memorandum are to document the SEM program activities and to present the monitoring data. The technical memorandum will be submitted to EPA. ▪ Landfill Inspection and Maintenance Assistance – Activities to be performed under this subtask will be focused on assisting the City in planning and performing landfill inspection and maintenance activities. − Annual Landfill Inspection (Annual Activity) – The annual landfill inspection will be performed during the Fall of 2023. At the request of the City, additional inspections may be performed following heavy precipitation events that could impact landfill control systems function. A description of landfill inspection activities/procedures is provided below: DocuSign Envelope ID: 75CFBA11-5CF2-4D73-96D1-CF82848BAF2F 5 • Focus of the inspections will be on the landfill control system elements, including landfill cover system, surface water management system, and LFG control system. • Highlight the need for performing routine maintenance activities related to the landfill control systems. • Highlight the need for performing corrective action activities to address damage, inoperable conditions, or failure of the landfill control systems. The descriptions will be specific to each of the landfill control system elements. • Prepare report to document inspection and to describe maintenance, repair, and corrective actions. • Identify landfill regrading needs identified as part of the landfill inspections. − Wet Weather Inspections – Inspections will be performed during wet weather months (considered to be October through March). City staff will be responsible for performing these inspections, including completing the inspection form for submittal to Consultant who will review and submit to EPA. − Quarterly Inspections – Given overlap with the other scheduled landfill inspections (Annual and wet weather Inspections, only one quarterly inspection during the year (June). City staff will be responsible for performing this inspection, including completing the inspection form for submittal to Consultant who will review and submit to EPA. ▪ Annual Evaluation of Extraction Well Performance (Annual Activity) – Consultant will perform an evaluation of the performance of each extraction well on an annual basis. Performance factors to be considered during the performance evaluation will include specific capacity (pumping rate per foot of drawdown) and changes in pumping rate and drawdown over time, with comparison to historical data. ▪ New Well Evaluations (Periodic Activity) – Consultant will perform groundwater modeling evaluations of proposed new water supply wells (agricultural and residential) in the vicinity of the FSL. The purpose of the new well evaluations is to assess the potential for impact to the existing groundwat er remediation system at the FSL from operation of proposed new wells. Under the current arrangement, the County of Fresno, Department of Public Health, Environmental Health Division (Fresno County) notifies the City when a permit application for a new or replacement water supply well is submitted in a location within the well assessment zone. Based on groundwater modeling results, Consultant will either recommend that the well not be installed or recommend design modifications for the proposed well (e.g., depth of well, depth of annular seal, and length of screen zone). It is assumed that Consultant will perform two evaluations per year for the duration of the period of performance. Assumptions 1. With requests from Consultant, City staff will provide Consultant with information listed below in a timely manner. The requested information constitutes critical DocuSign Envelope ID: 75CFBA11-5CF2-4D73-96D1-CF82848BAF2F 6 information for reporting to EPA (e.g., Quarterly Progress Reports, OU -2 Annual Performance Monitoring Report, OU-1 Annual Report). − Downloads of the SCADA system with operations data for the groundwater remediation system (data from extraction well operations and groundwater treatment plant operations) and for the landfill gas (LFG) flare system (LFG flare operations). Consultant will compile these data and make necessary assumptions and calculations for filling data gaps. − Weekly maintenance summaries for the groundwater remediation system and the LFG flare. Deliverables 1. OU-1 Annual Report (Annual Deliverable). A draft report will be submitted to the City for review. The report will be revised based on review comments from the City and finalized for submittal to EPA. 2. Annual Extraction Well Performance Evaluation Technical Memorandum (Annual Deliverable). The technical memorandum, which will document the performance evaluation on each of the groundwater extraction wells, will be submitted to the City. This technical memorandum is not intended as a formal submittal to EPA. 3. New Well Evaluations (Periodic Deliverables). At the conclusion of each new well evaluation that is performed, a letter to the City will be prepared for submittal to the City which documents groundwater modeling results and provides well construction recommendations. 4. There may be deliverables associated with As-needed services that are authorized by the City under Task 2. Task 3 – Superfund Site Delisting Pathway – Planning and Implementation There will be no Task 3 services performed during 2023. Task 4 – Field Investigation Activities (Operable Unit 1) Objective ▪ Provide funding for supplemental field activities performed during the initial round of sampling. Activities The initial round of the vapor intrusion investigation sampling was performed during October 2022. EPA required a number of field investigation activities that expanded Consultant’s scope of work for the soil vapor intrusion field activities during 2022. Added elements of work included indoor air sampling in both the Control Building located in the groundwater treatment plant yard and the City’s elevated trailer (located on Jensen Avenue, outdoor air samples (collected both 7 with HVAC system operating and with HVAC system not operating), background air samples, and a second round of sampling for the landfill perimeter monitoring probes. DocuSign Envelope ID: 75CFBA11-5CF2-4D73-96D1-CF82848BAF2F 7 Assumptions ▪ Budget for this Task 4 consists of funding for supplemental work elements required by EPA as part of the vapor intrusion sampling program performed in October 2022. ▪ EPA will not require additional sampling beyond the second round of sampling described above. ▪ EPA will have one round of comments in response to information provided in the Vapor Intrusion Investigation Data Transmittal (Data Transmittal). Deliverables 1. Data Transmittal. Analytical data summary from the initial round of the vapor intrusion investigation. Data Transmittal will describe the investigation program details for 2022 and present the analytical results. The Data Transmittal will be submitted to EPA. 2. RTCs to EPA comments will be prepared. Activities The activities described below are to be performed during 2023. ▪ Perform routine project management activities, which will include staff oversight, budget management, invoicing and coordination with the City on budget and scope of work development. ▪ Prepare schedule updates, as needed. ▪ Participate in project meetings and project conference calls, including prepare meeting agendas and other handouts. ▪ Prepare quarterly reports providing status updates regarding remedial actions implemented at the FSL. Consultant will submit draft quarterly reports to the City. Assumptions ▪ The City will finalize the quarterly reports with transmittal to EPA. ▪ The budget reflects participation in monthly project conference calls for the first quarter of 2023 followed by quarterly project conference calls. In addition, there will be one project status meeting at the FSL Site during 2023. Deliverables 1. Project Quarterly Reports prepare during January, April, July, and October during 2023. 2. Monthly invoices to the City documenting Consultant work performed. 3. Agenda and handouts for periodic project meetings or teleconferences. Task 6 – Landfill Regrading Program – Pre-Construction Period Services (OU-1) for Design #1 DocuSign Envelope ID: 75CFBA11-5CF2-4D73-96D1-CF82848BAF2F 8 During 2021, the City began implementation of a Landfill Regrading Program to address differential settlement that has occurred on the landfill. The Landfill Regrading Program was developed as two design projects. During 2023, Consultant will provide pre -construction period services associated with Design #1. Design #1 was focused on regrading the eastern side of the landfill, addressing settlement along the eastern side slopes, eastern perimeter drainage channel and eastern access road. Additionally, repairs were required of the landfill gas control system. Objectives Provide pre-construction period support services associated with construction of Design #1. Activities Pre-construction support services will consist of review of requests-for-information (RFIs) from prospective Contractors and participation in pre-construction meetings at the FSL. It is assumed that this task is limited to 40 labor hours. Assumptions ▪ This task is limited to pre-construction activities leading up to the construction project for Design #1. ▪ The City intends to provide additional scope and budget for Consultant prior to the beginning of construction activities for the Design #1 project. Deliverables Prepare responses to Contractor RFIs during or following the bid period. Schedule The scope of work and budget presented above reflec ts project duration from January through December 2023. The schedule for project deliverables is provided below: Annual and or Periodic Deliverables 1. Quarterly Reports – January, April, July, and October during 2023. 2. Interim Data Transmittal – January 31, 2023. 3. OU-1 Annual Report – February 31, 2023. 4. Technical Memorandum to document the annual well performance evaluation – June 2023. 5. Spring 2023 Annual Performance Monitoring Program Report – July 31, 2023. 6. New Well Evaluations – The results of groundwater modeling to evaluate proposed new agricultural or domestic water supply wells will be documented in a brief letter report to the City. This work will be performed on an as-needed basis throughout 2023. One-time Deliverables 1. Vapor Intrusion Evaluation Report of Findings – June 30, 2023 2. Task 6.1 Design Deliverables: DocuSign Envelope ID: 75CFBA11-5CF2-4D73-96D1-CF82848BAF2F 9 ▪ Responses to Construction Contractor Requests for Information (RFIs) during pre-construction activities As needed Budget The cost for the work described above is $230,600. A cost breakdown is provided on Table 1 – Groundwater and Landfill Remediation Services, Budget for Year 2022 (Supplemental) and Year 2023, Fresno Sanitary Landfill (OU-1 and OU-2). This estimate constitutes the budget for services during Year 2022 (Supplemental) and Year 2023. Table 1. Groundwater and Landfill Remediation Services Budget for Year 2022 (Supplemental) and Year 2023 Fresno Sanitary Landfill (Operable Unit-1 and Operable Unit-2 Task Description Fee 1 Performance Monitoring Program $65,850 2 Remedial Action Systems Operations Assistance $61,230 3 Superfund Site Delisting Pathway – Planning $0 4 Field Investigation Activities $52,200 5 Monthly Meetings $44,320 6 Landfill Regrading/Control Systems Repair Design $7,000 TOTALS $230,600 DocuSign Envelope ID: 75CFBA11-5CF2-4D73-96D1-CF82848BAF2F ALL-S 3.0/12-2021 -1- AGREEMENT CITY OF FRESNO, CALIFORNIA CONSULTANT SERVICES THIS AGREEMENT is made and entered into effective on _________________, by and between the CITY OF FRESNO, a California municipal corporation (C ity), and CDM Smith, Inc., a Massachusetts Corporation (Consultant). RECITALS WHEREAS, City desires to obtain professional Groundwater Remedial Action services for Fresno Sanitary Landfill Groundwater Remediation Services (Project); and WHEREAS, Consultant is engaged in the business of furnishing services as a Consulting Engineer and hereby represents that it desires to and is professionally and legally capable of performing the services called for by this Agreement; and WHEREAS, Consultant acknowledges that this Agreement is subject to the requirements of Fresno Municipal Code Section 4-107 and Administrative Order No. 6-19; and WHEREAS, this Agreement will be administered for City by its Director of Public Utilities(Administrator) or designee. AGREEMENT NOW, THEREFORE, in consideration of the foregoing and of the covenants, conditions, and premises hereinafter contained to be kept and performed by the respective parties, it is mutually agreed as follows: 1. Scope of Services. Consultant shall perform to the satisfaction of City the services described in Exhibit A, including all work incidental to, or necessary to perform, such services even though not specifically described in Exhibit A. 2. Term of Agreement and Time for Performance . This Agreement shall be effective from the date first set forth above (Effective Date) and shall continue in full force and effect through December 31, 2022, subject to any earlier termination in accordance with this Agreement. The services of Consultant as described in Exhibit A are to commence upon the Effective Date and shall be completed in a sequence assuring expeditious completion, but in any event, all such services shall be completed prior to expiration of this Agreement and in accordance with any performance schedule set forth in Exhibit A. 3. Compensation. (a) Consultant’s sole compensation for satisfactory performance of all services required or rendered pursuant to this Agreement shall be a total fee of $429,850. Such fee includes all expenses incurred by Consultant in performance of the services. (b) Detailed statements shall be rendered monthly for services performed in the preceding month and will be payable in the normal course of City business. DocuSign Envelope ID: 8178CBF2-F5DD-43BE-93C7-F1A898B29858 February 1, 2022 ALL-S 3.0/12-2021 -2- (c) The parties may modify this Agreement to increase or decrease the scope of services or provide for the rendition of services not required by this Agreement, which modification shall include an adjustment to Consultant’s compensation. Any change in the scope of services must be made by written amendment to the Agreement signed by an authorized representative for each party. Consultant shall not be entitled to any additional compensation if services are performed prior to a signed written amendment. 4. Termination, Remedies and Force Majeure. (a) This Agreement shall terminate without any liability of City to Consultant upon the earlier of: (i) Consultant’s filing for protection under the federal bankruptcy laws, or any bankruptcy petition or petition for receiver commenced by a third party against Consultant; (ii) seven calendar days prior written notice with or without cause by City to Consultant; (iii) City’s non-appropriation of funds sufficient to meet its obligations hereunder during any City fiscal year of this Agreement, or insufficient funding for the Project; or (iv) expiration of this Agreement. (b) Immediately upon any termination or expiration of this Agreement, Consultant shall (i) immediately stop all work hereunder; (ii) immediately cause any and all of its subcontractors to cease work; and (iii) return to City any and all unearned payments and all properties and materials in the possession of Consultant that are owned by City. Subject to the terms of this Agreement, Consultant shall be paid compensation for services satisfactorily performed prior to the effective date of termination. Consultant shall not be paid for any work or services performed or costs incurred which reasonably could have been avoided. (c) In the event of termination due to failure of Consultant to satisfactorily perform in accordance with the terms of this Agreement , City may withhold an amount that would otherwise be payable as an offset to, but not in excess of, City’s damages caused by such failure. In no event shall any payment by City pursuant to this Agreement constitute a waiver by City of any breach of this Agreement which may then exist on the part of Consultant, nor shall such payment impair or prejudice any remedy available to City with respect to the breach. (d) Upon any breach of this Agreement by Consultant, City may (i) exercise any right, remedy (in contract, law or equity), or privilege which may be available to it under applicable laws of the State of California or any other applicable law; (ii) proceed by appropriate court action to enforce the terms of the Agreement; and/or (iii) recover all direct, indirect, consequential, economic and incidental damages for the breach of the Agreement. If it is determined that City improperly terminated this Agreement for default, such termination shall be deemed a termination for convenience. (e) Consultant shall provide City with adequate written assurances of future performance, upon Administrator’s request, in the event Consultant fails to comply with any terms or conditions of this Agreement. (f) Consultant shall be liable for default unless nonperformance is caused by an occurrence beyond the reasonable control of Consultant and without its fault or negligence such as, acts of God or the public enemy, acts of City in its contractual DocuSign Envelope ID: 8178CBF2-F5DD-43BE-93C7-F1A898B29858 ALL-S 3.0/12-2021 -3- capacity, fires, floods, epidemics, quarantine restrictions, strikes, unusually severe weather, and delays of common carriers. Consultant shall notify Administrator in writing as soon as it is reasonably possible after the commencement of any excusable de lay, setting forth the full particulars in connection therewith, and shall remedy such occurrence with all reasonable dispatch, and shall promptly give written notice to Administrator of the cessation of such occurrence. 5. Confidential Information and Ownership of Documents. (a) Any reports, information, or other data prepared or assembled by Consultant pursuant to this Agreement shall not be made available to any individual or organization by Consultant without the prior written approval of the Administrator. During the term of this Agreement, and thereafter, Consultant shall not, without the prior written consent of City, disclose to anyone any Confidential Information. The term Confidential Information for the purposes of this Agreement shall include a ll proprietary and confidential information of City, including but not limited to business plans, marketing plans, financial information, materials, compilations, documents, instruments, models, source or object codes and other information disclosed or sub mitted, orally, in writing, or by any other medium or media. All Confidential Information shall be and remain confidential and proprietary in City. (b) Any and all writings and documents prepared or provided by Consultant pursuant to this Agreement are the property of City at the time of preparation and shall be turned over to City upon expiration or termination of the Agreement. Consultant shall not permit the reproduction or use thereof by any other person except as otherwise expressly provided herein. (c) If Consultant should subcontract all or any portion of the services to be performed under this Agreement, Consultant shall cause each subcontractor to also comply with the requirements of this Section 5. (d) This Section 5 shall survive expiration or termination of this Agreement. 6. Professional Skill. It is further mutually understood and agreed by and between the parties hereto that inasmuch as Consultant represents to City that Consultant and its subcontractors, if any, are skilled in the profession and shall perform in accordance with the standards of said profession necessary to perform the services agreed to be done by it under this Agreement, City relies upon the skill of Consultant and any subcontractors to do and perform such services in a skillful manner and Consultant agrees to thus perform the services and require the same of any subcontractors. Therefore, any acceptance of such services by City shall not operate as a release of Consultant or any subcontractors from said professional standards. 7. Indemnification. To the furthest extent allowed by law, Consultant shall indemnify, hold harmless and defend City and each of its officers, officials, employees, agents and volunteers from any and all loss, liability, fines, penalties, forfeitures, costs and damages (whether in contract, tort or strict liability, including but not limited to personal injury, death at any time and property damage), and from any and all claims, demands and actions in law or equity (including reasonable attorney's fees and litigation DocuSign Envelope ID: 8178CBF2-F5DD-43BE-93C7-F1A898B29858 ALL-S 3.0/12-2021 -4- expenses) that arise out of, pertain to, or relate to the negligence, recklessness or willful misconduct of Consultant, its principals, officers, employees, agents or volunteers in the performance of this Agreement. If Consultant should subcontract all or any portion of the services to be performed under this Agreement, Consultant shall require each subcontractor to indemnify, hold harmless and defend City and each of its officers, officials, employees, agents and volunteers in accordance with the terms of the preceding paragraph. This section shall survive termination or expiration of this Agreement. 8. Insurance. (a) Throughout the life of this Agreement, Consultant shall pay for and maintain in full force and effect all insurance as required in Exhibit B, which is incorporated into and part of this Agreement, with an insurance company(ies) either (i) admitted by the California Insurance Commissioner to do business in the State of California and rated no less than “A-VII” in the Best’s Insurance Rating Guide, or (ii) as may be authorized in writing by City’s Risk Manager or designee at any time and in its sole discretion. The required policies of insurance as stated in Exhibit B shall maintain limits of liability of not less than those amounts stated therein. However, the insurance limits available to City, its officers, officials, employees, agents and volunteers as additional insureds, shall be the greater of the minimum limits specified therein or the full limit of any insurance proceeds to the named insured. (b) If at any time during the life of the Agreement or any extension, Consultant or any of its subcontractors/sub-consultants fail to maintain any required insurance in full force and effect, all services and work under this Agreement shall be discontinued immediately, and all payments due or that be come due to Consultant shall be withheld until notice is received by City that the required insurance has been restored to full force and effect and that the premiums therefore have been paid for a period satisfactory to City. Any failure to maintain the required insurance shall be sufficient cause for City to terminate this Agreement. No action taken by City pursuant to this section shall in any way relieve Consultant of its responsibilities under this Agreement. The phrase “fail to maintain any require d insurance” shall include, without limitation, notification received by City that an insurer has commenced proceedings, or has had proceedings commenced against it, indicating that the insurer is insolvent. (c) The fact that insurance is obtained by Consultant shall not be deemed to release or diminish the liability of Consultant, including, without limitation, liability under the indemnity provisions of this Agreement. The duty to indemnify City shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by Consultant. Approval or purchase of any insurance contracts or policies shall in no way relieve from liability nor limit the liability of Consultant, its principals, officers, agents, employees, persons under the supervision of Consultant, vendors, suppliers, invitees, consultants, sub-consultants, subcontractors, or anyone employed directly or indirectly by any of them. DocuSign Envelope ID: 8178CBF2-F5DD-43BE-93C7-F1A898B29858 ALL-S 3.0/12-2021 -5- (d) If Consultant should subcontract all or any portion of the services to be performed under this Agreement, Consultant shall require each subcontractor/sub- consultant to provide insurance protection, as an additional insured, to the City and each of its officers, officials, employees, agents, and volunteers in accordance with the terms of this section, except that any required certificates and applicable endorsements shall be on file with Consultant and City prior to the commencement of any services by the subcontractor. Consultant and any subcontractor/sub-consultant shall establish additional insured status for City, its officers, officials, employees, agents, and volunteers by using Insurance Service Office (ISO) Form CG 20 10 11 85 or both CG 20 10 10 01 and CG 20 37 10 01 or by an executed manuscript company endorsement providing additional insured status as broad as that contained in ISO Form CG 20 10 11 85. 9. Conflict of Interest and Non-Solicitation. (a) Prior to City’s execution of this Agreement, Consultant shall complete a City of Fresno conflict of interest disclosure statement in the form as set forth in Exhibit C. During the term of this Agreement, Consultant shall have the obligation and duty to immediately notify City in writing of any change to the information provided by Consultant in such statement. (b) Consultant shall comply, and require its subcontractors to comply, with all applicable (i) professional canons and require ments governing avoidance of impermissible client conflicts; and (ii) federal, state and local conflict of interest laws and regulations including, without limitation, California Government Code Section 1090 et. seq., the California Political Reform Act (California Government Code Section 87100 et. seq.) and the regulations of the Fair Political Practices Commission concerning disclosure and disqualification (2 California Code of Regulations Section 18700 et. seq.). At any time, upon written request of City, Consultant shall provide a written opinion of its legal counsel and that of any subcontractor that, after a due diligent inquiry, Consultant and the respective subcontractor(s) are in full compliance with all laws and regulations. Consultant shall take, and require its subcontractors to take, reasonable steps to avoid any appearance of a conflict of interest. Upon discovery of any facts giving rise to the appearance of a conflict of interest, Consultant shall immediately notify City of these facts in writing. (c) In performing the work or services to be provided hereunder, Consultant shall not employ or retain the services of any person while such person either is employed by City or is a member of any City council, commission, board, committee, or similar City body. This requirement may be waived in writing by the City Manager, if no actual or potential conflict is involved. (d) Consultant represents and warrants that it has not paid or agreed to pay any compensation, contingent or otherwise, direct or indirect, to solicit or procure this Agreement or any rights/benefits hereunder. (e) Neither Consultant, nor any of Consultant’s subcontractors performing any services on this Project, shall bid for, assist anyone in the preparation of a bid for, or perform any services pursuant to, any other contract in connection with this Project unless fully disclosed to and approved by the City Manager, in advance and in writing. Consultant and any of its subcontractors shall have no interest, direct or indirect, DocuSign Envelope ID: 8178CBF2-F5DD-43BE-93C7-F1A898B29858 ALL-S 3.0/12-2021 -6- in any other contract with a third party in connection with this Project unless such interest is in accordance with all applicable law and fully disclosed to and approved by the City Manager, in advance and in writing. Notwithstanding any approval given by the City Manager under this provision, Consultant shall remain responsible for complying with Section 9(b), above. (f) If Consultant should subcontract all or any portion of the work to be performed or services to be provided under this Agreement, Consultant shall include the provisions of this Section 9 in each subcontract and require its subcontractors to comply therewith. (g) This Section 9 shall survive expiration or termination of this Agreement. 10. Recycling Program. In the event Consultant maintains an office or operates a facility(ies), or is required herein to maintain or operate same, within the incorporated limits of the City of Fresno, Consultant at its sole cost and expense shall: (a) Immediately establish and maintain a viable and ongoing recycling program, approved by City’s Solid Waste Management Division, for each office and facility. Literature describing City recycling programs is available from City’s Solid Waste Management Division and by calling City of Fresno Recycling Hotline at (559) 621-1111. (b) Immediately contact City’s Solid Waste Management Division at (559) 621-1452 and schedule a free waste audit, and cooperate with such Division in their conduct of the audit for each office and facility. (c) Cooperate with and demonstrate to the satisfaction of City’s Solid Waste Management Division the establishment of the recycling program in paragraph (i) above and the ongoing maintenance thereof. 11. General Terms. (a) Except as otherwise provided by law, all notices expressly required of City within the body of this Agreement, and not otherwise specifically provided for, shall be effective only if signed by the Administrator or designee. (b) Records of Consultant’s expenses pertaining to the Project shall be kept on a generally recognized accounting basis and shall be available to City or its authorized representatives upon request during regular business hours throughout the life of this Agreement and for a period of three years after final payment or, if longer, for any period required by law. In addition, all books, documents, papers, and records of Consultant pertaining to the Project shall be available for the purpose of making audits, examinations, excerpts, and transcriptions for the same period of time. If any litigation, claim, negotiations, audit or other action is commenced before the expiration of said time period, all records shall be retained and made available to City until such action is resolved, or until the end of said time period whichever shall later occur. If Consultant should subcontract all or any portion of the services to be performed under this Agreement, Consultant shall cause each subcontractor to also comply with the requirements of this paragraph. This Section 11(b) shall survive expiration or termination of this Agreement. DocuSign Envelope ID: 8178CBF2-F5DD-43BE-93C7-F1A898B29858 ALL-S 3.0/12-2021 -7- (c) Prior to execution of this Agreement by City, Consultant shall have provided evidence to City that Consultant is licensed to perform the services called for by this Agreement (or that no license is required). If Consultant should subcontract all or any portion of the work or services to be performed under this Agreement, Consultant shall require each subcontractor to provide evidence to City that subcontractor is licensed to perform the services called for by this Agreement (or that no license is required) before beginning work. 12. Nondiscrimination. To the extent required by controlling federal, state and local law, Consultant shall not employ discriminatory practices in the provision of services, employment of personnel, or in any other respect on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era. Subject to the foregoing and during the performance of this Agreement, Consultant agrees as follows: (a) Consultant will comply with all applicable laws and regulations providing that no person shall, on the grounds of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a disabled veteran or vetera n of the Vietnam era be excluded from participation in, be denied the benefits of, or be subject to discrimination under any program or activity made possible by or resulting from this Agreement. (b) Consultant will not discriminate against any employee or applicant for employment because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era. Consultant shall ensure that applicants are employed, and the employees are treated during employment, without regard to their race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era. Such requirement shall apply to Consultant’s employment practices including, but not be limited to, the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. Consultant agrees to post in conspicuous places, available to employees and applicants for employment, notices setting forth the provision of this nondiscrimination clause. (c) Consultant will, in all solicitations or advertisements for employees placed by or on behalf of Consultant in pursuit hereof, state that all qualified applicants will receive consideration for employment without regard to race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era. (d) Consultant will send to each labor union or representative of workers with which it has a collective bargaining agreement or other contract or understanding, a notice advising such labor union or workers' representatives of Consultant’s commitment DocuSign Envelope ID: 8178CBF2-F5DD-43BE-93C7-F1A898B29858 ALL-S 3.0/12-2021 -8- under this section and shall post copies of the notice in conspicuous places available to employees and applicants for employment. (e) If Consultant should subcontract all or any portion of the services to be performed under this Agreement, Consultant shall cause each subcontractor to also comply with the requirements of this Section 12. 13. Independent Contractor. (a) In the furnishing of the services provided for herein, Consultant is acting solely as an independent contractor. Neither Consultant, nor any of its officers, agents or employees shall be deemed an officer, agent, employee, joint venturer, partner or associate of City for any purpose. City shall have no right to control or supervise or direct the manner or method by which Consultant shall perform its work and functions. However, City shall retain the right to administer this Agreement so as to verify that Consultant is performing its obligations in accordance with the terms and conditions thereof. (b) This Agreement does not evidence a partnership or joint venture between Consultant and City. Consultant shall have no authority to bind City absent City’s express written consent. Except to the extent otherwise provided in this Agreement, Consultant shall bear its own costs and expenses in pursuit thereof. (c) Because of its status as an independent contractor, Consultant and its officers, agents and employees shall have absolutely no right to employment rights and benefits available to City employees. Consultant shall be solely liable and responsible for all payroll and tax withholding and for providing to, or on behalf of, its employees all employee benefits including, without limitation, health, welfare and retirement benefits. In addition, together with its other obligations under this Agreement, Consultant shall be solely responsible, indemnify, defend and save City harmless from all matters relating to employment and tax withholding for and payment of Consultant's employees, including, without limitation, (i) compliance with Social Security and unemployment insurance withholding, payment of workers’ compensation benefits, and all other laws and regulations governing matters of employee withholding, taxes and payment; and (ii) any claim of right or interest in City employment benefits, entitlements, programs and/or funds offered employees of City whether arising by reason of any common law, de facto, leased, or co-employee rights or other theory. It is acknowledged that during the term of this Agreement, Consultant may be providing services to others unrelated to City or to this Agreement. 14. Notices. Any notice required or intended to be given to either party under the terms of this Agreement shall be in writing and shall be deemed to be duly given if delivered personally, transmitted by facsimile followed by telephone confirmation of receipt, or sent by United States registered or certified mail, with postage prepaid, return receipt requested, addressed to the party to which notice is to be given at the party's address set forth on the signature page of this Agreement or at such other address as the parties may from time to time designate by written notice. Notices served by United States mail in the manner above described shall be deemed sufficiently served or given at the time of the mailing thereof. DocuSign Envelope ID: 8178CBF2-F5DD-43BE-93C7-F1A898B29858 ALL-S 3.0/12-2021 -9- 15. Binding. Subject to Section 16, below, once this Agreement is signed by all parties, it shall be binding upon, and shall inure to the benefit of, all parties, and each parties' respective heirs, successors, assigns, transf erees, agents, servants, employees and representatives. 16. Assignment. (a) This Agreement is personal to Consultant and there shall be no assignment by Consultant of its rights or obligations under this Agreement without the prior written approval of the City Manager or designee. Any attempted assignment by Consultant, its successors or assigns, shall be null and void unless approved in writing by the City Manager or designee. (b) Consultant hereby agrees not to assign the payment of any monies due Consultant from City under the terms of this Agreement to any other individual(s), corporation(s) or entity(ies). City retains the right to pay any and all monies due Consultant directly to Consultant. 17. Compliance With Law. In providing the services required under this Agreement, Consultant shall at all times comply with all applicable laws of the United States, the State of California and City, and with all applicable regulations promulgated by federal, state, regional, or local administrative and regulat ory agencies, now in force and as they may be enacted, issued, or amended during the term of this Agreement. 18. Waiver. The waiver by either party of a breach by the other of any provision of this Agreement shall not constitute a continuing waiver or a waiver of any subsequent breach of either the same or a different provision of this Agreement. No provisions of this Agreement may be waived unless in writing and signed by all parties to this Agreement. Waiver of any one provision herein shall not be deemed to be a waiver of any other provision herein. 19. Governing Law and Venue. This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of California, excluding, however, any conflict of laws rule which would apply the law of another jurisdiction. Venue for purposes of the filing of any action regarding the enforcement or interpretation of this Agreement and any rights and duties hereunder shall be Fresno County, California. 20. Headings. The section headings in this Agreement are for convenience and reference only and shall not be construed or held in any way to explain, modify or add to the interpretation or meaning of the provisions of this Agreement. 21. Severability. The provisions of this Agreement are severable. The invalidity, or unenforceability of any one provision in this Agreement shall not affect the other provisions. 22. Interpretation. The parties acknowledge that this Agreement in its final form is the result of the combined efforts of the parties and that, should any provision of this Agreement be found to be ambiguous in any way, such ambiguity shall not be resolved by construing this Agreement in favor of or against either party, but rather by construing the terms in accordance with their generally accepted meaning. DocuSign Envelope ID: 8178CBF2-F5DD-43BE-93C7-F1A898B29858 ALL-S 3.0/12-2021 -10- 23. Attorney's Fees. If either party is required to commence any proceeding or legal action to enforce or interpret any term, covenant or condition of this Agreement, the prevailing party in such proceeding or action shall be entitled to recover from the other party its reasonable attorney's fees and legal expenses. 24. Exhibits. Each exhibit and attachment referenced in this Agreement is, by the reference, incorporated into and made a part of this Agreement. 25. Precedence of Documents. In the event of any conflict between the body of this Agreement and any Exhibit or Attachment hereto, the terms and conditions of the body of this Agreement shall control and take precedence over the terms and conditions expressed within the Exhibit or Attachment. Furthermore, any terms or conditions contained within any Exhibit or Attachment hereto which purport to modify the allocation of risk between the parties, provided for within the body of this Agreement, shall be null and void. 26. Cumulative Remedies. No remedy or election hereunder shall be deemed exclusive but shall, wherever possible, be cumulative with all other remedies at law or in equity. 27. No Third Party Beneficiaries. The rights, interests, duties and obligations defined within this Agreement are intended for the specific parties hereto as identified in the preamble of this Agreement. Notwithstanding anything stated to the contrary in this Agreement, it is not intended that any rights or interests in this Agreement benefit or flow to the interest of any third parties. 28. Extent of Agreement. Each party acknowledges that they have read and fully understand the contents of this Agreement. This Agreement represents the entire and integrated agreement between the parties with respect to the subject matter hereof and supersedes all prior negotiations, representations or agreements, either written or oral. This Agreement may be modified only by written instrument duly authorized and executed by both City and Consultant. [Signatures follow on the next page.] DocuSign Envelope ID: 8178CBF2-F5DD-43BE-93C7-F1A898B29858 ALL-S 3.0/12-2021 -11- IN WITNESS WHEREOF, the parties have executed this Agreement at Fresno, California, the day and year first above written. CITY OF FRESNO, a California municipal corporation By: Georgeanne A. White, Assistant City Manager ATTEST: TODD STERMER, CMC City Clerk By: Deputy No signature of City Attorney required. Standard Document #ALL-S 3.0 has been used without modification, as certified by the undersigned. By: Rosa Lau-Staggs Wastewater Manager Addresses: City: City of Fresno Attention: Rosa Lau-Staggs, Wastewater Manager 5607 W. Jensen Ave Fresno, CA 93706 Phone: (559) 621-5130 FAX: (559) 498-1700 CDM Smith, Inc., A Massachusetts Corporation By: Name: Title: (If corporation or LLC., Board Chair, Pres. or Vice Pres.) By: Name: Title: (If corporation or LLC., CFO, Treasurer, Secretary or Assistant Secretary) Any Applicable Professional License: Number: Name: Date of Issuance: Consultant: CDM Smith, Inc. Attention: John (Yash) Nyznyk, Associate 2300 Clayton Road # 950 Concord, CA 94520 Phone: (925) 296-8065 FAX: (925) 933-4174 Attachments: 1. Exhibit A - Scope of Services 2. Exhibit B - Insurance Requirements 3. Exhibit C - Conflict of Interest Disclosure Form DocuSign Envelope ID: 8178CBF2-F5DD-43BE-93C7-F1A898B29858 1/10/2022 Senior Vice President 1/10/2022 Hala Titus 1/10/2022 Vice President Servando Molina 2/1/2022 2/1/2022 Bernard Canez ALL-S 3.0 /06-2021 Page 1 of 15 EXHIBIT A SCOPE OF SERVICES Consultant Service Agreement between City of Fresno (City) and CDM Smith, Inc. (Consultant) Fresno Sanitary Lanfill Groundwater Monitoring and Remedial Action Services Scope of Work and Budget for 2022 Fresno Sanitary Landfill Introduction Provided below are descriptions of work tasks to be performed by CDM Smith Inc. (Consultant) on behalf of the City of Fresno (City) as part of ongoing operations at the Fresno Sanitary Landfill Superfund Site (“FSL” or “Site”). Ongoing activities are being performed as part of Operable Unit No. 1 (OU-1 – landfill control system operations and maintenance) and OU-2 (groundwater remediation system operations and maintenance). The ultimate objective of the continued work is to achieve formal closure of the FSL Superfund Site under the oversight of the U.S. Environmental Pro tection Agency (USEPA). This scope of work presented below describes work to be performed during 2022. This scope of work is a continuation of work performed under the previous contract with the City during the four-year period 2016 through 2019 and during the Year 1 Extension (2020) and the Year 2 Extension (2021). Work on the project is defined in terms of the five project tasks listed below: Task 1 – Performance Monitoring Program Task 2 – Remedial Action Systems Operations Assistance Task 3 – This task will not be used during 2022 Task 4 – Field Investigation Activities (OU-1) Task 5 – Project Management/Project Meetings Task 6 – Landfill Regrading/Landfill Control Systems Repair – Design, Bid Period, and Construction Period Services (OU-1) Table A-1 consists of a summary of the estimated costs for this scope of work. The total cost for this work is $429,850 for the one-year period of performance (2022). Task 1 – Performance Monitoring Program Objectives Provide oversight during implementation of the annual performance monitoring program as part of the Groundwater Remedial Action at the FSL. Monitor and evaluate progress of groundwater remediation. Document the performance monitoring activities and laboratory analytical results in an annual report and an interim data transmittal to the USEPA. DocuSign Envelope ID: 8178CBF2-F5DD-43BE-93C7-F1A898B29858 ALL-S 3.0 /06-2021 Page 2 of 15 Prepare responses to review comments from USEPA (and other State regulatory agencies). Activities Groundwater Monitoring Program – The Groundwater Monitoring Program at the FSL has been ongoing for a number of years. City personnel have assumed primary responsibility for performing the quarterly field sampling activities, including making arrangements with the analytical laboratory (e.g., analyses to be performed, sampling containers, delivery of sampling containers to the Site) and sample collection from the groundwater monitoring wells and the groundwater treatment plant (GTP) influent and effluent sampling ports. Consultant will coordinate with the City in the ongoing implementation of this program. The activities described below are to be performed during the year 2022. Quarterly sampling events are scheduled to be performed during January, April, July, and October. As part of this task, Consultant will be responsible for the following activities: - Coordinate with City field personnel during field sampling events to be performed in January, April, July, and October. This includes making City staff aware of modifications to the performance monitoring program activities. Reco mmended modifications to the sampling program (e.g., increasing/decreasing frequency of sampling for individual monitoring wells) are to be proposed as part of the annual performance monitoring report. - Identify and work to resolve issues that come up regarding laboratory analytical results (e.g., apparent mislabeling between 2 sample locations, investigate what appears to be anomalous analytical data, etc.). - Prepare the two deliverables associated with the Groundwater Monitoring Program, including the Interim Data Transmittal and the Annual Performance Monitoring Program Report. These deliverables are described below. Environmental Database – Maintain the environmental database, including upload of analytical data upon receipt from the analytical laboratory following each quarterly sampling round. Database management will include performing queries on the data and preparing data summary tables that will be included in the interim data transmittal (electronic transmittal) and the annual performance monitoring program report (hard copy submittal and/or electronic transmittal). Responses to Regulatory Agency Review Comments (RTCs) – USEPA and the State regulatory agencies have submitted review comments on a range of submittals during the past year (2021). This task will involve preparing RTCs for technical deliverables scheduled for submittal to USEPA (including the OU-1 Annual Report, Interim Data Transmittal, and Annual Performance Monitoring Program Report. Assumptions Analysis of organic constituents is currently being performed by BSK Associates Engineers & Laboratories (BSK) in Fresno, CA under direct bill contract with the City. The analytical laboratory may be changed at the discretion of the City. DocuSign Envelope ID: 8178CBF2-F5DD-43BE-93C7-F1A898B29858 ALL-S 3.0 /06-2021 Page 3 of 15 Analysis of inorganic constituents is currently being performed by the City of Fresno Wastewater Management Division Analytical Laboratory (WMD) in Fresno, CA, under direct bill arrangement with the City. Deliverables 1. Interim Data Transmittal – The Interim Data Transmittal will consist of data summary tables and figures for the July and October groundwater monito ring events. The Interim Data Transmittal will be submitted directly to USEPA via e -mail in January 2022. 2. Annual Performance Monitoring Program Report (Annual Report) – The Annual Report will cover the July and October 2021 and the January and April 2022 groundwater monitoring events. A draft document will be submitted to City staff for review. Consultant will incorporate revisions from City staff and prepare final report for submittal to the USEPA. The Annual Report, to be submitted to USEPA in Ju ly 2022, will include the following elements: - Compilation of quarterly monitoring data (field and analytical laboratory data) and GTP operational data. - Preparation of data summary tables and graphics. Data summary tables will include groundwater extraction well operational data, groundwater treatment unit performance monitoring data, volatile organic compound (VOC) mass removal, groundwater level measurements, head differential measurements (well clusters), VOC analytical data, inorganic constituent data, and quality control data. Graphics will include groundwater elevation contours for 2 of the quarterly monitoring events and VOC concentration trend plots. - Based on the Long Term Monitoring Optimization Plan (Plan) (CD M Smith, 2007), Consultant will perform an evaluation of the groundwater monitoring wells included in the monitoring program and will make recommendations in accordance with the criteria defined in the Plan. This evaluation will be completed following the April performance groundwater monitoring event. The results of this evaluation will be documented in the Annual Report. Task 2 – Remedial Action Systems Operations Assistance Objectives Support the high-quality performance of the landfill environmental control systems, including the landfill gas (LFG) control, landfill cover, and stormwater management systems. Assist City staff in the ongoing operations, monitoring, and maintenance o f the groundwater remediation system and the landfill control systems at the FSL. Activities Under this task, Consultant will assist the City in ongoing operations and maintenance of the groundwater treatment system and the landfill control systems. This task will consist of on-site and office activities necessary to maintain effective operation of the groundwater collection and treatment system, the LFG control system, and the function of the final landfill cover/stormwater management systems. This task includes the following activities: DocuSign Envelope ID: 8178CBF2-F5DD-43BE-93C7-F1A898B29858 ALL-S 3.0 /06-2021 Page 4 of 15 Operable Unit 1 Annual Report (Annual Activity) – Consultant will prepare a report, which is intended to document operations and maintenance activities associated with the landfill (LFG) control elements, including the landfill cover, stormwater management, and LFG control systems. The OU-1 Annual Report, to be submitted to USEPA in February, will address operations during the prior year. The OU-1 Annual Report will consist of the following elements: - Summary of LFG flare operating data. This summary would include a listing of the LFG flare downtimes, resulting in operation of the GTP in LFG flare bypass mode. - Compilation of perimeter LFG monitoring probe data. - Assessment of the condition of the landfill cover system and the stormwater management system. The assessment would rely on information generated during inspections of the landfill cover and stormwater management system performed by Consultant and/or City staff. Of particular importance is the inspection scheduled early fall, prior to onset of rainy weather. - Overview of maintenance activities performed on the landfill control systems and description of repairs or equipment replacements. Landfill Inspection and Maintenance Assistance – Activities to be performed under this subtask will be focused on assisting the City in planning and performing landfill inspection and maintenance activities. - Annual Landfill Inspection (Annual Activity) – The annual landfill inspection will be performed during the Fall of 2022. At the request of the City, additional inspections may be performed following heavy precipitation events that could impact landfill control systems function. A description of landfill inspection a ctivities/procedures is provided below: • Focus of the inspections will be on the landfill control system elements, including landfill cover system, surface water management system, and LFG control system. • Highlight the need for performing routine maintenance activities related to the landfill control systems. • Highlight the need for performing corrective action activities to address damage, inoperable conditions, or failure of the landfill control systems. The descriptions will be specific to each of the landfill control system elements. • Prepare report to document inspection and to describe maintenance, repair, and corrective actions. • Identify landfill regrading needs identified as part of the landfill inspections. - Wet Weather Inspections – Inspections will be performed during wet weather months (considered to be October through March). City staff will be responsible for performing these inspections, including completing the inspection form for submittal to Consultant who will review and submit to USEPA. - Quarterly Inspections – Given overlap with the other scheduled landfill inspections (Annual and wet weather Inspections, only one quarterly inspection during th e year (June). City staff will be responsible for performing this inspection, including completing the inspection form for submittal to Consultant who will review and submit to USEPA. DocuSign Envelope ID: 8178CBF2-F5DD-43BE-93C7-F1A898B29858 ALL-S 3.0 /06-2021 Page 5 of 15 Annual Evaluation of Extraction Well Performance (Annual Activity) – Consultant will perform an evaluation of the performance of each extraction well on an annual basis. Performance factors to be considered during the performance evaluation will include specific capacity (pumping rate per foot of drawdown) and changes in p umping rate and drawdown over time, with comparison to historical data. New Well Evaluations (Periodic Activity) – Consultant will perform groundwater modeling evaluations of proposed new water supply wells (agricultural and residential) in the vicinity of the FSL. The purpose of the new well evaluations is to assess the potential for impact to the existing groundwater remediation system at the FSL from operation of proposed new wells. Under the current arrangement, the County of Fresno, Department of Public Health, Environmental Health Division (Fresno County) notifies the City when a permit application for a new or replacement water supply well is submitted in a location within the well assessment zone. Based on groundwater modeling results, Consult ant will either recommend that the well not be installed or recommend design modifications for the proposed well (e.g., depth of well, depth of annular seal, and length of screen zone). It is assumed that CDM Smith will perform two evaluations per year for the duration of the period of performance. As-Needed Services (Annual Activities) – The budget includes funding for tasks that cannot specifically be identified at this time. The City will request in writing that Consultant perform these tasks prior to initiating work. Activities under this task will be performed on an as-needed basis. These currently undefined tasks may include, but are not limited to, the following: - GTP Operations Assistance – Consultant staff will be available to address questions raised by City staff in optimizing operations of the groundwater collection and treatment system (including extraction pump operations, GTP operations, and monitoring of instrumentation and controls). Consultant staff will also be available to respond to requests for assistance from the City to address GTP operational problems or to respond to questions regarding technical or regulatory issues. - Evaluate the feasibility of performing innovative remediation technologies to address VOC-impacted groundwater with the objective of reducing localized high VOC concentration locations. Over the last 10 to 15 years, significant progress has been made in reducing and/or eliminating VOC groundwater concentrations using a range of innovative remedial technologies (e.g., in situ bioremediation, chemical oxidation, etc.). The focus of such a task would be to engage with commercial vendors to gain an understanding regarding the feasibility and effectiveness of innovative technologies for use at landfill sites. - Respond to requests from the USEPA to perform field investigation activities at the landfill site. - Develop an estimate of future costs associated with GTP operations under various operational scenarios. - Review and evaluate analytical data from supplemental samples collected from the groundwater monitoring wells or the GTP. - Respond to requests for information from the USEPA, or other regulatory agencies involved in oversight at the FSL. DocuSign Envelope ID: 8178CBF2-F5DD-43BE-93C7-F1A898B29858 ALL-S 3.0 /06-2021 Page 6 of 15 Assumptions With requests from Consultant, City staff will provide Consultant with information listed below in a timely manner. The requested information constitutes critical information for reporting to USEPA (e.g., Quarterly Progress Reports, OU-2 Annual Performance Monitoring Report, OU-1 Annual Report). 1. Downloads of the SCADA system with operations data for the groundwater remediation system (data from extraction well operations and groundwater treatment plant operations) and for the landfill gas (LFG) flare system (LFG flare operations). Consultant will compile these data and make necessary assumptions and calculations for filling data gaps. 2. Weekly maintenance summaries for the groundwater remediation system and the LFG flare. Consultant will initiate efforts on as-needed tasks upon request from the City. The cost associated with the individual subtasks will include expenses for travel to the Site. Deliverables OU-1 Annual Report (Annual Deliverable). A draft report will be submitted to the City for review. The report will be revised based on review comments from the City and finalized for submittal to USEPA. Annual Extraction Well Performance Evalua tion Technical Memorandum (Annual Deliverable). The technical memorandum, which will document the performance evaluation on each of the groundwater extraction wells, will be submitted to the City. This technical memorandum is not intended as a formal submittal to USEPA. New Well Evaluations (Periodic Deliverables). At the conclusion of each new well evaluation that is performed, a letter to the City will be prepared for submittal to the City which documents groundwater modeling results and provides well construction recommendations. There may be deliverables associated with As-needed services that are authorized by the City under Task 2. Task 3 – Superfund Site Delisting Pathway – Planning There will be no Task 3 services performed during 2022. Task 4 – Field Investigation Activities (Operable Unit 1) The two subtasks included under Task 4 are briefly described below. Subtask 4.1 – Soil Gas Sampling Program. During 2021, USEPA had directed the City to perform soil gas sampling from selected LFG perimeter monitoring probes (located along the perimeter of the landfill). Based on the results of these sampling activities, USEPA is expected to direct the City to plan and implement a soil gas investigation on City property located beyond the perimeter monitoring probe locations along potential exposure pathways to assess the potential risk to park visitors or to local residents along Jensen Avenue (north of the landfill) or along North Avenue (south of the landfill). Subtask 4.2 – Landfill surface Emissions Testing. USEPA is requiring the City to implement a surface emissions testing program on the FSL. Consultant will assist the City DocuSign Envelope ID: 8178CBF2-F5DD-43BE-93C7-F1A898B29858 ALL-S 3.0 /06-2021 Page 7 of 15 in developing the emissions testing program and in preparing reports to document field activities and present the results of the emissions testing. Subtask 4.1 – Soil Gas Sampling Program Objective Collect soil gas data to assess the risk to human health from migrating LFG at locations near the landfill. Activities Prepare a Draft Soil Gas Investigation Work Plan (Work Plan) defining the remedial action objectives, detailing soil gas sample probe installation and soil gas sample collection procedures and identifying laboratory analytical methods. Prepare RTCs to USEPA review comments on the Work Plan and prepare a Final Work Plan which incorporates input from USEPA. A description of the Soil Gas Investigation activities is provided below: - Consultant will hire a subcontractor to provide soil gas probe installation and soil gas sampling services. - Soil gas probes will be installed by a California C-57 licensed drilling subcontractor using a direct push technology drill rig. No soil or groundwater samples will be submitted for laboratory analysis. The probes will be placed in locations near utility trenches as potential migration pathways. A targeted screen interval of 4.5 to 5.5 feet bgs has been selected for each of the soil gas. Once installed, the soil gas probes will be allowed to equilibrate for a two hour time period before shut in, leak testing, purging and sampling will occur. - Following a two hour equilibration period after probe installation, shut -in testing, leak testing, and purging will be performed followed by soil gas sample collect ion. Samples will be collected in laboratory supplied Summa canisters with the following analyses: 1. VOCs by Environmental Protection Agency Method TO-15 (Full Scan). 2. Helium by modified ASTM D-1946 – atmospheric gas analysis In addition to samples to be collected from the newly installed soil gas probe locations, samples will be collected at five of the existing landfill perimeter monitoring probe locations 9 NNW2m CMW6, MMW4, MMW5, MMW6. Helium shroud leak testing will be implemented during sampling at the perimeter monitoring probes. A second round of sampling is expected to be required by USEPA to evaluate whether there are seasonal variations of VOC constituent concentrations in the soil vapor samples. The soil gas sample collection detailed above will be repeated. Following completion of two rounds of soil gas sample collection, prepare a technical memorandum to document data collection methods, and present analytical data from field sampling. Results will be compared with the San Francisco Regional Water Quality Control Board Environmental Screening Levels (ESLs) (Water Board, 2019). The technical memorandum will present a data evaluation to assess the potential risk to human health. Assumptions USEPA will not require more than the two sampling rounds described above. Deliverables DocuSign Envelope ID: 8178CBF2-F5DD-43BE-93C7-F1A898B29858 ALL-S 3.0 /06-2021 Page 8 of 15 Soil Gas Investigation Work Plan. The Work Plan will describe the soil gas probe installation and soil gas sample collection procedures. The Work Plan will be submitted to USEPA Technical Memorandum – Soil Gas Investigation Findings Subtask 4.2 – Landfill Surface Emissions Testing In 2021, surface emissions testing was requested by USEPA, to be performed during 2022. Objective Develop a surface emissions testing program at the FSL. Prepare an annual report to USEPA which documents the field activities and presents the results of the emissions testing. Activities Consultant will develop a surface emissions monitoring plan (Plan) consistent with Title 17 California Code of Regulations (CCR), Section 95460. The surface emissions monitoring program will include Instantaneous Surface Monitoring and Integrated Surface Monitoring, as defined in the CCR, Section 95460. Consultant will prepare an annual report for submittal to USEPA covering the period January 1 through December 31, 2022. The report will provide a summary of the quarterly surface emissions monitoring activities and present field data collection data. LFG gas control system operations for the reporting period will be documented. Assumptions City staff will perform quarterly field methane surface emissions monitoring activities. Monitoring data will be provided to Consultant following each quarterly monitoring event. Deliverables Emissions Monitoring Work Plan. The Work Plan will describe the methane surface emissions monitoring procedures and reporting requirements. The Work Plan will be submitted to USEPA. Landfill Emissions Annual Report (for the period January 1 through December 31, 2022). The Landfill Emissions Annual Report will be a deliverable in March 2023 (regulatory-defined requirement). Preparation of the Annual Report will be included in the 2023 scope of work Task 5 –Project Management/Project Meetings Objectives Meet project scope, schedule, and budget requirements. Maintain effective communication with the City, USEPA, and other regulatory agency staff on key project issues. DocuSign Envelope ID: 8178CBF2-F5DD-43BE-93C7-F1A898B29858 ALL-S 3.0 /06-2021 Page 9 of 15 Activities The activities described below are to be performed during 2022. Perform routine project management activities, which will include staff oversight, budget management, invoicing and coordination with the City on budget and scope of work development. Prepare schedule updates, as needed. Participate in project meetings and project conference calls, including preparing meeting agendas and other handouts. Prepare quarterly reports providing status updates regarding remedial actions implemented at the FSL. Consultant will submit draft quarterly reports to the City. Assumptions The City will finalize the quarterly reports with transmittal to USEPA. Cost estimate reflects participation in monthly project conference calls. In addition, there will be one project status meetings at the FSL Site during 2022. The budget assumes that up to one Consultant staff from outside the Concord office will participate in the project status meeting and includes travel and per diem expenses. Deliverables 1. Project Quarterly Reports prepared during January, April, July, and October during 2022. 2. Monthly invoices to the City documenting Consultant work performed. 3. Agenda and handouts for periodic project meetings or teleconferences. Task 6 – Landfill Regrading/Landfill Control Systems Repair – Design, Bid Period, and Construction Period Services (OU-1) The City initiated a landfill regrading program during 2021. Consultant prepared design documents which addressed settlement along the eastern side slopes, eastern perimeter drainage channel and eastern access road. The regrading program will continue dur ing 2022. Design activities during 2022 will include completion of the Landfill Regrading Program Design #1 (initiated in 2021) and the Regrading Program Design #2 elements. The two Task 6 subtasks are briefly described below. Subtask 6.1 – Landfill Regrading Program Design #2– Design for the project titled Drainage Channel Regrading and Gas Control System Maintenance was initiated in 2021 (through completion of the 90% design). This subtask consists of completing the 95% design documents and the 100% design documents. Additionally, Consultant will provide bid period and construction period services. Subtask 6.2 – Landfill Regrading Program – Design #2: This subtask consists of developing detailed plans and specifications that will guide landfill regrad ing and repair of the southern side slopes, northern side slopes and perimeter drainage channel, top deck of the landfill, and perimeter access roads. Subtask 6.1 – Landfill Regrading Program - Design #1: Drainage Channel Regrading and Gas Control System Maintenance Objectives DocuSign Envelope ID: 8178CBF2-F5DD-43BE-93C7-F1A898B29858 ALL-S 3.0 /06-2021 Page 10 of 15 Complete design documents (plans and technical specifications) for the Regrading Program Design #1. Provide bid period and construction period services. Activities The 90% design documents (submitted in October 2021) included relocation of the landfill gas (LFG) header associated with Condensate Sump #6 (CS -6). The City has expanded the Regrading Program Design #1 design activities to include relocation of the LFG header associated with CS-5. This element of work will be incorporated into the 95% design documents. Subtask 6.1 are described below: 95% design – This is a new design package that was added to the scope of work for 2022. Restore funding for Existing Tasks – During 2021, with approval by the City, funding was transferred from existing Task 6 subtasks to allow Consultant to address reporting requirements associated with the Landfill Regrading Program imposed by USEPA. Transfer of funding is described below: a. Bid Period Services – The $1,800 that was transferred from this subtask in 2021 is restored under this scope and budget for 2022. b. Reporting – The $6,000 that was transferred from this subtask in 2021 is restored under this scope and budget for 2022. Deliverables 1. 95% Perimeter Drainage Ditch Regrading and Repair Design. Comments from City staff on the 90% design package will be incorporated into the design drawings and specifications and the 100% design documents will be prepared. The stage of the design is considered final. The Engineer’s OPCC based on the 95% design documents will be developed and submitted for City review. 2. 100% Perimeter Drainage Ditch Regrading and Repair Design. Comments from City staff on the 95% design package will be incorporated into the design drawings and specifications and the 100% design documents will be prepared. The stage of the design is considered final. The Engineer’s OPCC based on the 100% design documents will be developed and submitted for City review (existing funding au thorized in 2021). 3. The 100% design submittals will be stamped and sealed for distribution by the City to potential bidders. An electronic copy of the 100% drawings in AutoCAD version 2015 will be provided on CD-ROM. Electronic copy will be identical to bid set except Consultant will remove its logo, professional engineering stamps and signatures. Electronic copies of 100% technical specifications will be provided in MS Word on CD-ROM (existing funding authorized in 2021). 4. Electronic files of the design documents (plans and specifications) will be provided to the City (existing funding authorized in 2021). 5. Following completion of the landfill regrading and LFG collection system repair activities and the landfill perimeter drainage ditch regrading and repair activities, a Tech Memo will be prepared to document activities performed. The Tech Memo will be submitted to the USEPA (funding for this task is restored as part of this budget). DocuSign Envelope ID: 8178CBF2-F5DD-43BE-93C7-F1A898B29858 ALL-S 3.0 /06-2021 Page 11 of 15 Bid Period Services This subtask will include participation in the City’s pre-bid conference and preparation of responses to Bid Period requests-for-information (RFIs). It is assumed that this task will be limited to 50 labor hours (funding for this task is restored as part of this budget). Construction Period Services This subtask will consist of Contractor submittal review, preparing responses to construction RFIs, and periodic construction oversight. Construction oversight can include specialty inspection, targeted participation in construction meetings, assistan ce in change order preparation, assistance in claims support, and assistance in preparation of a project punch list. It is assumed that this task is limited to 100 labor hours. (existing funding authorized in 2021). Reporting This subtask will consist of preparing a Tech Memo to document the Task 6 construction efforts. The Tech Memo is intended for submittal to the USEPA. Given that this construction project is a maintenance project, the report will be less detailed than the Interim Remedial Action Report that had been prepared to document past remedial action construction activities performed at the FSL (funding for this task is restored as part of this budget). Subtask 6.2 – Landfill Regrading Program - Design #2: Regrading and Landfill Control Systems Repair – Southern Side Slopes, Northern Side Slopes and Perimeter Drainage Channel, Top Deck, and Access Roads Objectives Prepare design documents (plans and technical specifications) to be used by the City to solicit bids from contractors for regrading landfill side slopes, perimeter drainage channel, and perimeter access roads as part of Regrading Design #2 of the Landfill Regrading Program. Provide bid period and construction period services. Activities Consultant will design drawings and specif ications for use by the City to request Contractor bids to utilize in planning and implementing a regrading operation addressing differential settlement of landfill side slopes, top deck, and access roads. Additionally, the design will address maintenance and repair of landfill control system facilities during the fall of 2022. Task activities will include preparation of design documents (design plans and specifications), bid period services, and construction period services. Task activity descriptions, assumptions, and deliverables are provided below. Design Services Consultant will prepare the Landfill Regrading Program Basis of Design for submittal to USEPA. Consultant will also prepare three design packages, including the 60% design drawings with a listing of technical specifications sections, 90% design package (design drawings, specifications, and associated Engineer’s Opinion of Probable Construction DocuSign Envelope ID: 8178CBF2-F5DD-43BE-93C7-F1A898B29858 ALL-S 3.0 /06-2021 Page 12 of 15 Cost (OPCC) and the 100% design package (specifications, design drawings, and associated OPCC). Activities to be performed during the design for the Regrading and Landfill Control System Repair are described below. Up to two visits to the FSL by key members of the design team to confirm conditions relative to as-built drawings for the landfill closure. Develop approximately fifteen (15) design drawings, including the following: - Five (5) general sheets – title page, general notes, general site layout, and settlement specific sheets. - Ten (10) civil detail sheets – sections/details showing typical settlement repair, ditch reconstruction and ditch lining, anchor trench, sand tube layout, and perimeter access road repair. Develop technical specifications based on the specifications prepared for the Drainage Channel Regrading and Landfill Gas Control System Maintenance project (90% design specifications completed in October 2021). Develop Engineer’s Opinion of Probable Construction Cost (OPCC) for the Perimeter Drainage Ditch and Repair project. The Engineer’s OPCC will be developed based on the 90% design submittal and then updated for the 100% design submittal. Bid Period Services This subtask will include participation in the City’s pre -bid conference and preparation of responses to Bid Period requests-for-information (RFIs). It is assumed that this task will be limited to 50 labor hours. Construction Period Services This subtask will consist of Contractor submittal review, preparing responses to construction RFIs, and periodic construction oversight. Construction oversight can include specialty inspection, targeted participation in construction meetings, assistance in change order preparation, assistance in claims support, and assistance in preparation of a project punch list. It is assumed that this task is limited to 100 labor hours. Reporting This subtask will consist of preparing a Tech Memo to document the Task 6 construction efforts. The Tech Memo is intended for submittal to the USEPA. Given that this construction project is a maintenance project, the report will be less d etailed than the Interim Remedial Action Report that had been prepared to document past remedial action construction activities performed at the FSL. Assumptions City survey crew will perform a survey of the landfill areas targeted for regrading during 2022, including landfill side slopes, perimeter drainage ditches, and landfill access roads. The City will provide to Consultant electronic files with topographic contour information by March 2022. Design documents will be based on design documents prepared for the Drainage Channel Regrading and landfill Gas Control system Maintenance project (90% design dated October 2021). DocuSign Envelope ID: 8178CBF2-F5DD-43BE-93C7-F1A898B29858 ALL-S 3.0 /06-2021 Page 13 of 15 It is intended that the 100% design documents are final, and not a review set for purposes of generating additional review comments. City will be responsible for compiling the front end (Division 0) specifications. Consultant will be responsible for developing the technical specifications. Consultant will provide to City staff the technical specifications (from the 100% design pa ckage) for incorporating into a full specification package to be included in the formal request-for-bid. Consultant will prepare draft Bid Schedule for use by the City as an element in the bid package. The City will work process front-end (Division 0) specifications. City will be responsible for transmitting information to bidders, as necessary. At the request of the City, Consultant will prepare up to two addenda during the bid process. Consultant will prepare responses for up to ten questions or RFIs during the bidding process. During Construction Period Services, City will coordinate and transmit RFIs and submittals/responses. Deliverables 1. Landfill Regrading Program Basis of Design – The Landfill Regrading Program Basis of Design document will provide a detailed description of the elements of work to be addressed as part of the Regrading Program Design #2. 2. 60% Design drawings. Design documents will consist of drawings and a listing of the technical specifications. The 60% design document s will be submitted for review by City staff. 3. 90% Design documents. Review comments from City staff on the 60% design package will be incorporated into the 90% set of design drawings and specifications. The 90% design documents will be submitted for review by City staff and by USEPA. The Engineer’s OPCC based on the 90% design documents will be developed and submitted for City review. 4. It is expected that USEPA will submit review comments addressing the 90% design documents. Consultant will prepare a RTC document in response to USEPA comments and incorporate USEPA comments in the 100% design documents. 5. 100% Design documents. Design documents will consist of drawings and technical specifications. Review comments from City staff and USEPA on the 90% design package will be incorporated into the 100% design drawings and specifications. The 100% design documents will be submitted for a backcheck by City staff. The Engineer’s OPCC based on the 100% design documents will be developed and submitted for Cit y review. 6. The 100% design submittal will be stamped and sealed for distribution by the City to potential bidders. An electronic copy of the 100% drawings in AutoCAD version 2015 will be provided on CD-ROM. Electronic copy will be identical to bid set except Consultant will remove its logo, professional engineering stamps and signatures. Electronic copies of 100% technical specifications will be provided in MS Word on CD-ROM. 7. Electronic files of the design documents (plans and specifications) will b e provided to the City. 8. Following completion of the construction activities, Consultant will prepare a Construction Completion Report, which will document construction activities performed. The Construction Completion Report will be submitted to the USE PA. DocuSign Envelope ID: 8178CBF2-F5DD-43BE-93C7-F1A898B29858 ALL-S 3.0 /06-2021 Page 14 of 15 Schedule The scope of work and budget presented above reflects project duration from January through December 2020. The schedule for project deliverables is provided below: Annual and or Periodic Deliverables 1. Quarterly Reports – January, April, July, and October during 2022. 2. Interim Data Transmittal – January 31, 2022. 3. OU-1 Annual Report – February 31, 2022. 4. Technical Memorandum to document the annual well performance evaluation – June 2022. 5. Spring 2022 Annual Performance Monitoring Program Report – July 31, 2022. 6. New Well Evaluations – The results of groundwater modeling to evaluate proposed new agricultural or domestic water supply wells will be documented in a brief letter report to the City. This work will be performed on an as-needed basis throughout 2022. One-time Deliverables 1. Soil Gas Investigation Work Plan – February 2022 2. Soil Gas Investigation Findings – October/November 2022 3. Landfill Emissions Monitoring Work Plan – February 2022 4. Task 6.1 Design Deliverables: Landfill Regrading Basis of Design – first quarter 2022 Landfill Regrading Program 95% design documents – February 2022 Landfill Regrading Program 100% design documents - April 2022 Technical Memorandum documenting Landfill Regrading Program – Design #1– fourth quarter 2022 5. Task 6.2 Design Deliverables: Landfill Regrading Basis of Design – second quarter 2022 Landfill Regrading Program 60% design documents - third quarter 2022 Landfill Regrading Program 90% design documents - fourth quarter 2022 Landfill Regrading Program 100% design documents - fourth quarter 2022 Budget The cost for the work described above is $429,850. A cost breakdown is provided on Table 1 – Groundwater and Landfill Remediation Services During 2022, Fresno Sanitary Landfill (OU-1 and OU-2). This cost estimate constitutes the budget for services during 2022. DocuSign Envelope ID: 8178CBF2-F5DD-43BE-93C7-F1A898B29858 ALL-S 3.0 /06-2021 Page 15 of 15 Table 1 Groundwater and Landfill Remediation Services during 2022 Fresno Sanitary Landfill (OU-1 and OU-2) Task Description Labor ODCs OPs Total Task 1Performance Monitoring Program $ 54,800 $ 1,360 $ - $ 56,160 Task 2 Remedial Action Systems Operations Assistance $ 85,810 $ 1,680 $ - $ 87,490 Task 3 (not utilized for Services during 2022) $ - $ - $ - $ - Task 4 Field Investigation Activities (OU-1) $ 28,430 $ 940 $ 22,200 $ 51,570 Task 5 Project Management/Project Meetings $ 60,710 $ 2,160 $ - $ 62,870 Task 6 Landfill Regrading/Landfill Control Systems Repair -- Design, Bid Period, and Construction Period Services (OU-1) $ 170,500 $ 1,260 $ - $ 171,760 TOTALS $ 400,250 $ 7,400 $ 22,200 $ 429,850 DocuSign Envelope ID: 8178CBF2-F5DD-43BE-93C7-F1A898B29858 ALL-S 3.0/01.05.16 Page 1 of 4 EXHIBIT B INSURANCE REQUIREMENTS Consultant Service Agreement between City of Fresno (City) and CDM Smith, Inc. (Consultant) Fresno Sanitary Landfill Groundwater Monitoring and Remedial Action Service MINIMUM SCOPE OF INSURANCE Coverage shall be at least as broad as: 1. The most current version of Insurance Services Office (ISO) Commercial General Liability Coverage Form CG 00 01, providing liability coverage arising out of your business operations. The Commercial General Liability policy shall be written on an occurrence form and shall provide coverage for “bodily injury,” “property damage” and “personal and advertising injury” with coverage for premises and operations (including the use of owned and non - owned equipment), products and completed operations, and contractual liability (including, without limitation, indemnity obligations under the Agreement) with limits of liability not less than those set forth under “Minimum Limits of Insurance.” 2. The most current version of ISO *Commercial Auto Coverage Form CA 00 01, providing liability coverage arising out of the ownership, maintenance or use of automobiles in the course of your business operations. The Automobile Policy shall be written on an occurrence form and shall provide coverage for all owned, hired, and non-owned automobiles or other licensed vehicles (Code 1- Any Auto). If personal automobile coverage is used, the City, its officers, officials, employees, agents, and volunteers are to be listed as additional insureds. 3. Workers’ Compensation insurance as required by the State of California and Employer’s Liability Insurance. 4. Professional Liability (Errors and Omissions) insurance appropriate to Consultant’s profession. Architect’s and engineer’s coverage is to be endorsed to include contractual liability. MINIMUM LIMITS OF INSURANCE Consultant, or any party the Consultant subcontracts with, shall maintain limits of liability of not less than those set forth below. However, insurance limits available to City, its officers, officials, employees, agents, and volunteers as additional insureds, shall be the greater of the minimum limits specified herein or the full limit of any insurance proceeds available to the named insured: 1. COMMERCIAL GENERAL LIABILITY: (i) $1,000,000 per occurrence for bodily injury and property damage; (ii) $1,000,000 per occurrence for personal and advertising injury; (iii) $2,000,000 aggregate for products and completed operations; and, DocuSign Envelope ID: 8178CBF2-F5DD-43BE-93C7-F1A898B29858 ALL-S 3.0/01.05.16 Page 2 of 4 (iv) $2,000,000 general aggregate applying separately to the work performed under the Agreement. 2. COMMERCIAL AUTOMOBILE LIABILITY: $1,000,000 per accident for bodily injury and property damage. 3. WORKERS’ COMPENSATION INSURANCE as required by the State of California with statutory limits. 4. EMPLOYER’S LIABILITY: (i) $1,000,000 each accident for bodily injury; (ii) $1,000,000 disease each employee; and, (iii) $1,000,000 disease policy limit. 5. PROFESSIONAL LIABILITY (Errors and Omissions): (i) $1,000,000 per claim/occurrence; and, (ii) $2,000,000 policy aggregate. UMBRELLA OR EXCESS INSURANCE In the event Consultant purchases an Umbrella or Excess insurance policy(ies) to meet the “Minimum Limits of Insurance,” this insurance policy(ies) shall “follow form” and afford no less coverage than the primary insurance policy(ies). In addition, such Umbrella or Excess insurance policy(ies) shall also apply on a primary and non-contributory basis for the benefit of the City, its officers, officials, employees, agents, and volunteers. DEDUCTIBLES AND SELF-INSURED RETENTIONS Consultant shall be responsible for payment of any deductibles contained in any insurance policy(ies) required herein and Consultant shall also be responsible for payment of any self -insured retentions. Any deductibles or self-insured retentions must be declared to on the Certificate of Insurance, and approved by, the City’s Risk Manager or designee. At the option of the City’s Risk Manager or designee, either: (i) The insurer shall reduce or eliminate such deductibles or self -insured retentions as respects City, its officers, officials, employees, agents, and volunteers; or (ii) Consultant shall provide a financial guarantee, satisfactory to City’s Risk Manager or designee, guaranteeing payment of losses and related investigations, claim administration and defense expenses. At no time shall City be responsible for the payment of any deductibles or self-insured retentions. OTHER INSURANCE PROVISIONS/ENDORSEMENTS The General Liability and Automobile Liability insurance policies are to contain, or be endorsed to contain, the following provisions: 1. City, its officers, officials, employees, agents, and volunteers are to be covered as additional insureds. Consultant shall establish additional insured status for the City and for all ongoing and completed operations by use of ISO Form CG 20 10 11 85 or both CG 20 10 10 01 and CG 20 37 10 01 or DocuSign Envelope ID: 8178CBF2-F5DD-43BE-93C7-F1A898B29858 ALL-S 3.0/01.05.16 Page 3 of 4 by an executed manuscript insurance company endorsement providing additional insured status as broad as that contained in ISO Form CG 20 10 11 85. 2. The coverage shall contain no special limitations on the scope of protection afforded to City, its officers, officials, employees, agents, and volunteers. Any available insurance proceeds in excess of the specified minimum limits and coverage shall be available to the Additional Insured. 3. For any claims relating to this Agreement, Consultant’s insurance coverage shall be primary insurance with respect to the City, its officers, officials, employees, agents, and volunteers. Any insurance or self -insurance maintained by the City, its officers, officials, employees, agents, and volunteers shall be excess of Consultant’s insurance and shall not contribute with it. Consultant shall establish primary and non-contributory status by using ISO Form CG 20 01 04 13 or by an executed manuscript insurance company endorsement that provides primary and non-contributory status as broad as that contained in ISO Form CG 20 01 04 13. The Workers’ Compensation insurance policy is to contain, or be endorsed to contain, the following provision: Consultant and its insurer shall waive any right of subrogation against City, its officers, officials, employees, agents, and volunteers. If the Professional (Errors and Omissions) policy is written on a claims-made form: The retroactive date must be shown, and must be before the effective date of the Agreement or the commencement of work by Consultant. 1. Insurance must be maintained and evidence of insurance must be provided for at least five years after completion of the Agreement work or termination of the Agreement, whichever occurs first, or, in the alternative, the policy shall be endorsed to provide not less than a five year discovery period. 2. If coverage is canceled or non-renewed, and not replaced with another claims-made policy form with a retroactive date prior to the effective date of the Agreement or the commencement of work by Consultant, Consultant must purchase “extended reporting” coverage for a minimum of five years completion of the Agreement work or termination of the Agreement, whichever occurs first. 3. A copy of the claims reporting requirements must be submitted to City for review. 4. These requirements shall survive expiration or termination of the Agreement. All policies of insurance required herein shall be endorsed to provide that the coverage shall not be cancelled, non-renewed, reduced in coverage or in limits except after thirty calendar days’ written notice by certified mail, return receipt requested, has been given to City. Consultant is also responsible for providing written notice to the City under the same terms and conditions. Upon issuance by the insurer, broker, or agent of a notice of DocuSign Envelope ID: 8178CBF2-F5DD-43BE-93C7-F1A898B29858 ALL-S 3.0/01.05.16 Page 4 of 4 cancellation, non-renewal, or reduction in coverage or in limits, Consultant shall furnish City with a new certificate and applicable endorsements for such policy(ies). In the event any policy is due to expire during the work to be performed for City, Consultant shall provide a new certificate, and applicable endorsements, evidencing renewal of such policy not less than fifteen (15) calendar days prior to t he expiration date of the expiring policy. Should any of these policies provide that the defense costs are paid within the Limits of Liability, thereby reducing the available limits by defense costs, then the requirement for the Limits of Liability of these polices will be twice the above stated limits. VERIFICATION OF COVERAGE Consultant shall furnish City with all certificate(s) and applicable endorsements effecting coverage required hereunder. All certificates and applicable endorsements are to be received and approved by the City’s Risk Manager or designee prior to City’s execution of the Agreement and before work commences. All non -ISO endorsements amending policy coverage shall be executed by a licensed and authorized agent or broker. Upon request of City, Consultant shall immediately furnish City with a complete copy of any insurance policy required under this Agreement, including all endorsements, with said copy certified by the underwriter to be a true and correct copy of the original policy. This requirement shall survive expiration or termination of this Agreement. DocuSign Envelope ID: 8178CBF2-F5DD-43BE-93C7-F1A898B29858 EXHIBIT C DISCLOSURE OF CONFLICT OF INTEREST Fresno Sanitary Landfill Groundwater Monitoring and Remedial Action Services YES* NO 1 Are you currently in litigation with the City of Fresno or any of its agents? 2 Do you represent any firm, organization, or person who is in litigation with the City of Fresno? 3 Do you currently represent or perform work for any clients who do business with the City of Fresno? 4 Are you or any of your principals, managers, or professionals, owners or investors in a business which does business with the City of Fresno, or in a business which is in litigation with the City of Fresno? 5 Are you or any of your principals, managers, or professionals, related by blood or marriage to any City of Fresno employee who has any significant role in the subject matter of this service? 6 Do you or any of your subcontractors have, or expect to have, any interest, direct or indirect, in any other contract in connection with this Project? * If the answer to any question is yes, please explain in full below. Explanation: Signature Date (Name) (Company) (Address)  Additional page(s) attached. (City, State Zip) DocuSign Envelope ID: 8178CBF2-F5DD-43BE-93C7-F1A898B29858 X X Concord, CA 94520 Servando Molina X CDM Smith Inc. 2300 Clayton Rd, Suite 950 X X N/A X 1/10/2022 City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID 23-1497 Agenda Date:10/19/2023 Agenda #: 1.-Z. REPORT TO THE CITY COUNCIL FROM:BROCK D BUCHE, PE, PLS, Director Department of Public Utilities BY:PETER MARACCINI, PE, PHD, Licensed Engineer Manager Department of Public Utilities - Utilities Planning & Engineering SUBJECT Approve the First Amendment to the consultant services agreement with NBS Government Finance Group,to extend the term of the agreement to December 27,2024,for the previously approved contract in the amount of $139,689 for the Study for Various Utility Connection and Capacity Fees. (Citywide) RECOMMENDATION Staff recommends the City Council approve the First Amendment to the consultant services agreement (Agreement)with NBS Government Finance Group (Consultant)to extend the Agreement term from December 30,2023 to December 27,2024 for services relating to the Study for Various Utility Connection and Capacity Fees (Project);and authorize the City Manager or designee,to sign the amendment on behalf of the City of Fresno (City). EXECUTIVE SUMMARY On January 27,2022,the City entered into an Agreement with the Consultant to obtain consultant services for the Project.The Agreement is set to expire on December 30,2023,however additional time is needed for the Consultant to complete the Project.The Department desires to extend the term of the contract to December 27, 2024. BACKGROUND On January 27,2022,the City entered into an Agreement with the Consultant to update citywide water connection charges,sewer facility charges,and sewer reimbursement/credit while also developing connection fees for sewer and recycled water facilities.Separate of the citywide fees,the rendered services will also propose consolidated fees for water,sewer and recycled water facilities and a water supply,sewer capacity,and recycled water capacity development fee,exclusive to the City’s Growth Area 2 as depicted in Figure IM-2 of the City’s General Plan,adopted in December 2014. The First Amendment is required to extend the term of the Agreement from December 30,2023,to City of Fresno Printed on 10/30/2023Page 1 of 2 powered by Legistar™ File #:ID 23-1497 Agenda Date:10/19/2023 Agenda #: 1.-Z. The First Amendment is required to extend the term of the Agreement from December 30,2023,to December 27,2024.The term extension is necessary to allow the Consultant additional time to evaluate and compile all the data provided to them.It also provides the Consultant time to present the new fees in a workshop/presentation forum to the Building Industry Association and City Council for feedback prior to adopting the new fees.Additional compensation to the Consultant will not be required. Staff recommends that City Council authorize the City Manager or designee to sign the First Amendment to the Agreement on behalf of the City.The City Attorney has reviewed and approved the First Amendment as to form. ENVIRONMENTAL FINDINGS Pursuant to California Environmental Quality Act (CEQA)Guidelines Section 15378,this is not a “project” for the purpose of CEQA. LOCAL PREFERENCE Local preference does not apply to this action because this is an amendment to an existing agreement. FISCAL IMPACT There is no impact to the General Fund.This Project is located Citywide.This Project is identified in the Water Division and Wastewater Management Division’s five-year Capital Improvement Plan. Funds for this Project were budgeted in the Fiscal Year 2023 Water Enterprise Fund 40101 and Sewer Enterprise Fund 40501. Attachments: Attachment 1 - First Amendment to the Agreement Attachment 2 - Original Consultant Agreement City of Fresno Printed on 10/30/2023Page 2 of 2 powered by Legistar™ DPU-S 8.3 /03-24-14 (CAO) -1- AGREEMENT CITY OF FRESNO, CALIFORNIA CONSULTANT SERVICES THIS AGREEMENT is made and entered into effective the ____ day of January 2022, by and between the CITY OF FRESNO, a California municipal corporation (CITY), and NBS Government Finance Group, a California Corporation (CONSULTANT). RECITALS WHEREAS, CITY desires to obtain professional consulting services for Study for Various Utility Connection and Capacity Fees (Project); and WHEREAS, CONSULTANT is engaged in the business of furnishing services as a utility rate study consultant and hereby represents that it desires to and is professionally and legally capable of performing the services called for by this Agreement; and WHEREAS, CONSULTANT acknowledges that this Agreement is subject to the requirements of Fresno Municipal Code Section 4-107 and Administrative Order No. 6-19; and WHEREAS, this Agreement will be administered for CITY by its Director of Public Utilities (Director) or designee. AGREEMENT NOW, THEREFORE, in consideration of the foregoing and of the covenants, conditions, and promises hereinafter contained to be kept and performed by the respective parties, it is mutually agreed as follows: 1. Scope of Services. CONSULTANT shall perform to the satisfaction of CITY the services described in Exhibit A, including all work incidental to, or necessary to perform, such services even though not specifically described in Exhibit A. 2. Term of Agreement and Time for Performance. This Agreement shall be effective from the date first set forth above and shall continue in full force and effect through the earlier of complete rendition of the services hereunder or December 30, 2023, subject to any earlier termination in accordance with this Agreement. The services of CONSULTANT as described in Exhibit A are to commence upon CITY’S issuance of a written “Notice to Proceed.” Work shall be undertaken and completed in a sequence assuring expeditious completion, but in any event, all such services shall be completed within 700 consecutive calendar days from such authorization to proceed. 3. Compensation. (a) CONSULTANT’S sole compensation for satisfactory performance of all services required or rendered pursuant to this Agreement shall be a total fee not to exceed one hundred twenty six thousand nine hundred ninety dollars ($126,990), paid on a time and materials basis in accordance with the schedule of fees contained in Exhibit A, and a contingency amount not to exceed twelve thousand seven hundred dollars ($12,700) for any additional work rendered pursuant to Subsection (c) below and authorized in writing by the Director.           DPU-S 8.3 /03-24-14 (CAO) -2- (b) Detailed statements shall be rendered monthly and will be payable in the normal course of CITY business. CITY shall not be obligated to reimburse any expense for which it has not received a detailed invoice with applicable copies of representative and identifiable receipts or records substantiating such expense. (c) The parties may modify this Agreement to increase or decrease the scope of services or provide for the rendition of services not required by this Agreement, which modification shall include an adjustment to CONSULTANT’S compensation. Any change in the scope of services must be made by written amendment to the Agreement signed by an authorized representative for each party. CONSULTANT shall not be entitled to any additional compensation if services are performed prior to a signed written amendment. 4. Termination, Remedies and Force Majeure. (a) This Agreement shall terminate without any liability of CITY to CONSULTANT upon the earlier of: (i) CONSULTANT’S filing for protection under the federal bankruptcy laws, or any bankruptcy petition or petition for receiver commenced by a third party against CONSULTANT; (ii) 7 calendar days prior written notice with or without cause by CITY to CONSULTANT; (iii) CITY’S non-appropriation of funds sufficient to meet its obligations hereunder during any CITY fiscal year of this Agreement, or insufficient funding for the Project; or (iv) expiration of this Agreement. (b) Immediately upon any termination or expiration of this Agreement, CONSULTANT shall (i) immediately stop all work hereunder; (ii) immediately cause any and all of its subcontractors to cease work; and (iii) return to CITY any and all unearned payments and all properties and materials in the possession of CONSULTANT that are owned by CITY. Subject to the terms of this Agreement, CONSULTANT shall be paid compensation for services satisfactorily performed prior to the effective date of termination. CONSULTANT shall not be paid for any work or services performed or costs incurred which reasonably could have been avoided. (c) In the event of termination due to failure of CONSULTANT to satisfactorily perform in accordance with the terms of this Agreement, CITY may withhold an amount that would otherwise be payable as an offset to, but not in excess of, CITY’S damages caused by such failure. In no event shall any payment by CITY pursuant to this Agreement constitute a waiver by CITY of any breach of this Agreement which may then exist on the part of CONSULTANT, nor shall such payment impair or prejudice any remedy available to CITY with respect to the breach. (d) Upon any breach of this Agreement by CONSULTANT, CITY may (i) exercise any right, remedy (in contract, law or equity), or privilege which may be available to it under applicable laws of the State of California or any other applicable law; (ii) proceed by appropriate court action to enforce the terms of the Agreement; and/or (iii) recover all direct, indirect, consequential, economic and incidental damages for the breach of the Agreement. If it is determined that CITY improperly terminated this Agreement for default, such termination shall be deemed a termination for convenience. (e) CONSULTANT shall provide CITY with adequate written assurances of future performance, upon Director’s request, in the event CONSULTANT fails to comply with any terms or conditions of this Agreement. (f) CONSULTANT shall be liable for default unless nonperformance is caused by an occurrence beyond the reasonable control of CONSULTANT and without its fault or          DPU-S 8.3 /03-24-14 (CAO) -3- negligence such as, acts of God or the public enemy, acts of CITY in its contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes, unusually severe weather, and delays of common carriers. CONSULTANT shall notify Director in writing as soon as it is reasonably possible after the commencement of any excusable delay, setting forth the full particulars in connection therewith, and shall remedy such occurrence with all reasonable dispatch, and shall promptly give written notice to Director of the cessation of such occurrence. 5. Confidential Information, Ownership of Documents and Copyright License. (a) Any reports, information, or other data prepared or assembled by CONSULTANT pursuant to this Agreement shall not be made available to any individual or organization by CONSULTANT without the prior written approval of CITY. During the term of this Agreement, and thereafter, CONSULTANT shall not, without the prior written consent of CITY, disclose to anyone any Confidential Information. The term Confidential Information for the purposes of this Agreement shall include all proprietary and confidential information of CITY, including but not limited to business plans, marketing plans, financial information, designs, drawings, specifications, materials, compilations, documents, instruments, models, source or object codes and other information disclosed or submitted, orally, in writing, or by any other medium or media. All Confidential Information shall be and remain confidential and proprietary in CITY. (b) Any and all original sketches, pencil tracings of working drawings, plans, computations, specifications, computer disk files, writings and other documents prepared or provided by CONSULTANT pursuant to this Agreement are the property of CITY at the time of preparation and shall be turned over to CITY upon expiration or termination of the Agreement or default by CONSULTANT. CONSULTANT grants CITY a copyright license to use such drawings and writings. CONSULTANT shall not permit the reproduction or use thereof by any other person except as otherwise expressly provided herein. CITY may modify the design including any drawings or writings. Any use by CITY of the aforesaid sketches, tracings, plans, computations, specifications, computer disk files, writings and other documents in completed form as to other projects or extensions of this Project, or in uncompleted form, without specific written verification by CONSULTANT will be at CITY’S sole risk and without liability or legal exposure to CONSULTANT. CONSULTANT may keep a copy of all drawings and specifications for its sole and exclusive use. (c) If CONSULTANT should subcontract all or any portion of the services to be performed under this Agreement, CONSULTANT shall cause each subcontractor to also comply with the requirements of this Section 5. (d) This Section 5 shall survive expiration or termination of this Agreement. 6. Professional Skill. It is further mutually understood and agreed by and between the parties hereto that inasmuch as CONSULTANT represents to CITY that CONSULTANT and its subcontractors, if any, are skilled in the profession and shall perform in accordance with the standards of said profession necessary to perform the services agreed to be done by it under this Agreement, CITY relies upon the skill of CONSULTANT and any subcontractors to do and perform such services in a skillful manner and CONSULTANT agrees to thus perform the services and require the same of any subcontractors. Therefore, any acceptance of such services by CITY shall not operate as a release of CONSULTANT or any subcontractors from said professional standards.          DPU-S 8.3 /03-24-14 (CAO) -4- 7. Indemnification. To the furthest extent allowed by law, CONSULTANT shall indemnify, hold harmless and defend CITY and each of its officers, officials, employees, agents and volunteers from any and all loss, liability, fines, penalties, forfeitures, costs and damages (whether in contract, tort or strict liability, including but not limited to personal injury, death at any time and property damage), and from any and all claims, demands and actions in law or equity (including reasonable attorney's fees and litigation expenses) that arise out of, pertain to, or relate to the negligence, recklessness or willful misconduct of CONSULTANT, its principals, officers, employees, agents or volunteers in the performance of this Agreement. If CONSULTANT should subcontract all or any portion of the services to be performed under this Agreement, CONSULTANT shall require each subcontractor to indemnify, hold harmless and defend CITY and each of its officers, officials, employees, agents and volunteers in accordance with the terms of the preceding paragraph. This section shall survive termination or expiration of this Agreement. 8. Insurance. (a) Throughout the life of this Agreement, CONSULTANT shall pay for and maintain in full force and effect all insurance as required in Exhibit B, which is incorporated into and part of this Agreement, with an insurance company(ies) either (i) admitted by the California Insurance Commissioner to do business in the State of California and rated no less than “A-VII” in the Best’s Insurance Rating Guide, or (ii) as may be authorized in writing by CITY'S Risk Manager or designee at any time and in its sole discretion. The required policies of insurance as stated in Exhibit B shall maintain limits of liability of not less than those amounts stated therein. However, the insurance limits available to CITY, its officers, officials, employees, agents and volunteers as additional insureds, shall be the greater of the minimum limits specified therein or the full limit of any insurance proceeds to the named insured. (b) If at any time during the life of the Agreement or any extension, CONSULTANT or any of its subcontractors/sub-consultants fail to maintain any required insurance in full force and effect, all services and work under this Agreement shall be discontinued immediately, and all payments due or that become due to CONSULTANT shall be withheld until notice is received by CITY that the required insurance has been restored to full force and effect and that the premiums therefore have been paid for a period satisfactory to CITY. Any failure to maintain the required insurance shall be sufficient cause for CITY to terminate this Agreement. No action taken by CITY pursuant to this section shall in any way relieve CONSULTANT of its responsibilities under this Agreement. The phrase “fail to maintain any required insurance” shall include, without limitation, notification received by CITY that an insurer has commenced proceedings, or has had proceedings commenced against it, indicating that the insurer is insolvent. (c) The fact that insurance is obtained by CONSULTANT shall not be deemed to release or diminish the liability of CONSULTANT, including, without limitation, liability under the indemnity provisions of this Agreement. The duty to indemnify CITY shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by CONSULTANT. Approval or purchase of any insurance contracts or policies shall in no way relieve from liability nor limit the liability of CONSULTANT, its principals, officers, agents, employees, persons under the supervision of CONSULTANT, vendors, suppliers, invitees, consultants, sub-consultants, subcontractors, or anyone employed directly or indirectly by any of them.          DPU-S 8.3 /03-24-14 (CAO) -5- (d) If CONSULTANT should subcontract all or any portion of the services to be performed under this Agreement, CONSULTANT shall require each subcontractor/sub-consultant to provide insurance protection, as an additional insured, to the CITY and each of its officers, officials, employees, agents and volunteers in accordance with the terms of this section, except that any required certificates and applicable endorsements shall be on file with CONSULTANT and CITY prior to the commencement of any services by the subcontractor. CONSULTANT and any subcontractor/sub-consultant shall establish additional insured status for CITY, its officers, officials, employees, agents and volunteers by using Insurance Service Office (ISO) Form CG 20 10 11 85 or both CG 20 10 10 01 and CG 20 37 10 01 or by an executed manuscript company endorsement providing additional insured status as broad as that contained in ISO Form CG 20 10 11 85. 9. Conflict of Interest and Non-Solicitation. (a) Prior to CITY’S execution of this Agreement, CONSULTANT shall complete a City of Fresno conflict of interest disclosure statement in the form as set forth in Exhibit C. During the term of this Agreement, CONSULTANT shall have the obligation and duty to immediately notify CITY in writing of any change to the information provided by CONSULTANT in such statement. (b) CONSULTANT shall comply, and require its subcontractors to comply, with all applicable (i) professional canons and requirements governing avoidance of impermissible client conflicts; and (ii) federal, state and local conflict of interest laws and regulations including, without limitation, California Government Code Section 1090 et. seq., the California Political Reform Act (California Government Code Section 87100 et. seq.), the regulations of the Fair Political Practices Commission concerning disclosure and disqualification (2 California Code of Regulations Section 18700 et. seq.) and Section 4-112 of the Fresno Municipal Code (Ineligibility to Compete). At any time, upon written request of CITY, CONSULTANT shall provide a written opinion of its legal counsel and that of any subcontractor that, after a due diligent inquiry, CONSULTANT and the respective subcontractor(s) are in full compliance with all laws and regulations. CONSULTANT shall take, and require its subcontractors to take, reasonable steps to avoid any appearance of a conflict of interest. Upon discovery of any facts giving rise to the appearance of a conflict of interest, CONSULTANT shall immediately notify CITY of these facts in writing. (c) In performing the work or services to be provided hereunder, CONSULTANT shall not employ or retain the services of any person while such person either is employed by CITY or is a member of any CITY council, commission, board, committee, or similar CITY body. This requirement may be waived in writing by the City Manager, if no actual or potential conflict is involved. (d) CONSULTANT represents and warrants that it has not paid or agreed to pay any compensation, contingent or otherwise, direct or indirect, to solicit or procure this Agreement or any rights/benefits hereunder. (e) Neither CONSULTANT, nor any of CONSULTANT’S subcontractors performing any services on this Project, shall bid for, assist anyone in the preparation of a bid for, or perform any services pursuant to, any other contract in connection with this Project. CONSULTANT and any of its subcontractors shall have no interest, direct or indirect, in any other contract with a third party in connection with this Project unless such interest is in accordance          DPU-S 8.3 /03-24-14 (CAO) -6- with all applicable law and fully disclosed to and approved by the City Manager, in advance and in writing. (f) If CONSULTANT should subcontract all or any portion of the work to be performed or services to be provided under this Agreement, CONSULTANT shall include the provisions of this Section 9 in each subcontract and require its subcontractors to comply therewith. (g) This Section 9 shall survive expiration or termination of this Agreement. 10. Recycling Program. In the event CONSULTANT maintains an office or operates a facility(ies), or is required herein to maintain or operate same, within the incorporated limits of the City of Fresno, CONSULTANT at its sole cost and expense shall: (i) Immediately establish and maintain a viable and ongoing recycling program, approved by CITY’S Solid Waste Management Division, for each office and facility. Literature describing CITY recycling programs is available from CITY’S Solid Waste Management Division and by calling City of Fresno Recycling Hotline at (559) 621-1111. (ii) Immediately contact CITY’S Solid Waste Management Division at (559) 621-1452 and schedule a free waste audit, and cooperate with such Division in their conduct of the audit for each office and facility. (iii) Cooperate with and demonstrate to the satisfaction of CITY’S Solid Waste Management Division the establishment of the recycling program in paragraph (i) above and the ongoing maintenance thereof. 11. General Terms. (a) Except as otherwise provided by law, all notices expressly required of CITY within the body of this Agreement, and not otherwise specifically provided for, shall be effective only if signed by the Director or designee. (b) Records of CONSULTANT’S expenses pertaining to the Project shall be kept on a generally recognized accounting basis and shall be available to CITY or its authorized representatives upon request during regular business hours throughout the life of this Agreement and for a period of three years after final payment or, if longer, for any period required by law. In addition, all books, documents, papers, and records of CONSULTANT pertaining to the Project shall be available for the purpose of making audits, examinations, excerpts, and transcriptions for the same period of time. If any litigation, claim, negotiations, audit or other action is commenced before the expiration of said time period, all records shall be retained and made available to CITY until such action is resolved, or until the end of said time period whichever shall later occur. If CONSULTANT should subcontract all or any portion of the services to be performed under this Agreement, CONSULTANT shall cause each subcontractor to also comply with the requirements of this paragraph. This Section 11(b) shall survive expiration or termination of this Agreement. (c) Prior to execution of this Agreement by CITY, CONSULTANT shall have provided evidence to CITY that CONSULTANT is licensed to perform the services called for by this Agreement (or that no license is required). If CONSULTANT should subcontract all or any portion of the work or services to be performed under this Agreement, CONSULTANT shall          DPU-S 8.3 /03-24-14 (CAO) -7- require each subcontractor to provide evidence to CITY that subcontractor is licensed to perform the services called for by this Agreement (or that no license is required) before beginning work. 12. Nondiscrimination. To the extent required by controlling federal, state and local law, CONSULTANT shall not employ discriminatory practices in the provision of services, employment of personnel, or in any other respect on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era. Subject to the foregoing and during the performance of this Agreement, CONSULTANT agrees as follows: (a) CONSULTANT will comply with all applicable laws and regulations providing that no person shall, on the grounds of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era be excluded from participation in, be denied the benefits of, or be subject to discrimination under any program or activity made possible by or resulting from this Agreement. (b) CONSULTANT will not discriminate against any employee or applicant for employment because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era. CONSULTANT shall ensure that applicants are employed, and the employees are treated during employment, without regard to their race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era. Such requirement shall apply to CONSULTANT’S employment practices including, but not be limited to, the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. CONSULTANT agrees to post in conspicuous places, available to employees and applicants for employment, notices setting forth the provision of this nondiscrimination clause. (c) CONSULTANT will, in all solicitations or advertisements for employees placed by or on behalf of CONSULTANT in pursuit hereof, state that all qualified applicants will receive consideration for employment without regard to race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era. (d) CONSULTANT will send to each labor union or representative of workers with which it has a collective bargaining agreement or other contract or understanding, a notice advising such labor union or workers' representatives of CONSULTANT’S commitment under this section and shall post copies of the notice in conspicuous places available to employees and applicants for employment. (e) If CONSULTANT should subcontract all or any portion of the services to be performed under this Agreement, CONSULTANT shall cause each subcontractor to also comply with the requirements of this Section 12.          DPU-S 8.3 /03-24-14 (CAO) -8- 13. Independent Contractor. (a) In the furnishing of the services provided for herein, CONSULTANT is acting solely as an independent contractor. Neither CONSULTANT, nor any of its officers, agents or employees shall be deemed an officer, agent, employee, joint venturer, partner or associate of CITY for any purpose. CITY shall have no right to control or supervise or direct the manner or method by which CONSULTANT shall perform its work and functions. However, CITY shall retain the right to administer this Agreement so as to verify that CONSULTANT is performing its obligations in accordance with the terms and conditions thereof. (b) This Agreement does not evidence a partnership or joint venture between CONSULTANT and CITY. CONSULTANT shall have no authority to bind CITY absent CITY’S express written consent. Except to the extent otherwise provided in this Agreement, CONSULTANT shall bear its own costs and expenses in pursuit thereof. (c) Because of its status as an independent contractor, CONSULTANT and its officers, agents and employees shall have absolutely no right to employment rights and benefits available to CITY employees. CONSULTANT shall be solely liable and responsible for all payroll and tax withholding and for providing to, or on behalf of, its employees all employee benefits including, without limitation, health, welfare and retirement benefits. In addition, together with its other obligations under this Agreement, CONSULTANT shall be solely responsible, indemnify, defend and save CITY harmless from all matters relating to employment and tax withholding for and payment of CONSULTANT'S employees, including, without limitation, (i) compliance with Social Security and unemployment insurance withholding, payment of workers’ compensation benefits, and all other laws and regulations governing matters of employee withholding, taxes and payment; and (ii) any claim of right or interest in CITY employment benefits, entitlements, programs and/or funds offered employees of CITY whether arising by reason of any common law, de facto, leased, or co-employee rights or other theory. It is acknowledged that during the term of this Agreement, CONSULTANT may be providing services to others unrelated to CITY or to this Agreement. 14. Notices. Any notice required or intended to be given to either party under the terms of this Agreement shall be in writing and shall be deemed to be duly given if delivered personally, transmitted by facsimile followed by telephone confirmation of receipt, or sent by United States registered or certified mail, with postage prepaid, return receipt requested, addressed to the party to which notice is to be given at the party's address set forth on the signature page of this Agreement or at such other address as the parties may from time to time designate by written notice. Notices served by United States mail in the manner above described shall be deemed sufficiently served or given at the time of the mailing thereof. 15. Binding. Subject to Section 16, below, once this Agreement is signed by all parties, it shall be binding upon, and shall inure to the benefit of, all parties, and each parties' respective heirs, successors, assigns, transferees, agents, servants, employees and representatives.          DPU-S 8.3 /03-24-14 (CAO) -9- 16. Assignment. (a) This Agreement is personal to CONSULTANT and there shall be no assignment by CONSULTANT of its rights or obligations under this Agreement without the prior written approval of the City Manager or designee. Any attempted assignment by CONSULTANT, its successors or assigns, shall be null and void unless approved in writing by the City Manager or designee. (b) CONSULTANT hereby agrees not to assign the payment of any monies due CONSULTANT from CITY under the terms of this Agreement to any other individual(s), corporation(s) or entity(ies). CITY retains the right to pay any and all monies due CONSULTANT directly to CONSULTANT. 17. Compliance With Law. In providing the services required under this Agreement, CONSULTANT shall at all times comply with all applicable laws of the United States, the State of California and CITY, and with all applicable regulations promulgated by federal, state, regional, or local administrative and regulatory agencies, now in force and as they may be enacted, issued, or amended during the term of this Agreement. 18. Waiver. The waiver by either party of a breach by the other of any provision of this Agreement shall not constitute a continuing waiver or a waiver of any subsequent breach of either the same or a different provision of this Agreement. No provisions of this Agreement may be waived unless in writing and signed by all parties to this Agreement. Waiver of any one provision herein shall not be deemed to be a waiver of any other provision herein. 19. Governing Law and Venue. This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of California, excluding, however, any conflict of laws rule which would apply the law of another jurisdiction. Venue for purposes of the filing of any action regarding the enforcement or interpretation of this Agreement and any rights and duties hereunder shall be Fresno County, California. 20. Headings. The section headings in this Agreement are for convenience and reference only and shall not be construed or held in any way to explain, modify or add to the interpretation or meaning of the provisions of this Agreement. 21. Severability. The provisions of this Agreement are severable. The invalidity, or unenforceability of any one provision in this Agreement shall not affect the other provisions. 22. Interpretation. The parties acknowledge that this Agreement in its final form is the result of the combined efforts of the parties and that, should any provision of this Agreement be found to be ambiguous in any way, such ambiguity shall not be resolved by construing this Agreement in favor of or against either party, but rather by construing the terms in accordance with their generally accepted meaning. 23. Attorney's Fees. If either party is required to commence any proceeding or legal action to enforce or interpret any term, covenant or condition of this Agreement, the prevailing party in such proceeding or action shall be entitled to recover from the other party its reasonable attorney's fees and legal expenses. 24. Exhibits. Each exhibit and attachment referenced in this Agreement is, by the reference, incorporated into and made a part of this Agreement.          DPU-S 8.3 /03-24-14 (CAO) -10- 25. Precedence of Documents. In the event of any conflict between the body of this Agreement and any Exhibit or Attachment hereto, the terms and conditions of the body of this Agreement shall control and take precedence over the terms and conditions expressed within the Exhibit or Attachment. Furthermore, any terms or conditions contained within any Exhibit or Attachment hereto which purport to modify the allocation of risk between the parties, provided for within the body of this Agreement, shall be null and void. 26. Cumulative Remedies. No remedy or election hereunder shall be deemed exclusive but shall, wherever possible, be cumulative with all other remedies at law or in equity. 27. No Third Party Beneficiaries. The rights, interests, duties and obligations defined within this Agreement are intended for the specific parties hereto as identified in the preamble of this Agreement. Notwithstanding anything stated to the contrary in this Agreement, it is not intended that any rights or interests in this Agreement benefit or flow to the interest of any third parties. 28. Extent of Agreement. Each party acknowledges that they have read and fully understand the contents of this Agreement. This Agreement represents the entire and integrated agreement between the parties with respect to the subject matter hereof and supersedes all prior negotiations, representations or agreements, either written or oral. This Agreement may be modified only by written instrument duly authorized and executed by both CITY and CONSULTANT. / / / / / / / / /          DPU-S 8.3 /03-24-14 (CAO) -11- IN WITNESS WHEREOF, the parties have executed this Agreement at Fresno, California, the day and year first above written. CITY OF FRESNO, a California municipal corporation By: Georgeanne A. White, Assistant City Manager Department of Public Utilities ATTEST: TODD STERMER, CMC City Clerk By: Deputy No signature of City Attorney required. Standard Document #DPU-S 8.3 has been used without modification, as certified by the undersigned. By: Patricia Diep Supervising Engineering Technician Department of Public Utilities REVIEWED BY: Jesus A. Gonzalez, Public Utilities Manager Department of Public Utilities Addresses: CITY: City of Fresno Attention: Patricia Diep, Supervising Engineering Technician 2101 G Street, Building A Fresno, CA 93706 Phone: (559) 621-1609 FAX: (559) 498-4126 NBS Government Finance Group, a California corporation By: Name: Title: (If corporation or LLC., Board Chair, Pres. or Vice Pres.) By: Name: Title: (If corporation or LLC., CFO, Treasurer, Secretary or Assistant Secretary) Any Applicable Professional License: Number: Name: Date of Issuance: CONSULTANT: NBS Government Finance Group Attention: Michael Rentner, President 32605 Temecula Parkway, Suite 100 Temecula, CA 92592 Phone: (951) 296-1997 FAX: (951) 296-1998 Attachments: 1. Exhibit A - Scope of Services 2. Exhibit B - Insurance Requirements 3. Exhibit C - Conflict of Interest Disclosure Form                  DPU-S 8.3 /03-24-14 Page 1 of 7 Exhibit A SCOPE OF SERVICES Consultant Service Agreement between City of Fresno (City) and NBS Government Finance Group (Consultant) Study for Various Utility Connection and Capacity Fees Overview The study will develop a total of 15 new and updated water, sewer, and recycled water capacity fees for various areas of the City. It consists of six (6) new fees that need to be calculated for new development areas and nine (9) existing fees that need to be updated by following the existing definitions and methodologies embedded in the Fresno Municipal Code (FMC). NBS Scope of work Develop six new fees 1. New Water Supply Fees in Growth Area 2 - Southeast Development Area (SEDA) 2. New Water Supply Fees in Growth Area 2 - West Area 3. New Recycled Water Capacity Fees in Growth Area2 - Southeast Development Area (SEDA) 4. New Recycled Water Capacity Fees - Southwest Recycled Area 5. New Sewer Capacity Fee - Southeast Development Area (SEDA) including Temperance and Regional Wastewater Reclamation Facility (RWRF) 6. New Sewer Capacity Fee - Southeast Development Area (SEDA) including the Fowler Trunk Update nine existing fees 1. Trunk Sewer Charge for residential users - Cornelia, Fowler, Grantland and Herndon service areas 2. Wastewater Facilities Sewer Charge for residential users for maps vested after December 30, 1995 3. Wastewater Facilities Sewer Charge for commercial & industrial users - Citywide 4. Trunk Sewer Charge for commercial & industrial users - Fowler, Grantland/cornelia, Herndon and Temperance service areas 5. Sewer oversize credit for private installation when required to be constructed - Citywide and UGM area except as provided in FMC 6-306 6. Extra depth credit for oversize sewer installations (per linear foot) - Citywide 7. Water Connection Frontage Charge - Citywide 8. Water Capacity Fee based on meter size- Citywide 9. Transmission Grid Reimbursement for water connection - Citywide NBS’ scope of work will treat these 15 fees as separate analyses as defined in the tasks outlined below. While the creation of new fees will follow methodologies primarily focused on incremental analyses (i.e., they mostly include planned and future facilities vs. existing assets), we will identify differences in the data sources, and the units of analysis (e.g., EDUs, meter sizes, annual consumption, etc.). In contrast, updating existing fees will focus primarily on existing methodologies, although NBS and City Staff may decide that an alternative or modified approach is better suited to the City’s purposes going forward. We assume that for the purpose of study efficiencies, progress meetings for all analyses will be combined to the extent possible.          DPU-S 8.3 /03-24-14 Page 2 of 7 TASK 1. PROJECT MANAGEMENT The project management tasks include 8 various meetings with City staff during the study for new and update existing fees. The specific items below are provided for the purpose of ensuring the overall success of this project. • Deliverables include the following: • Data request provided to City staff one week prior to the kick-off meeting. • Meeting Agenda prior to the meeting. • Hold a kick-off meeting with City staff to review the initial data provided and the preliminary schedule for meetings and workshops. • Review of initial data provided • Hold a progress meeting at least once per month (by phone) and one-on one meetings with City Staff (by phone). • Provide an updated post kick-off meeting schedule on the project. • Provide detailed monthly and total-to-date billing costs by personnel and task. TASK 2. IDENTIFY NEW DEVELOPMENT SHARE OF SYSTEM CAPACITY COSTS NBS will work with City staff to outline the documents, plans, and related information currently available that identify capacity-related capital costs, what items might need to be updated, and discuss and confirm the technical methodology that will be used to calculate new development’s share of capital costs. • Deliverables: Separate sets of initial results for each capacity fee (water supply, sewer, and recycled water) will be provided identifying the respective shares of CIP costs allocated to new development, and a briefing on these initial findings. Six (6) hard copies plus electronic copies in PDF, Word and/or Excel format (as appropriate) of the initial results will be provided. The following are additional details we propose for this task. a. Review of Current Capacity Fees and Policies – NBS will work with City staff to review and evaluate current capacity policies at the beginning of the study. The intent is to clarify the context within which capacity fees are developed, how they are presented, and hopefully avoid any confusion when the final results are presented to the Council and public. The intent is to ensure there is clarity about City’s policies related to basic equity and fairness, buy-in vs. incremental methodologies, assumptions regarding capital repair and replacement costs, and the capacity fee planning period. Typically, capacity fees should ensure that existing customers do not subsidize new development and that new development pays their proportional share of those costs. b. Refinement of Capacity Fee Methodologies – Two basic approaches typically used in calculating water-based utility capacity fees are: (1) a “buy-in” approach, whereby new development must pay their equitable share of system assets previously paid for by existing development, and (2) an “incremental” approach, whereby new development must pay for the additional capital assets required to provide them capacity in a water, sewer, and recycled water systems. This second approach is typically only used when the existing system has no remaining capacity and, essentially, new development will require all new facilities to serve their projected demand.          DPU-S 8.3 /03-24-14 Page 3 of 7 As noted previously, creating new fees for new development areas will likely emphasize the incremental approach whereas updating existing fees will focus more on the buy-in approach. c. Analysis of Capital Improvement Costs – NBS will review current costs of capital improvement plans for the planning period and update those costs based on the most current information from City staff and/or the City’s engineering consultants. This will require information for two categories of infrastructure costs: 1. Planned Capital Improvements - New projects and rehabilitations/replacements included long-range planning efforts consisting of a 30 to 40 year planning period. Water supply assets would include, but not be limited to: • Conveyance assets • Storage Facilities • Treatment Plants • Pump Stations Sewer assets might include, but not be limited to: • Collection/conveyance assets • Treatment plant(s) • Lift stations Recycled water assets might include, but not be limited to: • Conveyance assets • Recycled water production • Storage Facilities • Recharge basins (if included in the recycled water system) 2. Existing Assets – Including original construction dates, original costs, the expected life, additions and rehabilitations, and any debt-related funding. Exisiting water system assets would include, but not be limited to: • Conveyance assets • Storage Facilities • Treatment Plants • Pump Stations Existing sewer assets might include, but not be limited to: • Collection/conveyance assets • Treatment plant(s) • Lift stations Existing Recycled water assets might include, but not be limited to: • Conveyance • Recycled water production • Storage Facilities • Recharge basins (if included in the recycled water system)          DPU-S 8.3 /03-24-14 Page 4 of 7 It will be important to accurately estimate the current-year dollar value of both existing and future assets. Existing assets should be estimated using a replacement costs-new- less-depreciation approach, whereby construction cost indices are applied to historical assets to estimate their current cost if constructed today, adjusted for accumulated depreciation. This lays a technically sound foundation for calculating capacity fees Future capital improvements might include any facilities included in City’s master plans or other planning documents. Often these costs are preliminary estimates, and NBS would work with engineering staff to ensure appropriate costs estimates are used in this analysis. d. Analysis of Projected Growth – NBS will work with City staff to assess current information on projected growth in new connections for the planning period and, where appropriate, update based on most current information from City staff and other sources. e. Allocations Analysis Existing vs. New Development – NBS will work with City staff to evaluate all identified existing and planned infrastructure assets and allocate these assets to existing and new development. This will involve identifying and/or estimating the capacities of individual assets, which may be evaluated on an asset-by-asset basis or on a system-by-system basis reflecting the overall capacity of each system. For example, a storage asset may include a dam, reservoir, and transmission assets that together form a system with a fixed overall capacity. TASK 3. PREPARE CAPACITY FEES This task will result in recommended water, sewer, and recycled water system capacity fees as well as capacity fee schedules for various types of development (residential, commercial, etc.). It will also document the basis for the fees, including the projected growth rates and the number of units of new development, the total costs assigned by asset type for each system. This task will also estimate the annual cash flow resulting from the capacity fees for each new connection times the number of new connections per year of the planning period. • Deliverables: NBS will brief City staff on initial findings and prepare separate interim reports, including revenue estimates and fee schedules, for the six new and nine updated fees. Six (6) hard copies plus electronic copies in PDF, Word and/or Excel format (as appropriate) of the initial results will be provided for each of the six (6) new capacity fees and a combined report (6 hard copies plus PDF/Word/Excel) for the updates of the existing fees a. Calculate and Recommend New and Updated Capacity Fees – Capacity fees, in their simplest form, are the total growth-related costs allocated to new development divided by the projected number of new connections based on the remaining capacity in the system. However, there are nuances to this analysis that we will discuss with City. Technically, the number of new connections can be represented by the total remaining capacity of the assets and/or systems or by the projected buildout of development within the planning period. For example, a transmission pipe may be designed to serve a buildout demand of “X” but available pipe sizes only offer “X less 20%” or “X plus 20%” of capacity. Since projected demand must be met, the transmission pipe installed is the X plus 20% of capacity, leaving 20% of excess capacity that technically will never be used. In this          DPU-S 8.3 /03-24-14 Page 5 of 7 example, a case can be made for using the projected demand (“X”) rather than the actual design capacity (“X plus 20%). NBS will coordinate with City staff and legal review of these issues to ensure they comply with AB 1600 regulations. NBS will calculate the new and updated capacity fees based on projected costs of capital improvements allocated to growth and number of new connections during the planning period. For example, sewer capacity fees are typically based on an equivalent dwelling unit (or EDU) and should reflect the estimated flow and loadings of each new connection based on the average single-family residential customer. In contrast, water supply capacity fees typically reflect the size of water meters, which represent the potential demand that each meter size places on the water supply system. NBS will discuss with City staff how projected new development might be handled. For example, whether projected development is in terms of the number of planned acres of commercial development, multi-family, or single-family development or whether number of EDU’s are used. Ultimately, the projected demand of new development will need to be quantified, whether by the number of typical one-inch water meters or the EDU per acre. b. Summary and Comparison of New and Updated Capacity Fees: This summary and comparison will include current and proposed capacity fees and those of four (4) comparable surrounding agencies. Fees for similar agencies will reflect the most current available fees and we will contact those agencies to determine if they are in the process of updating those fees. c. Implementation of Capacity Fees: NBS will provide guidance related to implementation of the capacity fees. A fundamental premise of capacity fees is that the burden of the fees cannot total more than the actual cost of the public facilities needed to serve the development paying the fee, including costs associated with administering the fee program. The Mitigation Fee Act also has specific accounting and reporting r requirements, both annually and after every five-year period, for the use of capacity f fee revenues. Implementation must also ensure that capacity fee revenues are not used for staffing, operations, or maintenance of either existing or new facilities which, over their life cycle, will be quite substantial, and must be borne by customers connected to the system. TASK 4. WORKSHOPS AND PRESENTATIONS NBS will provide the workshops and presentations necessary for collecting feedback and direction from City Council members and other stakeholders such as the Building Industry Association (BIA). • Deliverables: Based on discussion with City staff, two (2) workshops/presentations will be provided for new fees and two (2) workshops/presentations will be provided for the updated fees. This is a total of four (4) workshops/presentations. In addition, NBS will provide two (2) workshops/presentations to the BIA and two (2) workshops/presentations to the City Council. The combined total of all workshops/ presentations is eight (8). TASK 5. DRAFT AND FINAL REPORTS          DPU-S 8.3 /03-24-14 Page 6 of 7 NBS will prepare draft and final reports for new and updated water, sewer and recycled water capacity fee analyses that summarize Tasks 1 through 4. • Deliverables: Separate draft and final reports for water, sewer and recycled water capacity fees and a briefing to City staff on these reports. Once staff comments are received, NBS will incorporate those comments in the reports. NBS will provide six (6) hard copies and plus electronic copies in PDF, Word and/or Excel format (as appropriate) of both the draft and final reports. For the six (6) separate new capacity fees and the combined report on existing fees (total of 7 separate reports), this means there are 42 copies of the draft reports and 42 copies of final reports. A critical component of the reports will be the necessary findings as required by the Mitigation Fee Act contained in California Government Code Section 66000 et seq., which establishes requirements for imposing and funding the ongoing administration of capacity fee programs. When adopting a capacity fee, local governments must document the nexus of the capacity fees in a report that includes: • The purpose of the capacity fee. • The use of capacity fee revenues. • Determine there is a reasonable relationship between the capacity fee's use and the type of development paying the fee. • Determine there is a reasonable relationship between the need for the capacity fee and the type of development paying the fee. • Determine there is a reasonable relationship between the amount of the capacity fee and the cost of the facility attributable to development paying the fee. • Since only GC 66000 is applicable for these studies, this scope of work specifically excludes any Proposition 218 related services.          DPU-S 8.3 /03-24-14 Page 7 of 7 SCHEDULE OF FEES Consultant: Classification/Staff Total Burdened Labor Hourly Rate Per Diem Greg Clumpner/Director $250 $2,000 Allan Highstreet/Principal Consultant $250 $2,000 Jordan Taylor/Consultant $170 $1,360 Alice Bou/Consultant $170 $1,360 John Egan/P.E. $210 $1,680 Costs for Printing (included in labor rates) Mileage ($/mi.) $0.58 Other Travel (hotel, meals, etc.) (at direct cost - no markups)          DPU-S 8.3 /03-24-14 Page 1 of 4 Exhibit B INSURANCE REQUIREMENTS Consultant Service Agreement between City of Fresno (“CITY”) and NBS Government Finance Group (“CONSULTANT”) Study for Various Utility Connection and Capacity Fees PROJECT TITLE MINIMUM SCOPE OF INSURANCE Coverage shall be at least as broad as: 1. The most current version of Insurance Services Office (ISO) Commercial General Liability Coverage Form CG 00 01, providing liability coverage arising out of your business operations. The Commercial General Liability policy shall be written on an occurrence form and shall provide coverage for “bodily injury,” “property damage” and “personal and advertising injury” with coverage for premises and operations (including the use of owned and non-owned equipment), products and completed operations, and contractual liability (including, without limitation, indemnity obligations under the Agreement) with limits of liability not less than those set forth under “Minimum Limits of Insurance.” 2. The most current version of ISO *Commercial Auto Coverage Form CA 00 01, providing liability coverage arising out of the ownership, maintenance or use of automobiles in the course of your business operations. The Automobile Policy shall be written on an occurrence form and shall provide coverage for all owned, hired, and non-owned automobiles or other licensed vehicles (Code 1- Any Auto). If personal automobile coverage is used, the CITY, its officers, officials, employees, agents and volunteers are to be listed as additional insureds. 3. Workers’ Compensation insurance as required by the State of California and Employer’s Liability Insurance. 4. Professional Liability (Errors and Omissions) insurance appropriate to CONSULTANT’S profession. Architect’s and engineer’s coverage is to be endorsed to include contractual liability. MINIMUM LIMITS OF INSURANCE CONSULTANT, or any party the CONSULTANT subcontracts with, shall maintain limits of liability of not less than those set forth below. However, insurance limits available to CITY, its officers, officials, employees, agents and volunteers as additional insureds, shall be the greater of the minimum limits specified herein or the full limit of any insurance proceeds available to the named insured: 1. COMMERCIAL GENERAL LIABILITY: (i) $1,000,000 per occurrence for bodily injury and property damage; (ii) $1,000,000 per occurrence for personal and advertising injury; (iii) $2,000,000 aggregate for products and completed operations; and,          DPU-S 8.3 /03-24-14 Page 2 of 4 (iv) $2,000,000 general aggregate applying separately to the work performed under the Agreement. 2. COMMERCIAL AUTOMOBILE LIABILITY: $1,000,000 per accident for bodily injury and property damage. OR* PERSONAL AUTOMOBILE LIABILITY insurance with limits of liability not less than: (i) $100,000 per person; (ii) $300,000 per accident for bodily injury; and, (iii) $50,000 per accident for property damage. 3. WORKERS’ COMPENSATION INSURANCE as required by the State of California with statutory limits. 4. EMPLOYER’S LIABILITY: (i) $1,000,000 each accident for bodily injury; (ii) $1,000,000 disease each employee; and, (iii) $1,000,000 disease policy limit. 5. PROFESSIONAL LIABILITY (Errors and Omissions): (i) $1,000,000 per claim/occurrence; and, (ii) $2,000,000 policy aggregate. UMBRELLA OR EXCESS INSURANCE In the event CONSULTANT purchases an Umbrella or Excess insurance policy(ies) to meet the “Minimum Limits of Insurance,” this insurance policy(ies) shall “follow form” and afford no less coverage than the primary insurance policy(ies). In addition, such Umbrella or Excess insurance policy(ies) shall also apply on a primary and non-contributory basis for the benefit of the CITY, its officers, officials, employees, agents and volunteers. DEDUCTIBLES AND SELF-INSURED RETENTIONS CONSULTANT shall be responsible for payment of any deductibles contained in any insurance policy(ies) required herein and CONSULTANT shall also be responsible for payment of any self- insured retentions. Any deductibles or self-insured retentions must be declared on the Certificate of Insurance, and approved by, the CITY’S Risk Manager or designee. At the option of the CITY’S Risk Manager or designee, either: (i) The insurer shall reduce or eliminate such deductibles or self-insured retentions as respects CITY, its officers, officials, employees, agents and volunteers; or          DPU-S 8.3 /03-24-14 Page 3 of 4 (ii) CONSULTANT shall provide a financial guarantee, satisfactory to CITY’S Risk Manager or designee, guaranteeing payment of losses and related investigations, claim administration and defense expenses. At no time shall CITY be responsible for the payment of any deductibles or self- insured retentions. OTHER INSURANCE PROVISIONS/ENDORSEMENTS The General Liability and Automobile Liability insurance policies are to contain, or be endorsed to contain, the following provisions: 1. CITY, its officers, officials, employees, agents and volunteers are to be covered as additional insureds. CONSULTANT shall establish additional insured status for the City and for all ongoing and completed operations by use of ISO Form CG 20 10 11 85 or both CG 20 10 10 01 and CG 20 37 10 01 or by an executed manuscript insurance company endorsement providing additional insured status as broad as that contained in ISO Form CG 20 10 11 85. 2. The coverage shall contain no special limitations on the scope of protection afforded to CITY, its officers, officials, employees, agents and volunteers. Any available insurance proceeds in excess of the specified minimum limits and coverage shall be available to the Additional Insured. 3. For any claims related to this Agreement, CONSULTANT’S insurance coverage shall be primary insurance with respect to the CITY, its officers, officials, employees, agents and volunteers. Any insurance or self-insurance maintained by the CITY, its officers, officials, employees, agents and volunteers shall be excess of CONSULTANT’S insurance and shall not contribute with it. CONSULTANT shall establish primary and non-contributory status by using ISO Form CG 20 01 04 13 or by an executed manuscript insurance company endorsement that provides primary and non-contributory status as broad as that contained in ISO Form CG 20 01 04 13. The Workers’ Compensation insurance policy is to contain, or be endorsed to contain, the following provision: CONSULTANT and its insurer shall waive any right of subrogation against CITY, its officers, officials, employees, agents and volunteers. If the Professional Liability (Errors and Omissions) insurance policy is written on a claims-made form: 1. The retroactive date must be shown, and must be before the effective date of the Agreement or the commencement of work by CONSULTANT. 2. Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after completion of the Agreement work or termination of the Agreement, whichever occurs first, or, in the alternative, the policy shall be endorsed to provide not less than a five (5) year discovery period. 3. If coverage is canceled or non-renewed, and not replaced with another claims- made policy form with a retroactive date prior to the effective date of the Agreement or the commencement of work by CONSULTANT, CONSULTANT must purchase          DPU-S 8.3 /03-24-14 Page 4 of 4 “extended reporting” coverage for a minimum of five (5) years after completion of the Agreement work or termination of the Agreement, whichever occurs first. 4. A copy of the claims reporting requirements must be submitted to CITY for review. 5. These requirements shall survive expiration or termination of the Agreement. All policies of insurance required herein shall be endorsed to provide that the coverage shall not be cancelled, non-renewed, reduced in coverage or in limits except after thirty (30) calendar days written notice by certified mail, return receipt requested, has been given to CITY. CONSULTANT is also responsible for providing written notice to the CITY under the same terms and conditions. Upon issuance by the insurer, broker, or agent of a notice of cancellation, non-renewal, or reduction in coverage or in limits, CONSULTANT shall furnish CITY with a new certificate and applicable endorsements for such policy(ies). In the event any policy is due to expire during the work to be performed for CITY, CONSULTANT shall provide a new certificate, and applicable endorsements, evidencing renewal of such policy not less than fifteen (15) calendar days prior to the expiration date of the expiring policy. VERIFICATION OF COVERAGE CONSULTANT shall furnish CITY with all certificate(s) and applicable endorsements effecting coverage required hereunder. All certificates and applicable endorsements are to be received and approved by the CITY’S Risk Manager or designee prior to CITY’S execution of the Agreement and before work commences. All non-ISO endorsements amending policy coverage shall be executed by a licensed and authorized agent or broker. Upon request of CITY, CONSULTANT shall immediately furnish City with a complete copy of any insurance policy required under this Agreement, including all endorsements, with said copy certified by the underwriter to be a true and correct copy of the original policy. This requirement shall survive expiration or termination of this Agreement.          Exhibit C DISCLOSURE OF CONFLICT OF INTEREST Study for Various Utility Connection and Capacity Fees PROJECT TITLE YES* NO 1 Are you currently in litigation with the City of Fresno or any of its agents? 2 Do you represent any firm, organization or person who is in litigation with the City of Fresno? 3 Do you currently represent or perform work for any clients who do business with the City of Fresno? 4 Are you or any of your principals, managers or professionals, owners or investors in a business which does business with the City of Fresno, or in a business which is in litigation with the City of Fresno? 5 Are you or any of your principals, managers or professionals, related by blood or marriage to any City of Fresno employee who has any significant role in the subject matter of this service? 6 Do you or any of your subcontractors have, or expect to have, any interest, direct or indirect, in any other contract in connection with this Project? * If the answer to any question is yes, please explain in full below. Explanation: Signature Date (name) (company) (address) Additional page(s) attached. (city state zip)          Exhibit C DISCLOSURE OF CONFLICT OF INTEREST Study for Various Utility Connection and Capacity Fees PROJECT TITLE YES*NO 1 Are you currently in litigation with the City of Fresno or any of its agents? 2 Do you represent any firm, organization or person who is in litigation with the City of Fresno? 3 Do you currently represent or perform work for any clients who do business with the City of Fresno? 4 Are you or any of your principals, managers or professionals, owners or investors in a business which does business with the City of Fresno, or in a business which is in litigation with the City of Fresno? 5 Are you or any of your principals, managers or professionals, related by blood or marriage to any City of Fresno employee who has any significant role in the subject matter of this service? 6 Do you or any of your subcontractors have, or expect to have, any interest, direct or indirect, in any other contract in connection with this Project? * If the answer to any question is yes, please explain in full below. Explanation: Signature Date (name) (company) (address) Additional page(s) attached. (city state zip)          January 14, 2022 Temecula, CA 92592 32605 Temecula Pkwy, Ste. 100 NBS Government Finance Group Michael Rentner X X X X X X          1 FIRST AMENDMENT TO AGREEMENT THIS FIRST AMENDMENT TO AGREEMENT (Amendment) is made and entered into as of this ______ day of _______________, 2023, (Effective Date) amends the Agreement entered into between the CITY OF FRESNO, a California municipal corporation (hereinafter referred to as the “City”), and NBS Government Finance Group, a California corporation (hereinafter referred to as “Consultant”). RECITALS WHEREAS, the City and Consultant entered into an agreement on January 27, 2022, (“Agreement”) to provide Consulting services for Study for Various Utility Connection and Capacity Fees (“Project”); and WHEREAS, the Agreement is effective in full force through the earlier of complete rendition of the services or December 30, 2023; and WHEREAS, the City and the Consultant desire to extend the Agreement to December 27, 2024; and WHEREAS, with entry into this Agreement, the Consultant agrees the Consultant has no claim, demand, or dispute against the City. AGREEMENT NOW, THEREFORE, the Parties agree that the aforesaid Agreement be amended as follows: 1. The Term of Agreement is extended to December 27, 2024, and Time for Performance is increased to 363 consecutive calendar days 2. Except as otherwise provided herein, the Agreement entered into by the City and the Consultant on January 27, 2022, remains in full force and effect. [Signatures appear on the next page.]            2 IN WITNESS WHEREOF, the parties have executed this Amendment at Fresno, California, the day and year first above written. CITY OF FRESNO, A California municipal corporation By: Georgeanne A. White, City Manager Office of the Mayor & City Manager APPROVED AS TO FORM: ANDREW JANZ City Attorney By: Angela M. Karst Date Senior Deputy City Attorney ATTEST: TODD STERMER, CMC CITY Clerk By: Date NBS Government Finance Group, a California Corporation By: Name: Title: (If corporation or LLC., Board Chair, Pres. or Vice Pres.) By: Name: Title: (If corporation or LLC., CFO, Treasurer, Secretary or Assistant Secretary) Addresses: CITY: City of Fresno Attention: Patricia Diep Supervising Engineering Technician 1626 E Street Fresno, CA 93706 Phone: (559) 621-1609 FAX: (559) 498-4126 CONSULTANT: NBS Government Finance Group Attention: Michael Rentner President 32605 Temecula Parkway, Suite 100 Temecula, CA 92592 Phone: (951) 296-1997 FAX: (951) 296-1998                  City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID 23-1366 Agenda Date:10/19/2023 Agenda #: 1.-AA. REPORT TO THE CITY COUNCIL FROM:SCOTT L. MOZIER, PE, Director Public Works Department AARON A. AGUIRRE, Director Parks, After School, Recreation and Community Services Department BY:JILL M. GORMLEY, TE, Assistant Director Public Works Department, Traffic & Engineering Services Division JASON A. CAMIT, PLS, Chief Surveyor Public Works Department, Traffic & Engineering Services Division SUBJECT RESOLUTION -Dedicating a portion of City-owned property for public street purposes to accommodate the construction of a public driveway approach to the new South Peach Park on the easterly side of Peach Avenue (Council District 5). RECOMMENDATION Staff recommends that Council adopt a resolution dedicating a portion of City-owned property for public street purposes to accommodate the construction of a public driveway approach to the new South Peach Park on the easterly side of Peach Avenue. EXECUTIVE SUMMARY The Peach Avenue Widening Project between Butler Avenue and Florence Avenue will widen Peach Avenue to the ultimate 4-lane arterial configuration with a complete street design including vehicle, bicycle,and pedestrian facilities.The South Peach Park project will provide 49 acres of recreational amenities and green space to residents in southeast Fresno and requires a public driveway approach from Peach Avenue,between the San Joaquin Valley Railroad (SJVR)/Union Pacific Railroad (UPRR)crossing and Geary Avenue.City staff proposes a public street easement dedication of a portion of City-owned property (APN 481-020-30T)to accommodate the construction of the public driveway approach to South Peach Park.The proposed public street easement dedication is approximately 1,350 square feet,is described in Exhibit “A”and shown on Exhibit “B”of the attached resolution. The Peach Avenue Widening project is funded by local Measure C funding and local developer impact fee dollars.The South Peach Park project is fully funded from American Rescue Plan Act City of Fresno Printed on 10/30/2023Page 1 of 3 powered by Legistar™ File #:ID 23-1366 Agenda Date:10/19/2023 Agenda #: 1.-AA. impact fee dollars.The South Peach Park project is fully funded from American Rescue Plan Act (ARPA) funds. BACKGROUND The Peach Avenue Widening project between State Route (SR)180 and Jensen Avenue was voter approved as part of the 2006 Measure “C”Extension Expenditure Plan in 2006.The City entered into an agreement with Blair,Church and Flynn Consulting Engineers (BC&F)in February 2013 for the design and preparation of construction documents for the widening of Peach Avenue from two to four lanes between Jensen Avenue and Butler Avenue.In July 2014,Council approved the Second Amendment to the Consultant Services Agreement with BC&F which split the Peach Avenue Widening project into two phases due to construction funding availability.The two phases include widening Peach Avenue from Butler Avenue to Florence Avenue (Phase 1)and widening Peach Avenue from Florence Avenue to Jensen Avenue (Phase 2). In January 2022,Council adopted a resolution supporting the development of a 49-acre park at Peach Avenue and California Avenue and making it a priority for City funding.In October 2022,the City entered into an agreement with BC&F for community outreach,master planning of the entire park site,and the design and preparation of construction documents for Phase 1 of the South Peach Park project.The project is currently in the design development stage of Phase 1,which encompasses the southwest quadrant of the southern park parcels (APN 481-020-29T and APN 481- 020-30T). In January 2023,Council approved the Fifth Amendment to the Consultant Services Agreement with BC&F for the Peach Avenue Widening project to complete the final construction documents for the Phase 1 Butler Avenue to Florence Avenue section and include a redesign of the median and installation of a public driveway approach to provide access to the South Peach Park. A dedication of a portion of City-owned park parcel APN 481-020-30T is required to allow the City to construct the new public driveway approach on the easterly side of Peach Avenue.Capital Projects staff has determined the required dedication area necessary for the construction of the public driveway approach to the South Peach Park,as shown in the Resolution’s Exhibit “A”and Exhibit “B”. Adopting the Resolution authorizes the Capital Projects Director,or designee,to complete the dedication process. The City Attorney’s Office has reviewed and approved the attached Resolution as to form. ENVIRONMENTAL FINDINGS A Mitigated Negative Declaration for the Peach Avenue Widening project was adopted by Council on August 27, 2020, and the Notice of Determination filed with the County Clerk on September 1, 2020. A Mitigated Negative Declaration (Environmental Assessment No.P21-000726)was prepared for Development Permit Application No.P21-00776 pertaining to the proposed development of the 49- acre site for the South Peach Park and was adopted on June 9, 2021. LOCAL PREFERENCE City of Fresno Printed on 10/30/2023Page 2 of 3 powered by Legistar™ File #:ID 23-1366 Agenda Date:10/19/2023 Agenda #: 1.-AA. Local preference does not apply because the dedication of a public street easement does not involve bidding or contracting. FISCAL IMPACT The Peach Avenue Widening project is located in Council District 5.There is no new fiscal impact to the General Fund.The Project is funded by local Measure C funding and local developer impact fee dollars. The South Peach Park project is located in Council District 5.There is no new fiscal impact to the General Fund.The Project is fully funded from American Rescue Plan Act (ARPA)funds initially appropriated by Council on February 17, 2022. Attachment(s): Vicinity Map Resolution City of Fresno Printed on 10/30/2023Page 3 of 3 powered by Legistar™ N 0 1.5 30.75 Miles DEPARTMENT OFPUBLIC WORKS Whites Bridge MapleBrawleyHerndon Bullard Shaw ClovisFowlerTemperanceWestPalmClovisFowlerTemperanceDe WolfShields McKinley Belmont ChestnutPeachAmerican CedarGrantlandHayesElmEastMarksWestWalnutCorneliaNorth California Jensen Ashlan GrantlandHayesCorneliaBrawleyMarksShaw Bullard Herndon Nees De WolfShields McKinley Belmont California Jensen North Kings Canyon AshlanPeachBehymer Copper Shepherd NeesBlackstoneFirstCedarChestnutGarfieldBryanPolkBlytheValentineVan NessFruitMaroaFresnoMillbrookMapleWillowDakota Clinton Olive Gettysburg Barstow Sierra Alluvial Nielsen Kearney Muscat Annadale Church WillowMinnewawaMalaga OrangeBryanSunnysideArmstrongLocanFigCherryHughesFruitPolkValentineBlytheAlluvial Sierra Barstow Perrin SunnysideArmstrongLocanClinton Olive Tulare Butler Church Annadale DakotaMinnewawaInternational Teague South Peach Avenue Park Project ID: ProposedCouncil District: 5 South Peach Avenue Park VICINITY MAP Council Districts 5 City Limits South Peach Avenue ParkPhase 1 South Peach Avenue Park Phase 1 Street Approach Easement Dedication APN 481-020-30T District 5PC00213 South Peach Avenue Park Phase 1 Street Approach Easement Dedication 1 of 3 Date Adopted: Date Approved: Effective Date: City Attorney Approval: ______ Resolution No. ____________ RESOLUTION NO. ____________ A RESOLUTION OF THE COUNCIL OF THE CITY OF FRESNO, CALIFORNIA, DEDICATING PORTION OF A CITY-OWNED PROPERTY FOR PUBLIC STREET PURPOSES ON PEACH AVENUE FOR ENTRANCE TO THE NEW SOUTH PEACH PARK WHEREAS, the City of Fresno is the owner of the subject property; and WHEREAS, the purpose of this dedication is to accommodate the construction of a public driveway approach on the east side of Peach Avenue for entrance to the new South Peach Park; and WHEREAS, the proposed area to be dedicated as described in Exhibit “A” and as shown on Exhibit “B”, said exhibits are incorporated herein by reference and on file in the Office of the City Clerk of the City at Fresno City Hall, 2600 Fresno Street, Fresno, California, 93721; and WHEREAS, the Capital Projects Department and Public Works Department have determined that the proposed easement dedication as described in Exhibit “A” and as shown on Exhibit “B” attached herein is adequate for the proposed public street improvements. NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Fresno as follows: 1. That portion of a City-owned property described in Exhibit "A" and as shown on Exhibit "B"' is hereby dedicated for the purpose of a public street easement. 2. Nothing contained in this resolution shall be deemed or interpreted by any party to cause any interest created in the public pursuant to this resolution to ripen into 2 of 3 any title, interest, or right of the public against or adverse to the rights of the City of Fresno nor shall this resolution limit, restrict, or modify the exemption of public property to title by prescription as defined within California Civil Code Section 1007. 3. The City Clerk of the City of Fresno shall certify the passage of this resolution and attest thereto under the seal of the City of Fresno. 4. The City Engineer shall cause a City deed number to be assigned to the resolution and shall cause the resolution to be recorded in the Office of the Recorder of the County of Fresno, California. The original resolution shall be returned to the City Clerk after recordation and a certified copy thereof shall be filed in the Public Works deed file. 5. This resolution shall become effective upon final approval. * * * * * * * * * * * * * * 3 of 3 STATE OF CALIFORNIA ) COUNTY OF FRESNO ) ss. CITY OF FRESNO ) I, TODD STERMER, City Clerk of the City of Fresno, certify that the foregoing resolution was adopted by the Council of the City of Fresno, at a regular meeting held on the day of 2023. AYES : NOES : ABSENT : ABSTAIN : TODD STERMER, CMC City Clerk By: Deputy Date APPROVED AS TO FORM: ANDREW JANZ City Attorney By: Jennifer M. Wharton Date Deputy City Attorney Attachments: Exhibit “A” Legal Description Exhibit “B” Map City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID 23-1449 Agenda Date:10/19/2023 Agenda #: 1.-BB. REPORT TO THE CITY COUNCIL FROM:SCOTT L. MOZIER, PE, Director Public Works Department BY:JILL M. GORMLEY, TE, Assistant Director Public Works Department, Traffic & Engineering Services Division ADRIAN GONZALEZ, Senior Engineering Technician Public Works Department, Land Planning & Subdivision Inspection Section SUBJECT RESOLUTION -Of Intention to Annex Final Tract Map Number 6269 as Annexation Number 147 to the City of Fresno Community Facilities District Number 11 and to Authorize the Levy of Special Taxes;and setting the public hearing for Thursday,December 7,2023,at 10:00 am (located on the southwest corner of North Willow Avenue and North Alicante Drive) (Council District 6). RECOMMENDATION It is recommended that the City Council adopt Resolution of Intention to Annex Final Tract Map No. 6269 to City of Fresno Community Facilities District No. 11 (CFD No. 11). EXECUTIVE SUMMARY The landowner (Wathen Castanos Homes)has petitioned the City of Fresno to have Final Tract Map No.6269 (272 Lot Single-Family Home Subdivision)annexed to CFD No.11 to provide funding for the Services (as hereafter defined)pertaining to certain required above ground public improvements associated with this subdivision.The cost of the Services for these improvements is $338.93 per lot annually for Fiscal Year 2023-2024.Final Tract Map No.6269 is located entirely within City limits. The Resolution of Intention begins the process,sets the required public hearing for Thursday, December 7,2023,at 10:00 am,and defines the steps required to complete the annexation.(See attached Location and Feature Maps.) BACKGROUND Subdivision: 6269 Developer: Wathen Castanos Homes City of Fresno Printed on 10/30/2023Page 1 of 3 powered by Legistar™ File #:ID 23-1449 Agenda Date:10/19/2023 Agenda #: 1.-BB. Number of Lots: 272 Maximum Special Tax Per Lot: $338.93 Features: Landscaping, concrete, and hardscaping On November 15,2005,the Council of the City of Fresno adopted Council Resolution No.2005-490 forming CFD No.11 to fund public maintenance of landscaping,open spaces,local streets,local street lights and street furniture,curbs,gutters,sidewalks,street trees and other public facilities and services as defined by the City of Fresno Special Tax Financing Law,Chapter 8,Division 1,Article 3 of the Fresno Municipal Code (City Law). The landowner has made a request to the City of Fresno to have Final Tract Map No.6269 annexed to CFD No.11 to provide the funding for the operation and reserves for maintenance (Services) pertaining to certain required above ground public improvements within the dedicated City public easements and Outlots;this includes the landscaping,trees and irrigation systems;concrete curbs, gutters,valley gutters,sidewalks and curb ramps,street name signage,street lighting,and local street paving associated with this subdivision (see attached Location and Feature Maps). Final Tract Map No. 6269 is not a phased map and is located entirely within City limits. The attached Resolution initiates the annexation process,sets the public hearing on this matter for Thursday,December 7,2023,at 10:00 am,sets the Maximum Special Tax at $338.93 annually per residential lot for Fiscal Year 2023-2024 and sets the annual adjustment of the Special Tax to be adjusted upward annually by 2%or by the rise of the Construction Cost Index (CCI),if it exceeds 2% for the San Francisco Region. Annexations to existing community facilities districts are permitted under City Law.The legislative body must follow certain prescribed procedures as outlined below: ·Adoption of a Resolution of Intention to Annex to CFD No. 11 ·Required 7-day minimum Notice of Public Hearing ·Public hearing on Annexation and Levy of Special Tax ·Call a Special Mailed-Ballot Election on the proposed Special Tax ·Declare the Results of the Election ·Formal Adoption of Special Tax Levy (if election passes) The attached Resolution has been approved as to form by the City Attorney’s Office. ENVIRONMENTAL FINDINGS Pursuant to the definition in California Environmental Quality Act Guidelines Section 15378,this action is not a project. LOCAL PREFERENCE Local preference was not implemented,as this item does not include a bid or award of a construction or services contract. City of Fresno Printed on 10/30/2023Page 2 of 3 powered by Legistar™ File #:ID 23-1449 Agenda Date:10/19/2023 Agenda #: 1.-BB. FISCAL IMPACT No City funds will be involved.All costs for services will be borne by the property owners within the subject tract. Attachment(s): Location Map Feature Map Resolution of Intention City of Fresno Printed on 10/30/2023Page 3 of 3 powered by Legistar™ 1 of 6 Date Adopted: Date Approved: Effective Date: City Attorney Approval: HT Resolution No. RESOLUTION NO. ____________ A RESOLUTION OF THE COUNCIL OF THE CITY OF FRESNO, CALIFORNIA, OF INTENTION TO ANNEX FINAL TRACT MAP NO. 6269 AS ANNEXATION NO. 147 TO THE CITY OF FRESNO COMMUNITY FACILITIES DISTRICT NO. 11 AND TO AUTHORIZE THE LEVY OF SPECIAL TAXES WHEREAS, the City of Fresno (City) is a charter city and municipal corporation duly created and existing under the Constitution and laws of the State of California; and WHEREAS, under the City of Fresno Special Tax Financing Law, Chapter 8, Division 1, Article 3, of the Fresno Municipal Code (City Law), this Council, as the legislative body for the community facilities district and any annexation thereto, has the authority to establish a community facilities district and annex property to the community facilities district; and WHEREAS, on November 15, 2005, the Council of the City of Fresno (Council) adopted Council Resolution No. 2005-490 establishing the City of Fresno Community Facilities District No. 11 (CFD No. 11); and WHEREAS, the original boundaries of CFD No. 11 are shown on the Boundary Map of City of Fresno Community Facilities District No. 11, recorded November 8, 2005, at Book 41, Page 61 of Assessment and Community Facilities Districts in the Office of the Recorder, County of Fresno, California, a copy of which is on file in the Office of the City Clerk of the City of Fresno (City Clerk); and WHEREAS, the territory encompassing the existing CFD No. 11 is attached hereto as Exhibit A and incorporated herein by this reference; and 2 of 6 WHEREAS, the landowner of Final Tract Map No. 6269 has formally petitioned the City to annex Final Tract Map No. 6269 to CFD No. 11, and the area proposed for annexation to CFD No. 11 is attached hereto as Exhibit B and incorporated herein by this reference; and WHEREAS, the types of public services provided in the existing CFD No. 11 (Services) are specified in the document attached hereto as Exhibit C, Page C-2, and incorporated herein by this reference; and WHEREAS, the types of Services to be provided to Annexation No. 147 by CFD No. 11, are specified in the document attached hereto as Exhibit C, Page C-1, and incorporated herein by this reference; and WHEREAS, Annexation No. 147, Final Tract Map No. 6269 is located entirely within the limits of the City of Fresno; and WHEREAS, CFD No. 11 and Annexation No. 147 will share costs proportionately for Services provided by the City. NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Fresno as follows: 1. Recitals. The forgoing recitals are true and correct. 2. Proposed Annexation No. 147 Boundaries. The proposed boundaries of Annexation No. 147 are as shown on the map (copy attached as Exhibit B) on file with the City Clerk. The boundaries, shown in Annexation Map No. 147, for the territory proposed to be annexed, are preliminarily approved. The City Clerk is directed to record Annexation Map No. 147, or cause it to be recorded, in the Office of the Recorder, Fresno County, California within ten days after the adoption date of this resolution. 3 of 6 3. Services. The operation and reserves for maintenance (Services) proposed to be financed in Annexation No. 147 are listed on Page C-1 of Exhibit C, attached hereto and incorporated herein by this reference . 4. Special Taxes. Except to the extent that funds are otherwise available to CFD No. 11 to pay for the Services in Annexation No. 147, a special tax sufficient to pay the costs (Special Tax) thereof, secured by recording a continuing lien against all nonexempt real property in Annexation No. 147 will be levied annually within Annexation No. 147, and collected in the same manner as ordinary ad valorem property taxes, or in any other manner as this Council or its designee shall determine, including direct billing of the affected property owners. The proposed rate and method of apportionment of the Special Tax among the real property parcels within Annexation No. 147 are described in sufficient detail for each landowner within Annexation No. 147 to estimate the maximum amount each owner will have to pay, in Exhibit D, attached hereto and incorporated herein by this reference. 5. District Annexation Report. The Director of Public Works Department, as the officer having charge and control of the Services in and for CFD No. 11, or designee, is directed to study the proposed Services and to make, or cause to be made, and filed with the City Clerk a report of CFD No. 11, Annexation No. 147 (District Report), in writing presenting the following: a. A description of the Services by type required to adequately meet the needs of CFD No. 11, Annexation No. 147. b. An estimate of the fair and reasonable cost of the Services including the cost of acquiring land, rights-of-way and easements, costs of any physical 4 of 6 services required in conjunction therewith, and incidental expenses in connection therewith. c. Describe any plan for Services that will be provided in common with the existing district and/or any territory that may be annexed. d. If the Special Tax levied within the territory proposed to be annexed is higher or lower than the existing CFD No. 11, identify the extent and reasons why the costs to provide Services in that territory are higher or lower than those provided in the existing CFD No. 11. Specify any alteration in the special tax rate levied within the existing CFD No. 11 because of the proposed annexation. e. The CFD No. 11, Annexation No. 147 District Report shall be made a part of the record of the public hearing specified below. 6. Single Ballot. The propositions to set the appropriations limit and to approve the levy of the Special T ax shall be combined into a single ballot and submitted to the voters pursuant to City Law. 7. Public Hearing. Thursday, December 7, 2023, at 10:00 a.m., is fixed as the date and time, in the City Council Chambers, 2600 Fresno Street, Fresno, California, that this Council, the legislative body for CFD No. 11, will conduct a public hearing on the annexation of Final Tract Map No. 6269 and will consider and finally determine whether the public interest, convenience and necessity require the annexation and the levy of the Special Tax. 8. Public Notice. The City Clerk is directed to cause notice of the public hearing to be given by publication once in a newspaper of general circulation published in the area of CFD No. 11. The publication shall be complete at least seven days before 5 of 6 the hearing date set herein. The notice shall be in the form specified by Sections 53339.4 and 53322 of Chapter 2.5 of the California Government Code. 9. This resolution shall be effective upon passage. Attachments: Exhibit A: Original Boundaries of CFD No. 11 Exhibit B: Annexation Map No. 147 Exhibit C: Description of Services Exhibit D: Rate and Method of Apportionment of Special Tax 6 of 6 * * * * * * * * * * * * * * STATE OF CALIFORNIA ) COUNTY OF FRESNO ) ss. CITY OF FRESNO ) I, TODD STERMER, City Clerk of the City of Fresno, certify that the foregoing resolution was adopted by the Council of the City of Fresno, at a regular meeting held on the _________ day of ______________ 2023. AYES : NOES : ABSENT : ABSTAIN : TODD STERMER, CMC City Clerk BY: Date Deputy APPROVED AS TO FORM: ANDREW JANZ City Attorney BY: Heather Thomas Date Deputy City Attorney BlackstoneNees Herndon Bullard Shaw Ashlan Shields McKinley Belmont Whites Bridge Alluvial Sierra Barstow Gettysburg Dakota Clinton Olive GarfieldBryanGrantlandChateau FresnoHayesPolkCorneliaBlytheBrawleyValentineMarksVan NessWestFruitPalmFresnoFirstMillbrookCedarMapleChestnutWillowPeachAshlan Dakota Shields Clinton McKinley Olive Belmont Tulare Butler California Church Jensen Annadale North Kings CanyonMaroaInternational Copper Behymer Shepherd Nees Herndon Bullard Shaw Gettysburg Teague Alluvial Sierra Barstow Perrin ClovisSunnysideFowlerArmstrongTemperanceLocanClovisFowlerTemperanceSunnysideLocanArmstrongChestnutPeachWillowMinnewawaMalaga American CedarOrangeMapleElmEastFigCherryMarksWestWalnutHughesFruitGrantlandHayesCorneliaBryanPolkBrawleyValentineBlytheKearney Muscat North Annadale Muscat Central California Jensen Church Central Nielsen ·|}þ41 CITY OF FRESNOMAINTENANCECFD11 ANNEXATION ·|}þ41 ·|}þ180 ·|}þ168 ·|}þ99 ·|}þ99 ·|}þ180 Legend State Routes Rail Road Street Centerline CFD11 City Boundary Limits µ Exhibit A Date: 3/13/2015 EXHIBIT C C-1 City of Fresno Community Facilities District No. 11 Annexation No. 147 Description of Services to be Financed by Community Facilities District No. 11 for Annexation No. 147 (Final Tract Map No. 6269) The operations and reserves for the maintenance of certain required improvements (Services) that are to be financed by Community Facilities District No. 11 (CFD No. 11) for Final Tract Map No. 6269, Annexation No. 147 are generally as described below. The Services will include all costs (including reserves for replacement) attributable to maintaining, servicing, cleaning, repairing and/or replacing landscaped areas and trees in public street rights-of-way, public landscape easements, public open spaces and other similar landscaped areas officially dedicated for public use. General maintenance will include, without limitation, mowing, edging, fertilizing, aerating and watering grass areas, repairing and replacing irrigation systems as necessary; staking, pruning, replacing and spraying of trees and shrubs; removing litter, debris, and garbage. Services shall include all costs attributable to cleaning, maintaining, servicing, repairing and/or replacing all ground level infrastructure (including reserves for replacement) within dedicated public easements and outlots. Such facilities include, without limitation, concrete curbs, gutters, valley gutters, curb ramps and sidewalks, street name signage, street lighting, and local street paving associated with this subdivision. Such facilities may also include, without limitation, all hardscaping and park amenities and structures associated with the subdivision. Services shall include all costs attributable to street lighting services. Maintenance costs will include a proportionate share of all other expenses that the City of Fresno (City) may incur in administering CFD No. 11. All Services shall be provided by the City, with its own forces or by contract with third parties, or any combination thereof, to be determined entirely by the City. Nothing in this exhibit or any other exhibit or provision of th is Resolution shall be construed as committing the City or CFD No. 11 to provide all of the authorized Services or to provide for the payment of or reimbursement for all of the authorized incidental expenses. The provision of Services and/or payment or reimbursement of incidental expenses shall be subject to the successful annexation of Annexation No. 147 to CFD No. 11 and the availability of sufficient proceeds of Special Taxes within CFD No. 11. EXHIBIT C C-2 City of Fresno Community Facilities District No. 11 Formation Description of Services currently financed by Community Facilities District No. 11 The services that are to be financed (Services) by Community Facilities District No. 11 (CFD No. 11) are any and all Services defined by City of Fresno Speci al Tax Financing Law (Chapter 8, Division 1, Article 3 of the Fresno Municipal Code) and the Mello-Roos Community Facilities Act of 1982 (Chapter 2.5 commencing with Section 53311 , of Part 1, Division 2, Title 5 of the California Government Code.) I. Services may include all costs attributable to maintaining, servicing, cleaning, repairing and/or replacing all facilities, including hardscaping, in landscaped areas (may include reserves for replacement) in public street rights -of-way, public landscape easements, public trail areas, parkways, and other similar lan dscaped areas officially dedicated for public use. II. General maintenance will include, without limitation, mowing, edging, fertilizing, seeding, aerating, and watering grass areas; repairing and replacing irrigation systems as necessary; staking, pruning, replacing and spraying of trees and shrubs; repairing and replacing paths, walkways and trails; removing litter, debris, and garbage. II. Services may include all costs attributable to cleaning, maintaining, servicing, repairing and/or replacing all local ground level street infrastructure (may include reserves for replacement) within local street rights-of-way. Such facilities may include, without limitation, street paving, curbs and gutters, sidewalks, street lighting, hydrants, inlets, street trees and street furniture. III. Services may include costs attributable to police, fire, traffic control, street lighting and recreational services. Maintenance costs will also include a proportionate share of all other expenses that the City of Fresno (City) may incur in administering the CFD No. 11. All Services shall be provided by the City, with its own forces or by contract with third parties, or any combination thereof, to be determined entirely by the City. Nothing in this exhibit or any other exhibit or provision of this resolution shall be construed as committing the City or CFD No. 11 to provide all of the authorized Services or to provide for the payment of or reimbursement for all of the authorized incidental expenses. The pr ovision of Services and/or payment or reimbursement of incidental expenses shall be subject to the continued existence of CFD No. 11 and the availability of sufficient proceeds of special taxes within the CFD No. 11. EXHIBIT D D-1 City of Fresno Community Facilities District No. 11 Annexation No. 147 Rate and Method of Apportionment of Special Tax Cost Estimate The estimate breaks down the costs of providing 1 year’s service for FY 2023-2024 for Final Tract Map No. 6269. ITEM DESCRIPTION ESTIMATED COST 1 Landscape Operational Costs $25,401.00 2 Other Operational Costs $868.00 3 Reserve for Replacement $61,837.00 4 Incidental Expenses $4,080.00 Total $92,186.00 Subdivision Appropriation Limit FINAL TRACT MAP NO. MAX. SPECIAL TAX PER RESIDENTIAL UNIT TOTAL TAXABLE UNITS APPROPRIATION LIMIT SUBDIVIDER 6269 $338.93 272 $500,000.00 WC Copper River, Inc. EXHIBIT D D-2 City of Fresno Community Facilities District No. 11 Annexation No. 147 Rate and Method of Apportionment of Special Tax A Special Tax applicable to each assessor’s parcel in Community Facilities District No. 11 (CFD No. 11) shall be levied and collected according to the tax liability determined by the City Council of the City of Fresno, through the application of the appropriate amount or rate for taxable property, as described below. All of the property in CFD No. 11, unless exempted by law or by the provisions of Section E below, shall be taxed for the purposes, to the extent, and in the manner herein provided, including property su bsequently annexed to CFD No. 11 unless a separate Rate and Method of Apportionment of Speci al Tax is adopted for the annexation area. A. DEFINITIONS The terms hereinafter set forth have the following meanings: “Assessor’s Parcel” or “Parcel” means a lot or parcel shown on an assessor’s parcel map with an assigned assessor’s parcel number. “Assessor’s Parcel Map” means an official map of the County Assessor of the County of Fresno designating parcels by a ssessor’s parcel number. “City” means the City of Fresno. “City Law” means the City of Fresno Special Tax Financing Law, Chapter 8, Division 1, Article 3, of the Fresno Municipal Code. “Council” means the City Council of the City of Fresno, acting as th e legislative body of CFD No. 11. “Developable Lot” means a lot that is anticipated development of residential or non - residential uses, and which is not an outlot, remainder parcel or other parcel which is not intended to be developed or which must be further subdivided before being developed. “Excluded Parcels” means those assessor’s parcels identified as ineligible for inclusion in CFD No. 11 as shown in “Attachment 1” of this Rate and Method of Apportionment of Special Tax. “Final Map” means a final map, or portion thereof, approved by the Council of the City of Fresno pursuant to the Subdivision Map Act (California Government Code Section 66410 et seq.) that creates individual developable lots for which building permits may be issued. The term “Final Map” shall not include any assessor’s parcel map or subdivision map or EXHIBIT D D-3 portion thereof that does not create individual developable lots for which a building permit may be issued, including assessor’s parcels that are designated as remainder parcels. “Fiscal Year” means the period starting April 1 and ending on the following March 31. “Maximum Special Tax” means the maximum special tax, determined in accordance with Section C, which can be levied in any Fiscal Year. “Proportionately” means, in any fiscal year, that the ratio of the actual Special Tax to the Maximum Special Tax is equal for all assessor ’s parcels in CFD No. 11. “Public Property” means any property within the boundaries of CFD No. 11 that is owned by the federal government, the State of California or other local governments or public agencies. “Reserve for Replacement” means a reasonable reserve pursuant to Fresno Municipal Code 8-1-303(e) (4), as a service cost or expense and not as payment for public facilities under Government Code Section 53321(d). “Residential Unit” means a residential dwelling unit and shall include single-family unattached homes, condominiums, town homes, duplex, triplex and fourplex units, and individual apartment units in a multi-family building. For purposes of the levy of special taxes pursuant to Section C below, “Residential Units” shall include dwelling units already built on taxable property in CFD No. 11, as well as dwelling units planned, but not yet built, when the special tax is levied each fiscal year. “Shared Services” means the costs of services are paid equally by the property owners of two or more subdivisions. “Special Tax” means any special tax to be levied each fiscal year on assessor’s parcels of taxable property to fund the Special Tax Requirement as defined below. “Special Tax Requirement” means the amount necessary in any fiscal year to (i) pay authorized maintenance and improvement expenses, (ii) pay administrative expenses of CFD No. 11, and (iii) cure any delinquencies in the payment of special taxes levied in prior fiscal years or (based on delinquencies in the payment of special taxes which have already taken place) are expected to occur in the fiscal year in which the tax will be collected. “Subdivision” means the division, by any subdivider, of any unit or units of improved or unimproved land, or any portion thereof, shown on the latest equalized county assessment roll as a unit or as contiguous units, for the purpose of sale, lease, or financing whether immediate or future. Property shall be considered as contiguous units, even if it is separated by roads, streets, utility easement or railroad rights -of-way. “Subdivision” includes a condominium project, as defined in Section 4125 of the Civil Code, a community apartment project, as defined in Section 4105 of the Civil Code. EXHIBIT D D-4 “Taxable Property” means all of the assessor’s parcels within the boundaries of CFD No. 11 which are not exempt from the special tax pursuant to law or Section E below. B. CALCULATION OF RESIDENTIAL UNITS On April 1 of each fiscal year, the City of Fresno (City) or its designee shall determine how many residential units are built, or allowed to be built, on assessor’s parcels within CFD No. 11. For parcels of undeveloped property zoned for development of single-family units attached, the number of residential units shall be determined by referencing the condominium plan, apartment plan site plan or other development plan, or by assigning the maximum allowable units permitted based on the underlying zoning for the parcel. Once a single-family attached building or buildings have been built on an assessor’s parcel, the City or its designee shall determine the actual number of residential units contained within the building or buildings, and the special tax levied against the parcel in the next fiscal year shall be calculated by dividing the Special Tax Requirement by the actual number of residential units not to exceed the Maximum Special Tax per residential unit identified for the final map in Section C, Table 1 below. C. MAXIMUM SPECIAL TAX The Maximum Special Tax (MST) applicable to each assessor’s parcel in CFD No. 11 shall be specific to each final map within CFD No. 11. When additional property is annexed to CFD No. 11, the rate and method adopted for the annexed property shall reflect the MST for the final map or final maps then annexed. The Maximum Special Tax for Fiscal Year 2023-2024 for a residential unit within Final Tract Map No. 6269 is identified in Table 1 below: Table 1 Maximum Special Tax (Fiscal Year 2023-2024)* Final Tract Map Number** Maximum Special Tax 6269 $338.93 per Residential Unit *Beginning in January of each year, the MST will be adjusted upward annually by 2% or by the rise of the Construction Cost Index (CCI), if it exceeds 2%, for the San Francisco Region for the prior 12-month period (December through December) as published in the Engineering News Record, or published in a comparable index if the Engineering News Record is discontinued or otherwise not available. Each annual adjustment of the MST shall become effective on the subsequent July 1. ** A Special Tax shall be levied on all parcels within an identified final map except excluded parcels as identified in Attachment 1. EXHIBIT D D-5 D. METHOD OF LEVY AND COLLECTION OF THE SPECIAL TAX Commencing with Fiscal Year 2023-2024, the Special Tax shall be levied on all taxable parcels as follows: Step 1: Determine the Special Tax Requirement (as defined in Section A above) for the fiscal year in which the Special Tax will be collected; Step 2: Calculate the total special tax revenues that could be collected from taxable property within CFD No. 11 based on applying the Maximum Special Tax rates determined pursuant to Section C above to the number of residential units on each parcel of taxable property in CFD No. 11; If the amount determined in Step 1 is greater than or equal to the amount calculated in Step 2, levy the Maximum Special Tax set forth in Table 1 above on all parcels of taxable property in CFD No. 11; If the amount determined in Step 1 is less than the amount calculated in Step 2, levy the Special Tax proportionately against all parcels of taxable property up to 100% of the Maximum Special Tax for each subdivision as identified in Table 1, until the amount of the Special Tax levy equals the Special Tax Requirement for that fiscal year. The Special Tax for CFD No. 11 shall be collected in the same manner and at the same time as ordinary ad valorem property taxes, provided, however, that CFD No. 11 may (under the authority of Government Code 53340), in any particular case, bill the taxes directly to the property owner off of the County of Fresno tax roll, and the Special Taxes will be equally subject to penalties and foreclosure if delinquent. E. EXEMPTIONS Notwithstanding any other provision of this Rate and Method of Apportionment of Special Tax, no Special Tax shall be levied on parcels that have been conveyed to a public agency, except as otherwise provided in City Law, and properties receiving a welfare exemption under subdivision (g) of Section 214 of the Revenue and Taxation Code. In addition, no Special Tax shall be levied on excluded parcels or parcels that are determined not to be developable lots. EXHIBIT D D-6 ATTACHMENT 1 City of Fresno Community Facilities District No. 11 Annexation No. 147 Excluded Parcels THERE ARE NO EXCLUDED PARCELS IN FINAL TRACT MAP NO. 6269 City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID 23-1451 Agenda Date:10/19/2023 Agenda #: 1.-CC. REPORT TO THE CITY COUNCIL FROM:GREGORY A. BARFIELD, M.A., Interim Director Department of Transportation THROUGH:CAROLINA ILIC, AICP, Assistant Director Department of Transportation BY:SUSAN ROGERS, IS Supervisor Information Services Department/ FAX IS Division SUBJECT Actions related to the award of a Maintenance Agreement with DILAX Systems US Inc.,in the amount of $228,855.00: 1.Affirm the City Manager's determination that DILAX Systems,Inc.,is uniquely qualified to perform maintenance services for the Department of Transportation,FAX Division,on the Automatic Passenger Counter system (APC). 2.Affirm the City Manager’s determination that DILAX Systems,Inc.,is uniquely capable as defined by the Federal Transit Administration for sole source non-competitive procurements,to perform software maintenance services for the Department of Transportation. 3.Award a three (3)year contract with two (2)1-year optional extensions for an Annual Hardware and Software Maintenance Agreement as part of the Automatic Passenger Counters (APC) Project to DILAX Systems US Inc., in the amount of $228,855.00. 4.Authorize the Director of Transportation or designee to execute all related documents. RECOMMENDATION Staff recommends Council affirm the City Manager’s determination that DILAX Systems US Inc., (DILAX)is uniquely qualified and uniquely capable to perform maintenance on existing DILAX software products,authorize the Director of Transportation/Fresno Area Express (FAX)or designee, to execute all related documents,and award a services agreement with DILAX in the amount of $228,855.00 as part of the Automatic Passenger Counter (APC)Project for the Department of Transportation. This contract is for a three-year period with two 1-year optional extensions. EXECUTIVE SUMMARY Fresno Area Express (FAX)has maintained an annual hardware and software maintenance agreement with DILAX since 2011.The annual maintenance agreement currently in place on 123 transit buses across the Transportation Department provides access to security fixes,updates, service and feature releases,and new software versions as they are released.The current City of Fresno Printed on 10/30/2023Page 1 of 3 powered by Legistar™ File #:ID 23-1451 Agenda Date:10/19/2023 Agenda #: 1.-CC. service and feature releases,and new software versions as they are released.The current maintenance agreement expired on July 31,2023.Without an active agreement,the City of Fresno Information Services Department (ISD)and FAX Information Services (IS)staff would not have access to these security fixes,updates,and new version releases.Additionally,if an issue arises, FAX will have to pay additional fees for technical assistance. BACKGROUND In July 2011,through the City of Fresno bidding process Bid File 9620,the Department of Transportation/FAX awarded a state-of-the-art Automatic Passenger Counter (APC)system to DILAX This technology enabled FAX to automate passenger counts and enhance data collection required for the National Transit Database (NTD)reporting,as required by the Federal Transit Administration (FTA). NTD also certified FAX’s APC system. The DILAX technology,which FAX utilizes in the APC applications,is proprietary and only accessible to its original vendor,DILAX.To continue to receive support for its APC applications,FAX seeks to enter into a hardware and software maintenance service agreement with DILAX.The resulting action is defined by the FTA as a sole source non-competitive procurement.This finding is supported by DILAX’s unique capability to service the proprietary software through restricted data rights and patents.An award to any other source would result in substantial duplication of cost to FAX that could not be expected to be recovered through competition. FAX seeks to enter into a hardware and software maintenance service agreement for three (3)years, with two 1-year optional extensions.This maintenance service agreement is integral for maintaining hardware and software integrity and can only be sole-sourced from the manufacturer of the hardware and software.FAX is seeking to enter into an annual maintenance service agreement with DILAX through a sole-source procurement. The FTA requires that when “other than full and open competition”is used,the City shall provide a sole source justification for that purchase.Chapter VI,page 18 of FTA C 4220.1F stipulates two criteria that a sole source must meet to justify a sole source procurement:(1)the vendor or product must have “unique capability or availability,”or (2)the procurement must be the result of a “single bid or proposal”. Due to the manufacturer’s restrictive data rights,FAX finds that DILAX is both uniquely qualified and uniquely capable, therefore meeting the FTA’s definition of a sole source procurement. In July 2011,City Council approved a sole-source product purchase contract with DILAX for the purchase of APC equipment,along with a one-year hardware and software maintenance agreement. Since then, multiple maintenance agreements have been approved. The annual maintenance agreement currently in place on 123 transit buses across the Transportation Department provides access to security fixes,updates,service and feature releases,and new software versions as they are released.The current maintenance agreement expired on July 31, 2023.Without an active agreement in place,City of Fresno/ISD and FAX IS staff would not have access to these security fixes,updates,and new version releases,and FAX would have to pay additional fees for technical assistance. City of Fresno Printed on 10/30/2023Page 2 of 3 powered by Legistar™ File #:ID 23-1451 Agenda Date:10/19/2023 Agenda #: 1.-CC. ENVIRONMENTAL FINDINGS By the definition provided in the California Environmental Quality Act Guidelines Section 15378,the award of this contract is exempt from the California Environmental Quality Act requirements. LOCAL PREFERENCE The City’s Local Preference Ordinance (FMC 4-108)was not applied because this is a sole source agreement. FISCAL IMPACT There is no fiscal impact to the General Fund from this request.This purchase is funded by FTA funds and capital funding appropriated in the Department’s FY24 capital budget. Attachments: Uniquely Qualified Memorandum to the City Manager Service Contract City of Fresno Printed on 10/30/2023Page 3 of 3 powered by Legistar™ -1- SERVICE AGREEMENT CITY OF FRESNO, CALIFORNIA THIS AGREEMENT (Agreement) is made and entered into, effective on August 1, 2023, by and between the CITY OF FRESNO, a California municipal corporation (City), and DILAX Systems US Inc., a Chicago based Corporation (Service Provider). RECITALS WHEREAS, City desires to obtain Professional services for an Annual Software and Hardware Maintenance Agreement for FAX fixed route Automated Passenger Counters (Project); and WHEREAS, Service Provider is engaged in the business of furnishing such services as Automatic Passenger Counter Systems and hereby represents that it desires to and is professionally and legally capable of performing the services called for by this Agreement; and WHEREAS, Service Provider acknowledges that this Agreement is subject to the requirements of Fresno Municipal Code Section 4-107; and WHEREAS, this Agreement will be administered for City by its Director of Transportation (Administrator) or designee. AGREEMENT NOW, THEREFORE, in consideration of the foregoing and of the covenants, conditions, and premises hereinafter contained to be kept and performed by the respective parties, it is mutually agreed as follows: 1. Scope of Services. Service Provider shall perform to the satisfaction of City the services described in Exhibit A, including all work incidental to, or necessary to perform, such services even though not specifically described in Exhibit A. 2. Term of Agreement and Time for Performance. This Agreement shall be effective from the date first set forth above (Effective Date) and shall continue in full force and effect through July 31, 2028, pending two (2) optional 1-year extensions, subject to any earlier termination in accordance with this Agreement. The services of Service Provider as described in Exhibit A are to commence upon the Effective Date and shall be completed in a sequence assuring expeditious completion, but in any event, all such services shall be completed prior to expiration of this Agreement and in accordance with any performance schedule set forth in Exhibit A. 3. Compensation. (a) Service Provider’s sole compensation for satisfactory performance of all services required or rendered pursuant to this Agreement shall be a total fee of $228,855.00, paid on the basis of the rates set forth in the schedule of fees and expenses contained in Exhibit A. Such fee includes all expenses incurred by Service Provider in performance of the services. (b) Detailed statements shall be rendered monthly for services performed in the preceding month and will be payable in the normal course of City business. City shall not be obligated to reimburse any expense for which it has not           -2- received a detailed invoice with applicable copies of representative and identifiable receipts or records substantiating such expense. (c) The parties may modify this Agreement to increase or decrease the scope of services or provide for the rendition of services not required by this Agreement, which modification shall include an adjustment to Service Provider’s compensation. Any change in the scope of services must be made by written amendment to the Agreement signed by an authorized representative for each party. Service Provider shall not be entitled to any additional compensation if services are performed prior to a signed written amendment. 4. Termination, Remedies, and Force Majeure. (a) This Agreement shall terminate without any liability of City to Service Provider upon the earlier of : (i) Service Provider’s filing for protection under the federal bankruptcy laws, or any bankruptcy petition or petition for receiver commenced by a third party against Service Provider; (ii) seven calendar days’ prior written notice with or without cause by City to Service Provider; (iii) City’s non-appropriation of funds sufficient to meet its obligations hereunder during any City fiscal year of this Agreement, or insufficient funding for the Project; or (iv) expiration of this Agreement. (b) Immediately upon any termination or expiration of this Agreement, Service Provider shall (i) immediately stop all work hereunder; (ii) immediately cause any and all of its subcontractors to cease work; and (iii) return to City any and all unearned payments and all properties and materials in the possession of Service Provider that are owned by City. Subject to the terms of this Agreement, Service Provider shall be paid compensation for services satisfactorily performed prior to the effective date of termination. Service Provider shall not be paid for any work or services performed or costs incurred which reasonably could have been avoided. (c) In the event of termination due to failure of Service Provider to satisfactorily perform in accordance with the terms of this Agreement, City may withhold an amount that would otherwise be payable as an offset to, but not in excess of, City’s damages caused by such failure. In no event shall any payment by City pursuant to this Agreement constitute a waiver by City of any breach of this Agreement which may then exist on the part of Service Provider, nor shall such payment impair or prejudice any remedy available to City with respect to the breach. (d) Upon any breach of this Agreement by Service Provider, City may (i) exercise any right, remedy (in contract, law or equity), or privilege which may be available to it under applicable laws of the State of California or any other applicable law; (ii) proceed by appropriate court action to enforce the terms of the Agreement; and/or (iii) recover all direct, indirect, consequential, economic and incidental damages for the breach of the Agreement. If it is determined that City improperly terminated this Agreement for default, such termination shall be deemed a termination for convenience.           -3- (e) Service Provider shall provide City with adequate written assurances of future performance, upon Administrator’s request, in the event Service Provider fails to comply with any terms or conditions of this Agreement. (f) Service Provider shall be liable for default unless nonperformance is caused by an occurrence beyond the reasonable control of Service Provider and without its fault or negligence such as, acts of God or the public enemy, acts of City in its contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes, unusually severe weather, and delays of common carriers. Service Provider shall notify Administrator in writing as soon as it is reasonably possible after the commencement of any excusable delay, setting forth the full particulars in connection therewith, and shall remedy such occurrence with all reasonable dispatch, and shall promptly give written notice to Administrator of the cessation of such occurrence. 5. Confidential Information and Ownership of Documents. (a) Any reports, information, or other data prepared or assembled by Service Provider pursuant to this Agreement shall not be made available to any individual or organization by Service Provider without the prior written approval of the Administrator. During the term of this Agreement, and thereafter, Service Provider shall not, without the prior written consent of City, disclose to anyone any Confidential Information. The term Confidential Information for the purposes of this Agreement shall include all proprietary and confidential information of City, including but not limited to business plans, marketing plans, financial information, materials, compilations, documents, instruments, models, source or object codes and other information disclosed or submitted, orally, in writing, or by any other medium or media. All Confidential Information shall be and remain confidential and proprietary in City. (b) Any and all writings and documents prepared or provided by Service Provider pursuant to this Agreement are the property of City at the time of preparation and shall be turned over to City upon expiration or termination of the Agreement. Service Provider shall not permit the reproduction or use thereof by any other person except as otherwise expressly provided herein. (c) If Service Provider should subcontract all or any portion of the services to be performed under this Agreement, Service Provider shall cause each subcontractor to also comply with the requirements of this Section 5. (d) This Section 5 shall survive expiration or termination of this Agreement. 6. Level of Skill. It is further mutually understood and agreed by and between the parties hereto that inasmuch as Service Provider represents to City that Service Provider and its subcontractors, if any, are skilled in the profession and shall perform in accordance with the standards of said industry necessary to perform the services agreed to be done by it under this Agreement, City relies upon the skill of Service Provider and its subcontractors, if any, to do and perform such services in a skillful manner and Service Provider agrees to thus perform the services and require the same of any subcontractors. Therefore, any acceptance           -4- of such services by City shall not operate as a release of Service Provider or any subcontractors from said industry and professional standards. 7. Indemnification. To the furthest extent allowed by law, Service Provider shall indemnify, hold harmless and defend City and each of its officers, officials, employees, agents and volunteers from any and all loss, liability, fines, penalties, forfeitures, costs and damages (whether in contract, tort or strict liability, including but not limited to personal injury, death at any time and property damage) incurred by City, Service Provider or any other person, and from any and all claims, demands and actions in law or equity (including reasonable attorney's fees, litigation expenses and cost to enforce this agreement), arising or alleged to have arisen directly or indirectly out of performance of this Agreement. SERVICE Provider's obligations under the preceding sentence shall apply regardless of whether City or any of its officers, officials, employees, agents or volunteers are negligent, but shall not apply to any loss, liability, fines, penalties, forfeitures, costs or damages caused solely by the gross negligence, or caused by the willful misconduct, of City or any of its officers, officials, employees, agents or volunteers. If Service Provider should subcontract all or any portion of the work to be performed under this Agreement, Service Provider shall require each subcontractor to indemnify, hold harmless and defend City and each of its officers, officials, employees, agents and volunteers in accordance with the terms of the preceding paragraph. This section shall survive termination or expiration of this Agreement. 8. Insurance. (a) Throughout the life of this Agreement, Service Provider shall pay for and maintain in full force and effect all insurance as required in Exhibit B, which is incorporated into and part of this Agreement, with an insurance company(ies) either (i) admitted by the California Insurance Commissioner to do business in the State of California and rated no less than “A-VII” in the Best’s Insurance Rating Guide, or (ii) as may be authorized in writing by City’s Risk Manager or designee at any time and in its sole discretion. The required policies of insurance as stated in Exhibit B shall maintain limits of liability of not less than those amounts stated therein. However, the insurance limits available to City, its officers, officials, employees, agents, and volunteers as additional insureds, shall be the greater of the minimum limits specified therein or the full limit of any insurance proceeds to the named insured. (b) If at any time during the life of the Agreement or any extension, Service Provider or any of its subcontractors fail to maintain any required insurance in full force and effect, all services and work under this Agreement shall be discontinued immediately, and all payments due or that become due to Service Provider shall be withheld until notice is received by City that the required insurance has been restored to full force and effect and that the premiums therefore have been paid for a period satisfactory to City. Any failure to maintain the required insurance shall be sufficient cause for City           -5- to terminate this Agreement. No action taken by City pursuant to this section shall in any way relieve Service Provider of its responsibilities under this Agreement. The phrase “fail to maintain any required insurance” shall include, without limitation, notification received by City that an insurer has commenced proceedings, or has had proceedings commenced against it, indicating that the insurer is insolvent. (c) The fact that insurance is obtained by Service Provider shall not be deemed to release or diminish the liability of Service Provider, including, without limitation, liability under the indemnity provisions of this Agreement. The duty to indemnify City shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by Service Provider. Approval or purchase of any insurance contracts or policies shall in no way relieve from liability nor limit the liability of Service Provider, its principals, officers, agents, employees, or persons under the supervision of Service Provider, vendors, suppliers, invitees, consultants, sub-consultants, subcontractors, or anyone employed directly or indirectly by any of them. (d) 9. Conflict of Interest and Non-Solicitation. (a) Prior to City’s execution of this Agreement, Service Provider shall complete a City of Fresno conflict of interest disclosure statement in the form as set forth in Exhibit C. During the term of this Agreement, Service Provider shall have the obligation and duty to immediately notify City in writing of any change to the information provided by Service Provider in such statement. (b) Service Provider shall comply, and require its subcontractors to comply, with all applicable (i) professional canons and requirements governing avoidance of impermissible client conflicts; and (ii) federal, state, and local conflict of interest laws and regulations including, without limitation, California Government Code Section 1090 et. seq., the California Political Reform Act (California Government Code Section 87100 et. seq.) and the regulations of the Fair Political Practices Commission concerning disclosure and disqualification (2 California Code of Regulations Section 18700 et. seq.). At any time, upon written request of City, Service Provider shall provide a written opinion of its legal counsel and that of any subcontractor that, after a due diligent inquiry, Service Provider and the respective subcontractor(s) are in full compliance with all laws and regulations. Service Provider shall take, and require its subcontractors to take, reasonable steps to avoid any appearance of a conflict of interest. Upon discovery of any facts giving rise to the appearance of a conflict of interest, Service Provider shall immediately notify City of these facts in writing. (c) In performing the work or services to be provided hereunder, Service Provider shall not employ or retain the services of any person while such person either is employed by City or is a member of any City council, commission, board, committee, or similar City body. This requirement may           -6- be waived in writing by the City Manager, if no actual or potential conflict is involved. (d) Service Provider represents and warrants that it has not paid or agreed to pay any compensation, contingent or otherwise, direct or indirect, to solicit, or procure this Agreement or any rights/benefits hereunder. (e) Service Provider and any of its subcontractors shall have no interest, direct or indirect, in any other contract with a third party in connection with this Project unless such interest is in accordance with all applicable law and fully disclosed to and approved by the City Manager, in advance and in writing. Notwithstanding any approval given by the City Manager under this provision, Service Provider shall remain responsible for complying with Section 9(a), above. (f) If Service Provider should subcontract all or any portion of the work to be performed or services to be provided under this Agreement, Service Provider shall include the provisions of this Section 9 in each subcontract and require its subcontractors to comply therewith. (g) This Section 9 shall survive expiration or termination of this Agreement. 10. Recycling Program. In the event Service Provider maintains an office or operates a facility(ies), or is required herein to maintain or operate same, within the incorporated limits of the City of Fresno, Service Provider at its sole cost and expense shall: (a) Immediately establish and maintain a viable and ongoing recycling program, approved by City’s Solid Waste Management Division, for each office and facility. Literature describing City recycling programs is available from City’s Solid Waste Management Division and by calling City of Fresno Recycling Hotline at (559) 621-1111. (b) Immediately contact City’s Solid Waste Management Division at (559) 621- 1452 and schedule a free waste audit, and cooperate with such Division in their conduct of the audit for each office and facility. (c) Cooperate with and demonstrate to the satisfaction of City’s Solid Waste Management Division the establishment of the recycling program in paragraph (a) above and the ongoing maintenance thereof. 11. General Terms. (a) Except as otherwise provided by law, all notices expressly required of City within the body of this Agreement, and not otherwise specifically provided for, shall be effective only if signed by the Administrator or designee. (b) Records of Service Provider’s expenses pertaining to the Project shall be kept on a generally recognized accounting basis and shall be available to City or its authorized representatives upon request during regular business hours throughout the life of this Agreement and for a period of three years after final payment or, if longer, for any period required by law. In addition, all books, documents, papers, and records of Service Provider pertaining to the Project shall be available for the purpose of making audits,           -7- examinations, excerpts, and transcriptions for the same period of time. If any litigation, claim, negotiations, audit or other action is commenced before the expiration of said time period, all records shall be retained and made available to City until such action is resolved, or until the end of said time period whichever shall later occur. If Service Provider should subcontract all or any portion of the services to be performed under this Agreement, Service Provider shall cause each subcontractor to also comply with the requirements of this paragraph. This Section 11(b) shall survive expiration or termination of this Agreement. (c) Prior to execution of this Agreement by City, Service Provider shall have provided evidence to City that Service Provider is licensed to perform the services called for by this Agreement (or that no license is required). If Service Provider should subcontract all or any portion of the work or services to be performed under this Agreement, Service Provider shall require each subcontractor to provide evidence to City that subcontractor is licensed to perform the services called for by this Agreement (or that no license is required) before beginning work. 12. Nondiscrimination. To the extent required by controlling federal, state and local law, Service Provider shall not employ discriminatory practices in the provision of services, employment of personnel, or in any other respect on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era. Subject to the foregoing and during the performance of this Agreement, Service Provider agrees as follows: (a) Service Provider will comply with all applicable laws and regulations providing that no person shall, on the grounds of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era be excluded from participation in, be denied the benefits of, or be subject to discrimination under any program or activity made possible by or resulting from this Agreement. (b) Service Provider will not discriminate against any employee or applicant for employment because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era. Service Provider shall ensure that applicants are employed, and the employees are treated during employment, without regard to their race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era. Such requirement shall apply to Service Provider’s employment practices including, but not be limited to, the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. Service           -8- Provider agrees to post in conspicuous places, available to employees and applicants for employment, notices setting forth the provision of this nondiscrimination clause. (c) Service Provider will, in all solicitations or advertisements for employees placed by or on behalf of Service Provider in pursuit hereof, state that all qualified applicants will receive consideration for employment without regard to race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era. (d) Service Provider will send to each labor union or representative of workers with which it has a collective bargaining agreement or other contract or understanding, a notice advising such labor union or workers' representatives of Service Provider’s commitment under this section and shall post copies of the notice in conspicuous places available to employees and applicants for employment. (e) If Service Provider should subcontract all or any portion of the services to be performed under this Agreement, Service Provider shall cause each subcontractor to also comply with the requirements of this Section 12. 13. Independent Contractor. (a) In the furnishing of the services provided for herein, Service Provider is acting solely as an independent contractor. Neither Service Provider, nor any of its officers, agents, or employees shall be deemed an officer, agent, employee, joint venturer, partner, or associate of City for any purpose. City shall have no right to control or supervise or direct the manner or method by which Service Provider shall perform its work and functions. However, City shall retain the right to administer this Agreement so as to verify that Service Provider is performing its obligations in accordance with the terms and conditions thereof. (b) This Agreement does not evidence a partnership or joint venture between Service Provider and City. Service Provider shall have no authority to bind City absent City’s express written consent. Except to the extent otherwise provided in this Agreement, Service Provider shall bear its own costs and expenses in pursuit thereof. (c) Because of its status as an independent contractor, Service Provider and its officers, agents, and employees shall have absolutely no right to employment rights and benefits available to City employees. Service Provider shall be solely liable and responsible for all payroll and tax withholding and for providing to, or on behalf of, its employees all employee benefits including, without limitation, health, welfare and retirement benefits. In addition, together with its other obligations under this Agreement, Service Provider shall be solely responsible, indemnify, defend and save City harmless from all matters relating to employment and tax withholding for and payment of Service Provider’s employees, including, without limitation, (i) compliance with Social Security and unemployment insurance           -9- withholding, payment of workers compensation benefits, and all other laws and regulations governing matters of employee withholding, taxes and payment; and (ii) any claim of right or interest in City employment benefits, entitlements, programs and/or funds offered employees of City whether arising by reason of any common law, de facto, leased, or co- employee rights or other theory. It is acknowledged that during the term of this Agreement, Service Provider may be providing services to others unrelated to City or to this Agreement. 14. Notices. Any notice required or intended to be given to either party under the terms of this Agreement shall be in writing and shall be deemed to be duly given if delivered personally, transmitted by facsimile followed by telephone confirmation of receipt, or sent by United States registered or certified mail, with postage prepaid, return receipt requested, addressed to the party to which notice is to be given at the party's address set forth on the signature page of this Agreement or at such other address as the parties may from time to time designate by written notice. Notices served by United States mail in the manner above described shall be deemed sufficiently served or given at the time of the mailing thereof. 15. Binding. Subject to Section 16, below, once this Agreement is signed by all parties, it shall be binding upon, and shall inure to the benefit of, all parties, and each parties' respective heirs, successors, assigns, transferees, agents, servants, employees, and representatives. 16. Assignment. (a) This Agreement is personal to Service Provider and there shall be no assignment by Service Provider of its rights or obligations under this Agreement without the prior written approval of the City Manager or designee. Any attempted assignment by Service Provider, its successors or assigns, shall be null and void unless approved in writing by the City Manager or designee. (b) Service Provider hereby agrees not to assign the payment of any monies due Service Provider from City under the terms of this Agreement to any other individual(s), corporation(s) or entity(ies). City retains the right to pay any and all monies due Service Provider directly to Service Provider. 17. Compliance With Law. In providing the services required under this Agreement, Service Provider shall at all times comply with all applicable laws of the United States, the State of California and City, and with all applicable regulations promulgated by federal, state, regional, or local administrative and regulatory agencies, now in force and as they may be enacted, issued, or amended during the term of this Agreement. 18. Waiver. The waiver by either party of a breach by the other of any provision of this Agreement shall not constitute a continuing waiver or a waiver of any subsequent breach of either the same or a different provision of this Agreement. No provisions of this Agreement may be waived unless in writing and signed by all parties to this Agreement. Waiver of any one provision herein shall not be deemed to be a waiver of any other provision herein.           -10- 19. Governing Law and Venue. This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of California, excluding, however, any conflict of laws rule which would apply the law of another jurisdiction. Venue for purposes of the filing of any action regarding the enforcement or interpretation of this Agreement and any rights and duties hereunder shall be Fresno County, California. 20. Headings. The section headings in this Agreement are for convenience and reference only and shall not be construed or held in any way to explain, modify or add to the interpretation or meaning of the provisions of this Agreement. 21. Severability. The provisions of this Agreement are severable. The invalidity, or unenforceability of any one provision in this Agreement shall not affect the other provisions. 22. Interpretation. The parties acknowledge that this Agreement in its final form is the result of the combined efforts of the parties and that, should any provision of this Agreement be found to be ambiguous in any way, such ambiguity shall not be resolved by construing this Agreement in favor of or against either party, but rather by construing the terms in accordance with their generally accepted meaning. 23. Attorney's Fees. If either party is required to commence any proceeding or legal action to enforce or interpret any term, covenant or condition of this Agreement, the prevailing party in such proceeding or action shall be entitled to recover from the other party its reasonable attorney's fees and legal expenses. 24. Exhibits. Each exhibit and attachment referenced in this Agreement is, by the reference, incorporated into and made a part of this Agreement. 25. Precedence of Documents. In the event of any conflict between the body of this Agreement and any exhibit or attachment hereto, the terms and conditions of the body of this Agreement shall control and take precedence over the terms and conditions expressed within the exhibit or attachment. Furthermore, any terms or conditions contained within any exhibit or attachment hereto which purport to modify the allocation of risk between the parties, provided for within the body of this Agreement, shall be null and void. 26. Cumulative Remedies. No remedy or election hereunder shall be deemed exclusive but shall, wherever possible, be cumulative with all other remedies at law or in equity. 27. No Third Party Beneficiaries. The rights, interests, duties, and obligations defined within this Agreement are intended for the specific parties hereto as identified in the preamble of this Agreement. Notwithstanding anything stated to the contrary in this Agreement, it is not intended that any rights or interests in this Agreement benefit or flow to the interest of any third parties. 28. Extent of Agreement. Each party acknowledges that they have read and fully understand the contents of this Agreement. This Agreement represents the entire and integrated agreement between the parties with respect to the subject matter hereof and supersedes all prior negotiations, representations or agreements, either written or oral. This Agreement may be modified only by written instrument duly authorized and executed by both City and Service Provider.           -11- 29. The City Manager, or designee, is hereby authorized and directed to execute and implement this Agreement. The previous sentence is not intended to delegate any authority to the City Manager to administer the Agreement, any delegation of authority must be expressly included in the Agreement. [SIGNATURES FOLLOW ON THE NEXT PAGE.]           -12- IN WITNESS WHEREOF, the parties have executed this Agreement at Fresno, California, the day and year first above written. CITY OF FRESNO, a California municipal corporation By: Gregory A. Barfield, Interim Director [Department] APPROVED AS TO FORM: ANDREW JANZ City Attorney By: Date %UDQGRQ&ROOHW 6XSHUYLVLQJDeputy City Attorney ATTEST: TODD STERMER, CMC City Clerk By: Date Deputy Addresses: CITY: City of Fresno Attention: Susan Rogers, IS Supervisor 2223 G Street Fresno, CA 93706 Phone: (559) 621-1418 E-mail: susan.rogers@fresno.gov DILAX Systems US Inc., A Chicago based Corporation By: Name: Title: (If corporation or LLC., Board Chair, Pres. or Vice Pres.) By: Name: Title: (If corporation or LLC., CFO, Treasurer, Secretary or Assistant Secretary) Service Provider: DILAX Systems US Inc. Attention: Michael Zander, President 203 N LaSalle Street, Suite 2100 Chicago, IL 60601 Phone: (312) 558-1485 E-mail: michael.zander@dilax.com Attachments: 1. Exhibit A – Scope of Services 2. Exhibit B – Insurance Requirements 3. Exhibit C – Conflict of Interest Disclosure Form 4. Exhibit D – FTA Terms and Conditions 5. Exhibit E – Non-Lobbying Certification 6. Exhibit F – Debarment and Suspension Certification 7. Exhibit G – Buy America Certification                            EXHIBIT A SCOPE OF SERVICES Service Agreement between City of Fresno and DILAX Systems US Inc. Annual Maintenance Service Agreement Automatic Passenger Counter System (Follows Next Page)           [[[[SERENA TO INSERT EXHIBIT A HERE INTO FINAL PDF AND BEFORE ROUTING FOR SIGNATURES]]]]           EXHIBIT B INSURANCE REQUIREMENTS Service Agreement between City of Fresno (City) and DILAX Systems US Inc. (Service Provider) Annual Maintenance Service Agreement Automatic Passenger Counter System MINIMUM SCOPE OF INSURANCE (a) Throughout the life of this Agreement, Service Provider shall pay for and maintain in full force and effect all insurance as required herein with an insurance company(ies) either (i) admitted by the California Insurance Commissioner to do business in the State of California and rated no less than “A-VII” in the Best’s Insurance Rating Guide, or (ii) as may be authorized in writing by City’s Risk Manager or designee at any time and in its sole discretion. The required policies of insurance as stated herein shall maintain limits of liability of not less than those amounts stated therein. However, the insurance limits available to City, its officers, officials, employees, agents, and volunteers as additional insureds, shall be the greater of the minimum limits specified therein or the full limit of any insurance proceeds to the named insured. (b) If at any time during the life of the Agreement or any extension, Service Provider or any of its subcontractor fail to maintain any required insurance in full force and effect, all services and work under this Agreement shall be discontinued immediately, and all payments due or that become due to Service Provider shall be withheld until notice is received by City that the required insurance has been restored to full force and effect and that the premiums therefore have been paid for a period satisfactory to City. Any failure to maintain the required insurance shall be sufficient cause for City to terminate this Agreement. No action taken by City pursuant to this section shall in any way relieve Service Provider of its responsibilities under this Agreement. The phrase “fail to maintain any required insurance” shall include, without limitation, notification received by City that an insurer has commenced proceedings, or has had proceedings commenced against it, indicating that the insurer is insolvent. (c) The fact that insurance is obtained by Service Provider shall not be deemed to release or diminish the liability of Service Provider, including, without limitation, liability under the indemnity provisions of this Agreement. The duty to indemnify City shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by Service Provider. Approval or purchase of any insurance contracts or policies shall in no way relieve from liability nor limit the liability of Service Provider, vendors, suppliers, invitees, consultants, subcontractor or anyone employed directly or indirectly by any of them. Coverage shall be at least as broad as: 1. The most current version of Insurance Services Office (ISO) Commercial General Liability Coverage Form CG 00 01, providing liability coverage           arising out of your business operations. The Commercial General Liability policy shall be written on an occurrence form and shall provide coverage for “bodily injury,” “property damage” and “personal and advertising injury” with coverage for premises and operations (including the use of owned and non- owned equipment), products and completed operations, and contractual liability (including, without limitation, indemnity obligations under the Agreement) with limits of liability not less than those set forth under “Minimum Limits of Insurance.” 2. The most current version of ISO Commercial Auto Coverage Form CA 00 01, providing liability coverage arising out of the ownership, maintenance or use of automobiles in the course of your business operations. The Automobile Policy shall be written on an occurrence form and shall provide coverage for all owned, hired, and non-owned automobiles or other licensed vehicles (Code 1- Any Auto). 3. Workers’ Compensation insurance as required by the State of California and Employer’s Liability Insurance. 4. Technology Professional Liability insurance appropriate to Service Provider’s profession. Coverage shall be sufficiently broad to respond to duties and obligations as is undertaken by Consultant in this agreement and shall include but not be limited to, claims involving infringement of intellectual property, including but not limited to infringement of copyright, trademark, trade dress, invasion of privacy violations, information theft, damage to or destruction of electronic information, release of private information, alteration of electronic information, extortion and network security. The policy shall provide coverage for breach response costs as well as regulatory fines penalties and credit monitoring expenses with limits sufficient to respond to these obligations. 5. MINIMUM LIMITS OF INSURANCE Service Provider shall procure and maintain for the duration of the contract, and for 5 years thereafter, insurance with limits of liability not less than those set forth below. However, insurance limits available to City, its officers, officials, employees, agents, and volunteers as additional insureds, shall be the greater of the minimum limits specified herein or the full limit of any insurance proceeds available to the named insured: 1. COMMERCIAL GENERAL LIABILITY (i) $1,000,000 per occurrence for bodily injury and property damage; (ii) $1,000,000 per occurrence for personal and advertising injury; (iii) $2,000,000 aggregate for products and completed operations; and, (iv) $2,000,000 general aggregate applying separately to the work performed under the Agreement. 2. COMMERCIAL AUTOMOBILE LIABILITY $1,000,000 per accident for bodily injury and property damage.           3. WORKERS COMPENSATION INSURANCE as required by the State of California with statutory limits and EMPLOYER’S LIABILITY with limits of liability not less than: (i) $1,000,000 each accident for bodily injury; (ii) $1,000,000 disease each employee; and, (iii) $1,000,000 disease policy limit. 4. TECHNOLOGY PROFESSIONAL LIABILITY INSURANCE with limits of not less than: (i) $2,000,000 per claim/occurrence; and, (ii) $2,000,000 policy aggregate UMBRELLA OR EXCESS INSURANCE In the event Service Provider purchases an Umbrella or Excess insurance policy(ies) to meet the “Minimum Limits of Insurance,” this insurance policy(ies) shall “follow form” and afford no less coverage than the primary insurance policy(ies). In addition, such Umbrella or Excess insurance policy(ies) shall also apply on a primary and non-contributory basis for the benefit of the City, its officers, officials, employees, agents, and volunteers. DEDUCTIBLES AND SELF-INSURED RETENTIONS Service Provider shall be responsible for payment of any deductibles contained in any insurance policy(ies) required herein and Service Provider shall also be responsible for payment of any self-insured retentions. Any self-insured retentions must be declared on the Certificate of Insurance, and approved by, the City’s Risk Manager or designee. At the option of the City’s Risk Manager or designee, either: (i) The insurer shall reduce or eliminate such self-insured retentions as respects City, its officers, officials, employees, agents, and volunteers; or (ii) Service Provider shall provide a financial guarantee, satisfactory to City’s Risk Manager or designee, guaranteeing payment of losses and related investigations, claim administration and defense expenses. At no time shall City be responsible for the payment of any deductibles or self-insured retentions. OTHER INSURANCE PROVISIONS/ENDORSEMENTS (i) All policies of insurance required herein shall be endorsed to provide that the coverage shall not be cancelled, non-renewed, reduced in coverage or in limits except after thirty (30) calendar days written notice has been given to City, except ten (10) days for nonpayment of premium. Service Provider is also responsible for providing written notice to the City under the same terms and conditions. Upon issuance by the insurer, broker, or agent of a notice of cancellation, non-renewal, or reduction in coverage or in limits, Service Provider shall furnish City with a new certificate and applicable endorsements for such policy(ies). In the event any policy is due to expire during the work to be performed for City, Service Provider shall provide a new certificate, and applicable endorsements, evidencing renewal of such           policy not less than fifteen (15) calendar days prior to the expiration date of the expiring policy. (ii) The Commercial General and Automobile Liability insurance policies shall be written on an occurrence form. (iii) The Commercial General and Automobile Liability insurance policies shall be endorsed to name City, its officers, officials, agents, employees, and volunteers as an additional insured. Service Provider shall establish additional insured status for the City and for all ongoing and completed operations under the Commercial General policy by use of ISO Forms or an executed manuscript insurance company endorsement providing additional insured status. The Commercial General endorsements must be as broad as that contained in ISO Forms: GC 20 10 11 85 or both CG 20 10 & CG 20 37. (iv) The Commercial General and Automobile Liability insurance shall contain, or be endorsed to contain, that the Service Providers’ insurance shall be primary to and require no contribution from the City. The Commercial General policy is required to include primary and non-contributory coverage in favor of the City for both the ongoing and completed operations coverage. These coverages shall contain no special limitations on the scope of protection afforded to City, its officers, officials, employees, agents, and volunteers. If Service Provider maintains higher limits of liability than the minimums shown above, City requires and shall be entitled to coverage for the higher limits of liability maintained by Service Provider. (v) Should any of these policies provide that the defense costs are paid within the Limits of Liability, thereby reducing the available limits by defense costs, then the requirement for the Limits of Liability of these polices will be twice the above stated limits. (vi) For any claims related to this Agreement, Service Provider’s insurance coverage shall be primary insurance with respect to the City, its officers, officials, agents, , and volunteers. Any insurance or self-insurance maintained by the City, its officers, officials, agents, employees, and volunteers shall be excess of the Service Provider’s insurance and shall not contribute with it. (vii) The Commercial General Liability, Automobile Liability and Workers’ Compensation insurance policies shall contain, or be endorsed to contain, a waiver of subrogation as to City, its officers, officials, agents, employees, and volunteers. PROVIDING OF DOCUMENTS - Service Provider shall furnish City with all certificate(s) and applicable endorsements effecting coverage required herein. All certificates and applicable endorsements are to be received and approved by the City’s Risk Manager or designee prior to City’s execution of the Agreement and before work commences. All non-ISO endorsements amending policy coverage shall be executed by a licensed and authorized agent or broker. Upon request of City, Service Provider           shall immediately furnish City with a complete copy of any insurance policy required under this Agreement, including all endorsements, with said copy certified by the underwriter to be a true and correct copy of the original policy. This requirement shall survive expiration or termination of this Agreement. All subcontractors working under the direction of Service Provider shall also be required to provide all documents noted herein. SUBCONTRACTORS - If Service Provider subcontracts any or all of the services to be performed under this Agreement, Service Provider shall require, at the discretion of the City Risk Manager or designee, subcontractor(s) to enter into a separate Side Agreement with the City to provide required indemnification and insurance protection. Any required Side Agreement(s) and associated insurance documents for the subcontractor must be reviewed and preapproved by City Risk Manager or designee. If no Side Agreement is required, Service Provider will be solely responsible for ensuring that its subcontractor maintain insurance coverage at levels no less than those required by applicable law and is customary in the relevant industry.           EXHIBIT C DISCLOSURE OF CONFLICT OF INTEREST Annual Maintenance Service Agreement Automatic Passenger Counter System YES* NO 1 Are you currently in litigation with the City of Fresno or any of its agents? 2 Do you represent any firm, organization, or person who is in litigation with the City of Fresno? 3 Do you currently represent or perform work for any clients who do business with the City of Fresno? 4 Are you or any of your principals, managers, or professionals, owners or investors in a business which does business with the City of Fresno, or in a business which is in litigation with the City of Fresno? 5 Are you or any of your principals, managers, or professionals, related by blood or marriage to any City of Fresno employee who has any significant role in the subject matter of this service? 6 Do you or any of your subcontractors have, or expect to have, any interest, direct or indirect, in any other contract in connection with this Project? * If the answer to any question is yes, please explain in full below. Explanation: Signature Date Name Company Address Additional page(s) attached. City, State, Zip           EXHIBIT D FTA Terms and Conditions Service Agreement between City of Fresno and DILAX Systems US Inc. Annual Maintenance Service Agreement Automatic Passenger Counter System This contract/ agreement is subject to a financial assistance contract between the City of Fresno and the Federal Transit Administration, which requires that this contract/agreement contain the following clauses: NO GOVERNMENT OBLIGATION TO THIRD PARTIES (1) The City and contractor/vendor acknowledge and agree that, notwithstanding any concurrence by the Federal Government in or approval of the solicitation or award of the underlying contract, absent the express written consent by the Federal Government, the Federal Government is not a party to this contract and shall not be subject to any obligations or liabilities to the purchaser, contractor, or any other party (whether or not a party to that contract) pertaining to any matter resulting from the underlying contract. (2) The contractor agrees to include the above clause in each subcontract financed in whole or in part with Federal assistance provided by FTA. It is further agreed that the clause shall not be modified, except to identify the subcontractor who will be subject to its provisions. PROGRAM FRAUD AND FALSE OR FRAUDULENT STATEMENTS OR RELATED ACTS (1) The contractor acknowledges that the provisions of the Program Fraud Civil Remedies Act of 1986, as amended, 31 U.S.C. 3801 et seq. and U.S. DOT regulations, “Program Fraud Civil Remedies, “49 CFR Part 31, apply to its actions pertaining to this Project. Upon execution of the underlying contract, the contractor certifies or affirms the truthfulness and accuracy of any statement it has made, it makes, it may make, or causes to be made, pertaining to the underlying contract or the FTA assisted project for which this contract work is being performed. In addition to other penalties that may be applicable, the contractor further acknowledges that if it makes, or causes to be made, a false, fictitious, or fraudulent claim, statement, submission, or certification, the Federal Government reserves the right to impose the penalties of the Program Fraud Civil Remedies Act of 1986 on the contractor to the extent the Federal Government deems appropriate. (2) The contractor also acknowledges that if it makes, or causes to be made, a false, fictitious, or fraudulent claim, statement, submission, or certification to the Federal Government under a contract connected with a project that is financed in whole or in part with Federal assistance originally awarded by FTA under the authority of 49 U.S.C. 5307, the Government reserves the right to impose the penalties of 18 U.S.C. 1001 and 49 U.S.C. § 5323(l) on the contractor, to the extent the Federal Government deems appropriate. (3) The contractor agrees to include the above two clauses in each subcontract financed in whole or in part with Federal assistance provided by FTA. It is further agreed that the clauses shall not be modified, except to identify the subcontractor who will be subject to the provisions.           ACCESS TO RECORDS AND REPORTS (1) Record Retention. The Contractor will retain, and will require its subcontractors of all tiers to retain, complete and readily accessible records related in whole or in part to the contract, including, but not limited to, data, documents, reports, statistics, sub-agreements, leases, subcontracts, arrangements, other third party agreements of any type, and supporting materials related to those records. (2) Retention Period. The Contractor agrees to comply with the record retention requirements in accordance with 2 C.F.R. § 200.333. The Contractor shall maintain all books, records, accounts and reports required under this Contract for a period of at not less than three (3) years after the date of termination or expiration of this Contract, except in the event of litigation or settlement of claims arising from the performance of this Contract, in which case records shall be maintained until the disposition of all such litigation, appeals, claims or exceptions related thereto. (3) Access to Records. The Contractor agrees to provide sufficient access to FTA and its contractors to inspect and audit records and information related to performance of this contract as reasonably may be required. (4) Access to the Sites of Performance. The Contractor agrees to permit FTA and its contractors access to the sites of performance under this contract as reasonably may be required. FEDERAL CHANGES (1) Contractor shall at all times comply with all applicable FTA regulations, policies, procedures and directives, including without limitation those listed directly or by reference in the Master Agreement between Purchaser and FTA, as they may be amended or promulgated from time to time during the term of this contract. Contractor's failure to so comply shall constitute a material breach of this contract. TERMINATION (1) Termination for Convenience: The City of Fresno may terminate this contract, in whole or in part, at any time by written notice to the contractor. The contractor shall be paid its costs, including contract close out costs, and profit on work performed up to the time of termination. The contractor shall promptly submit its termination claim to be paid by contractor. If the contractor has any property in its possession belonging to the City of Fresno, the contractor will account for the same, and dispose of it in the manner the City of Fresno directs. (2) Termination for Default: If the contractor does not deliver supplies in accordance with the contract delivery schedule, or, if the contract is for services, the contractor fails to perform in the manner called for in the contract or if the contractor fails to comply with any other provisions of the contract, the City of Fresno may terminate this contract for default. Termination shall be effected by serving a notice of termination on the contractor setting forth the manner in which the contractor is in default. The contractor will only be paid the contract price for supplies delivered and accepted, or services performed in accordance with the manner of performance set forth in the contract.           (3) If it is later determined by the City of Fresno that the contractor had an excusable reason for not performing, such as a strike, fire, or flood, events which are not the fault of, or are beyond the control of the contractor, the City of Fresno, after setting up a new delivery or performance schedule, may allow the contractor to continue work, or treat the termination as a termination for convenience. CIVIL RIGHTS The City is an Equal Opportunity Employer. As such, the City agrees to comply with all applicable Federal civil rights laws and implementing regulations. Apart from inconsistent requirements imposed by Federal laws or regulations, the City agrees to comply with the requirements of 49 U.S.C. § 5323(h) (3) by not using any Federal assistance awarded by FTA to support procurements using exclusionary or discriminatory specifications. Under this Agreement, the Contractor shall at all times comply with the following requirements and shall include these requirements in each subcontract entered into as part thereof. (1) Nondiscrimination – In accordance with Federal transit law at 49 U.S.C. § 5332, the Contractor agrees that it will not discriminate against any employee or applicant for employment because of race, color, religion, national origin, sex, disability, or age. In addition, the Contractor agrees to comply with applicable Federal implementing regulations and other implementing requirements FTA may issue. (2) Equal Employment Opportunity – The following equal employment opportunity requirements apply to the underlying contract: (a) Race, Color, Creed, National Origin, Sex. In accordance with Title VII of the Civil Rights Act, as amended, 42 U.S.C. § 2000e et seq., and Federal transit laws at 49 U.S.C. § 5332, the Contractor agrees to comply with all applicable equal employment opportunity requirements of U.S. Department of Labor (U.S. DOL) regulations, "Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor," 41 C.F.R. chapter 60, and Executive Order No. 11246, "Equal Employment Opportunity in Federal Employment," September 24, 1965, 42 U.S.C. § 2000e note, as amended by any later Executive Order that amends or supersedes it, referenced in 42 U.S.C. § 2000e note. The Contractor agrees to take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, national origin, or sex (including sexual orientation and gender identity). Such action shall include, but not be limited to, the following: employment, promotion, demotion or transfer, recruitment or recruitment advertising, layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. In addition, the Contractor agrees to comply with any implementing requirements FTA may issue. (b) Age - In accordance with the Age Discrimination in Employment Act, 29 U.S.C. §§ 621- 634, U.S. Equal Employment Opportunity Commission (U.S. EEOC) regulations, “Age Discrimination in Employment Act,” 29 C.F.R. part 1625, the Age Discrimination Act of 1975, as amended, 42 U.S.C. § 6101 et seq., U.S. Health and Human Services regulations, “Nondiscrimination on the Basis of Age in Programs or Activities Receiving Federal Financial Assistance,” 45 C.F.R. part 90, and Federal transit law at 49 U.S.C. § 5332, the Contractor           agrees to refrain from discrimination against present and prospective employees for reason of age. In addition, the Contractor agrees to comply with any implementing requirements FTA may issue. (c) Disabilities - In accordance with section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794, the Americans with Disabilities Act of 1990, as amended, 42 U.S.C. § 12101 et seq., the Architectural Barriers Act of 1968, as amended, 42 U.S.C. §4151 et seq., and Federal transit law at 49 U.S.C. § 5332, the Contractor agrees that it will not discriminate against individuals on the basis of disability. In addition, the Contractor agrees to comply with any implementing requirements FTA may issue. (3) The contractor also agrees to include these requirements in each subcontract financed whole or in part with Federal assistance provided by FTA, modified only if necessary to identify the affected parties. DISADVANTAGED BUSINESS ENTERPRISE (DBE) The contractor, subrecipient or subcontractor shall not discriminate on the basis of race, color, national origin, or sex in the performance of this contract. The contractor shall carry out applicable requirements of 49 C.F.R. part 26 in the award and administration of DOT-assisted contracts. Failure by the contractor to carry out these requirements is a material breach of this contract, which may result in the termination of this contract or such other remedy as the recipient deems appropriate, which may include, but is not limited to: (1) Withholding monthly progress payments; (2) Assessing sanctions; (3) Liquidated damages; and/or (4) Disqualifying the contractor from future bidding as non-responsible. 49 C.F.R. § 26.13(b). INCORPORATION OF FTA 4220.1F TERMS (1) The preceding provisions include, in part, certain Standard Terms and Conditions required by DOT, whether or not expressly set forth in the preceding contract provisions. All contractual provisions required by DOT, as set forth in FTA Circular 4220.1F, dated November 1, 2008, are hereby incorporated by reference. Anything to the contrary herein notwithstanding, all FTA- mandated terms shall be deemed to control in the event of a conflict with other provisions contained in this Agreement. The contractor shall not perform any act, fail to perform any act, or refuse to comply with any City of Fresno request, which would cause the City of Fresno to be in violation of the FTA terms and conditions. (2) Flow Down – The incorporation of FTA terms has unlimited flow down. SUSPENSION AND DEBARMENT The Contractor shall comply and facilitate compliance with U.S. DOT regulations,           “Nonprocurement Suspension and Debarment,” 2 C.F.R. part 1200, which adopts and supplements the U.S. Office of Management and Budget (U.S. OMB) “Guidelines to Agencies on Government Wide Debarment and Suspension (Nonprocurement),” 2 C.F.R. part 180. These provisions apply to each contract at any tier of $25,000 or more, and to each contract at any tier for a federally required audit (irrespective of the contract amount), and to each contract at any tier that must be approved by an FTA official irrespective of the contract amount. As such, the Contractor shall verify that its principals, affiliates, and subcontractors are eligible to participate in this federally funded contract and are not presently declared by any Federal department or agency to be: a) Debarred from participation in any federally assisted Award; b) Suspended from participation in any federally assisted Award; c) Proposed for debarment from participation in any federally assisted Award; d) Declared ineligible to participate in any federally assisted Award; e) Voluntarily excluded from participation in any federally assisted Award; or f) Disqualified from participation in ay federally assisted Award. By signing and submitting its bid or proposal, the bidder or proposer certifies as follows: The certification in this clause is a material representation of fact relied upon by the CITY. If it is later determined by the CITY that the bidder or proposer knowingly rendered an erroneous certification, in addition to remedies available to the CITY, the Federal Government may pursue available remedies, including but not limited to suspension and/or debarment. The bidder or proposer agrees to comply with the requirements of 2 C.F.R. part 180, subpart C, as supplemented by 2 C.F.R. part 1200, while this offer is valid and throughout the period of any contract that may arise from this offer. The bidder or proposer further agrees to include a provision requiring such compliance in its lower tier covered transactions. RESOLUTION OF DISPUTES, BREACHES, OR OTHER LITIGATION (1) The validity of this Agreement and of any of its terms and provisions, as well as the rights and duties of the parties, shall be governed by the laws of the State of California. In the event of litigation between the two parties, proper venue shall be laid in a court of competent jurisdiction in the County of Fresno, State of California. (2) Disputes arising in the performance of this Contract which are not resolved by agreement of the parties shall be decided in writing by the authorized representative of (Recipient)’s           (3) Maintenance Manager. This decision shall be final and conclusive unless with ten (10) days from the date of receipt of its copy, the Contractor mails or otherwise furnishes a written appeal to the Maintenance Manager. In connection with any such appeal, the Contractor shall be afforded an opportunity to be heard and to offer evidence in support of its position. The decision of the Maintenance Manager shall be binding upon the contractor and the Contractor shall abide by the decision. (4) Pending final resolution of a dispute in hereunder, the Contractor shall proceed diligently with the performance of this Agreement and in accordance with the City’s decision. LOBBYING The prospective participant certifies, by signing and submitting this bid or proposal, to the best of his or her knowledge and belief, that: (1) No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of any Federal agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement. (2) If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any Federal agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form-LLL, "Disclosure of Lobbying Activities," in accordance with its instructions. This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by Section 1352, Title 31, U.S. Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure. The prospective participant also agrees by submitting his or her bid or proposal that he or she shall require that the language of this certification be included in all lower tier subcontracts, which exceed $100,000 and that all such subrecipients shall certify and disclose accordingly. The certificate titled Non Lobbying Certification must be completed and returned with your bid. This certificate is labeled as “Exhibit E” of this agreement CLEAN AIR (1) The Contractor agrees to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act, as amended, 42 U.S.C. §§ 7401 et seq. The Contractor agrees to report each violation to the Purchaser and understands and agrees           that the Purchaser will, in turn, report each violation as required to assure notification to FTA and the appropriate EPA Regional Office. (2) The Contractor also agrees to include these requirements in each subcontract exceeding $100,000 financed in whole or in part with Federal assistance provided by FTA. CLEAN WATER (1) The Contractor agrees to comply with all applicable standards, orders or regulations issued pursuant to the Federal Water Pollution Control Act, as amended, 33 U.S.C. 1251 et seq. The Contractor agrees to report each violation to the Purchaser and understands and agrees that the Purchaser will, in turn, report each violation as required to assure notification to FTA and the appropriate EPA Regional Office. (2) The Contractor also agrees to include these requirements in each subcontract exceeding $100,000 financed in whole or in part with Federal assistance provided by FTA. FLY AMERICA Fly America Requirements: (1) Definitions. As used in this clause- “International air transportation” means transportation by air between a place in the United States and a place outside the United States or between two places both of which are outside the United States. “United States” means the 50 States, the District of Columbia, and outlying areas. “U.S.-flag air carrier” means an air carrier holding a certificate under 49 U.S.C. Chapter 411. (2) When Federal funds are used to fund travel, Section 5 of the International Air Transportation Fair Competitive Practices Act of 1974 (49 U.S.C. 40118) (Fly America Act) requires contractors, recipients, and others use U.S.-flag air carriers for U.S. Government-financed international air transportation of personnel (and their personal effects) or property, to the extent that service by those carriers is available. It requires the Comptroller General of the United States, in the absence of satisfactory proof of the necessity for foreign-flag air transportation, to disallow expenditures from funds, appropriated or otherwise established for the account of the United States, for international air transportation secured aboard a foreign-flag air carrier if a U.S.-flag air carrier is available to provide such services. (3) If available, the contractor, in performing work under this contract, shall use U.S.-flag carriers for international air transportation of personnel (and their personal effects) or property. (4) In the event that the contractor selects a carrier other than a U.S.-flag air carrier for international air transportation, the contractor shall include a statement on vouchers involving such transportation essentially as follows:           Statement of Unavailability of U.S.-Flag Air Carriers International air transportation of persons (and their personal effects) or property by U.S.-flag air carrier was not available or it was necessary to use foreign-flag air carrier service for the following reasons. See FAR § 47.403. Stated Reason(s):__________________________________________________________ ___________________________________________________________________ ___________________________________________________________________ (5) The contractor shall include the substance of this clause, including this paragraph, in each subcontract or purchase under this contract that may involve international air transportation. ENERGY CONSERVATION (1) The contractor agrees to comply with mandatory standards and policies relating to energy efficiency which are contained in the state energy conservation plan issued in compliance with the Energy Policy and Conservation Act. CONFORMANCE WITH ITS NATIONAL ARCHITECTURE (1) Contractor shall conform, to the extent applicable, to the National Intelligent Transportation Standards architecture as required by SAFETEA-LU Section 5307(c), 23 U.S.C. Section 512 and as amended by MAP-21 23 U.S.C. § 517(d), note and follow the provisions of FTA Notice, “FTA National Architecture Policy on Transit Projects,” 66 Fed. Reg.1455 et seq., January 8, 2001, and any other implementing directives FTA may issue at a later date, except to the extent FTA determines otherwise in writing. ADA ACCESS (1) In accordance with section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794, the Americans with Disabilities Act of 1990, as amended, 42 U.S.C. § 12101 et seq., the Architectural Barriers Act of 1968, as amended, 42 U.S.C. § 4151 et seq., and Federal transit law at 49 U.S.C. § 5332, the Contractor agrees that it will not discriminate against individuals on the basis of disability. In addition, the Contractor agrees to comply with any implementing requirements FTA may issue. BUY AMERICA (1) The contractor agrees to comply with 49 U.S.C. 5323(j) and 49 C.F.R. part 661, which provide that Federal funds may not be obligated unless all steel, iron, and manufactured           products used in FTA funded projects are produced in the United States, unless a waiver has been granted by FTA or the product is subject to a general waiver. General waivers are listed in 49 C.F.R. § 661.7. Separate requirements for rolling stock are set out at 49 U.S.C. 5323(j)(2)(C) and 49 C.F.R. § 661.11. (2) A bidder or offeror must submit to the FTA recipient the appropriate Buy America certification with all bids on FTA-funded contracts, except those subject to a general waiver. Bids or offers that are not accompanied by a completed Buy America certification must be rejected as nonresponsive. This requirement does not apply to lower tier subcontractors. The certificate titled Buy America Certification must be completed and returned with your bid. This certificate is noted as Exhibit F. SAFE OPERATION OF MOTOR VEHICLES (1) Seat Belt Use - The Contractor is encouraged to adopt and promote on-the-job seat belt use policies and programs for its employees and other personnel that operate company-owned vehicles, company-rented vehicles, or personally operated vehicles. The terms “company-owned” and “company-leased” refer to vehicles owned or leased either by the Contractor or City. (2) Distracted Driver - The Contractor agrees to adopt and enforce workplace safety policies to decrease crashes caused by distracted drivers, including policies to ban text messaging while using an electronic device supplied by an employer, and driving a vehicle the driver owns or rents, a vehicle Contactor owns, leases, or rents, or a privately- owned vehicle when on official business in connection with the work performed under this agreement. PROMPT PAYMENT (1) The Prime Contractor shall pay any Subcontractor for work that has been satisfactorily performed no later than thirty (30) days from the date of the Prime Contractor’s receipt of each payment made by the City of Fresno. Additionally, within thirty (30) days of satisfactory completion of all work required of the Subcontractor, the Prime Contractor shall release any retainage payments withheld to the Subcontractor. NOTICE OF LEGAL MATTERS AFFECTING THE FEDERAL GOVERNMENT (1) The Contractor agrees that if a current or prospective legal matter that may affect the Federal Government emerges, the Contractor shall promptly notify the City of the legal matter in accordance with 2 C.F.R. §§ 180.220 and 1200.220. (2) The types of legal matters that require notification include, but are not limited to, a major dispute, breach, default, litigation, or naming the Federal Government as a party to litigation or a legal disagreement in any forum for any reason.           (3) Matters that may affect the Federal Government include, but are not limited to, the Federal Government’s interests in the Award, the accompanying Underlying Agreement, and any Amendments thereto, or the Federal Government’s administration or enforcement of federal laws, regulations, and requirements. (4) Additional Notice to U.S. DOT Inspector General. The contractor must promptly notify the City and U.S. DOT Inspector General in addition to the FTA Chief Counsel or Regional Counsel for the Region in which the City is located, if the contractor has knowledge of potential fraud, waste, or abuse occurring on a Project receiving assistance from FTA. The notification provision applies if a person has or may have submitted a false claim under the False Claims Act, 31 U.S.C. § 3729, et seq., or has or may have committed a criminal or civil violation of law pertaining to such matters as fraud, conflict of interest, bid rigging, misappropriation or embezzlement, bribery, gratuity, or similar misconduct involving federal assistance. This responsibility occurs whether the Project is subject to this Agreement or another agreement between the City and FTA, or an agreement involving a principal, officer, employee, agent, or Third-Party Participant of the City. It also applies to subcontractors at any tier. Knowledge, as used in this paragraph, includes, but is not limited to, knowledge of a criminal or civil investigation by a Federal, state, or local law enforcement or other investigative agency, a criminal indictment or civil complaint, or probable cause that could support a criminal indictment, or any other credible information in the possession of the contractor. In this paragraph, “promptly” means to refer information without delay and without change. This notification provision applies to all divisions of the Recipient, including divisions tasked with law enforcement or investigatory functions. (5) The Contractor further agrees to include the above clause in each subcontract, at every tier, financed in whole or in part with Federal assistance provided by the FTA. PROHIBITION ON CERTAIN TELECOMMUNICATIONS AND VIDEO SURVEILLANCE SERVICES OR EQUIPMENT The Contractor agrees to comply with 2 CFR 200.216 and Public Law 115-232, Section 889, and may not 1) procure or obtain; 2) extend or renew a contract to procure; or 3) enter into a contract (or extend or renew a contract) to procure or obtain equipment, services, or systems that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system for this federally funded agreement. As described in Public Law 115-232, section 889, covered telecommunications equipment is telecommunications equipment produced by Huawei Technologies Company or ZTE Corporation (or any subsidiary or affiliate of such entities). a) For the purpose of public safety, security of government facilities, physical security surveillance of critical infrastructure, and other national security purposes, video surveillance and telecommunications equipment produced by Hytera Communications Corporation, Hangzhou Hikvision Digital Technology Company, or Dahua Technology Company (or any subsidiary or affiliate of such entities).           b) Telecommunications or video surveillance services provided by such entities or using such equipment. c) Telecommunications or video surveillance equipment or services produced or provided by an entity that the Secretary of Defense, in consultation with the Director of the National Intelligence or the Director of the Federal Bureau of Investigation, reasonably believes to be an entity owned or controlled by, or otherwise connected to, the government of a covered foreign country.           EXHIBIT E VENDOR’S NAME: ________________ NONLOBBYING CERTIFICATION LOBBY RESTRICTIONS Certification for Contracts, Grants, Loans, and Cooperative Agreements (To be submitted with each bid or offer exceeding $100,000) The undersigned [Contractor] certifies, to the best of his or her knowledge and belief, that: 1. No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of an agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement. 2. If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form- LLL, “Disclosure Form to Report Lobbying,” in accordance with its instructions. 3. The undersigned shall require that the language of this certification be included in the award documents for all subawards at all tiers (including subcontracts, subgrants, and contracts under grants, loans, and cooperative agreements) and that all subrecipients shall certify and disclose accordingly. This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by section 1352, title 31, U.S. Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure. __________________________ Signature of Contractor's Authorized Official __________________________ Name and Title of Contractor's Authorized Official __________________________ Date           EXHIBIT F VENDOR’S NAME: _________________ DEBARMENT AND SUSPENSION CERTIFICATION Service Agreement between City of Fresno and DILAX Systems US Inc. Annual Maintenance Service Agreement Automatic Passenger Counter System Contractor and all subcontractors shall meet debarment, suspension, ineligibility, and voluntary exclusion requirements pursuant to Executive Order 12549 of these Specifications. A list of excluded parties may be found at the following website: https://www.sam.gov/SAM/pages/public/searchRecords/search.jsf. Contractor/Vendor shall return with its Proposal/Contract this form. Note: Providing false information may result in criminal prosecution or administrative sanctions. The above certification is part of the Proposal. Signing this Proposal on the signature portion thereof shall also constitute signature of this Certification. Date _____________________________________________________________ Signature _________________________________________________________ Company Name ____________________________________________________ Title _____________________________________________________________           EXHIBIT G Service Agreement between City of Fresno and DILAX Systems US Inc. Annual Maintenance Service Agreement Automatic Passenger Counter System VENDOR'S NAME _______________________________ BUY AMERICA CERTIFICATION 49 C.F.R. § 661.6, for the Procurement of Steel, Iron, or Manufactured Products A bidder or offeror must submit the appropriate Buy America certification (below) with all bids or offers on FTA-funded contracts, except those subject to a general waiver. Bids or offers that are not accompanied by a completed Buy America certification must be rejected as nonresponsive. Certificate of Compliance with 49 U.S.C. 5323(j)(1) The bidder or offeror hereby certifies that it will comply with the requirements of 49 U.S.C. 5323(j)(1), and the applicable regulations in 49 C.F.R. part 661. Date Signature Company Name Name Title Certificate of Non-Compliance with 49 U.S.C. 5323(j)(1) The bidder or offeror hereby certifies that it cannot comply with the requirements of 49 U.S.C. 5323(j), but it may qualify for an exception to the requirement pursuant to 49 U.S.C. 5323(j)(2), as amended, and the applicable regulations in 49 C.F.R. § 661.7. Date ___________________________________________________ Signature _______________________________________________ Company Name Name Title           City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID 23-1455 Agenda Date:10/19/2023 Agenda #: 1.-DD. REPORT TO THE CITY COUNCIL FROM:GREGORY A. BARFIELD, M.A., Interim Director Department of Transportation BY:LINDA TAYLOR, Administrative Manager Department of Transportation SARAH LAMBETH, Management Analyst II Department of Transportation SUBJECT Approve the award of Product Requirements Contract 12400064 for Fresno Area Express Fare Media for two years with four optional one-year extensions to EDM Technology,Inc.(Bid File 12400064).Purchases made by the City of Fresno Department of Transportation shall not exceed $338,528.74 during the initial two-year contract period. RECOMMENDATION Staff recommends council approve the award of a two-year requirements contract with four optional one-year extensions to EDM Technology,Inc.,a North Carolina based company,for the purchase of twelve different types of Fresno Area Express Fare Media for an amount not to exceed $338,528.74 within the first two years. EXECUTIVE SUMMARY The Department of Transportation -Fresno Area Express (FAX)is requesting approval to award a two-year requirements contract with four optional one-year extensions to EDM Technology,Inc.at a cost not to exceed $338,528.74 within the first two years.The requirements contract will ensure FAX staff are able to provide the needed ride cards to bus patrons and organizations. BACKGROUND Fresno Area Express (FAX)directly operates 126 fixed route buses throughout the City of Fresno’s 18 route transit system.Last fiscal year,FAX provided over 8.1 million rides transporting passengers nearly 23 million miles.FAX expects these numbers to grow substantially in the coming years as ridership returns to pre-pandemic levels.A rise in ridership will increase FAX’s need for physical fare media. Ride tickets and passes such as those advertised in the above referenced solicitation are used by a City of Fresno Printed on 10/30/2023Page 1 of 2 powered by Legistar™ File #:ID 23-1455 Agenda Date:10/19/2023 Agenda #: 1.-DD. Ride tickets and passes such as those advertised in the above referenced solicitation are used by a wide variety of riders.Organizations such as the Department of Child and Family Services,the Department of Corrections,and Turning Point of Central California purchase these passes in bulk to provide their customers with transportation to and from many essential services.Several school districts throughout Fresno purchase passes in bulk to distribute to students providing transportation to and from class for those who may not have access to personal vehicles or school-provided transportation.Manchester Transit Center also offers ride tickets and passes to eligible individuals at a discounted rate.Offering physical fare media helps ensure equitable access to public transportation offered by the City of Fresno’s Department of Transportation. On August 2,2023,FAX solicited bids from qualified vendors for the procurement of physical fare media to be used by FAX bus patrons.FAX received three bid proposals,one from EDM Technology, Inc.,one from Nagels North America,and one from Magnetic Ticket and Label.All three bidders were verified as being responsive and responsible.After evaluating all bids,staff found EDM Technology, Inc.to be the lowest responsive and responsible bidder.Therefore,staff recommends Council approve the award of a two-year requirements contract with four optional one-year extensions to EDM Technology,Inc.,a North Carolina based company,for the purchase of twelve different types of fare media at a cost not to exceed $338,528.74 within the first two years. ENVIRONMENTAL FINDINGS By the definition provided in the California Environmental Quality Act Guidelines Section 15378, awarding requirements contract does not qualify as a “project.” LOCAL PREFERENCE Local preference was not implemented as there were no local vendors who submitted a bid proposal. FISCAL IMPACT This contract award has no fiscal impact to the General Fund.Purchases made from this contract will be funded with FAX enterprise funds.Sufficient appropriations were included and are available in the FAX FY2024 budget. Attachments: Bid Evaluation Form BF#12400064 EDM Technology, Inc. Proposal City of Fresno Printed on 10/30/2023Page 2 of 2 powered by Legistar™ City of Fresno Product Requirements Contract for Fresno Area Express Fare Media (12400064), bidding on 08/29/2023 3:00 PM (PDT) Page 1 of 3 Printed 08/29/2023 PlanetBids City of Fresno Product Requirements Contract for Fresno Area Express Fare Media (12400064), bidding on 08/29/2023 3:00 PM (PDT) Page 2 of 3 Printed 08/29/2023 PlanetBids City of Fresno Product Requirements Contract for Fresno Area Express Fare Media (12400064), bidding on 08/29/2023 3:00 PM (PDT) Page 3 of 3 Printed 08/29/2023 PlanetBids Tax- $13044.37 Total- $169,264.37 BIDDER'S NAME: EDM Technology Inc. (Submit with Bid Proposal) BIDDER'S CHECKLIST PRODUCT REQUIREMENTS CONTRACT FOR FRESNO AREA EXPRESS FARE MEDIA Bid File No. 12400064 SUBMIT THIS BIDDER'S CHECKLIST WITH YOUR BID DOCUMENTS. Bidders shall complete and submit all documents marked with an "X" in the "REQUIRED" column. Documents required on the checklist but not included may render your bid nonresponsive and ineligible for award. Bids received by the City by the scheduled bid opening time will be opened and publicly read but are subject to verification that all the required documents have been submitted. Copies of Bid Deposits may be submitted electronically, with the exception of a certified or cashier's check, which must be brought to the Purchasing Manager's office and labeled accordingly with bid number prior to the bid opening. REQUIRED � 1.BID PROPOSAL, pages 8 through 10. � 2.BID DEPOSIT attached to front of Proposal or submitted electronically in the form of: [ ] Certified Check [ ] Bidder's Bond [ X ] Cashier's Check [ ] Irrevocable Letter of Credit [ ] Certificate of Deposit [ ] Annual Bidder's Bond Note: Company Checks are NOT acceptable � 3.CERTIFICATION FOR LOCAL PREFERENCE, if applicable, page 12. [X]4.ACH PAYMENT INITIATIVE-ELECTRONIC PAYMENT, page 13. � 5.SIGNATURE PAGES 14 and 15. � 6.ADDENDA -Signature page of all Addenda issued, if applicable. Addenda No. 1 to 1 (Enter numbers). � 7.LITERATURE/STANDARD WARRANTY. As required on page 29, paragraph (d), any applicable manufacturer's Published Price List or website, and two copies, if attached to paper copy, of the manufacturer's descriptive literature and specifications or website, including a copy of the manufacturer's standard warranty. SUBMITTED BY: Name of Company EDM Technology, Inc.Contact Name Brenda Spence ---------- Address 210 Old Thomasville Rd Cit y High Point State NC Zip 27260 Phone No. 336-882-8115 ext.261 Fax No. 336-882-0106 -------------- E-Mail Address: brendas@electronicdata.com RC PRODUCTS -FED Rev. 03-2021 7 BIDDER'S NAME: EDM Technology, Inc. BID PR OPOSAL PRODUCT REQUIREMENTS CONTRACT FOR FRESNO AREA EXPRESS FARE MEDIA Bid File No. 12400064 TERM OF CONT RACT The Contract shall be in effect for two (2) years from the date of the Notice to Proceed. The Cont ract may be extended in accordance with the provisions set forth in the Special Conditions of these Specifications. TO: THE PURCHASING MANAGER OF THE CITY OF FRESNO The undersigned Bidder hereby proposes to furnish to the City of Fresno, in accordance with the Specifications annexed hereto and made a part hereof, the following item(s) delivered F.O.B. Destination, Freight Prepaid & Allowed, to the jobsite{s) as specified in the Special Conditions of these Specifications, and at the prices set forth in the following bid item(s): BID ITEM 1. 2. 4. 5. 6. 7. 8. 9. QTY DESCRIPTION UNIT PRICE 500,000 Pre-Encoded 1 Ride Ticket $. 0.0520 2.125W x 3.375L SEE EXAMPLE P. 30 100,000 Pre-Encoded Reduced 1 Ride Ticket $ 0.1310 2.125W x 3.375L SEE EXAMPLE P. 31 20,000 Pre-Encoded Student 1 Ride Ticket $ 0.3600 2.125W x 3.375L SEE EXAMPLE P. 32 20,000 Pre-Encoded 10 Ride Ticket $ 0.4724 2.125W x 3.375L SEE EXAMPLE P. 33 20,000 Pre-Encoded Reduced 10 Ride Ticket $ 0.4724 2.125W x 3.375L SEE EXAMPLE P. 34 50,000 Pre-Encoded 31 Day Pass $ 0.2500 2.125W x 3.375L SEE EXAMPLE P. 35 20,000 Pre-Encoded Reduced 31 Day Pass $ 0.4724 2.125W x 3.375L SEE EXAMPLE P. 36 20,000 Pre-Encoded Student 31 Day Pass $ 0.4724 2.125W x 3.375L SEE EXAMPLE P. 37 20,000 Pre-Encoded FUSD Student 31 Day Pass$ 0.4724 2.125W x 3.375L SEE EXAMPLE P. 38 8 RC PRODUCTS -FED Rev. 03-2021 TOTAL PRICE $26,000.00 $13,100.00 $ 7,200.00 $ 9,448.00 $ 9,448.00 $12,500.00 $ 9,448.00 $ 9,448.00 $ 9,448.00 (Continued) BIDDER'S NAME: EDM Technology, Inc. 10. 11. 12. 70,000 Unencoded Smooth Varnish TVM Card $ 0.1120 2.125W x 3.375L SEE EXAMPLE P. 39 70,000 Unencoded Rough Varnish TVM Card $ 0.1120 2.125W x 3.375L SEE EXAMPLE P. 40 1,500,000 Unencoded FAX Transfer Ticket 2.125W x 3.375L SEE EXAMPLE P. 41 $ 0.0230 $7,840.00 $7,840.00 $34,500.00 SUBTOTAL: $156,220.00 EDM Technology, Inc. currently is not set up to collect and pay CA sales tax. Sales Tax 8.35%: $ 13044.37 Completion of Bid Proposal Form to be Eligible for Award. Bidders must bid all bid items within a section (including any Alternates). The Bidder is non­ responsive and ineligible for award in the event Bidder fails to initial this paragraph on the line provided and completely fill in the Bid Proposal Form including, without limitation, all dollar amounts and information called for on this Bid Proposal Form. By its initials to the right hereof, Bidder represents he/she has read and understands the consequences of not completely filling in this Bid Proposal Form. Total Net Bid Amount: $156,220.00 The Total Net Bid Amount is: $169,264.37 One Hundred Fifty Six Thousand, Two Hundred and Twenty Dollars and NO Cents. Initial The quantities listed on the Bid Proposal page(s) are annual estimates, shown for bidding purposes only. The actual requirement of the City may be more or less than the quantities specified. The City will pay for only those items which it actually orders during the term of the Contract. RC PRODUCTS -FED Rev. 03-2021 9 added tax changed total to add tax BIDDER'S NAME: EDM Technology, Inc (Submit with Bid Proposal) CONTRACT QUANTITIES. The City reserves the right to increase or decrease quantities in accordance with available funds as appropriated by the City Council. If the City Council has not appropriated funds or sufficient funds are not available to complete the purchase, the City reserves the right to decrease quantities to stay within the budget limitations. QUANTITIES FOR BIDDING PURPOSES. The quantities listed on the Bid Proposal page are shown for bidding purposes only. The actual requirement of the City may be more or less than the specified estimated quantities. The City will acquire its needs from the successful Bidder during the term of the Contract and will pay for only those quantities it actually orders and receives. ADDENDA. The City makes a concentrated effort to ensure any addenda issued relating to these specifications are distributed to all interested parties. It shall be the Bidder's responsibility to inquire as to whether any addenda to the Specifications have been issued. Upon issuance by the City, all Addenda are part of the Bid Proposal. Signing the Bid Proposal on the signature page thereof shall also constitute signature on all Addenda. PRECEDENCE OF BID PRICES. In the event of discrepancies between the bid total, summaries of totals and unit price extensions, the unit price correctly extended will control over the summaries of totals, and the summaries of totals correctly added will control over the total, whether the summaries of totals are extended unit prices or lump sums. RIGHT TO REJECT ANY AND ALL BIDS. The City reserves the right to reject any and all bids. TIME PERIOD TO AWARD/REJECT BIDS. The undersigned Bidder agrees that the City may have NINETY (90) DAYS from the date bids are opened to accept or reject this Bid Proposal. It is further understood that if the Bidder to whom any award is made fails to enter into a Contract as provided in the Specifications, award may be made to the next lowest responsive and responsible Bidder, who shall be bound to perform as if he/she had received the award in the first instance. No Bid Proposal may be withdrawn prior to award within that time. AWARD OF CONTRACT. When bids are submitted to the Council, the award will be made to the lowest responsive and responsible bidder, subject to the right to reject any and all bids, pursuant to Fresno Municipal Code section 4-102. MINOR IRREGULARITIES. The City of Fresno reserves the right to waive any informality or minor irregularity that does not have a monetary consideration when it is in the best interest of the public and of the City to do so. A discrepancy that offers a Bidder an unfair advantage will cause the bid to be nonresponsive. TIEBREAKER. In the event a tiebreaker is needed to establish the lowest responsive and responsible Bidder, the City shall, unless otherwise agreed upon by all participating parties, utilize a coin toss as a tiebreaker to be administered by a third party chosen by mutual consent of the participants. Such coin toss shall take place within 7 working days from the date of bid opening. If the City determines that a tiebreaker is necessary, each applicable Bidder agrees to participate or to indemnify the City in any litigation resulting from the utilization of the tiebreaker. If a Bidder refuses to timely participate, the City shall conduct the coin toss in a manner determined by the City to be fair to all and the results of such coin toss shall be final. RC PRODUCTS -FED Rev. 03-2021 10 BIDDER'S NAME: EDM Technology, Inc. (Submit with Bid Proposal) BID DEPOSIT Accompanying this bid proposal is a Bid Deposit in the amount of Five Hundred Dollars ($500.00) in the following form: ] Certified Check US ] Cashier's Check ] Certificate of Deposit L]Bidder's Bond LJ Irrevocable Letter of Credit LJ Annual Bidder's Bond Copies of Bid Deposits may be submitted electronically, with the exception of a certified or cashier's check, which must be brought to the Purchasing Manager's office and labeled accordingly with bid number prior to the bid opening. Note: Company Checks are NOT acceptable Bid Deposit is deposited by the undersigned Bidder with the City of Fresno as a guarantee that the Bidder, if awarded all or part of the Contract, will, within 15 calendar days (except in the event federal funding is applicable to this Contract, then 10 working days) from the date the Notice of Award is mailed to the Bidder, execute and return a Contract furnished by the City. If the Deposit is in the form of an Annual Bidder's Bond, the bond must be heretofore registered with the Purchasing Manager and must be in the amount of Five Hundred Dollars ($500.00). Such Deposit is made with the understanding that failure to execute such Contract will result in damage to the City, that the amount of such damage would be difficult to determine and that in the event of such default said Deposit shall become the property of the City; or, if a Bidder's Bond is deposited, the amount of the obligation thereof, but not more than the above stated amount, shall thereupon be due and payable to the City of Fresno as liquidated damages for such default, payment of said amount to be the joint and several obligation of the Bidder and the corporate surety. BUSINESS LOCATION ( X ) The undersigned Bidder does not maintain a place of business in the City of Fresno. ( ) The undersigned Bidder maintains a place of business in the City of Fresno at: _________ Fresno, CA __ _ BUSINESS LICENSE ( ) The undersigned bidder has a current City of Fresno Business License Number: RC PRODUCTS - FED Rev. 03-2021 11 BIDDER'S NAME: EDM Technology, Inc. (Submit with Bid Proposal, if applicable) CERTIFICATION FOR LOCAL PREFERENCE PRODUCT REQUIREMENTS CONTRACT FOR: FRESNO AREA EXPRESS FARE MEDIA Bid File No. 12400064 NIA -EDM Technology, Inc. is located in High Point, North Carolina. D We certify that we qualify as a local business pursuant to Fresno Municipal Code section 4-108(a). Location of Business: Please provide street address (PO Box is not acceptable) Address: Phone: Primary Office [ ] Branch Office [ ] (Please mark as applicable) **************************************************************************************************** D We certify that we qualify as a local business pursuant to Fresno Municipal Code section 4-108(b). Location of Business: Please provide street address (PO Box is not acceptable) Address: ____________________ _ Phone: Primary Office [ ] Branch Office [ ] (Please mark as applicable) Provide total number of employees (includes employees of fixed primary and any branch offices of Bidder): ___________ _ The average annual gross receipts over the previous three calendar years to the city inviting bids herein (includes gross receipts of fixed primary and any branch offices of Bidder) $ _________ _ Small Business Certification issued by the State of California Certification Number: ________ Date of expiration: ________ _ The undersigned Bidder hereby declares under penalty of perjury under the laws of the State of California that the information contained on this CERTI FICATION FOR LOCAL PREFERENCE is correct and complete. The above Certification is part of the Bid Proposal. Signing this Bid Proposal on the signature page thereof shall also constitute signature of this Certification. Bidders are cautioned that making a false certification may subject the certifier to criminal prosecution. RC PRODUCTS -FED Rev. 03-2021 12 CITY OF FRESNO FINANCE DEPARTMENT (Submit with �I) ./lnitia � ACCOUNTS PAYABLE SECTION AUTHORIZATION AGREEMENT FOR DIRECT PAYMENTS (ACH PAYMENT) Company Name EDM Technology, Inc. Contact Name Angela Trull Contact Email melindam @electronicdata.com Address ____ &_a_n_g_e _la _t_@_e_le_c_tr_o_n_ic_da_t_a_.c_o_m __ (Required) Telephone Number 336-882-811 5 ext.239 The City of Fresno, Finance Department, (FINANCE DEPARTMENT), is authorized to initiate credit entries to the company above, (COMPANY), in the account below at the depository financial institution named below, (DEPOSITORY), and to credit the same to such account. Company acknowledges that the origination of ACH transactions to its account must comply with the provisions of U.S. law. Depository Name __ K_e_yB_a_n_k_N_a_t_io_n_a_l _A_ss_o_c_ia_t_io_n __ _ City Cleveland Routing Number 211672 531 Branch 1 27 Pu blic Square State OH Account Zip Code _4_4 _ 1 1 _4 _____ _ Nu mber 459681 01 4591 (t ACH Authorization Agreement Form already on file with City. This authorization is to remain in full force and effect until FINANCE DEPARTMENT has received written notification of its termination. The FINANCE DEPARTMENT and DEPOSIT ORY have a reasonable time to process the termination. Name(s ) R. Brian Hallman (US'":""') Signature 'f---.__;l� Title Secretary & General Manager RC PRODUCTS -FED Rev. 03-2021 Date _8_11_5_12_0 _2 _3 ___________ _ 13 (Submit with Bid Proposal) SIGNATURE PAGE By my signature on this Bid Proposal I certify, under penalty of perjury, that the foregoing statements, pages 1 through 13 and those contained herein are true and correct. BID SUBMITTED BY: (Please follow the instructions for each line, as explained below.) (1)EDM Technology, Inc. Bidding Firm ( 336 } 882-8115 ( 336 } 882-0106 Phone Fax (2)�] Corp: State of Incorporation: _D_el_a_w_a_re ______________ _LJ Individual (3) (4) [_] Partnership [_] Other: _______________________ _ 210 Old Thomasville Rd Business Address High Point City By: -----NC 27260 State Zip Code Signature of Authorized Person R.Brian Hallman Secretary & General Manager Type or Print Name of Authorized Person and Title Federal Tax I.D. No.: 87-2689 713 Date: 8/15/2023 --------- INSTRUCTIONS FOR SIGNATURE PAGE LINE 1: The name of the Bidder must be the same as that under which a license is issued, if a license is required. If the Bidder is a corporation, enter the exact name of the corporation under which it is incorporated; if Bidder is an individual, enter name; if Bidder is an individual operating under a trade name, enter name and dba (trade name in full); if a partnership, enter the correct trade style of the partnership; if a joint venture, enter exact names of entities joining in the venture. LINE 2: Identify here the character of the name shown under (1 ), i.e., corporation (including state of incorporation), individual, partnership, or joint venture. LINE 3: Enter the address to which all communications and notices regarding the Bid Proposal and any Contract awarded thereunder are to be addressed. LINE 4: (a) If the Bidder is a corporation, the Bid Proposal must be signed by an officer or employee authorized to sign Contracts on behalf of the corporation evidenced by inclusion of one of the following certified by the secretary of the corporation, authorizing the officer or employee to sign contracts (sample certification attached): a copy of the Articles of Incorporation, a copy of the Bylaws, a copy of the Board Resolution or Minutes authorizing the officer or employee to sign Contracts. RC PRODUCTS -FED Rev. 03-2021 14 (Submit with Bid Proposal) (b)If Bidder is an individual, he/she must sign the Bid Proposal, or if the Bid Proposal is signed by an employee or agent on behalf of the Bidder, a copy of a power of attorney must be on file with the City of Fresno prior to the time set for the opening of the bids or must be submitted with the Bid Proposal. (c)If the Bidder is a partnership, the Bid Proposal must be signed by all general partners; or by a general partner(s) authorized to sign Contracts on behalf of the partnership evidenced by inclusion of either a copy of the Partnership Agreement or a recorded Statement of Partnership. (d)If the Bidder is a joint venture, the Bid Proposal must be signed by all joint venturers; or by a joint venturer(s) authorized to sign Contracts on behalf of the joint venture evidenced by inclusion of either a copy of the Joint Venture Agreement or a recorded Statement of Joint Venture; and if the joint venturer(s) is a corporation or a partnership signing on behalf of the Joint Venture, then Paragraphs (a) and c) above apply respectively. Where Bidder is a partnership or a corporation, the names of all other general partners, or the names of the president and secretary of the corporation, and their business addresses must be typewritten below: NAME Clem Garvey - President R.Brian Hallman -Secretary & General Manager ADDRESS 1000 River Street #169, Essex Junction, VT 05452 210 Old Thomasville Road, High Point, NC 27260 NOTE: All addresses must be complete with street number, City, State and Zip Code. RC PRODUCTS -FED Rev. 03-2021 15 SAMPLE CERTIFICATION 1, __ R_._B_r _ia_n_H_a_l _lm_a'"'"n ______________ __. certify that I am the secretary Name of the corporation named herein; that __ R_._B_r _ia _n _H _al_lm_a _n ________ who signed thisName Bid Proposal on behalf of the corporation, was then _____ s_e_c_r _e _ta_ry _________ ofTitle said corporation; that said Bid Proposal is within the scope of its corporate powers and was duly signed for and on behalf of said corporation by authority of its governing body, as evidenced by the attached true and correct copy of the By: Name: Title: Date: RC PRODUCTS -FED Rev. 03-2021 R.Brian Hallman Secretary 8/15/2023 EDM Technology, Inc -Officer Appointment Name of Corporate Document 16 City of FRESNO -=---���---==---:--:---=-��--=��-------------TRANSPORTATION Gregory A. Barfield, Interim Director 'W� .. � 2223 G Street � Fresno, California 93706 (559)621-RIDE www.fresno.gov AD DENDUM NO. 1 FRESNO AREA EXPRESS FARE MEDIA Bid File 12400064 NOTICE TO ALL BIDDERS This Addendum is attached to and made a part of the above entitled specifications for the City of Fresno with a scheduled bid opening of 3:00 P,M,, August 29, 2023 All changes and or clarifications will appear in bold underlined type. 1)What are your current costs & quantities? Pricing ;ntormatjon can be obtained by submitting a pubJic record request to our efectron;c portal, The portal can be found by qojng to www,fresno,qoy > Government ttop of page) > City Cferk > Form s/Request {box ia the middle of the page) > Public Records Request Portal, This is the direct link: bttps ://fresnoca ,goyga,us /WEBAP Pt rs{(Stxxou5chfwukruylrw sxrky4cutsuooortho me,asox 2)Could you provide the most recent bid tabulation?Pricing iafQrmatjon can be obta;ned by submittin g a public record request to our electronic portal, The portal can be found by gojna to www,fr esno,qoy > Government ttop of page) > c;tv Clerk > Forms/Request {box ia the middle of the page) > Public Records Request Portal, This is the djrect link: htt os :llfres noca,goyaa,u s[WEBAPPt rs{(Stxxou 5ch fwukruylrwsxrky4 cU{supportho me,asox 3)Who is the incumbent supplier and current pricing? City of Fresno The prevjous fare media contract was awarded to Electroni c Data Ma gneti cs. Pri cing in formati on can be obtained by submitting a public reco rd request to our electronic portal, The portal can be found by gojnq to www,fresno,aov > Government ttop of page) > City Cferk > Forms/Request {box in the middle of the page) > Public Records Request Portal, This is the djrect link: bttp s:llfresnoca,goyqa,us[W EBAPPt rs{(Stxxou5chfwukruvlrwsxrky4c))[supportho me,as px SARAH LAMBETH Management Analyst II Addendum Rev. 12-2022 ��:����-sha� ;;low i:dicat � she has th :: read and understands the contents of this Signed: Company: EDM Technology, Inc. This addendum is being distributed ONLINE only and will not be sent by U.S. Mail. The bidder shall submit a signed copy of this addendum with their bid. Customer Copy 468 -Corporate Plaza Ilul'lington, Vermont OFFICIAL CHECK 090972087 Date 08/10/2023 Remitter EDM TECHNOLOGY, INC. Fcr-r Bs-d --R � d¼ I 2-'-(. CT F :) Co '1 $ Pay To The CITY OF FRESNOOrder Of Drawer. Kcyilnnk Memo: Bid Deposit TERMS 500.00 KEEP THIS COPY FOR YOUR RECORD OF THE TRANSACTION. TO REPORT A LOSS OR FOR ANY OTHER INFORMATION ABOUT THE INSTRUMENT, CONTACT THE INSTITUTION FROM WHICH YOU RECEIVED THE INSTRUMENT. *** FORM NO. 60-0811-T21 {4/08) I Memo: Bid Deposit 11 1 0 g O g 7 2 0 8 711 1 I: 0 3 • • 0 0 2 0 g I: Tracking I UPS -United States about:blank I/ I City of Fresno Bid File Number: 12400064 for Fresno Area Express Fare Media City of Fresno Fresno Area Express 2223 G Street Fresno, CA 93706 Attn: Tamra Torrence Subject: Bid File Number: 12400064 for Fresno Area Express Fare Media Opening Date/Time: 8/29/2023 3:00PMPST EDM Technology, Inc appreciates the opportunity to work with the City of Fresno / Fresno Area Express on this request. EDM, Inc has been in business for nearly 40 years (previously as Electronic Data Magnetics, Inc and now as part of the Paragon ID group as EDM Technology, Inc.) supplying Fare Media to the transit industry, specializing in SMART CARD and Magnetic Stripe ticket products. Our ability to handle both large and small agencies, our customer service, and our products place EDM, Inc above our competition. Not to mention, EDM, Inc. is a US based manufacturer! We have included a company overview that addresses the main points as required in the documents. We have provided basic information in our overview that usually covers most questions about EDM. This will provide a short introduction to EDM, Inc. Please contact Mr. Brian Hallman, General Manager, with any questions pertaining to this overview document. Email: brianh@electronicdata.com Phone: 800.336.8115 x232 Fax: 336.882.0106/9644 Thanks!! Sincerely, �rEDM .al' TECHNOLOGY R.Brian Hallman General Manager Address: EDM Technology, Inc. 210 Old Thomasville Rd High Point, NC 27260 City City of Fresno Bid File Number: 12400064 for Fresno Area Express Fare Media TABLE OF CONTENTS Foreward Section 1.0 Introduction Section 2.0 Organizational Qualifications and Experience Section 3.0 Business Information Section 3.1 Reference List, Scope of Services Section 4.0 Management Plan Section 4.1 Communication Section 4.2 Forecasting, Planning and Scheduling Section 4.3 Inventory Management System Section 4.4 Process/Product Improvement Section 4.5 Technological Improvements Section 4.6 Packaging, Shipment and Order Fulfillment Section 4.7 Purchase Orders I Letter of Authorization Section 4.8 Capacity and Equipment List Section 4.9 Service Response and Flexibility Section 4.10 Project Management Work Plan Section 5.0 Quality Assurance Section 5.1 Logistics Section 5.2 Procurement Response Time Section 6.0 Personnel Section 7.0 Summary Section 8.0 Personal References Section 8.1 Client Support References City of Fresno Bid File Number: 12400064 for Fresno Area Express Fare Media FOREWORD We would like to thank Fresno Area Express for your interest in EDM, Inc. We feel our experience, knowledge, and personnel offer our customers the best products and service available in the Transportation Market. We have put forth a great deal of effort to make this document as informative as possible. This information is considered confidential, and we would request that you not disseminate our overview to anyone outside your organization. Questions pertaining to this proposal should be directed to Mr. Brian Hallman at the following location: EDM Technology, Inc. 210 Old Thomasville Rd High Point, NC 27260 Phone 800-336-8115 x232 Fax 336-882-0106 Email brianh@electronicdata.com Again, we thank you for your interest in EDM and look forward to doing business with you in the near future. Sincerely, EDM Technology, Inc. Brian Hallman General Manager City of Fresno Bid File Number: 12400064 for Fresno Area Express Fare Media 1.0 INTRODUCTION TO EDM As an organization, EDM made the decision to focus on the Transportation Market in the early 1990's. Our efforts were focused on obtaining approvals from the major domestic OEM's Cubic Transportation systems and SPX­ Genfare. We have branched out in efforts to be certified with as many OEM's as possible. Conduent (Xerox), Indra, Scheidt & Bachmann, Fare Logistics, Trapeze, Masabi, VIX and INIT are just a few of the Transportation Market OEMs we service. Through these relationships and direct sales, we have roughly 55-65% market share. EDM, Inc. has provided either magnetic stripe and/or RFID products for almost every major city in the US either directly or through our OEM partners. This means that EDM has experience with all Major OEMs and their systems from a fare media standpoint. For example, we are currently the only domestic supplier approved by Cubic Transportation Systems (CTS) to provide the "Limited Use Cubic Smart Card" (LUCSC). EDM has provided both magnetic stripe and RFID fare media to Miami Dade Transit Authority, MARTA, Chicago and New York MTA to name a few. While our history began providing magnetic striped cards and tickets to the mass transit industry, our current and future focus is RFID products. EDM serves both large and small agencies. We currently provide the New York MTA an annual supply of approximately 72 million "Gold Metro Cards", a magnetic stripe polyester card product. Previously, EDM provided Chicago Transit Authority with roughly 34 million of the same product type. EDM has helped transition Chicago Transit Authority from magnetic stripe to "Limited Use Smart Cards" through our partnership with Cubic Transportation Systems. EDM manufacturers both LU and Extended use smart cards in our domestic facility. When we come across a product, we do not manufacture, we have the network of partners to out-source the manufacturing. Today, we have the capability to manufacture millions of LU smart cards weekly, giving us a capacity of roughly 150 million on an annual basis. EU Cards have a slightly longer manufacturing process. Our annual capacity would be around 75 million. Our experience in the transit market allows EDM to help customers create encoding schema to provide multiple pass types to their riders! Our experience has allowed us to help customers create fare media specifications that work! Our experience allows EDM to offer tailored security features that meet both the customers financial and functional requirements! To our existing customers we say Thank You!! To the new, we say Welcome! Production Workflow at a Glance ... It starts with Team review a quotation and an order! City of Fresno Bid File Number: 12400064 for Fresno Area Express Fare Media 2.0 ORGANIZATIONAL QUALIFICATIONS EDM, Inc. is different from our competitors in that we are a US based manufacturing firm. This is a benefit as the supply chain is less likely to be interrupted by tariffs and trade policy. On more than one occasion, EDM has had to step in and provide assistance to NY MTA when foreign vendors product was held up by dock strikes in California. This occurred without a global pandemic or trade wars. Another factor that separates EDM is shown in our motto, "Large Enough to Serve, Small Enough to Care." "Large Enough to Serve ..... " means EDM has ample knowledge, personnel and expertise to meet your needs. EDM has produced fare media of every variety for nearly 40 years. EDM would not be here if we could not serve our core market. .. Transportation. As previously mentioned, EDM made the decision to focus on the Transportation market in the early 90's. These efforts created relationships allowing EDM to become a premier supplier to the major OEM in our industry. These relationships help keep EDM at the forefront of new fare media technology. Our OEM certifications mean EDM provides product that already meets your specification for your equipment. The OEM's come to EDM because they know we will produce conforming product that not only meets a specification but also, works in the field. Conduent (Xerox), Indra, Scheidt Bachmann, Fare Logistics, VIX, Masabi, and INIT are just a few of the other OEMs partnering with EDM in the transportation market. EDM has demonstrated the expertise to provide fare media to all customers in this industry. We supply many other similar agencies and OEM partners such as NYMTA, Chicago CTA, Masabi, Tri Met and PAAC with RFID fare media. The benefit to our customers is the access to our manufacturing expertise and experience within this market. No customer is more than one person away from speaking with the EDM Team. We can make decisions quickly and react almost immediately to customer requests, needs and emergencies. Graphics generates proofs and printing plates. City of Fresno Bid File Number: 12400064 for Fresno Area Express Fare Media Questions can be answered in hours, not days. The flexibility and ease of communication will in turn make it more flexible in your ability to react to the needs of your riders. Product Quality Our product quality is second to none! The EDM product supplied to Cubic Transportation Systems achieved a "straight to stock" rating. Quality Control persons at Cubic indicated this has only happened a hand full of times in the organization's history. We are very proud of this achievement but continue to improve our RFID products. Our Smart Card Plus LU is designed to make your life easy when it comes to fare media. Our synthetic RFID product has the following benefits, no dust, no adhesive buildup on rollers or cutting blades, superb dimensional stability and the best print quality are all characteristics of this product. Testing with the CTA, prior to the pandemic, showed potential dramatic decreases in maintenance costs. The CTA is on track to move to large scale field testing. Lower maintenance costs are a financial benefit. EDM product quality means less customer complaints as well. Partnership EDM likes to think of ourselves as our customers fare media manufacturing partner, not just a vendor. This partnership can be seen in resolution of any issue that may arise. EDM has been known in the industry as a company that stands behind our work. If an error is made, we work with our customer to correct the current issue and implement steps to prevent it from recurring. We stand behind our product. 3.0 Business Information General Company Information Company Name Type of business entity State of Incorporation Date of Incorporation Federal Tax Identification Number D&B Number EDM Technology, Inc. Corporation Delaware 9/20/2021 87-2689713 83-002-7897 Production and QC convert into the finished product. City of Fresno Bid File Number: 12400064 for Fresno Area Express Fare Media Main Phone Fax No.: Information for Contract Notices Attention: Telephone No.: Email: Street: City/State/Zip: Bidder Representative 3.1 Reference List, Scope of Services 800.336.8115 or 336.882.8115 336-882-0106 R.Brian Hallman 336-882-8115 x:232 Brianh@electronicdata.com 210 Old Thomasville Rd High Point, NC 27260 EDM, Inc. has provided a list of references relative to the products currently used in your fare collection system. We serve both large and small agencies as well as our major OEM partners with various types of fare media fare media products. 4.0 Management Plan EDM, Inc. wants to demonstrate that an adequate management plan has been developed to acquire, integrate, retain, and manage personnel, equipment and facilities for the production of your fare media. Specific information provided includes organization charts and notes reflecting our organizational structure. We tackle new opportunities as a team, pulling in all involved personnel from the entire company to get their input on new projects. Prior to bidding, meetings are organized to determine production method, determine new equipment requirements, plan for materials, plan for personnel and accurately quote the new business opportunity. Customer Service and Sales are always involved in these meetings. This involvement provides intimate knowledge of your requirements. Upper management is involved with all decisions made pertaining to any new account. Our approach is truly a "Team" approach to solving current issues and winning new business. 4.1 Communication EDM, Inc. maintains a consistent communication channel with our customers. Open communication to and from our customers is of great importance. We EDM can provide product in roll and fold format, or cut single cards. City of Fresno Bid File Number: 12400064 for Fresno Area Express Fare Media need to know your main points so we can help elevate them. The first line of communication between EDM and our customers will be the primary sales agent, Charles McHenry and our Customer Service Team. They will handle all day-to-day aspects of this contract. These two representatives have many years of experience in handling transit accounts both large and small. We are continuously updating our custom CAM system designed specifically for EDM and our customers. The system will provide our customer service personnel even greater ability to quickly answer questions on production schedule, estimates and new orders. Information is just a few clicks away! As many of our customers know, the EDM Team are always just a phone call away. All are involved in the day-to-day operations of EDM, helping to make quick decisions and provide our customers with rapid responses. 4.2 Forecasting, Planning and Scheduling EDM, Inc. maintains a process to plan and schedule production of products based on customer forecasts. If you are utilizing an RFID product, your forecast is incredibly important as the lead time for some chip types can be as much as 30 weeks. EDM, maintains processes to modify production schedules for unanticipated changes in forecasted quantities and/or required dates. Planning and scheduling are the first order of every day at EDM, Inc. Production updates the schedule daily with customer service so that we may address any issues in production or with our customers. Changes in customer orders or requirements are addressed at these meetings. Customer forecasts are used for materials requirements planning. Customer forecasts are reviewed, material requirements are determined and orders are placed with vendors in order to meet the demands. Purchasing is responsible for monitoring status of materials and tooling required. The status of materials and tooling is reviewed daily at the scheduling meetings. Changes in scheduling and order revisions are made daily. Should your future plans involve RFID fare media, know that EDM is currently supplying many OEM and agencies with their RFID fare media requirements. We work with our vendors to have various RFID inlays available at all times. MiFare Ultralight, Mi Fare DesFire, MiFare Classic are a few of the popular chip types. Many customers have found it beneficial to purchase the inlays ahead of time so that their operations will not be affected negatively should lead times shift. This will allow EDM to provide substantially quicker turnaround after the initial order. When the customer is ready to modify current RFID fare media or implement new fare collection equipment, EDM is already ahead of the game. 4.3 Inventory Management System EDM, Inc. utilizes a custom inventory management system. Functionality is integrated with production, manual inventory accounting and production scheduling. Various materials are updated in real time as consumed by Cut single format.. .. EDM has provided RFID products for 20 years! City of Fresno Bid File Number: 12400064 for Fresno Area Express Fare Media 4.6 PACKAGING, SHIPPING AND ORDER FULFILLMENT EDM, Inc. ensures that all internal policies and practices are consistent with the packaging, shipping, and order fulfillment requirements of our customers. If you do not have a packaging specification, EDM will create one for you. Prior to all new orders, the EDM "Team" will have a specification review. This ensures accurate cost estimates and accurate information is communicated to the production floor. All specifications including packaging are addressed at this review. 4. 7 Purchase Orders / Letter of Authorization Customers may submit an electronic purchase order or a Letter of Authorization with each order. EDM, Inc. will respond vie e-mail or internet confirmation and acknowledgement of the order. Acknowledgement, at a minimum, will include: Date of printing and Date of delivery. EDM, Inc typically sends an email order acknowledgement. 4.8 Capacity Today, EDM can produce approximately 2 million RFID cards or tickets per week. That totals roughly 104 million on an annual basis. A two-phase upgrade plan is in place that would allow EDM to increase production capacity by 3.5 times. This would mean a weekly production capability of 7 million with annual capacity around 350 million. The first phase of the upgrade is in development now which would double capacity. The key to supplying multiple agencies with their RFID requirements is planning and communication. The absolute best method for procuring and production of fare media is to do so on an annual, semiannual, or quarterly basis. This allows EDM to plan materials and production to optimize our efficiencies. We can handle shorter run work, but the more an agency can order at once, the easier it is to plan production and schedule materials. This also allows EDM to group similar orders. EDM can produce many millions of magnetic stripe cards on a weekly basis. The magnetic stripe card has been the staple of our business for many years! All production facilities, warehousing and distribution facilities are located on the EDM campus in High Point, NC. The campus consists of three buildings. Two of the buildings are used for manufacturing purposes and the third is used as a warehouse. The combined square footage is approximately Product is staged for final inspection, or programming. City of Fresno Bid File Number: 12400064 for Fresno Area Express Fare Media 150,000 square feet. Administration, printing, programming, quality assurance and logistics are in our primary building. The second building houses engineering and coating operations. Again, the third building is our warehouse. 4.9 Service Response and Flexibility EDM offers un-matched service to our customers. EDM wants to be your partner, not just another vendor who sells you a widget. Our newest OEM partner, Masabi recently ran into a dilemma due to Covid-19, when the foreign supplier could not fill the orders. The end user agency suggested they contact EDM. EDM and Masabi worked together to provide our mutual customer with a solution that kept both Masabi and the end user on schedule to open their new fare system! This was done in a matter of weeks. This is the kind of service that EDM customers enjoy. Our service is quick and responsive. EDM, Inc. is a smaller company that prides itself on customer service and meeting customer demands. 4.10 Project Management Work Plan Mr. Brian Hallman, General Manager, will be the project manager for EDM. All EDM personnel including sales, quality assurance, manufacturing, logistics and customer service will coordinate with Mr. Hallman. Our team consists of project lead, Brian Hallman, VP of Sales Charles McHenry, Lead Customer Service Rep, Heather Cruthis, Production Manager, David Hallman, Quality Manager, Barry Hines, and Encoding/Programming Manager Jon Teeple. Manufacturing and quality assurance personnel will present to the Project Manager any-and-all issues, questions that may arise during the production process. Coordination with outside sales usually takes place on a weekly basis to ensure the corporate office is in touch with our customers. 5.0 Quality Control Quality Assurance EDM operates our manufacturing facilities using ISO 9000 principles. This is a standardized methodology for implementing procedures, policies to which we measure ourselves against. QA personnel are present at all stages of our process. Quality personnel are involved in the creation of the SPIN (Specification Product Information and Notes) that is used for estimation, order entry and production instructions. Quality is responsible for making sure the finished product conforms to all specifications using various testing equipment and methods required by our different OEM partners. Each production shift has dedicated Quality personnel responsible for testing and documentation of Programming begins after after the converting process. 5.1 Logistics City of Fresno Bid File Number: 12400064 for Fresno Area Express Fare Media tracking both domestic and international shipments. We work with domestic commercial carriers and international freight forwarders to ensure the safety of your product and a timely delivery. Our primary carrier is Fed EX. EDM reviews our production schedule daily as the first order of business. Shipment tracking is provided by pro-numbers on domestic shipments for both Canada and the US along with FedEx tracking information. All expedited shipments are typically fulfilled via FedEx and tracking is provided by the carrier. EDM carries insurance on all international shipments to protect both ourselves and our customers. EDM can utilize Brinks delivery services to transport "Live" fare media across the country. This is the highest level of secured delivery we offer. 5.2 Procurement Response Time EDM has a 14-16-week production time once the proof has been approved. Once the PO has been received, we work within our customer service team to assure all details regarding the order is correct. Depending on the complexity of the order, this process can take several weeks of working with the customer. We have weekly meetings with our customers to ensure the order is moving forward properly. We often work close with the customer, system integrators, and internal teams. 6.0 PERSONNEL The most important asset of any manufacturing company are the people. EDM, Inc. employs nearly 50 persons. This comprises the administration, sales, engineering, customer service, quality assurance and production personnel. Management personnel and quality assurance technicians are utilized on both shifts. These are the persons that make the quality products that have kept EDM, Inc. in business for over 30 years. The cumulative experience of our personnel helps us to constantly improve our processes, procedures and consequently our product. City of Fresno Bid File Number: 12400064 for Fresno Area Express Fare Media 7.0 SUMMARY In summary, we at EDM, Inc. are world leaders in the fields of RFID and Magnetic Stripe fare media. The combined expertise of our personnel, state of the art equipment and our ability to serve our customers allow us to offer unparalleled service and products. Put simply, we believe EDM, Inc is the best choice for agencies using RFID and magnetic striped fare media. We would like to also thank you for your interest and time in reading these documents. We look forward to working with you, in the near future. Sincerely, EDM, Inc. R.Brian Hallman General Manager RFID and Magnetic Stripe EDM, Inc. City of Fresno Bid File Number: 12400064 for Fresno Area Express Fare Media 8.0 Professional References TRI-Met-Portland, OR Briana McDonald -Analyst, Fare Systems Finance & Administrative Services mcdonalb@trimet.org (503)238-7433 Cubic Transportat ion Systems Mark Lawless -Customer Support Manager mark.lawless@cubic.com {312) 265-3207 Septa -Philadelphia, PA Stephen Boon -Director Revenue Services sboon@sep ta .org (215)580-4051 City of Fresno Bid File Number: 12400064 for Fresno Area Express Fare Media 8.1 References LYNX CENTRAL FLORIDA RTA 455 N GARLAND AVE ORLANDO, FL 32801 CONTACT: PATTY DOLAN -407-841-2279, ext 6084 pdolan@golynx.com SMART 535 GRISWOLD ST, SUITE 600 DETROIT, Ml. 48226 CONTACT: DENNIS ELLIS-248-419-7903 DR Ellis@smartbus.org NASHVILLE MTA 430 MYATT DR NASHVILLE, TN. 37115 CONTACT : JANET POYNTER-615-862-6141 Janet.poynter@nashville.gov MADISON METRO TRANSIT SYSTEMS 1101 EAST WASHINGTON AVE MADISON, WI. 53703 CONTACT: MICK RUSCH-608-266-6532 mrusch@cityofmadison.com CAPITAL METRO 505N. PLEAANT VALLEY AUSTIN, TX 78702 EU-Ml FARE lK (200,000 ANNUALY) EU-DE5FIRE 4K (100,000 ANNUALY) CONTACT: RICHARD MEDINA-515-369-6052 Richard. Med ina@capmetro.org TRI MET 4012 SE 17th AVE. PORTLAND, OR 97202 LU-UL TEALITE-C ROLL AND FOLD 5 MILLION+ ANNUALY CONTACT: BRIANNA MCDONALD 503-962-7542 MCDONALB@TRIMET.ORG MIAMI DADE 6601 N WEST 72ND AVE MIAMI, FL 33166 EU-DESFIRE 4K EV-1 ORDER IN PROGRESS CONTACT: CHAN LEE-305-375-3824 chanlee@miamidade.gov SUN TRAN City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID 23-1524 Agenda Date:10/19/2023 Agenda #: 1.-EE. REPORT TO THE CITY COUNCIL FROM:MIGUEL A. ARIAS, Councilmember District 3 SUBJECT Approve the reappointment of James S. Kitch and Myra N. Coble to the Tower District Specific Plan Implementation Committee for a term which serves at the pleasure of the Councilmember. Attachment: Kitch Appointment Packet Coble Appointment Packet City of Fresno Printed on 10/30/2023Page 1 of 1 powered by Legistar™ Miguel Arias City Councilmember, District 3 NOTIFICATION OF APPOINTMENT TO BOARD OR COMMISSION TO: Todd Stermer - City Clerk and Planning Department BY: Councilmember Miguel Arias _X___ Reappointment _____ New Appointment _____ Name of person replaced: Name: James S. Kitch Address: Home Phone: Appointed to: Tower District Specific Plan Implementation Committee Term: At the pleasure of the Councilmember 10/19/2023 Submit Date: Jul 18, 2021 First Name Middle Initial Last Name Email Address Home Address City State Postal Code Primary Phone Alternate Phone City of Fresno Boards & Commissions Application Form Profile Which Boards would you like to apply for? Tower District Specific Plan Implementation Committee: Appointed What district do you live in? * District 3 Briefly explain why are you interested in serving on this board or commission? The Tower District has been my home for over 30 years and I want to see it maintain its architecture and charm. Recent developments threaten the inherent character of the neighborhood. I would like to see this committee reconvened as conceived in the Tower District Specific Plan. I would like to see historic preservation mixed with responsible, consistent development. I am a homeowner and I bought my property based on the architecture, history, and intrinsic value of the neighborhood. I wouldn't want to live anywhere else in the Valley and I want to contribute to responsible planning in the Tower District. Educational background, Schools Attended, Degrees and Certifications Bachelor's Degree in Ecology and Evolution, Fresno State. Briefly explain your qualifications or areas of demonstrated expertise for this board or commission. I have some experience with the planning process through my job as a permitting scientist. Generally, my work is with planning for infrastructure projects; Do you or an immediate family member have any professional or financial relationship that may present a potential conflict of interest for this board, commission or similar body? Yes No Work History James (jim)S Kitch Fresno CA 93728 Mobile: James (jim) S Kitch Employer Job Title Work Address City, State, Zip Code Fresno, CA 93710 Provide 3 Personal and Professional References. Provide name, address, and phone number where they may be reached during the day. Jessi Fierro, Kristie Leyba, Becky Larson, California Department of Fish and Wildlife Environmental Scientist James (jim) S Kitch Miguel Arias City Councilmember, District 3 NOTIFICATION OF APPOINTMENT TO BOARD OR COMMISSION TO: Todd Stermer - City Clerk and Planning Department BY: Councilmember Miguel Arias _X___ Reappointment _____ New Appointment _____ Name of person replaced: Name: Myra N. Coble Address: CA. 93728 Home Phone: ( Appointed to: Tower District Specific Plan Implementation Committee Term: At the pleasure of the Councilmember 10/19/2023 Submit Date: Jul 17, 2021 First Name Middle Initial Last Name Email Address Home Address City State Postal Code Primary Phone Alternate Phone City of Fresno Boards & Commissions Application Form Profile Which Boards would you like to apply for? Tower District Specific Plan Implementation Committee: Appointed What district do you live in? * District 3 Briefly explain why are you interested in serving on this board or commission? I have been a homeowner and resident of the Tower District for over 40 years, and have a deep appreciation and interest in preserving the unique and historic character of the area. My personal and professional strengths include Multitasking, Interpersonal, Communication and Organizational Skills. I have a significant history of Community Involvement, including the following: * Appointed to the Fresno County Committee on School District Organization (2021) * Volunteer Docent at Fresno Chaffee Zoo (2005-Present) ● Volunteer Member of Community Emergency Response Team (2009-Present) ● Grassroots Community/Political Organizing (2007-Present) ○ Fresno County Democratic Central Committee, Alternate Member (Candidate Recruitment & Development Committee Member) ○ Fresno County Democratic Women’s Club -- E-Board, Endorsement Chair Educational background, Schools Attended, Degrees and Certifications EDUCATION: ● CSUF (Teachers for Inclusive Educational Settings) Credential Program -- Dec 1996 ○ Specialist Instruction Credential in Special Education (1996-2017) ○ Multiple Subject (CLAD) Teaching Credential (1996-2017) ● CSUF (FRESNO) -- BA in Liberal Studies (Summa Cum Laude) -- May 1995 ● Fresno City College -- AA in Liberal Studies (Dean’s Medallion Nominee) -- Dec 1992 AWARDS AND HONORS: * Kennedy Club Courage Award -- December 2020 ● Carolyn Dobbs Special Education Teacher of the Year Award -- 2005 FCOE Nominee ● Peer Assistance and Review (PAR) Supervisory Panel Member, 2004-2005 Myra N.Coble FRESNO CA 93728 Mobile: ( Myra N. Coble Employer Job Title Briefly explain your qualifications or areas of demonstrated expertise for this board or commission. I have been retired since June of 2015, but my extensive and diverse professional history has given me a broad understanding of the nature and needs of the Fresno community. My work experience includes the following: ● Fresno County Office of Education, Special Education Teacher (Moderate-Severe) December 1996-June 2015 ● City of Fresno, Police Department, Emergency Services (911) Dispatcher 1982-1994* ● County of Fresno, Assessor’s Office, Property Reassessment Office Assistant 1980-1981* ● Fresno Builders Exchange, Clerk/Switchboard/Printing 1978-1980* (*Dates are approximate) Do you or an immediate family member have any professional or financial relationship that may present a potential conflict of interest for this board, commission or similar body? Yes No Work History Work Address City, State, Zip Code N/A Provide 3 Personal and Professional References. Provide name, address, and phone number where they may be reached during the day. Tyler Mackey -- Carole Laval Patricia Brown -- Lost AD31 ADEM seat in late count Most Recent: Special Education Teacher, Fresno County Office of Education Myra N. Coble City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID 23-1460 Agenda Date:10/19/2023 Agenda #: REPORT TO THE CITY COUNCIL FROM:RANDALL W. MORRISON, PE, Director Capital Projects Department SCOTT L. MOZIER, PE, Director Public Works Department BY:ANDREW J. BENELLI, PE, Assistant Director Public Works Department NANCY BRUNO, Supervising Real Estate Agent Capital Projects Department, Capital Administrative Division SUBJECT Actions pertaining to the acquisition of a permanent street easement and right of way to benefit the Tract 6162 Development Project for the widening of West Ashlan Avenue between North Polk Avenue and North Hayes Avenue (Council District 1): 1.HEARING to consider a resolution of public use and necessity for acquisition of a permanent street easement and right of way for public street purposes over,under,through and across a portion of Assessor’s Parcel Number (APN)511-040-06,owned by Elvia Gonzalez,for the construction of the widening of West Ashlan Avenue between North Polk Avenue and North Hayes Avenue. 2.***RESOLUTION -Determining that public interest and necessity require acquisition of a permanent easement and rights of way for public street purposes over,under,through and across portions of APN 511-040-06,owned by Elvia Gonzalez,a married woman as her sole and separate property for the construction of the widening of West Ashlan Avenue between North Polk Avenue and North Hayes Avenue and authorizing eminent domain proceedings for public use and purpose (Requires 5 Affirmative Votes) (Subject to Mayor’s Veto). RECOMMENDATIONS Staff recommends that the City Council (1)Conduct a public hearing to consider the adoption of a resolution of public use and necessity for the acquisition of a 4,336 square foot portion of a parcel in permanent street easement and right of way for the widening of West Ashlan Avenue from North Polk Avenue to North Hayes Avenue from Assessor’s Parcel Number 511-040-06 (Property),owned by Elvia Gonzalez,and (2)Adopt the attached resolution of public use and necessity,which states the public interest and necessity require a permanent street easement and right of way for public street purposes over,under,through and across real property for the widening of West Ashlan Avenue between North Polk Avenue and North Hayes Avenue;and authorize an eminent domain City of Fresno Printed on 10/20/2023Page 1 of 4 powered by Legistar™ File #:ID 23-1460 Agenda Date:10/19/2023 Agenda #: Avenue between North Polk Avenue and North Hayes Avenue;and authorize an eminent domain action to acquire the permanent street easement pursuant to the California Code of Civil Procedure. EXECUTIVE SUMMARY The City’s General Plan Circulation Element stipulates that Ashlan Avenue between Polk Avenue and Hayes Avenue be constructed as a four-lane divided arterial with a median island.The right of way and permanent street easement from the Property is required to satisfy the General Plan and the Conditions of Approval of Vesting Tentative Tract Map Number 6162 approved by the Fresno City Planning Commission on December 16,2016.The permanent easement and right of way acquisition from the subject Property are necessary to construct and complete the widening of Ashlan Avenue between Polk Avenue and Hayes Avenue.The roadway improvements will be constructed by the developer Lennar Homes of California,LLC (Lennar).Lennar made an initial deposit in the amount of $589,000 for the estimated acquisition and legal costs necessary to acquire the right of way to widen Ashlan Avenue.The improvement of Ashlan Avenue is a public necessity,and will help fulfill the City’s commitments that were made with the adjacent Fanucci project annexation. BACKGROUND The Fresno City Planning Commission on December 16,2016,approved Vesting Tentative Map Number 6162 (Tentative Map)for an 83-lot single-family residential subdivision on 16.20 acres.The Tentative Map was approved consistent with the Fresno General Plan and the West Area Community Plan to comply with the provisions of the Subdivision Map Act. The Final Map was approved by City Council on August 19,2021,with an Addendum to Subdivision Agreement for Acquisitions of Street Easements,and the Conditions of Approval of the Tentative Map imposed the requirement to widen and improve Ashlan Avenue on the project frontage and transitioning as necessary for the design speed of Ashlan Avenue.To satisfy this requirement, Lennar has executed an addendum to the Subdivision Agreement that provides for the City to negotiate and/or exercise its power of eminent domain,to acquire the necessary rights of way. Lennar has posted an initial deposit in the amount of $589,000 for the estimated acquisition and legal costs for the fifteen (15) parcels impacted to satisfy the Conditions of Approval. Lennar and the City have successfully acquired the necessary permanent easement(s)and right of way from fourteen (14)parcels.The subject Property is the single remaining parcel required to complete the Project. Lennar attempted to negotiate acquisition of the necessary permanent easement and right of way from Ms.Gonzalez.Those negotiations failed,at which point Lennar requested the assistance of the City. On February 14,2023,the City contacted James G.Palmer Appraisals Inc.who performed an appraisal of the Property on behalf of Lennar.James G.Palmer Appraisals Inc.indicated that its opinion of value of the Property had not changed since the original appraisal was updated in November 2022.The November 2022 updated appraisal provides that the total value of theCity of Fresno Printed on 10/20/2023Page 2 of 4 powered by Legistar™ File #:ID 23-1460 Agenda Date:10/19/2023 Agenda #: November 2022.The November 2022 updated appraisal provides that the total value of the acquisition area is $10,431.00,rounded to $10,500.00.The easement that is needed to widen Ashlan Avenue will not impact the existing single-family home located on the Property or the Property’s existing fence and gate on the Ashlan frontage. On April 19,2023,the Public Works Real Estate staff mailed a formal offer to Eliva Gonzalez.The City did not receive a response.On June 5,2023,a second letter including the formal offer was personally delivered to the subject property by the Public Works Real Estate Staff.The City received a letter dated August 2,2023,from David Gilmore,Esq.,Ms.Gonzalez’s attorney, regarding the City’s desire to acquire the Property.On or about August 18,2023,the City responded to Mr.Gilmore,and reiterated the availability of funds to obtain another appraisal.To date,City has not received a response from Mr.Gilmore or Ms.Gonzalez.City Real Estate Agents will continue their efforts to negotiate the terms of the purchase with Mr.Gilmore and Ms.Gonzalez. However,it is important that the City Council approve the attached Resolution of Necessity to allow for a hearing date to be set with the Courts should negotiations fail. The City Attorney’s Office has reviewed and approved the Resolution as to form. ENVIRONMENTAL FINDINGS Tentative Map Number 6162 was determined to be within the scope of the Fresno General Plan Master Environmental Impact Report (MEIR)as defined by Section 15177 of the CEQA Guidelines and staff had properly published a Finding of Conformity to MEIR SCH Number 2012111015 dated November 18,2016.In addition,after conducting a review of the adequacy of the MEIR pursuant to Public Resources Code Section 21157.6(b)(1),the Planning and Development Department,as lead agency,found that no substantial changes have occurred with respect to the circumstances under which the MEIR was certified;and,that no new information,which was not known and could not have been known at the time that the MEIR was certified as complete, has become available. LOCAL PREFERENCE Local preference was not considered because this agreement does not include a bid or award of a construction or services contract. FISCAL IMPACT This project is located in Council District 1 and will not impact the City’s General Fund.Lennar has posted an initial deposit in the amount of $589,000 for the estimated acquisition and legal costs for the fifteen (15)parcels to be acquired.Approval by the Council will allow Lennar to widen Ashlan Avenue to comply with the Conditions of Approval of the Vesting Tentative Tract Map Number 6162 once the hearing date with the courts is established. Attachment(s): Resolution of Necessity (RON) First Written Offer with Agreement for Purchase and Sale Deed of Easement Vicinity Map Location Map City of Fresno Printed on 10/20/2023Page 3 of 4 powered by Legistar™ File #:ID 23-1460 Agenda Date:10/19/2023 Agenda #: City of Fresno Printed on 10/20/2023Page 4 of 4 powered by Legistar™ 1 of 5 Date Adopted: Date Approved: Effective Date: City Attorney Approval: ______ Resolution No. ____________ RESOLUTION NO. 2023- _________ A RESOLUTION OF THE COUNCIL OF THE CITY OF FRESNO, CALIFORNIA, DETERMINING THAT PUBLIC INTEREST AND NECESSITY REQUIRE ACQUISITION OF A PERMANENT EASEMENT AND RIGHTS OF WAY FOR PUBLIC STREET PURPOSES OVER, UNDER, THROUGH AND ACROSS PORTIONS OF APN: 511-040-06, OWNED BY ELVIA GONZALEZ, A MARRIED WOMAN AS HER SOLE AND SEPARATE PROPERTY FOR THE CONSTRUCTION OF THE WIDENING OF WEST ASHLAN AVENUE BETWEEN NORTH POLK AVENUE AND NORTH HAYES AVENUE AND AUTHORIZING EMINENT DOMAIN PROCEEDINGS FOR PUBLIC USE AND PURPOSE WHEREAS, the City of Fresno proposes to widen West Ashlan Avenue between North Polk Avenue and North Hayes Avenue, hereinafter called the “Project”; and WHEREAS, it appears necessary and desirable that the City of Fresno acquire a 4,336 square foot permanent easement and right of way for public street and other purposes over, under, through and across real property, bearing Assessor’s Parcel Number 511-040-06, hereinafter called the “Subject Property,” for construction of the Project and related purposes; and WHEREAS, the Traffic and Engineering Services Division of the City’s Department of Public Works has reviewed and approved the widening of West Ashlan Avenue between North Polk Avenue and North Hayes Avenue in a manner that will be most compatible with the greatest public good and the least private injury; and WHEREAS, it is necessary to acquire a permanent easement and right of way over, under, through and across the Subject Property in order to construct the widening of West Ashlan Avenue; and 2 of 5 WHEREAS, the design of the Project has been reviewed and it has been determined that the Project cannot be constructed without acquiring the permanent easement and right of way being sought; and WHEREAS, the current ownership of the Subject Property is as follows: Assessor’s Parcel Number 511-040-06, address of 5757 West Ashlan Avenue, Fresno, California, and currently owned by Elvia Gonzalez. WHEREAS, the permanent easement and right of way to be acquired over, under, through, and across the Subject Property, and its general location and extent are described and depicted in attached Exhibit “A” and Exhibit “B”; and WHEREAS, the permanent easement and right of way acquisition from the Subject Property are necessary to construct and complete the widening of West Ashlan Avenue between North Polk Avenue and North Hayes Avenue; and WHEREAS, the City of Fresno has the power and authority to exercise eminent domain and acquire easements and rights of way for the public use set forth herein in accordance with the Constitution of the State of California, California Eminent Domain Law, Code of Civil Procedure section 1230.010 et seq., and pursuant to Government Code sections 37350.5 and 40404, Streets and Highway Code section 10102, and section 200 of the Charter of the City of Fresno; and WHEREAS, in accordance with Section 7267.2 of the Government Code, an offer to purchase has been made to the owner of record of the real property to be acquired within the Project area; and WHEREAS, in accordance with Section 1245.235 of the Code of Civil Procedure, notice and reasonable opportunity to respond and be heard on this matter has been 3 of 5 given to the person whose property is to be acquired by eminent domain and whose name and address appear on the last equalized county assessment roll; and WHEREAS, at such time and place, or as soon thereafter as the matter could be heard, the Council received, heard, and considered information pertinent to the matters required by Section 1245.230 of the Code of Civil Procedure to be determined herein; and WHEREAS, the permanent easement and right of way will be appropriated to a public use and in accordance with Code of Civil Procedure section 1240.510, the proposed use will not unreasonably interfere with or impair the continuance of the public use as it now exists or may reasonably be expected to exist in the future. NOW, THEREFORE, BE IT RESOLVED the Council of the City of Fresno finds, declares, determines, and orders as follows: 1. The public interest and necessity require the proposed Project. 2. The Project is planned or located in the manner that will be most compatible with the greatest public good and the least private injury. 3. The permanent easement and right of way that is sought are necessary for the proposed Project. 4. The offer to purchase required by Section 7267.2 of the Government Code has been made to the owner of record. 5. The permanent easement and right of way which are sought are situated in the City of Fresno, County of Fresno, State of California, and is more particularly described and depicted in Exhibit “A” and Exhibit “B”. 4 of 5 6. The City Attorney of the City of Fresno is authorized and directed to institute and conduct to conclusion, in the name of the City of Fresno, a proceeding in eminent domain, including arbitration of compensation, in accordance with the provisions of the Constitution of the State of California and the California Eminent Domain Law, to acquire the subject permanent easement and right of way in the name of the City for public purposes. 7. Project ID PW00969, Fund 31680, Org 186010, has been established to disburse the necessary funds for the acquisitions of the permanent easement and right of way and to pay for litigation expenses, including staff time. There will be no General Fund dollars required to construct the project. 8. The Controller of the City of Fresno is authorized to disburse out of the above account, as approved by the City Attorney, such amounts as may be required including costs, witness fees and attorneys’ fees, to acquire possession of or title to the permanent easement and right of way. 5 of 5 * * * * * * * * * * * * CLERKS CERTIFICATION STATE OF CALIFORNIA ) COUNTY OF FRESNO ) ss. CITY OF FRESNO ) I, TODD STERMER, CMC City Clerk of the City of Fresno, certify that the forgoing resolution was adopted by the Council of the City of Fresno, at a regular meeting held on the _______ day of _________, 2023. AYES : NOES : ABSENT : ABSTAIN : Mayor Approval: , 2023 Mayor Approval/No Return: , 2023 Mayor Veto: , 2023 Council Override Vote: , 2023 TODD STERMER, CMC City Clerk By: Deputy Date APPROVED AS TO FORM: ANDREW JANZ City Attorney By: Kelsey Seib Date Deputy City Attorney PUBLIC WORKS DEPARTMENT Scott L Mozier, P. E. Public Works Director APN: 511-040-06-S Project No.: PW00969 City Hall 2600 Fresno Street, 4th Floor Fresno CA 93721 Ph. (559) 621-8650 www.fresno.gov April 19, 2023 Elvia Gonzalez 5757 West Ashlan Avenue Fresno, CA 93722 RE: OFFER TO PURCHASE (Gov. Code Sec 7267.1 and 7267.2(a)) Dear Elvia Gonzalez, The City of Fresno wishes to present an offer to purchase a portion of your property at 5757 West Ashlan Ave., Fresno, APN 511-040-06-S, in easement for the West Ashlan Widening Project. A description of the +/- 4,336 square feet easement needed for this project is attached to the Purchase and Sale Agreement as Exhibit "A" and Exhibit "B". The City has established $10,500.00 to be the amount of just compensation for the acquisition of the portion and the City offers to pay the total sum of $10,500.00 as compensation for the acquisition of the portion. The terms of the payment are shown on Page 1 and Exhibit "C" of the attached Purchase and Sale Agreement. Due to the City’s need to acquire the property, the City will pay for all recording fees, escrow fees, title insurance charges, transfer taxes, reconveyance processing fees (if required by a lender), and the pro rata portion of real property taxes that are allocable to any period after the passage of title or possession to the City. We would appreciate the opportunity to go over the enclosed documents with you in person. Please let me know when a good day and time would be to do so. I will bring a notary public with me so you will not have to enlist the services of one on your own. If you would rather, we could review them over the phone to ensure you understand the process and the documents. After reviewing the enclosed documents, if everything appears satisfactory, please print and return three original signed Agreements for Purchase and Sale, and one signed and notarized Deed of Easement to: Attn: Joshua Marple Real Estate City of Fresno Public Works Dept 2600 Fresno Street, 4th Floor Fresno, CA 93721 Delivered Via USPS Certified Mail 7019 2280 0001 8483 4205 If you have any questions or need additional information, you may contact me at my direct line at 559-621-8700 or joshua.marple@fresno.gov. Sincerely, Joshua Marple Real Property Agent Enclosures: •Appraisal Summary Statement •Appraisal •Agreement for Purchase and Sale of Real Property •Deed with Exhibit A •Pamphlet: Caltrans & You •Pamphet: Your Property Your Transportation Project •Exhibit 2-EX-3, Nondiscrimination Statutes •Title VI and Other Discrimination Complaint Form Exhibit C Page 1 of 4 AP # 511-040-06-S APPRAISAL SUMMARY STATEMENT BASIC DATA PROJECT: PW00969 / T-6162 West Ashlan Ave Widening ASSESSOR’S PARCEL NO. (APN#): 511-040-06-S OWNER: Elvia Gonzalez PROPERTY LOCATION: 5757 West Ashlan Ave, Fresno, CA 93722 APPLICABLE ZONING: RR CURRENT USE OF SUBJECT PROPERTY: Rural Residential HIGHEST AND BEST USE OF SUBJECT PROPERTY: Multifamily Residential DATE OF VALUATION: 10/07/2022 TOTAL PROPERTY AREA: ± 91,476 square feet PROPERTY TO BE ACQUIRED: ALL [ ] PART [ X ] Type/Number of Easements 1 Easement Acquisition 2,175 SF Prescriptive 2,161 SF IMPROVEMENTS TO BE ACQUIRED: None BASIS OF APPRAISAL The market value for the property to be acquired is based upon an appraisal done by a certified and state-licensed appraiser, which was prepared in accordance with accepted appraisal principles and procedures. Recent sales of comparable properties, income data, and depreciated replacement costs are utilized as appropriate. Full consideration is given to zoning, development potential, and the income that the subject property is capable of producing. There are three approaches to value: 1. In the Sales Comparison Approach, the appraisers derive a value indication by comparing the property being appraised to similar properties in competitive areas that have recently sold or been offered for sale. This procedure is accomplished by applying the appropriate units of comparison extracted from the market and then by applying adjustments to the sales prices of the comparable. This approach in the appraisal analysis is based upon the premise that an informed purchaser would pay no more for a property than a substitute property with equal utility. 2. The Cost Approach is based in part on a replacement cost new of improvements, less depreciation. This approach was not utilized in this analysis. 3. The Income Approach is based upon consideration of the income producing potential of the property. This approach was not utilized in this valuation process as it was deemed inapplicable to this specific case. Exhibit C Page 2 of 4 AP # 511-040-06-S VALUATION Easement Acquisition = 2,175 SF @ $4.75/SF = $ 10,331.00 Prescriptive Right of Way = 2,161 SF = 100.00 Total Value Part Taken = $ 10,431.00 Cost to Cure Total Cost to Cure = $ 0.00 Part Taken = $ 10,431.00 Severance Damages = 0.00 Benefits = (0.00) Total Compensation = $ 10,431.00 Adjusted To = $ 10,500.00 Total Just Compensation for this Acquisition (Rounded) $ 10,500.00 TEN THOUSAND FIVE HUNDRED DOLLARS AND NO CENTS This summary of the basis of the amount offered as just compensation is presented in compliance with federal and state laws and has been derived from a formal appraisal prepared by a certified and state- licensed real estate appraiser, which includes supporting sales data and other documentation. The appraisal is hereby confirmed approved and accepted by this agency and a purchase offer based thereon is hereby approved and authorized. Exhibit C Page 3 of 4 AP # 511-040-06-S SUMMARY STATEMENT RELATING TO PURCHASE OF REAL PROPERTY OR AN INTEREST THEREIN Project: PW00969 City of Fresno – T-6162 West Ashlan Widening APN#: 511-040-06-S (Elvia Gonzalez) The City of Fresno is proposing to construct a city park at the location. Your property, located in Fresno, California, is within the project area and identified by your County Assessor as Parcel Numbers 511-040-06-S. Title III of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 and the California Relocation Assistance and Real Property Acquisition Guidelines requires that each owner from whom the City purchases real property or an interest therein or each tenant owning improvements on said property be provided with a summary of the appraisal of the real property or interest therein, as well as the following information: 1.You are entitled to receive full payment prior to vacating the real property being purchased unless you have heretofore waived such entitlement. You are not required to pay recording fees, transfer taxes, or the pro rata portion of real property taxes which are allocable to any period subsequent to the passage of title or possession. 2.The City will offer to purchase any remnant(s) considered by the City to be an uneconomic unit(s) which is/(are) owned by you or, if applicable, occupied by you as a tenant and which is/(are) contiguous to the land being conveyed. 3.All buildings, structures, and other improvements affixed to the land described in the referenced document(s) covering this transaction and owned by the grantor(s) herein or, if applicable, owned by you as a tenant, are being conveyed unless other disposition of these improvements has been made. The interests being acquired include is described in the Deeds. 4.The market value of the property being purchased is based upon a market value appraisal which is $10,500.00 summarized on the attached Appraisal Summary Statement and such amount: a.Represents the full amount of the appraisal of just compensation for the property to be purchased; b.Is not less than the approved appraisal of the fair market value of the property as improved; c.Disregards any decrease or increase in the fair market value of the real property to be acquired prior to the date of valuation caused by the public improvement for which the property is being acquired or by the likelihood that the property would be acquired for such public improvement, other than that due to physical deterioration within the reasonable control of the owner or occupant; and d.Does not reflect any consideration of or allowance for any relocation assistance and payments or other benefits which the owner is entitled to receive under an agreement with the City. Exhibit C Page 4 of 4 AP # 511-040-06-S 5.Pursuant to Civil Code of Procedure Section 1263.025, should you elect to obtain an independent appraisal, the City will pay for the actual reasonable costs of such an appraisal up to a maximum of $5,000.00 subject to the following conditions: a.You, not the City, must order the appraisal. Should you enter into a contract with the selected appraiser, the City will not be a party to your contract with an appraiser. b.The selected appraiser must be licensed with the California Office of Real Estate Appraisers (OREA). It is also recommended that such appraiser be experienced and qualified in the appraisal of easements if this offer is to purchase easements rather than the fee interest in your property. c.Within 30 days of your receipt of this offer, you must notify the City of your intent to obtain an independent appraisal. d.Appraisal cost reimbursement requests must be made in writing, and submitted to the City within 30 days of your receipt of the independent appraisal and no later than 120 days of your receipt of this offer. Copies of the contract (if a contract was made), appraisal report, and invoice for completed work by the appraiser must be provided to the City concurrent with submission of the appraisal cost reimbursement request. The appraisal costs must be reasonable and justifiable. 6.No person in the United States of America shall, on the grounds of race, color, national origin, sex, age, or disability be excluded from the participation in, be denied the benefits of, or be otherwise subjected to discrimination under any City programs or activities. If federal funding is being utilized in the project for which your property is being sought, notice is hereby provided that it is the policy of the City to assure full compliance with Title VI of the Civil Rights Act of 1964, the Civil Rights Restoration Act of 1987, and related statutes and regulations, in all programs and activities undertaken by the City. Any person who believes they have been subjected to unlawful discriminatory practice under Title VI has a right to file a formal complaint with the City. 7.The owner of a business conducted on a property to be acquired, or conducted on the remaining property which will be affected by the purchase of the required property, may be entitled to compensation for the loss of goodwill. Entitlement is contingent upon the business owners’ ability to prove such loss in accordance with the provisions of Section 1263.510 and 1263.520 of the Code of Civil Procedure. 8.If you ultimately elect to reject this offer for the purchase of your property, you are entitled to have the amount of compensation determined by a court of law in accordance with the laws of the State of California. !"#$%&'(&)"*#$+ !""#!$%!&%'$()* APPRAISAL REPORT T -61 6 2: GONZALEZ PROPERTY 5 757 W ASHLAN AVENUE FRESNO, CALIFORNIA 9 3722 APPRAISAL REPORT T-6162: GONZALEZ PROPERTY 5757 W ASHLAN AVENUE FRESNO, CALIFORNIA 93722 PREPARED FOR LENNAR HOMES 8080 N. PALM AVENUE, SUITE 110 FRESNO, CALIFORNIA 93711 PREPARED BY JOSHUA J. PALMER JAMES G. PALMER APPRAISALS, INC. EFFECTIVE DATE OF VALUE OCTOBER 7, 2022 EFFECTIVE DATE OF APPRAISAL NOVEMBER 08, 2022 November 08, 2022 Mr. Walter Diamond, Land Development Manager Lennar Homes 8080 N. Palm Avenue, Suite 110 Fresno, California 93711 Re: Market Valuation T-6162: Gonzalez Property Fresno, California 93722 Dear Mr. Diamond: At your request and authorization, James G. Palmer Appraisals Inc. has developed and prepared an appraisal report on the above-mentioned real property, more particularly described in the attached report. The appraisal report has been prepared to comply with the requirements of: § The Uniform Standards of Professional Appraisal Practice (USPAP) including the Ethics and Competency Provisions as promulgated by the Appraisal Standards Board of the Appraisal Foundation. § The Code of Professional Ethics and Standards of Professional Appraisal Practice of the Appraisal Institute. § California Eminent Domain law as it applies to appraising properties for public projects; The 2020-2021 edition of USPAP states that under Standards Rules 2-2, 8-2 and 10-2, each written real property appraisal report must be prepared under one of the following two formats: Appraisal Report [Standards Rules 2-2(a), 8-2(a) and 10.2(a)] or Restricted Use Appraisal Report [Standards Rules 2-2(b), 8-2(b) and 10-2(b)]. In the case of this report, the appraisal is being communicated in an Appraisal Report (2-2(a)) format. The property consists of an update of the above mentioned parcel that is associated with and affected by the Ashlan Avenue Improvement Project for Tract 6162. The location of the property is along the south side of Ashlan Avenue between Polk and Hayes Avenues in Fresno. The purpose of the appraisal was to arrive at an opinion for compensation of a permanent right of way easement across the property and severance damages to the remainder, if any. The value is to be used for acquisition of a permanent easement for road improvements along Ashlan Avenue between Polk and Hayes Avenues. A single “As-Is” value will be reported for the compensation. The effective date of valuation is as of October 07, 2022. The following value is subject to the value definitions, and limiting conditions as set forth in this report. It may be subject to extraordinary assumptions or hypothetical conditions which will be discussed in the main body of the report. In the opinion of the undersigned, the value of the real property as of the date of value is as follows: MARKET VALUE AS IS – October 07, 2022 Total Compensation $10,500.00 The undersigned hereby certify that they have no present or future intended interest in the property, and that neither the fee nor employment for this assignment was contingent upon the value reported herein. It is also the opinion of the undersigned that the subject has no significant natural, cultural, recreational or historic value. This letter must remain attached to the report in order for the value opinion set forth to be considered valid. This appraisal is only valid for the purpose for which it is intended. It is invalid for a third party use or to establish a sales price for limited partners or syndication. Please note that I have provided services for this property within the past three years. Unless prior arrangements have been made with the appraiser, the right to photocopy all or part of this appraisal is strictly prohibited. Thank you for this opportunity of serving you. Sincerely, Joshua J. Palmer Certified General Real Estate Appraiser California License 3002843 Expiration: December 22, 2022 Gregg J. Palmer, MAI Certified General Real Estate Appraiser California License AG002880 Expiration: April 24, 2024 JJP: 9768D T-6162: Gonzalez Property 5757 W Ashlan Avenue - Fresno November 2022 - (9768D) Page - 1 - Executive Summary PROPERTY DESCRIPTION Property Name Gonzalez Parcel Address 5757 W Ashlan Avenue City, State, Zip Fresno, California 93722 County Fresno MSA Fresno County Property Type Improved Rural Residential Site Description Site Area 2.10 Acres Road Frontage (LF) 145’ – SS Ashlan Ave Orientation Interior Shape Rectangular Zoning RR Description Rural Residential Flood Zone Zone X – FEMA #06019C1545 Improvement Description Building Area Not Available Year Built New Construction Quality Average Condition Good Market Class Class “D” Construction Type Wood Frame / Stucco Real Estate Tax Data Assessor Parcel Number(s) 511-040-06S Total Assessed Value $170,042.00 Real Estate Taxes $ 2,133.00 MARKET BOUNDARIES North Shaw Avenue South Shields Avenue East Blythe Avenue West Grantland Avenue HIGHEST & BEST USE Land as Vacant Future Multifamily Property as Improved Multifamily PROPERTY VALUATION Valuation Type Fee Simple Sales Comparison Approach $10,500.00 Cost Approach Inapplicable Income Capitalization Approach Inapplicable Final Opinion of Compensation $10,500.00 APPRAISAL DATES Inspection Date October 07, 2022 Report Date November 08, 2022 Date of Valuation October 07, 2022 Exposure Time 12 Months T-6162: Gonzalez Property 5757 W Ashlan Avenue - Fresno November 2022 - (9768D) Page - 2 - APPRAISAL REPORT I. Purpose of Appraisal: The purpose of the appraisal is outlined in the covering letter. The definition of "market value" is: Market Value: (a) The fair market value of the property taken is the highest price on the date of valuation that would be agreed to by a seller, being willing to sell but under no particular or urgent necessity for so doing, nor obliged to sell, and a buyer, being ready, willing, and able to buy but under no particular necessity for so doing, each dealing with the other with full knowledge of all the uses and purposes for which the property is reasonably adaptable and available. (b) The fair market value of property taken for which there is no relevant, comparable market is its value on the date of valuation as determined by any method of valuation that is just and equitable. California Code of Civil Procedure 1263.320 II. Property Right Appraised: The property right is the fee simple estate. The definition is as follows: Fee Simple Estate: “Absolute ownership unencumbered by any other interest or estate, subject only to the limitations imposed by the governmental powers of taxation, eminent domain, police power, and escheat."(The Dictionary of Real Estate Appraisal, Fifth Edition, pub. 2010) Perpetual Easements: “An easement that lasts forever (Also known as a permanent easement)."(The Dictionary of Real Estate Appraisal, Fifth Edition, pub. 2010) T-6162: Gonzalez Property 5757 W Ashlan Avenue - Fresno November 2022 - (9768D) Page - 3 - Easements by Prescription: “The right to use another’s land, which is established by exercising this right openly, hostilely and continuously over a statutory period of time."(The Dictionary of Real Estate Appraisal, Fifth Edition, pub. 2010) Partial Interests: “Divided or undivided rights in real estate that represent less than the whole."(The Dictionary of Real Estate Appraisal, Fifth Edition, pub. 2010) Larger Parcel: “In governmental land acquisitions, the tract or tracts of land that are under the beneficial control of a single individual or entity and have the same, or an integrated, highest and best use. Elements for consideration by the appraiser in making a determination in the regard are contiguity, or proximity, as it bears on the highest and best use of the property, unity of ownership, and unity of highest and best use. In most states, unity of ownership, contiguity, and unity of use are the three conditions that establish the larger parcel for the consideration of severance damages. In federal and some sate cases, however, contiguity is sometimes subordinated to unitary use.."(The Dictionary of Real Estate Appraisal, Fifth Edition, pub. 2010) III. Function of Appraisal: The appraisal is to be used by Lennar Homes and/or their assignees for acquisition and compensation of a right of way easement on a portion of the subject parcel situated along the south side of Ashlan Avenue between Polk and Hayes Avenues in the county of Fresno. The date of value is October 07, 2022. The purpose of the easement is for road improvements along Ashlan Avenue between Polk and Hayes. T-6162: Gonzalez Property 5757 W Ashlan Avenue - Fresno November 2022 - (9768D) Page - 4 - IV. Extraordinary Assumptions: In the preparation of the report, various documents were used as obtained from the client, property owner and public records. The records used include but are not limited to site and building plans, legal descriptions, site sizes, assessment records, leases and building areas. While every effort is made to assure the accuracy of these documents, no guarantee is made as to their accuracy or correctness. It is assumed that these documents are accurate, true and correct as they are considered in the preparation of the report. The Building improvements are outside of the area of acquisition. It is an extraordinary assumption that the acquisition does not impact the integrity or use of the building improvements nor is there any adverse impact to their contributory value to the property. V. Hypothetical Conditions: The value reported herein is subject to the following hypothetical conditions: a. “The fair market value of the property taken shall not include any increase or decrease in the value of the property that is attributable to any of the following: 1) the project for which the property is taken: 2) the eminent domain proceeding in which the property is taken; and 3) any preliminary actions of the plaintiff relating to the taking of the property.” [California Code of Civil Procedure, Section 1263.330] b. For California eminent domain projects, the fair market value of the property in the after condition recognizing the project as completed is a hypothetical condition, as the project does not currently exist, but it must be analyzed as such in order to consider potential severance damages and benefits as compensable under California law. T-6162: Gonzalez Property 5757 W Ashlan Avenue - Fresno November 2022 - (9768D) Page - 5 - VI. Scope of Appraisal: The data contained in this report was obtained from a variety of sources, is considered reliable, and has been utilized to document the valuation conclusions. The client is Lennar Homes. The intended users are Lennar Homes as well as their appointees, who will use the appraisal to compensate the property owner for an acquisition of a permanent easement on a portion of their property for road improvements along Ashlan Avenue between Polk and Hayes Avenues in the county of Fresno. The type of value is set forth and defined in Section I of this appraisal report. The effective date of value is October 07, 2022. There is 1 parcels included in the appraisal. The valuation method will be explained in the valuation section of this report. The purpose of the appraisal was to arrive at an opinion of the market value of the fee simple title to the land and severance damages to the remainder, if any. The value is to be used for acquisition of a permanent easement on the land for road improvements along Ashlan Avenue between Polk and Hayes Avenues in the county of Fresno. In valuing the project, all three traditional approaches to value will be considered. These include the Sales Comparison, Cost, and Income Capitalization Approaches. In this instance, the Sales Comparison will be the sole method of valuation of the property as vacant due to the use. The Cost Approach and Income Capitalization Approach will not be used in the valuation process. In the Sales Comparison Approach, an opinion of value will be provided through an analysis of similar properties that have been sold throughout similar areas. The search for data was generally restricted to sales of properties having similar physical attributes. A search of sales was performed from a variety of sources including brokerage firms, MLS, Costar and county assessor records. T-6162: Gonzalez Property 5757 W Ashlan Avenue - Fresno November 2022 - (9768D) Page - 6 - Due to the nature of this report, the Cost Approach will not be used. The exclusion of this valuation method will not adversely impact the credibility of the value reported herein. The final method of valuation used is the Income Capitalization Approach. This approach to value is not included. The property is being valued based on the land only. Due to the nature of this report, this approach is excluded. The exclusion of this valuation method will not adversely impact the credibility of the value reported herein. In summary, the appraisal assignment is to provide a market valuation to establish compensation for the acquisition of a permanent easement on a portion of the subject along the south side of Ashlan Avenue between Polk and Hayes Avenues. The intended use is to assist the client in the valuation to establish compensation for the easement. The client is Lennar Homes and intended users are Lennar Homes and/or their appointees. The following sections of this report will outline and describe in detail the area, site, building improvements, and methods of valuation used to provide an opinion of value of the property. VII. Addresses: 5757 W Ashlan Avenue | Fresno, California 93722 VIII. Assessor Parcel Numbers: APN 511-040-06S, County of Fresno, State of California. IX. Legal Description: Entire Parcel: The property is identified as a 2.10 acre portion in the northwest ¼ of the northwest ¼ of Section 22, Township 13 south, Range 19 east, M.D.B.&M., County of Fresno records, State of California, T-6162: Gonzalez Property 5757 W Ashlan Avenue - Fresno November 2022 - (9768D) Page - 7 - Proposed Acquisition: Please refer to the engineer’s description at the end of this section. X. Ownership: Records of the County Assessor show title to the property to be vested in the name(s) of: Elvia Gonzalez XI. Map Designations: Census Tract: 38.10 Seismic Zone: Not in Alquist-Priolo study zone Flood Hazard Area: Zone X: 06019C1545H XII. Property History: The property is improved to an average quality single-family residence in good condition. The home consists of new construction and the square footage was unavailable at the time of the appraisal. The building improvements are located on a single 2.10 acre parcel of land. The subject has been involved in one market transaction over the last 3 years. The property was transferred in August of 2019 from Miguel Torres to Elvia Gonzalez for $165,000 under document 85975. XIII. Assessed Value: In 1978, California voters passed Proposition 13, which was also known as the Jarvis-Gann Initiative. This proposition was predominantly designed to decrease the tax burden on individual property owners and to restrict the increase in property value assessments to a maximum of 2% per year. Beginning in 1981/82, all real property in the State of California was assessed at its full cash value. Full cash value is equal to the market value as determined by the appraisal staff of the County Assessor's office. Under Proposition 13, all assessments were rolled back to their 1975/76 levels and this became the new T-6162: Gonzalez Property 5757 W Ashlan Avenue - Fresno November 2022 - (9768D) Page - 8 - tax basis. Re-assessment is only allowed when a property is sold or substantially changed or modified. The predominant tax rate is based upon 1% of the assessed value, plus any local county, city, or special district bonds. The annual property taxes are calculated by applying the tax rate for the area to the total assessed value of the property, including land, improvements, and personal property items. Proposition 13 was initially designed to protect elderly property owners who are on fixed incomes and assure them that their property would not be assessed at a rate which exceeded the ability to pay taxes. The following is a breakdown of the assessments for the properties. APN Total Value Improvements Land RE Taxes 511-040-06S $170,042.00 $6,183.00 $163,859.00 $2,133.00 This type of unique tax system has caused a couple of interesting phenomenon in the California real estate market. In the first instance, since assessments are only allowed to increase by a maximum of 2% per year, actual market appreciation often exceeds the increase in the assessed value. When a property transfer does occur, it is reassessed and, therefore, a tremendous increase in property taxes typically occurs. This situation also leads to a second interesting phenomenon. Due to the fact that a full cash value assessment can only occur after a transfer of ownership, taxes can vary greatly from property-to-property in the same neighborhood and on similar property types. Thus, when appraising property in the State of California, it is important to be sensitive to the Proposition 13 restrictions and re-analyze the taxes assuming that a transfer of the property was to occur. There are no real estate taxes as a public agency owns the property. near United States 1 of 1 T-6162: Gonzalez Property 5757 W Ashlan Avenue - Fresno November 2022 - (9768D) Page - 9 - XIV. Regional Description: Introduction The primary purpose in analyzing the region is to convey an understanding of the primary forces that influence value. This analysis is particularly useful in providing a background for the various value influences on the subject property, as well as forecasting possible future trends in property value and use. In general, the four factors that influence value can be summarized into four categories: v Environmental Forces v Social Forces v Economic Forces v Government Forces Environment forces or “physical factors” are the natural and man-made features which affect the subject property and the surrounding area that it is located. Social forces primarily influence property values through various population characteristics. It is very important to analyze an area’s population with respect to growth and decline, standards and requirements, as well as moral factors. Economic forces tend to affect property values based upon the overall financial strength and viability of the region where the subject is located. When considering environmental forces, factors such as supply and demand, employment, expansion and economic base are considered. Government forces can also have a great impact on property values through development policies, political climates, public services, and various other laws and restrictions. It is important to analyze each of these four forces, as well as their associated characteristics, in order that a determination may be made as to specific impacts or influences on property values. T-6162: Gonzalez Property 5757 W Ashlan Avenue - Fresno November 2022 - (9768D) Page - 10 - Fresno County - Geographic The community of Fresno is situated adjacent to the Sierra Nevada Mountains wherein is situated Yosemite National park, Kings Canyon National Park, and Sequoia National Park. All are within driving distance of less than 2 hours. In addition to these parks, the adjacent Sierra Nevada Mountains and their numerous lakes provide recreation for many families. The following map depicts the location of the county within the State of California. The property is located in the County of Fresno, State of California. Fresno County is the sixth largest county in the State of California. The City of Fresno is the county seat and is the metropolitan trade area for the entire county. Most of the county offices are located in the downtown district, with branch offices located throughout the county. Fresno County contains approximately 6,000 square miles and is in the central sector of the State. It borders the counties of Tulare and Kings on the south, T-6162: Gonzalez Property 5757 W Ashlan Avenue - Fresno November 2022 - (9768D) Page - 11 - Monterey on the west, Madera, Merced and Mariposa on the north and Inyo on the east. The elevation varies from approximately 300’ on the valley floor to 14,000’ in the Sierra Nevada Mountain range. The climate in the Fresno area is considered to be mild, ranging from a yearly average minimum of 49.9 o to an average maximum of 76.2o, with an annual precipitation of 9.86”, which comes principally during the months of November through April. Winters are generally mild with prevailing sunny weather. The summers are hot with temperatures ranging between 80o and 110o. Fresno County - Social Fresno County contains approximately 6,000 square miles and lies between the Sierra Nevada Mountains on the east and the Diablo Mountain Range on the west. Within the county are 15 incorporated cities and 11 unincorporated communities. According to the Department of Finance, Fresno County had a 2017 population of approximately 993,773 and has increased to 1,011,273 as of January 2022. This represents a 1.71% increase since 2017. This equates to approximately 0.34% per year, which is typical for the county. The following chart depicts population figures for the county: AREA 2017 2018 2019 2020 2021 2022 Clovis 110,277 113,501 116,609 119,175 121,667 123,665 Coalinga 16,793 16,516 16,944 17,199 17,520 17,277 Firebaugh 7,886 7,893 7,980 7,981 8,164 8,439 Fowler 6,096 6,161 6,220 6,454 6,863 6,962 Fresno 531,440 536,593 542,012 545,769 542,720 543,660 Huron 7,256 7,281 7,302 7,299 6,176 6,170 Kerman 14,967 15,335 15,767 15,950 16,074 16,639 Kingsburg 12,181 12,397 12,551 12,883 12,533 12,506 Mendota 11,789 12,201 12,278 12,514 12,499 12,440 Orange Cove 9,391 9,443 9,460 9,456 9,553 9,497 Parlier 15,410 15,460 15,658 15,890 14,553 14,497 Reedley 25,496 25,797 25,873 25,917 24,929 24,982 Sanger 26,100 26,418 27,005 27,185 26,558 26,304 San Joaquin 4,098 4,124 4,144 4,142 3,674 3,639 Selma 24,287 24,327 24,402 24,436 24,702 24,522 BALANCE OF COUNTY 170,306 170,813 170,990 171,108 161,046 160,074 INCORPORATED 823,467 833,447 844,205 852,250 848,185 851,199 COUNTY TOTAL 993,773 1,004,260 1,015,195 1,023,358 1,009,231 1,011,273 Source: California Department of Finance T-6162: Gonzalez Property 5757 W Ashlan Avenue - Fresno November 2022 - (9768D) Page - 12 - Most recreation and tourism revenue is obtained from proximity to Yosemite, Sequoia, and Kings Canyon National Parks in the Sierra Nevada Mountain Range. All are located within a 2-hour drive from Fresno. Fresno County - Economic Economic forces tend to relate to the overall financial strength and condition of the region and city. It is important to consider such factors since they have a direct impact on development, affordability and employment. The economic base of Fresn o County is predominantly agriculturally oriented since Fresno County is the number one agriculture-producing county in the United States. Almonds, grapes, pistachios, poultry, milk, cattle, garlic, tomatoes, oranges and peaches are among the largest income producers and helped produce a gross farm income of $7.98 billion in 2020, a 2.86% increase from 2019’s production value. Industry related to agriculture, wholesale distribution, recreation, and tourism are the other components of the stable Fresno econo my. Industries related to agriculture include processing of fresh fruit, nuts and citrus. Farm machinery products, implements, and irrigation pumps are manufactured, along with wine, fertilizers, insecticides, sheet and bottle glass. While the government tends to be the largest single employer in the City and County of Fresno, there are also a number of private sector employers as well. Major employers in the private sector include Save Mart supermarkets, AT&T, PG&E, Community Hospital, Children’s Hospital of Central California, Kaiser, and the Fresno Co. Equal Opportunities Commission. When combined, public and private sector employers account for a significant number of jobs within the City of Fresno as well as the County of Fresno. Although agriculture serves as the primary economic base, there are a number of other industries that make large contributions to the economic base. The following chart outlines the various market segments that are occupied by the major industries in the county: T-6162: Gonzalez Property 5757 W Ashlan Avenue - Fresno November 2022 - (9768D) Page - 13 - The above chart clearly shows that agriculture is a major employment sector in the county. However, government, education and health and trade are the three other major industries in the county. Combined with agriculture, these four industries occupy approximately 64% of all employment sectors in the county. The unemployment rate in Fresno Co. was 9.9% as of March 2021. This was about the same as the prior month as well as the overall unemployment rate for the same period in 2019. The high unemployment is directly related to the mandatory state lockdowns resulting from COVID-19. In addition, the number of persons dropping out of the workforce has also impacted the calculation of the unemployment rates. The following chart outl ines average unemployment rates since 2016 and into 2021. Agriculture 14% Mining & Timber 0% Construction 4% Manufacturing 8% Trade/ Transportation/ Utilities 17% Information 1%Financial 4% Professional 8% Education & Health 13% Leisure & Hospitality 8% Other 3% Government 20% Employment by Industry T-6162: Gonzalez Property 5757 W Ashlan Avenue - Fresno November 2022 - (9768D) Page - 14 - PERIOD RATE 2017 8.5% 2018 7.6% 2019 7.2% 2020 8.1% 2021 9.2% Jan 2022 8.1% Feb 2022 7.7% Mar 2022 6.9% Apr 2022 6.1% May 2022 5.3% June 2022 5.9% Unemployment rates have ranged from approximately 6% to 19% since 2008, with the average unemployment rate of 9.2% for 2021. This represents an approximate increase of 1.1% since the previous year. The increase in unemployment can be attributed to changes in economic conditions in the local, state and national economies as well as a decline in the labor force. The unemployment rate has fluctuated from approximately 5.9% to 10% throughout the past year and it is expected that the unemployment rate will continue to fluctuate due to economic uncertainties. In recent months, the unemployment rate spiked substantially related solely to the State lockdown and the COVID-19 pandemic. Apart from agriculture, education, medical and government account for the other primary employment sectors in the region. The total labor force within the area is 452,365, a 1.03% increase over the same period in 2021. A listing of major private sector employers in the county is as follows: EMPLOYER INDUSTRY EMPLOYEES Community Medical Center Healthcare 5,836 Saint Agnes Healthcare 2,818 Children's Hospital Healthcare 3,500 Kaiser Medical Center Healthcare 2,696 Ruiz Food Products Food Processing 2,500 Clovis Community Healthcare 1,667 Alorica Insurance 1,300 Quinn Group, Inc. Equipment 1,178 Foster Farms Poultry 1,100 AT&T Communications 1,000 T-6162: Gonzalez Property 5757 W Ashlan Avenue - Fresno November 2022 - (9768D) Page - 15 - Fresno County - Transportation State Highway 99 is north/south freeway providing vehicular highway routes to the inland valley towns. This freeway carries large volumes of private and public commercial traffic. Railroad transportation within Fresno County consists of both the Union Pacific Railroad and the Burlington Northern -Santa Fe Railroad. These railroads provide freight service to northern and southern California. Amtrak provides limited passenger service from Fresno to both Los Angeles and the San Francisco Bay area. Commercial air transportation within Fresno County is located at the Fresno Yosemite Air Terminal. Several large carriers, as well as several small commuter airlines provide service. These airlines provide both passenger and freight service. Fresno County - Government The government in Fresno County consists of 5 s upervisory districts with one supervisor elected from each district, and a county administrative officer who is responsible to the Board of Supervisors. The board elects its own chair and vice chair on a rotating basis. City of Fresno The City of Fresno is located in the central San Joaquin Valley and is located in the center of the State of California, approximately 180 miles south of the San Francisco Bay Area and 220 miles north of the Los Angeles metropolitan area. The City is situated in the northeast sector of Fresno County. Fresno was incorporated in 1885 and has since grown to encompass approximately 72 square miles. It shares a common boundary with the City of Clovis at Willow Avenue. Fresno is primarily accessible from Highway 99, which extends through its boundaries. Population As of January 2022, Fresno had a population of 543,660. The following shows the historical growth rate for the community in comparison to the City and County of Fresno as well as the State of California. T-6162: Gonzalez Property 5757 W Ashlan Avenue - Fresno November 2022 - (9768D) Page - 16 - AREA 2017 2018 2019 2020 2021 2022 Clovis 110,277 113,501 116,609 119,175 121,667 123,665 Fresno 531,440 536,593 542,012 545,769 542,720 543,660 COUNTY TOTAL 993,773 1,004,260 1,015,195 1,023,358 1,009,231 1,011,273 The city’s population has grown at an average rate of 0.46% annually since 2017. These figures are lower in comparison with neighboring Clovis, however, higher than that of the County. Fresno has grown at a rate that is above the general growth of the state. According to the Fresno County Council of Governments, the population within the county is expected to grow at a rate of 2.35% per year through 2025, which is well above the historic growth patterns. While growth has slowed within the community, it is expected that the community will remain consistent with the County and is expected to continue to outpace the County as well as the state of California. Employment The total labor force in the community is approximately 234,950. Most of the people work within the greater Fresno/ Clovis region. As of June 2022, the unemployment rate within the community was 4.7%. This was an increase over the prior month (May 2022 @ 3.7%), which was primarily due to changes in seasonal agricultural employment and restrictions related to COVID-19. Jobs within the community are concentrated within the education and retail industries. The top employers within the city are as follows: Ranking Company Description Employees 1 Community Medical Centers Healthcare 5,327 2 City of Fresno Government 4,142 3 Kaiser Permanente Healthcare 2,542 4 St. Agnes Healthcare 2,192 5 Golden Living Healthcare 2,000 6 CSUF Education 1,719 7 State Center Community College Education 1,193 8 Fresno County EOC Government 1,114 9 AT&T Communications 1,000 T-6162: Gonzalez Property 5757 W Ashlan Avenue - Fresno November 2022 - (9768D) Page - 17 - Median household income in Fresno is below that of Fresno County in terms of both absolute income as well as income gains. Fresno’s median income rose approximately 81% between 2000 and 2022 indicating an annual increase of 3.8%, which was almost equal to that of Fresno County. The income growth in the County and City were slightly below that of the State. Median Household Income Area 2000 2022 Annual Change Fresno $32,236 $58,121 3.8% Fresno County $34,930 $63,121 3.8% California $46,802 $78,672 3.2% Housing Fresno has a mixture of old and new housing within the community. Approximately 64% of the total are attached and detached single-family housing units, which is slightly less than the county average. Approximately 68% of housing in Fresno is owner-occupied, while the balance is renter occupied. Residential development in the community has been consistent over the past 5 to 10 years as evidenced by the population growth. According to the State Department of Finance, Fresno had a total of 186,993 housing units as of January 2022. Since 2010, the community has added 17,278 housing units reflecting an 10.18% overall gain. This gain was slightly Single Family 64%2-4 Units 12% 5+ Units 21% Mobile Homes 3% Fresno Single Family 70% 2-4 Units 10% 5+ Units 16% Mobile Homes 4% Fresno County T-6162: Gonzalez Property 5757 W Ashlan Avenue - Fresno November 2022 - (9768D) Page - 18 - above that of the county, which experienced an approximate 9.90% gain during the same period. Construction within the community was relatively high in comparison to Fresno County as well as the State of California. The following graph summarizes residential building permit activity since 2007. As evidenced by the above chart, construction activity increased substantially in both the City and County since 2014. Additionally, both Fresno and Fresno County experienced the spike in building activity experienced by the State between 2004 and 2005. While the State began experiencing a decline in construction in 2006, activity in the County and City remained consistent. Strong declines occurred in 2007, 2008 and 2009 and again in 2013 and 2020. The city and county of Fresno remained fairly level between 2011 & 2015 while the state of California experienced an increase in construction activity during the same period. Improvements in construction activity are evident in 2013 and again in 2018 and 2021. While activity in the county has remained somewhat level, activity within the City has continued to increase. 2022 is on trend to continue in line with 2021. 0 500 1000 1500 2000 2500 3000 3500 4000 2009 2010 2011 2012 2013 2014 2015 2016 2017 2018 2019 2020 2021 2022 Building Permits Fresno Co Fresno T-6162: Gonzalez Property 5757 W Ashlan Avenue - Fresno November 2022 - (9768D) Page - 19 - Transportation Highway 99 is the primary State Highway serving the community. Highway 99 extends in a diagonal direction through the City providing access through the central portion of the State of California. Other highways that serve the community include Highways 41, 180 & 168. Highway 41 extends in a north direction through the City and up to Yosemite National Park. Yosemite National Park is an approximate 1.5 hours’ drive from Fresno. The community also maintains a local transit system, Fresno Area Express or (FAX). Amtrak service is also available in the City of Fresno. One major airport serves the area. This includes Fresno Yosemite International, which is located at the junction of Clovis and McKinley Avenues about 3 miles south of the city limits. A smaller airport, Chandler, also provides service for general aviation. Utilities & Services Fresno has all primary utilities and services available. The following is a listing of services and utilities and their respective providers. Service Provider Police City of Fresno Fire City of Fresno Electricity Pacific Gas & Electric Company Natural Gas Pacific Gas & Electric Company Water City of Fresno Sewage Treatment City of Fresno Garbage & Recycling City of Fresno Telephone AT&T Television & Broadband AT&T, Comcast, Xfinity Summary The community of Fresno has experienced consistent growth for several years and has grown at a rate of approximately 0.46% annually since 2017, below that of the City of Clovis but slightly above the County. Most of the labor force works within either the City of Fresno or Clovis for employment. Construction has slowed in recent years due to local, state and national economic conditions. It is not anticipated that there will be any major changes within the community in the foreseeable future. near Highway City — Fresno 1 of 1 T-6162: Gonzalez Property 5757 W Ashlan Avenue - Fresno November 2022 - (9768D) Page - 20 - XII. Neighborhood Description: The area is generally located situated in the central west portion of the City of Fresno. The property is situated along Ashlan Avenue between Polk and Hayes Avenues. The neighborhood is such that much of the property in the surrounding area are residential and rural in nature. North of the subjects are residential subdivisions followed by Highway 99 and industrial area just north of the Highway. South consists of rural residential and agricultural properties followed by residential subdivisions. West of the subject are rural residential developments and agricultural development. East is a mixture of rural residential properties, residential development and with commercial development followed by industrial development. The following is a general breakdown and description of the neighborhood (Zip 93722). Neighborhood Characteristics Location Urban Built Up 70% Dominate Land Use Residential Change in Present Land Use None Expected Property Values Stable Median Home Price $296,876 Median Income $68,384 Population 86,785 Demand/ Supply Balance Dominate Occupancy Owner Occupied Overall Rating Good Average Fair Poor Adequacy of Shopping X Adequacy of Utilities X Employment Opportunities X Police & Fire Protection X Recreational Facilities X Compatibility X Protection Adverse Conditions X General Appearance of Properties X Appeal to Market X Public Transportation X Employment Centers X Freeway Access X PLAT MAP T-6162: Gonzalez Property 5757 W Ashlan Avenue - Fresno November 2022 - (9768D) Page - 21 - XVI. Site Description: The property consists of a single parcel of land making a 2.10 acre site in the County of Fresno. The following is a description of the site and its physical characteristics. Location: The property is located in the County of Fresno in near proximity to the western line of the City of Fresno. The subject is more specifically situated along the south side of Ashlan Avenue, between Polk and Hayes Avenues. Size & Shape: The property consists of a single parcel of land. The parcel make up a singular, rectangular shaped site having 2.10 acres. It has an interior orientation. The site has approximately 145’ of frontage along the south side of Ashlan Avenue. Zoning: The land is zoned Rural Residential by the County of Fresno. Under this zoning, the site can be developed to a rural homesite. The subject is also located within the Sphere of Influence of the City of Fresno. The subject is designated for Medium Density Single-Family Residential development in the City of Fresno General Plan. This designation is most often associated with single-family subdivision development. The land and development are considered legal and conforming to the basic zoning standards. Utilities: All of the usual public and municipal utilities and services are available to the property. These services and providers include the following: Service Provider Water/ Sewer/ Trash Pump & Well/ Septic/ Private Police & Fire County of Fresno Electricity PG&E T-6162: Gonzalez Property 5757 W Ashlan Avenue - Fresno November 2022 - (9768D) Page - 22 - Service Provider Natural Gas Propane Cable Television Comcast, Dish Network, Direct TV Telephone Service ATT Broadband AT&T, Comcast Topography & Drainage: The property is generally level slightly above street grade. The site is outside of the floodplain and there is natural drainage and runoff. Soils Conditions: A soils study was unavailable as of the date of appraisal. Soils within the area are considered to be suitable for building purposes. The soils consists of 100% San Joaquin Loam Class IV. Easements & CC&R’s: A title report was not provided at the time of the Appraisal. It is assumed that any existing easements will not negatively impact the takings for road improvements project. For purposes of this appraisal, it is assumed that the easements have no adverse impact on the subject property or the road widening project. Streets: The parcel has frontage along the south side of Ashlan Avenue which provides access to the subject. Access and Exposure: Access and exposure are considered average at the present time due to its interior orientation and frontage along Ashlan Avenue. Offsite Improvements: Ashlan Avenue is an asphalt paved street shared by the City and County of Fresno. There are no curbs, gutters or sidewalks along the frontage lines of the property. All utilities including water, sewer, electrical and phone and internet are in near proximity to the subject but require T-6162: Gonzalez Property 5757 W Ashlan Avenue - Fresno November 2022 - (9768D) Page - 23 - extension. Building Improvements: The property is improved to an average quality single-family residence in good condition. The home consists of new construction and the square footage and details about interior of the house were unavailable at the time of the sale. The construction consisted of wood frame and stucco construction with a composite shingle roof. The main building improvements are not impacted by the project. All building improvements are located outside of the area acquisition. No further discussion or analysis is necessary. Environmental Conditions: Toxic or Hazardous Waste: No Phase I or Phase II environmental site assessments were furnished or available at the time of inspection or reviewed in conjunction with the appraisal assignment. As of the date of appraisal, the appraisers have no knowledge of hazardous materials on the property and are not to be considered experts in this field. Any further inquiries as to hazardous waste on the property should be directed to knowledgeable and experienced individuals. If any such materials are discovered, it may have a negative affect on the overall value as reported herein. Seismic Hazard: The property is not within a special study zone as determined by the Alquist-Priolo Earthquake Fault Zoning Act. Flood Hazard: The property is within Special Flood Hazard Zone X; defined by FEMA, as per panel #06019C1545H. Flood Zone X is defined as "Areas of minimal flooding." Any other flooding situations have been corrected by upstream damming and flood control basins. T-6162: Gonzalez Property 5757 W Ashlan Avenue - Fresno November 2022 - (9768D) Page - 24 - Wetlands: The property is not within an apparent wetlands area. Summary: In summary, the site consists of a single parcel of land making a rectangular shaped site in Fresno County near the west side of the City of Fresno. The property is improved with an average quality rural residence. It is zoned for rural residential uses by the City of Fresno. T-6162: Gonzalez Property 5757 W Ashlan Avenue - Fresno November 2022 - (9768D) Page - 25 - XVII. Highest and Best Use: In the valuation of the subject property, consideration has been given to its highest and best use also known as the most probable use. The highest and best use analysis involved a study of the present use of the property, uses of surrounding properties, and zoning availability for the subject. "Highest and best use" may be defined as follows: Highest and Best Use: The reasonably probable and legal use of vacant land or an improved property, which is physically possible, appropriately supported, financially feasible, and that results in the highest value. The four criteria the highest and best use must meet are legal permissibility, physical possibility, financial feasibility, and maximum profitability. (The Dictionary of Real Estate Appraisal , Fifth Edition, pub. 2010) Highest and Best Use of Land or a Site as Though Vacant: Among all reasonable, alternative uses, the use that yields the highest present land value, after payments are made for labor, capital, and coordination. The use of a property based on the assumption that the parcel of land is vacant or can be made vacant by demolishing any improvements. (The Dictionary of Real Estate Appraisal, Fifth Edition, pub. 2010) Highest and Best Use of Property as Improved: The use that should be made of a property, as it exists. An existing property should be renovated or retained as is so long as it continues to contribute to the total market value of the property, or until the return from a new improvement would more than offset the cost of demolishing the existing building and constructing a new one. (The Dictionary of Real Estate Appraisal , Fifth Edition, pub. 2010) In order to ascertain the highest and best use of a piece of property, including the land as if vacant and the property as improved; the use must meet four criteria. The criteria that must be met for the highest and best use include a use, which must be physically possible, legally permissible, maximally productive, and financially feasible. T-6162: Gonzalez Property 5757 W Ashlan Avenue - Fresno November 2022 - (9768D) Page - 26 - As discussed throughout the appraisal, the property consists of a single parcel of land, making a single site, located in the County of Fresno. The property is improved with a rural residence. Legal Permissibility: The land is zoned Rural Residential by the County of Fresno. Under this zoning, the site can be developed to rural residential uses. The land is also with in the Sphere of Influence of the City of Fresno. The subject is designated for Medium Density Single-Family Residential development in the City of Fresno General Plan. This designation is most often associated with single-family subdivision development. The present use is considered a legal and conforming use and is an interim use until demand warrants further development. Under the current zoning rural residential development is legally permissible. Physical Possibility: The second factor given consideration is which type of development is physically possible on the property. The site contains 2.10 acres per the assessor’s parcel map. It is similar in size, shape and configuration when compared to other properties in the area. Development is physically possible on the site. Financial Feasibility: The third factor considered is one of financial feasibility. The property is situated in an area that is undergoing a transition from rural to urban uses. Economic conditions are considered stable at the present time and it appears that there is adequate demand for additional units into the market. It is expected that a multifamily development would be the most financially feasible use for the subject when demand warrants. T-6162: Gonzalez Property 5757 W Ashlan Avenue - Fresno November 2022 - (9768D) Page - 27 - Maximum Productivity: The final factor given consideration is which type of use is the maximum productive use of the site. The property is situated in an area that is undergoing a transition from rural to urban uses. The neighborhood consists of both older rural residential development as well as newer single and multi-family development with some commercial uses to the east. Due to the neighborhood orientation of the subject, zoning designation, as well as its size, it is best suited for future multiple family residential development. The maximum productive use of the site is for future development to a multiple family residential use. Summary: The highest and best use of the land as if vacant is for future multiple family development. T-6162: Gonzalez Property 5757 W Ashlan Avenue - Fresno November 2022 - (9768D) Page - 28 - XVIII. Project Description: The project involves the acquisition of a permanent easement on a portion of land from the north side of the property. The acquisition includes both prescriptive right of way, that is already within the existing street easement as well as a new permanent easement. The prescriptive right of way area is 2,161 SF and the permanent easement area consists of 2,175 for a total area of 4,336 SF. There are no other impartments located within the area of acquisition. As the building improvements are outside of the proposed acquisition, they are unaffected by the project. Thus, the larger parcel is the land only without consideration given to the structures on the property. Finally, the acquisition area is a permanent right of way easement, however, because of the restrictive nature it is a kin to a full fee acquisition in fee title. Therefore, the pro perty will be valued as a full fee acquisition because of the restrictive nature of the easement to the land in the after condition. T-6162: Gonzalez Property 5757 W Ashlan Avenue - Fresno November 2022 - (9768D) Page - 29 - XVIII. Property Valuation & Appraisal Premise: In arriving at an opinion of the market value of the real property, data is collected and analyzed from the market regarding recent sales of comparable properties, current building costs, and rental data and return on investment rates in the analysis of income. Three different approaches to value are traditionally evaluated using collected market data and analyzing trends in the local economy. These approaches are: 1) The Market Data or Sales Comparison Approach 2) The Cost Approach 3) The Income Approach Depending upon the type of property being appraised, these methods have varying degrees of applicability deduced by me after analysis. In the Market Data or Sales Comparison Approach, I have derived a value indication by comparing the property being appraised to similar properties in competitive areas that have recently sold or been offered for sale. This procedure is accomplished by applying the appropriate units of comparison extracted from the market and then comparing the sales price of the comparable to the subject. This approach in the appraisal analysis is based upon the premise that an informed purchaser would pay no more for a property than a substitute property with equal utility. The Cost Approach estimates the cost of replacing the improvements of the property. It involves the determination of the cost new of the improvements, less accrued physical deterioration and functional and/or economic obsolescence. To this remainder, the vacant land value is added to arrive at an opinion of the market value based on the Cost Approach to value. The Income Capitalization Approach, in the analysis of properties, is used to derive a value indication by converting anticipated benefits from possible rental income into a value estimate. This approach takes into consideration possible risks of comparable properties and a rate of return or capitalization rate also derived from income expectancies in the present market. T-6162: Gonzalez Property 5757 W Ashlan Avenue - Fresno November 2022 - (9768D) Page - 30 - In the case of this appraisal, all three approaches to value were considered. The sales comparison approach will be used in the case of this appraisal report. They are generally summarized as follows: A. Sales Comparison Approach: The Sales Comparison Approach is based on the theory of substitution, which considers a property's value to be in relation with that of sales of property with similar desirability and utility over a reasonable period of time. In this approach, a value will be estimated through analysis and comparison of sales of substitute properties over time. Depending on availability of data, the Sales Comparison Approach is generally widely accepted as a reliable method of valuation by market participants. The market determines how appraisers are to analyze sales and extract meaningful units of comparison from which to draw a valuation conclusion. Most typically, units of comparison extracted from the sales are items such as price per square foot, price per unit, or price per acre. Other units of comparison are determined through an analysis of the income and expenses the property produces or is capable of producing. Items such as gross income multiples, effective gross income multiples, overall capitalization rates, and expense ratios are used in both the Sales Comparison Approach and also in the Cost and Income Approaches to value. After the appraisers have identified the units of comparison most widely accepted by the market for the specific property type being appraised, the sales are then analyzed for differences between the sales and the subject property. The sales are generally compared to the subject property for items such as property rights conveyed, financing, motivation of the buyer or seller, changes in property values over time, or physical differences between the sales and the property being appraised. In this appraisal, multifamily land sales were used. #Location Date Document Grantor Grantee Sales Price Lot Size (Ac) Lot Size (sf) Offsites Orientation Zoning $/Acre $/sf Comparable Land Sales 1 Apr 14, 2022 48414 $140,000 0.79 34,391 R2A953 N Monte Avenue Fresno/ CA/ 93728 Pestorich Holdings LLCLucero Aguayo Partial Interior Rural Residential (Agricultural) $177,215 $4.07 2 Jan 18, 2022 7170 $160,000 0.90 39,468 RM-14783 E Austin Way Fresno/ CA/ 93726 Ana Maria Cornejo Chen & Meili Zheng Multiple Family $177,778 $4.05 3 Mar 24, 2021 49062 $50,000 0.24 10,440 RM-1Undefined, Cedar Avenue Fresno/ CA/ 93702 Amandip S Gill Randy Lewis Partial Interior Residential Multifamily $208,333 $4.79 4 Jan 8, 2021 8848 $249,000 2.23 97,139 RS53484 W Shields Avenue Fresno/ CA/ 93722 SK Valley Homes Singh Sukhminder Partial Interior Residential $111,659 $2.56 5 Oct 29, 2020 154319 $1,800,000 9.76 425,146 RR5700 W Clinton Avenue Fresno/ CA/ 93722 Assemi Group Van Gronigen Living Trust Partial Interior Rural Residential $184,426 $4.23 T-6162: Gonzalez Property 5757 W Ashlan Avenue - Fresno November 2022 - (9768D) Page - 31 - Multifamily Land Sales In the valuation of the land, sales of land suitable for multiple family development were considered based on the highest and best use analysis. Due to the location and limited market activity, sales from markets similar to the subject were used, which are in Fresno County. A total of five sales were found. They indicate the following ranges: Time: Oct 2020 - April 2022 Size: 121,097 SF - 531,867 SF 2.78 Ac - 12.21 Ac Unit Price: $2.56/SF - $4.79/SF A discussion of each sale follows: 1. Multifamily Land: In valuing the property, consideration is given to sales of similar properties that are used as a basis of comparison. The sales that were used include several vacant parcels of land. A total of five sales are used. The sales occurred between 2020 and 202 2. There have been few recent sales of multi-family land in the immediate neighborhood, therefore, sales from throughout the Fresno area are included as well. In selecting an appropriate unit of comparison, consideration was given to all of the possible variables for the property. Consideration was first given to the square foot. The sales yielded unit values ranging from a low of $2.56/SF to $4.79/SF. This is a typical and widely used unit of comparison in the open market and is thus used in the valuation of the subject. Sale 1 (APN: 449-291-04) is the most recent sale in the analysis. It consists of a 34,391 SF parcel located in the county of Fresno, southeast of the subject. The property was acquired in April of 2022 for $140,000. It is zoned for agricultural residential uses. It is designated in the general plan of the City of Fresno for future medium density residential development. Though designated for single-family residential uses, due T-6162: Gonzalez Property 5757 W Ashlan Avenue - Fresno November 2022 - (9768D) Page - 32 - to the size, shape and orientation of the parcel, it has a highest use for future multiple family development. There is a multifamily development directly west of the property. Partial offsite improvements were in place and all utilities available. Analysis of this sale indicates a basic purchase price of $4.07/SF. Sale 2 (APN: 430-210-07) is situated in the City of Fresno near the Fresno -Yosemite International Airport. More specifically it is located near the intersection of Chestnut and Austin Way. The property was acquired in January of 2022 for $160,000. The property consists of a 39,468 SF parcel, rectangular in shape. The parcel is zoned for multifamily use by the City of Fresno. The highest and best use for the land is future multiple family residential. Partial offsite improvements are in place and all utilities available. Analysis of this sale indicates a basic purchase price of $4.05/SF. Sale 3 (471-211-15) is situated in the City of Fresno along the east side of Cedar Avenue north of Woodward Avenue in the southern portion of the City of Fresno. The property was acquired in March of 2021 for $50,000. The property consists of a 10,440 SF parcel, rectangular in shape. The parcel is zoned for multifamily use by the City of Fresno. The highest and best use for the land is future multiple family residential. Partial offsite improve ments are in place and all utilities available. The property is adjacent to other multifamily developments. Analysis of this sale indicates a basic purchase price of $4.79/SF. Sale 4 (APN: 433-090-21S) is situated in the City of Fresno along the north side of Shields Avenue west of Valentine Avenue. The property was acquired in January of 2021 for $249,000. The property consists of a 97,139 SF parcel, rectangular in shape. The parcel is zoned for high density residential use by the City of Fresno. The highest and best use for the land is future multiple family residential due to the size and orientation. Partial offsite improvements are in place and all utilities available. The property is adjacent to newer residential developments. near Fresno County — California 1 of 1 T-6162: Gonzalez Property 5757 W Ashlan Avenue - Fresno November 2022 - (9768D) Page - 33 - Analysis of this sale indicates a basic purchase price of $2.56/SF. Sale 5 (315-121-09) Consists of a 425,146 SF parcel located in the county of Fresno, southeast of the subject. The property was acquired in October of 2020 for $1,800,000. It is zoned for rural residential uses. It is designated in the general plan of the City of Fresno for future medium density residential development. Though designated for single-family residential uses, due to the size, shape and orientation of the parcel, it has a highest use for future multiple family development. Partial offsite improvements were in place and all utilities available. Analysis of this sale indicates a basic purchase price of $4.23/SF. 2. Value of Larger Parcel: The subject consists of a new construction rural residential dwelling in good condition. The property is reported to have 91,476 SF or 2.10 acres and has an interior orientation along the south side of Ashlan Avenue west of Polk Avenue. The larger parcel is considered the land only as the improvements are consistent with the subject’s interim use. Therefore, to avoid conflict with the theory of consistent use, the larger parcel considers only the land. In the valuation of the property, consideration is given to the five sales included in the analysis. A study was conducted of sales of vacant multifamily land. Five sales are included in this report that indicated unit prices for vacant multifamily land. The sales all occurred in 2020-2022. They range from 0.24 acres to 9.76 acres (10,440 SF to 425,146 SF) with unit prices between 2.56/SF to $4.79/SF. An analysis of each sale is as follows: Sale 1 similar in zoning and size. It is inferior in location which requires upward consideration. Overall the sale requires upward consideration. Sale 2 similar in orientation and size. It is inferior in location which T-6162: Gonzalez Property 5757 W Ashlan Avenue - Fresno November 2022 - (9768D) Page - 34 - requires upward consideration. Overall the sale requires upward consideration. Sale 3 is inferior in location and requires upward consideration. Inversely, the property is smaller in size when compared to the subject. Downward consideration is given for economies of scale. Overall, slight downward consideration is applied. Sale 4 is larger than the subject. Upward consideration is given due to economies of scale when comparing the property size. Additionally, it is located in an area slightly inferior to the subject requiring further upward consideration. Sale 5 is superior to the subject in location and potential use. It is, however, larger than the subject, upward consideration is given to the larger size. When analyzing the sales, it appears that sales 1, 2 and 3 are most comparable after considerations are applied. I have analyzed all of the sales prices and also considered the definition of market value and the properties to be appraised as well as each of the comparable sales highest and best use. After considering all of the data, the market indicates a unit price of $4.75/SF to be applicable for the land of the appraised parcel. Land = 91,476 SF @ $4.75/SF $434,511.00 Adjusted To = $434,500.00 T-6162: Gonzalez Property 5757 W Ashlan Avenue - Fresno November 2022 - (9768D) Page - 35 - ACQUISITION VALUATION T-6162: Gonzalez Property 5757 W Ashlan Avenue - Fresno November 2022 - (9768D) Page - 36 - Part Taken: The take includes an acquisition of a permanent easement on a portion of land from the north side of the property. The property is improved with a residential dwelling. The easement acquisition area consists of 2,161 SF of prescriptive easement and 2,175 SF of permanent easement acquisition for a total acquisition area of 4,336 SF. The prescriptive area is values by law at $1.00. However, I have assigned a nominal $100. Cost figure for the improvements were determined through a combination of internal records, the Marshall Valuation Service publication as well as interviews with industry professionals. Easement Acquisition = 2,175 SF @ $4.75/SF = $ 10,331.00 Prescriptive Right of Way = 2,161 SF = 100.00 Total Value Part Taken = $ 10,431.00 Value of Remainder as Part of Whole: Value of Larger Parcel = $ 434,500.00 Value of Part Taken 10,431.00 Value of Remainder as Part of Whole = $ 424,069.00 Value of Remainder After Take: As mentioned earlier, there are no cost to cure items included. Less Cost to Cure None = $ 0.00 Value of Remainder After Take = $ 424,069.00 Severance Damages: Value of Remainder Before Take = $ 424,069.00 Value of Remainder After Take = $ 424,069.00 Cost to Cure/ Severance Damages = $ 0.00 Benefits: None = $ 0.00 T-6162: Gonzalez Property 5757 W Ashlan Avenue - Fresno November 2022 - (9768D) Page - 37 - Total Compensation: Part Taken = $ 10,431.00 Severance Damages = $ 0.00 Benefits = $ (0.00) Total Compensation = $ 10,431.00 Adjusted To = $ 10,500.00 XII. Certificate of Inspection: The property owner was notified by letter and invited to accompany the appraiser during the initial inspection, April 09, 2021. The property owner did not respond to the letter and did not accompany the appraiser during the inspection. T-6162: Gonzalez Property 5757 W Ashlan Avenue - Fresno November 2022 - (9768D) Page - 38 - APPRAISAL SUMMARY SHEET Project Parcel Parcel 4 APN 511-040-06S Owner: Elvia Gonzalez Property Address 5757 West Ashlan Avenue | Fresno, CA 93722 Date of Value: October 07, 2022 Total Parcel Size: 91,476 SF Zoning RR Highest/ Present Use: Rural Residential Best Use: Multifamily Area To Be Acquired / Easement Acquisition 2,175 SF Prescriptive 2,161 SF Easement Acquisition = 2,175 SF @ $4.75/SF = $ 10,331.00 Prescriptive Right of Way = 2,161 SF = 100.00 Total Value Part Taken = $ 10,431.00 Cost to Cure Total Cost to Cure = $ 0.00 Part Taken = $ 10,431.00 Severance Damages = 0.00 Benefits = (0.00) Total Compensation = $ 10,431.00 Adjusted To = $ 10,500.00 Total Appraisal (Adjusted): $ 10,500.00 CONFIDENTIALITY OF SOURCES CERTIFICATION, QUALIFICATIONS The names of persons, who provide information as to sales, rents, marketing time, etc., have purposely been excluded from this document. This is to protect our confidential sources of data for future assistance. CONFIDENTIALITY OF SOURCES CERTIFICATION I, Joshua J. Palmer, certify: • That I have made a personal inspection of the property that is the subject of this report, and have considered all of the pertinent facts affecting the value thereof. • That all market data pertaining to the final value opinion has been accumulated from various sources and, where possible, personally examined and verified as to details, motivation and validity. • That as of the date of this report, I am a Certified General Appraiser, per the Bureau of Real Estate Appraisers, State of California, License No. 3002843. • That the statements of fact contained in this report are true and correct. • That the reported analysis, opinions, and conclusions are limited only by the reported assumptions and limiting conditions, and are our personal, impartial, and unbiased professional analyses, opinions, and conclusions. • That I have no present or prospective interest in the property or the transaction that is the subject of this report, and we have no personal interest with respect to the parties involved. • That I have no bias with respect to the property that is the subject of this report or to the parties involved with this assignment. • That my engagement in this assignment was not contingent upon developing or reporting predetermined results. • That our compensation for completing the assignment is not contingent upon the reporting of a predetermined value or direction in value that favors the cause of the client, the amount of the value opinion, the attainment of a stipulated result, or the occurrence of a subsequent event directly related to the intended use of this appraisal. • That my analyses, opinions, and conclusions were developed, and this report has been prepared, in conformity with the Uniform Standards of Professional Appraisal Practice and the requirements of the Code of Professional Ethics and Standards of Professional Appraisal Practice of the Appraisal Institute. • The appraisal assignment was not based on a requested minimum valuation, a specific valuation, or the approval of a loan. • That I have the appropriate education and experience to complete the assignment in a competent manner. The reader is referred to the appraisers' statement of qualifications in the Addenda. • That the subject and the comparable sales relied upon in making said appraisal were as represented by the photographs contained in said appraisal. • That such appraisal has been made in conformity with the appropriate State and City laws, Title VI of the 1964 Civil Rights Act, and regulations, policies and procedures applicable to appraisal of right of way for such purposes, and that to the best of my knowledge, no portion of the value assigned to such property consists of items which are non-compensable under the established law of such State and/or City. o I have provided no services regarding the subject property as an appraiser or in any other capacity within the three-year period immediately preceding acceptance of this assignment. o I have provided services regarding the subject property as an appraiser or in any other capacity within the three-year period immediately preceding acceptance of this assignment. Joshua J. Palmer 3002843 - Expires 12/22/2022 CERTIFICATION, CONTINUED Q U A L I F I C A T I O N S S U M M A R Y Comprehensive experience in the appraisal of complex commercial, industrial, residential, apartment, agricultural, and special purpose properties. Qualifications include certified with the California Bureau of Real Estate Appraisers and holds a Bachelor of Arts Degree in Agricultural Business from Fresno State University. C L I E N T P R O F I L E S Performed a wide range of appraisal assignments for financial, legal, public, and private sector clients including: Financial: United Security Bank, Bank of the Sierra, Happy State Bank. Public: Cities of Fresno, Sanger, Coalinga, Firebaugh, Madera, Huron, Clovis; Counties of Fresno & Tulare. Redevelopment Agencies of Fresno. Special Purpose: Convalescent hospitals, day care centers, churches, residential care facilities, senior citizen apartment projects, subdivisions, historic properties. Schools: Districts of Kerman and Fresno. D E S I G N A T I O N S, A F F I L I A T I O N S BREA Bureau of Real Estate Appraisers, State of California. Certified General Real Estate Appraiser (10/23/18). Certification No. 3002843 (valid through December 22, 2022) JOSHUA J. PALMER Page Two G E O G R A P H I C A R E A California: Counties of: Fresno, Madera, Merced, Stanislaus, Kings, Tulare, Kern, San Joaquin. E D U C A T I O N, P R O F E S S I O N A L D E V E L O P M E N T California State University, Fresno Bachelor of Arts Degree – Agricultural Business Appraisal Related Education Real Estate Appraisal Principles, Basic Valuation Procedures, Standards of Professional Practice, Case Studies in Real Estate Valuation, Report Writing & Valuation Analysis ¨ ¨ ¨ ¨ JOSHUA J. PALMER CERTIFICATION I, Gregg J. Palmer, certify: • That I have | have not made a personal inspection of the property that is the subject of this report, and have considered all of the pertinent facts affecting the value thereof. • That all market data pertaining to the final value opinion has been accumulated from various sources and, where possible, personally examined and verified as to details, motivation and validity. • That as of the date of this report, I have completed the requirements of the continuing education program of the Appraisal Institute. I am also a Certified General Appraiser, per the Bureau Of Real Estate Appraisers, State of California, License No. AG002880. • That the statements of fact contained in this report are true and correct. • That the reported analysis, opinions, and conclusions are limited only by the reported assumptions and limiting conditions, and are our personal, impartial, and unbiased professional analyses, opinions, and conclusions. • That I have no present or prospective interest in the property or the transaction that is the subject of this report, and we have no personal interest with respect to the parties involved. • That I have no bias with respect to the property that is the subject of this report or to the parties involved with this assignment. • That my engagement in this assignment was not contingent upon developing or reporting predetermined results. • That our compensation for completing the assignment is not contingent upon the reporting of a predetermined value or direction in value that favors the cause of the client, the amount of the value opinion, the attainment of a stipulated result, or the occurrence of a subsequent event directly related to the intended use of this appraisal. • That my analyses, opinions, and conclusions were developed, and this report has been prepared, in conformity with the Uniform Standards of Professional Appraisal Practice and the requirements of the Code of Professional Ethics and Standards of Professional Appraisal Practice of the Appraisal Institute. • That the use of this report is subject to the requirements of the Appraisal Institute relating to review by it’s duly authorized representative(s). • The appraisal assignment was not based on a requested minimum valuation, a specific valuation, or the approval of a loan. • That I have the appropriate education and experience to complete the assignment in a competent manner. The reader is referred to the appraisers' statement of qualifications in the Addenda. • That the subject and the comparable sales relied upon in making said appraisal were as represented by the photographs contained in said appraisal. • Unless otherwise noted, no one other than the undersigned provided significant assistance in the development of this appraisal and conclusions herein. • That such appraisal has been made in conformity with the appropriate State and City laws, Title VI of the 1964 Civil Rights Act, and regulations, policies and procedures applicable to appraisal of right of way for such purposes, and that to the best of my knowledge, no portion of the value assigned to such property consists of items which are non-compensable under the established law of such State and/or City. o I have provided no services regarding the subject property as an appraiser or in any other capacity within the three-year period immediately preceding acceptance of this assignment. o I have provided services regarding the subject property as an appraiser or in any other capacity within the three-year period immediately preceding acceptance of this assignment. o Please note that Joshua J. Palmer provided significant assistance in preparing the appraisal. He assisted in the inspection, valuation, opinions and conclusions herein. o Please note that Joshua J. Palmer provided assistance in preparing the appraisal. He inspected the property, took photographs and provided area analysis. Gregg J. Palmer, MAI AG002880 - Expires 4/24/2024 CERTIFICATION, CONTINUED Q U A L I F I C A T I O N S S U M M A R Y Comprehensive experience in the appraisal of complex commercial, industrial, residential, apartment, agricultural, and special purpose properties. Qualifications include MAI with the Appraisal Institute and candidacy as SR/WA with International Right of Way Association. Additionally, certified with the California Bureau Of Real Estate Appraisers and holds a Bachelor of Arts Degree in English from Fresno State University. C L I E N T P R O F I L E S Performed a wide range of appraisal assignments for financial, legal, public, and private sector clients including: Financial: Regency Bank, Western Bank, Great Western Bank, Fresno Bank of Commerce, San Joaquin Funding, Builders Mortgage, Cambridge Capital, Mercury Savings & Loan, Republic Savings & Loan, PV Financial, Central Bank, American National Bank, University Savings & Loan, Mitsubishi Bank, Bank of California, Pacific First Bank, Tokai Bank, Wells Fargo Bank, Mineral King Bank, Capital Bank, Imperial Thrift, United Security Bank, TOPA Thrift & Loan, Money Store Investment Corp., Banc One, Bank of the Sierra, WestAmerica Bank, Cypress Coast Bank, Stockton Savings Bank, Met-Life, Coopers & Lybrand, Truckee River Bank, CB Commercial, J.P. Morgan, GMAC, Washington Capital, Washington Mortgage, Banc One Capital Funding. Industry: Wilbur Ellis Company, Hydro Conduit, Fruehauf, Pacific Choice Brands, Penniman-Thermo King, Southern Pacific Railroad, Southern California Edison. Public: Cities of Fresno, Hanford, Sanger, Coalinga, Firebaugh, Madera, Clovis; Counties of Fresno, Kings, Madera, and Tulare; Redevelopment Agencies of Fresno, Clovis, Visalia, Sanger and Tulare; Federal Deposit Insurance Corporation (FDIC); Housing and Urban Development (HUD); California Housing Finance Agency (CHFA); Federal Aviation Administration (FAA); Resolution Trust Corporation (RTC); Department of Fish and Game. Special Purpose: Convalescent hospitals, day care centers, churches, residential care facilities, senior citizen apartment projects, subdivisions, assessment districts, historic properties, hotels, railroad rights-of-way. Oil Companies: Shell, Chevron, Unocal, Atlantic Richfield, Texaco. Schools: Districts of Kerman and Hanford. D E S I G N A T I O N S, A F F I L I A T I O N S MAI Member Appraisal Institute Sacramento Sierra Chapter. Fresno Chapter Newsletter Editor & Publisher (1992/1993). SR/WA Candidate International Right-of-Way Association. Newsletter Editor & Publisher. Chapter President 1996. BREA Bureau of Real Estate Appraisers, State of California. Certified General Real Estate Appraiser (2/4/92). Certification No. AG002880 (valid through April 24, 2024) GREGG J. PALMER, MAI Page Two C O U R T Superior Court of the State of California. Qualified as an Expert Witness T E A C H I N G California State University, Fresno Principles of Real Estate G E O G R A P H I C A R E A California: Counties of: Fresno, Madera, Merced, Stanislaus, Sacramento, Kings, Tulare, Kern, Inyo, San Joaquin, Santa Barbara, Mono, Los Angeles, San Diego, Del Norte, Tehema, and Imperial. Other States: Oregon E D U C A T I O N, P R O F E S S I O N A L D E V E L O P M E N T California State University, Fresno Bachelor of Arts Degree - English American Institute of Real Estate Appraisers Real Estate Appraisal Principles, Basic Valuation Procedures, Standards of Professional Practice, Capitalization Theory & Techniques Parts A & B, Case Studies in Real Estate Valuation, Report Writing & Valuation Analysis ¨ ¨ ¨ ¨ GREGG J. PALMER, MAI In acceptance of this appraisal assignment and the completion of the appraisal report submitted herewith, it has been assumed by these appraisers: 1) Limit of Liability: The liability of James G. Palmer Appraisals Inc., and employees, is limited to the client only and to the fee actually received by Appraiser(s). Further, there is no accountability, obligation, or liability to any third party. If this report is disseminated to anyone other than the client, the client shall make such party aware of all limiting conditions and assumptions of the assignment and related discussions. The Appraiser(s) is in no way to be responsible for any costs incurred to discover or correct any deficiencies of any type present in the property; physically, financially, and/or legally. In the case of limited partnerships or syndication offerings or stock offerings in real estate, client agrees that if a legal action is initiated by any lender, partner, part owner in any form of ownership, tenant, or any other party, the client will hold the Appraiser completely harmless in any such action from any and all awards or settlements of any type, regardless of outcome. 2) Copies, Publication, Distribution, Use of Report: Possession of this report or any copy thereof, does not carry with it the right to publication, nor may it be used for other than its intended use; the physical report(s) remain the property of the Appraiser(s) for the use of the client, the fee being for the analytical services only. No right is given to copy all or part of this report. Except, as hereinafter provided, the client may distribute copies of this appraisal report in its entirely to such third parties as he may select; however, selected portions of this appraisal report shall not be given to third parties without the prior written consent of the signatories of this appraisal report. Neither all nor any part of this appraisal report shall be disseminated to the general public by the use of advertising media, public relations, news, sales or other media for public communication without the prior written consent of the appraiser. (See last item in following list for client agreement/consent.) 3) Confidentiality: This appraisal is to be used only in its entirety and no part is to be used without the whole report. All conclusions and opinions concerning the analysis as set forth in the report were prepared by the Appraiser(s) whose signature(s) appear on the appraisal report, unless indicated as "Review Appraiser". No change of any item in the report shall be made by anyone other than the Appraiser(s). The Appraiser(s) and firm shall have no responsibility if any such unauthorized change is made. The Appraiser(s) may not divulge the material (evaluation) contents of the report, analytical findings, or conclusions, or give a copy of this report to anyone other than the client or his designee as specified in writing. 4) Information Use: No responsibility is assumed for accuracy of information furnished by work of others, the client, his designee, or public records. We are not liable for such information or the work of possible subcontractors. Be advised that some of the people associated with James G. Palmer Appraisals Inc. and signing the report are independent contractors. The comparable data relied upon in this report has been confirmed with one or more parties familiar with the transaction or from affidavit or other source though reasonable; all are considered appropriate for inclusion to the best of our factual judgment and knowledge. An impractical and uneconomic expenditure of time would be required in attempting to furnish unimpeachable verification in all instances, particularly as to engineering and market-related information. 5) Testimony, Consultation, Completion, of Contract For Appraisal Service: The contract for appraisal, consultation, or analytical service is fulfilled and the total fee is payable upon completion of the report. The Appraiser(s) or those assisting in preparation of the report will not be asked or required to give testimony in court or hearing because of having made the appraisal, in full or in part, nor engage in post appraisal consultation with the client or third parties except under separate and special arrangement and at additional fee. If testimony or deposition is required as a result of any subpoena, the client shall be responsible for any additional time, fees, and charges, regardless of issuing party. 6) Exhibits: Any sketches, maps, and photographs in this report are included to assist the reader in visualizing the property and are not necessarily to scale. Site plans are not surveyed unless shown from separate surveyor. 7) Legal Engineering, Financial, Structural, or Mechanical Components; Soil Quality: No responsibility is assumed for matters legal in character or nature, nor of any architectural, structural, mechanical, or engineering nature. No opinion is rendered as to the title, which is presumed to be good and merchantable. The property is appraised as if free and clear, unless otherwise stated in the appraisal report. The legal description is assumed to be correct as used in this report furnished by the client, his designee, or as derived by the Appraiser(s). LIMITING CONDITIONS Please note that no advice is given regarding mechanical equipment or structural integrity or adequacy, soils and potential for settlement on drainage, matters concerning liens, title status, and legal marketability, and similar matters. The client should seek assistance from qualified architectural, engineering, or legal professionals regarding such matters. The lender and owner should inspect the property before any disbursement of funds. Further, it is likely that the lender or owner may which to require mechanical structural inspections by a qualified and licensed contractor, civil or structural engineer, architect, or other expert. The Appraiser(s) has inspected as far as possible, by observation, the land and the improvements; however, it was not possible to personally observe conditions beneath the soil or hidden structural or other components. We have not critically inspected mechanical components within the improvements and no representations are made herein as to these matters unless specifically stated and considered in the report. The value estimate considers there being no such conditions that would cause a loss of value. The land or the soil of the area being appraised appears firm; however, subsidence in the area is unknown. The Appraiser(s) do not warrant against this condition or occurrence of problems arising from soil conditions. The appraisal is based upon there being no hidden, unapparent, or apparent conditions of the site, subsoil, or structures or toxic materials which would render it more or less valuable. No responsibility is assumed for any such conditions or for any expertise or engineering to discover them. All mechanical components are assumed to be in operable condition and status standard for properties of the subject type. Conditions of heating, cooling, ventilating, electrical and plumbing equipment is considered to be commensurate with the condition of the balance of the improvements unless otherwise stated. No judgment may be made by use as to adequacy of insulation, type of insulation, or energy efficiency of the improvements or equipment which is assumed standard for the subject property's age and type. If the Appraiser(s) has not been supplied with a termite inspection, survey or occupancy permit, no responsibility or representation is assumed or made for any costs associated with obtaining same or for any deficiencies discovered before or after they are obtained. No representations or warranties are made concerning the above mentioned items. The Appraiser(s) assumes no responsibility for any costs or consequences arising due to the need,, or the lack of need for flood hazard insurance. An agent for the Federal Flood Insurance Program should be contracted to determine the actual need for Flood Hazard Insurance. 8) Legality of Use: The appraisal is based on the premise that there is full compliance with all applicable federal, state, and local environmental regulations and laws unless otherwise stated in the report, and that all applications zoning, building, use regulations and restrictions of all types have been complied with unless otherwise stated in the report. It is further assumed that all required licenses, consents, permits, or other legislative or administrative approvals from all applicable local, state, federal and/or private authorities have been or can be obtained or renewed for any use considered in the value estimate. 9) Component Values: The allocation of the total valuation in this report between land and improvements, if included in this report, applies only under the use of the property which is assumed in this report. The separate valuations for land and building must not be used in conjunction with any other appraisal and are invalid if so used. 10) Auxiliary and Related Studies: No environmental or impact studies, special market study or analysis, special highest and best use study or feasibility study has been requested or made unless specified in an agreement for services or so stated in this report. 11) Dollar Values, Purchasing Power: The market value estimate and the cost used are as of the date of the estimate of value. All dollar amounts are based on the purchasing power and value of the dollars as of the date of the value estimate. 12) Value Change, Dynamic Market, Influences, Alteration of Estimate By Appraiser: The estimated market value, which is defined in the report, is subject to change with market changes over time. Value is highly related to exposure, time, promotional effort, terms, motivation, and conditions. The value estimate considers the productivity and relative attractiveness of the property physically and economically in the marketplace as of the date of value. In cases of appraisals involving the capitalization of income benefits, the estimate of market value or investment value or value in use is a reflection of such benefits and Appraiser's interpretation of income and yields and other factors derived from general and specific client and market information. Such estimates are as of the date of the estimate of value, and they are thus subject to change as the market changes. The "Estimate of Market Value" in the appraisal report is not based in whole or in part upon race, color, or national origin of the present owners or occupants of the properties in the vicinity of the property appraised. The appraisal report and value estimate are subject to change if the physical or legal entity or the terms of financing are different from what is set forth in this report. 13) Inclusions: Except as specifically indicated and typically considered as a part of the real estate, furnishings, equipment, other personal property, or business operations have been disregarded with only the real estate being considered in the value estimate. In some property types, business and real estate interests and values are combined but only if so stated. 14) Proposed Improvements, Conditioned Value: Improvements proposed, if any, onsite or offsite, as well as any repairs required are considered for purposes of this appraisal to be completed in good and workmanlike manner according to information submitted and/or considered by the appraisers. In cased of proposed construction, the appraisal is subject to change upon inspection of the property after construction is completed. This estimate of market value is as of the date shown, as proposed, as if completed, and operating at levels shown and projected, unless otherwise stated. 15) Management of the Property: It is assumed that the property which is the subject of this report will be under typically prudent and competent management, neither inefficient nor superefficient. 16) Fee: The fee for this appraisal or study is for the service rendered and not solely for the time spent on the physical report or the physical report itself. 17) Insulation and Toxic Materials: Unless otherwise stated in this report, the Appraiser(s) signing this report have no knowledge concerning the presence or absence of toxic materials and/or unreaformaldehyde foam insulation in existing improvements. If such is present, the value of the property may be adversely affected. 18) Change, Modifications: The Appraiser(s) reserve the right to alter statements, analyses, conclusions or any value estimate in the appraisal if there becomes known to them facts pertinent to the appraisal process which were unknown when the report was finished. 19) Limiting Conditions: This report sets forth all of the limiting conditions affecting the analysis, opinions, and conclusions contained in this report. 20) Acceptance: Acceptance and/or use of this appraisal report by the client or any third party constitutes acceptance of the above conditions. Appraiser liability extends only to the stated client and not to subsequent parties or users. And the liability is limited to the amount of fee received by the Appraiser(s). 21) Americans with Disabilities Act: The Americans with Disabilities Act (ADA) became effective January 26, 1992. We have not made a specific compliance survey and analysis of the property to determine whether or not it is in conformity with the various detailed requirements of the ADA. It is possible that a compliance survey of the property, together with a detailed analysis of the requirements of the ADA could reveal that the property is not in compliance with one or more of the requirements of the Act. If so, this could have a negative effect on the property's market value. Since we have no direct evidence relating to this issue, we did not consider possible non-compliance with the requirements of the ADA in our market value estimates. 22) Fair Housing Amendments Act: In accordance with the Fair Housing Amendments Act, it is illegal for an Appraiser(s) to discriminate against any person because of race, color, religion, sex, hardship, familial status, or national origin. This appraisal complies with all rules and regulations prohibiting discrimination on the basis of race, color, religion, sex, nation origin, and marital status. 23) Year 2000 Compliance: Unless otherwise stated in this report, problems with year 2000 compliance were not investigated, nor called to the attention of, nor did the appraiser become aware of such during the appraiser's inspection. Problems with year 200 compliance of embedded systems and the cost to correct them would affect the value of the property, but the appraiser is not qualified to recognize or estimate the cost. This appraisal is predicated on the assumption that no such year 2000 problems exist and no responsibility is assumed for any such problems, nor for any expertise or knowledge required to discover them. 24) Unforeseeable Events: The appraiser cannot be held responsible for unforeseeable events that alter market conditions (that occur subsequent to the date of the preparation of the report, but) prior to the effective date of the appraisal. 25) Prospective Valuation: In preparing appraisals that include prospective (future) valuations, the appraiser cannot be held responsible for the unforeseeable events that alter market conditions (those that occur subsequent to the date of preparation of the report but, prior to the effective date of appraisal). ADDENDA )???:RUG'RFV?/HJDO'HVFULSWLRQV?B$6+/$12))6,7(5:?2))6,7(36(?B2))6,7(B5:B/(*$/6? 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Cap. Class Non-Irr. Cap. Class Storie Index Acres Parcel % Ϭ^Ě^ĂŶ:ŽĂƋƵŝŶƐĂŶĚLJůŽĂŵ͕ƐŚĂůůŽǁ͕ϬƚŽϯƉĞƌĐĞŶƚƐůŽƉĞƐ 2 4 4 23 2.097 100.00 Total Acres:2.097 COMPARABLE SALE PROFILE Location & Property Identification Monte Avenue Land Sale Information Comments SIte Data & Economic Indicators Property Name:Monte Avenue Land Property Type:Vacant Residential Land Address:953 N Monte Avenue City/ State/ Zip:Fresno/ CA/ 93728 County:Fresno Submarket:Fresno County Sale Price:$140,000 CEq Price:$140,000 Sale Date:April 14, 2022 Sale Status:Sale Grantor:Pestorich Holdings LLC Grantee:Lucero Aguayo Property Rights:Fee Simple Document:48414 Data Source:Public Record / Fresno MLS Legal/ Tax/ APN:449-291-04 Acres (Gross):0.79 Land - SF (Gross):34,391 Zoning:R2A Description:Rural Residential (Agricultural) Orientation:Interior Offsites:Partial Price/SF - Land:$4.07 Price/AC - Land:$177,215 Net Operating Income: Capitalization Rate: The land was vacant and unimproved at the time of the sale.It was located within the County of Fresno and within the Sphere of Influence of the City of Fresno.It is designated for medium density residential in the general plan.Due to its size and location,it has a highest and best use for Multiple Family Residential development Land Sale 1 COMPARABLE SALE PROFILE Location & Property Identification Austin Way Multifamily Land Sale Information Comments SIte Data & Economic Indicators Property Name:Austin Way Multifamily Land Property Type:Vacant Multifamily Address:4783 E Austin Way City/ State/ Zip:Fresno/ CA/ 93726 County:Fresno Submarket:Fresno County Sale Price:$160,000 CEq Price:$160,000 Sale Date:January 18, 2022 Sale Status:Sale Grantor:Ana Maria Cornejo Grantee:Chen & Meili Zheng Property Rights:Fee Simple Document:7170 Data Source:Public Record / Fresno MLS Legal/ Tax/ APN:430-210-07 Acres (Gross):0.90 Land - SF (Gross):39,468 Zoning:RM-1 Description:Multiple Family Orientation: Offsites: Price/SF - Land:$4.05 Price/AC - Land:$177,778 Net Operating Income: Capitalization Rate: The land was vacant and unimproved at the time of the sale.It was located north of the Fresno-Yosemite International Airport.It is zoned for future multifamily development which is consistent with nearby developments. Land Sale 2 COMPARABLE SALE PROFILE Location & Property Identification Cedar Avenue Multifamily Land Sale Information Comments SIte Data & Economic Indicators Property Name:Cedar Avenue Multifamily Land Property Type:Vacant Multifamily Address:Undefined, Cedar Avenue City/ State/ Zip:Fresno/ CA/ 93702 County:Fresno Submarket:Fresno County Sale Price:$50,000 CEq Price:$50,000 Sale Date:March 24, 2021 Sale Status:Sale Grantor:Amandip S Gill Grantee:Randy Lewis Property Rights:Fee Simple Document:49062 Data Source:Public Record / MLS Legal/ Tax/ APN:471-211-15 Acres (Gross):0.24 Land - SF (Gross):10,440 Zoning:RM-1 Description:Residential Multifamily Orientation:Interior Offsites:Partial Price/SF - Land:$4.79 Price/AC - Land:$208,333 Net Operating Income: Capitalization Rate: The property was located along the east side of Cedar Avenue one parcel north of Woodward Avenue in south Fresno.It is directly across the street from Sequoia Middle School.The land was vacant and unimproved at the time of the sale and zoned for multifamily development.It is adjacent to a multifamily development to the east and in near proximity to others. Land Sale 3 COMPARABLE SALE PROFILE Location & Property Identification Shields Avenue Land Sale Information Comments SIte Data & Economic Indicators Property Name:Shields Avenue Land Property Type:Vacant Residential Land Address:3484 W Shields Avenue City/ State/ Zip:Fresno/ CA/ 93722 County:Fresno Submarket:Fresno County Sale Price:$249,000 CEq Price:$249,000 Sale Date:January 8, 2021 Sale Status:Sale Grantor:SK Valley Homes Grantee:Singh Sukhminder Property Rights:Fee Simple Document:8848 Data Source:Public Record / MLS Legal/ Tax/ APN:433-090-21S Acres (Gross):2.23 Land - SF (Gross):97,139 Zoning:RS5 Description:Residential Orientation:Interior Offsites:Partial Price/SF - Land:$2.56 Price/AC - Land:$111,659 Net Operating Income: Capitalization Rate: The land was vacant and undeveloped at the time of the sale.It is surrounded by existing development. Land Sale 4 COMPARABLE SALE PROFILE Location & Property Identification Clinton Avenue Multifamily Land Sale Information Comments SIte Data & Economic Indicators Property Name:Clinton Avenue Multifamily Land Property Type:Vacant Multifamily Address:5700 W Clinton Avenue City/ State/ Zip:Fresno/ CA/ 93722 County:Fresno Submarket:Fresno County Sale Price:$1,800,000 CEq Price:$1,800,000 Sale Date:October 29, 2020 Sale Status:Sale Grantor:Assemi Group Grantee:Van Gronigen Living Trust Property Rights:Fee Simple Document:154319 Data Source:Public Record/ Costar Legal/ Tax/ APN:312-061-15 & 16 Acres (Gross):9.76 Land - SF (Gross):425,146 Zoning:RR Description:Rural Residential Orientation:Interior Offsites:Partial Price/SF - Land:$4.23 Price/AC - Land:$184,426 Net Operating Income: Capitalization Rate: The property consists of two contiguous parcels of land located in the County of Fresno.They are vacant and unimproved.The land has a highest and best use for future multifamily land due to its location,orientation and shape.It is within the sphere of influence of the City of Fresno and designated for future medium density residential development. Land Sale 5 1 AGREEMENT FOR PURCHASE AND SALE OF A PERMANENT STREET EASEMENT AND ESCROW INSTRUCTIONS APN 511-040-06-S Tract-6162 Development Project City Project No.: PW00969 This Agreement for a Permanent Street Easement (Agreement) is entered into by and between Elvia Gonzalez, (Owner), without regard to number or gender, and the CITY OF FRESNO, a municipal corporation (City) for a permanent street easement and right-of-way for public street purposes on the following terms and conditions. 1.The real property which is the subject of this Agreement, hereinafter "Subject Property", is a Permanent Street Easement to facilitate the T-6162 West Ashlan Widening Project, situated in the City of Fresno, County of Fresno, State of California, being approximately 4,336 square feet in size, within Assessor's Parcel Number 511-040-06-S, as described on Exhibit "A" and depicted on Exhibit "B", attached hereto and incorporated herein by reference. 2.Owner agrees to grant to City a permanent street easement and right-of-way, (Easement) for public street purposes over, under, through, and across the Subject Property, free and clear of all liens, encumbrances, and restrictions of record. 3.City shall pay just compensation of TEN THOUSAND, FIVE HUNDRED DOLLARS ($10,500.00) for the Easement, including cost to cure damages, benefits, and/or severance damages to the remainder, if any, as described on Exhibit "C", attached hereto and incorporated herein by reference, for the Subject Property. 4.Clause 3 above may include payment for the replacement of improvements such as fencing and/or irrigation facilities that are within the area being acquired for this Project and must be replaced in order to proceed with the construction of the Project. If Owner does not replace said items, City may install temporary fencing on Owners property lying immediately adjacent to the new right of way line, if necessary, to hold in livestock during construction of the road project, and/or plug the irrigation line(s) at Owner's property line. Owners hereby agree to allow City, its agents, employees, authorized contractors and subcontractors and their employees access to their remaining property to perform said work and that the cost for said work shall be billed to and paid for by Owner. 5.The Effective date of this Agreement shall be upon its duly authorized execution by the City and the payment of TEN THOUSAND, FIVE HUNDRED DOLLARS ($10,500.00) just compensation to the Owner. 6.Owner represents and warrants that it holds fee title to the Subject Property, and has the authority to enter into the Agreement herein made. 2 7.Owner agrees to hold the City harmless and reimburse the City for any and all losses and expenses as to the Subject Property by reason of any change in ownership or Lease of said Subject Property held by any tenant of the Owner. 8.The sale shall be completed through an External Escrow to be opened at Lennar Title Company at 7555 N Palm Ave, STE 210 Fresno, CA 93711. Robin Davis shall be the escrow agent. Said escrow shall be opened upon the following terms and conditions, and the Owner and City by their signature to this Agreement make this paragraph their escrow instructions: a.City shall deposit the sums specified in Paragraph 3 of this Agreement and the closing costs in escrow upon receipt of a demand and statement from said title company. b.Payment of said sums, less Owner's cost to clear title, if any, may be made to Owner only when escrow holder possesses and is in a position to deliver to City a fully executed and acknowledged and recorded easement deed to the subject property free and clear of all liens, encumbrances and restrictions of record. c.City reserves the right to accept title to the property interest to be acquired by City herein subject to certain defects in any or all matters of record title to the property. In consideration for Owner receiving the total sum as stated in Paragraph 3, the undersigned Owner covenants and agrees to indemnify and hold City harmless from any and all claims and demands third parties may make or assert and causes of action third parties may bring which arise out of or are in connection with the foregoing defects in title to the property. The Owner's obligation herein to indemnify and hold harmless City shall not exceed the amount paid to the Owner under specified in Paragraph 3. d.It is understood that Owner shall be responsible for the payment of all taxes, penalties, redemptions, and costs allocable to the subject property. e.The escrow fee, cost of policy of title insurance, recording fees (if any), shall be paid by City. f.Disbursements of the purchase price to be in the amounts, at the times, and in all respects in accordance with the terms and conditions and subject to the limitations of this Agreement. 9.Owner shall indemnify, hold harmless, and defend City, its officers, agents, employees, and volunteers from any liability, loss, fines, penalties, forfeitures, claims, expenses, and costs, whether incurred by the Owner, City, or any other third party, arising directly or indirectly from the release, presence or disposal of 3 any hazardous substances or materials (as now or hereafter defined in any law, regulation, or rule) in, on, or about the Property on or before the effective date of this Agreement. This indemnity shall include, without limitation, any claims under the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended (CERCLA), or any other federal, state or local law whether statutory or common law, ordinance, or regulation. Costs or losses covered will include, without limitation, consultants, engineering, investigator fees, clean up or disposal costs and attorneys' fees, and damages. The Owners obligation herein to indemnify and hold harmless City shall not exceed the amount paid to the Owner specified in Paragraph 3. This limitation does not preclude the City from bringing a claim against Owner for a loss on the adjacent property. 10.Miscellaneous Provisions: a. Waiver. The waiver by either party of a breach by the other of any provision of this Agreement shall not constitute waiver or a waiver of any subsequent breach of either the same or a different provision of this Agreement. No provision of this Agreement may be waived unless in writing and signed by all parties to this Agreement. Waiver of any one provision herein shall not be deemed to be a waiver of any other provision herein. b.Governing Law and Venue. This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of California. Venue for purposes of the filing of any action regarding the enforcement or interpretation of this Agreement any rights and duties hereunder shall be Fresno, California. c.Headings. The section headings in this Agreement are for convenience and reference only and shall not be construed or held in any way to explain, modify or add to the interpretation or meaning of the provisions of this Agreement. d.Severability. The provisions of this Agreement are severable. The invalidity, or unenforceability or any one provision in this Agreement shall not affect the other provisions. e.Interpretation. The parties acknowledge that this Agreement in its final form is the result of the combined efforts of the parties and that, should any provision of this Agreement be found to be ambiguous in any way, such ambiguity shall not be resolved by construing this Agreement in favor of or against any party, but rather by construing the terms in accordance with their generally accepted meaning. 4 f.Attorney’s Fees. If either party is required to commence any proceeding or legal action to enforce or interpret any term, covenant or condition of this Agreement, the prevailing party in such proceeding or action shall be entitled to recover from the other party its reasonable attorney’s fees and legal expenses. g.Precedence of Documents. In the event of any conflict between the body of this Agreement and any Exhibit or Attachment hereto, the terms and conditions of the body of this Agreement shall control and take precedence over the terms and conditions expressed within the Exhibit or Attachment. h.Cumulative Remedies. No remedy or election hereunder shall be deemed exclusive but shall, wherever possible, be cumulative with all other remedies at law or in equity. i. Exhibits and Attachments. Each Exhibit and Attachment referenced herein is by such reference incorporated into and made a part of this Agreement for all purposes. j.Extent of Agreement. Each party acknowledges that they have read and fully understand the contents of this Agreement. This Agreement represents the entire and integrated agreement between the parties with respect to the subject matter hereof and supersedes all prior negotiations, representations or agreements, either written or oral. This Agreement may be modified only by written instrument duly authorized and executed by both the City and the Owner. [SIGNATURE PAGE TO FOLLOW] 5 IN WITNESS WHEREOF, the parties have executed this Agreement at Fresno, California, on the Effective date of this Agreement as defined above. CITY OF FRESNO, A California municipal corporation By: Scott L. Mozier, PE, Date Public Works Director RECOMMENDED FOR APPROVAL: By: Date Joshua Marple Senior Real Estate Agent By: Nancy Bruno Date Supervising Real Estate Agent APPROVED AS TO FORM: ANDREW JANZ City Attorney By: Deputy Date Elvia Gonzalez By: Elvia Gonzalez Date ATTEST: TODD STERMER, CMC, MMC City Clerk By: Deputy Date Attachments: 1.Exhibit “A” 2.Exhibit “B” 3.Exhibit “C” Exhibit C Page 1 of 4 AP # 511-040-06-S APPRAISAL SUMMARY STATEMENT BASIC DATA PROJECT: PW00969 / T-6162 West Ashlan Ave Widening ASSESSOR’S PARCEL NO. (APN#): 511-040-06-S OWNER: Elvia Gonzalez PROPERTY LOCATION: 5757 West Ashlan Ave, Fresno, CA 93722 APPLICABLE ZONING: RR CURRENT USE OF SUBJECT PROPERTY: Rural Residential HIGHEST AND BEST USE OF SUBJECT PROPERTY: Multifamily Residential DATE OF VALUATION: 10/07/2022 TOTAL PROPERTY AREA: ± 91,476 square feet PROPERTY TO BE ACQUIRED: ALL [ ] PART [ X ] Type/Number of Easements 1 Easement Acquisition 2,175 SF Prescriptive 2,161 SF IMPROVEMENTS TO BE ACQUIRED: None BASIS OF APPRAISAL The market value for the property to be acquired is based upon an appraisal done by a certified and state-licensed appraiser, which was prepared in accordance with accepted appraisal principles and procedures. Recent sales of comparable properties, income data, and depreciated replacement costs are utilized as appropriate. Full consideration is given to zoning, development potential, and the income that the subject property is capable of producing. There are three approaches to value: 1.In the Sales Comparison Approach, the appraisers derive a value indication by comparing the property being appraised to similar properties in competitive areas that have recently sold or been offered for sale. This procedure is accomplished by applying the appropriate units of comparison extracted from the market and then by applying adjustments to the sales prices of the comparable. This approach in the appraisal analysis is based upon the premise that an informed purchaser would pay no more for a property than a substitute property with equal utility. 2.The Cost Approach is based in part on a replacement cost new of improvements, less depreciation. This approach was not utilized in this analysis. 3.The Income Approach is based upon consideration of the income producing potential of the property. This approach was not utilized in this valuation process as it was deemed inapplicable to this specific case. Exhibit C Page 2 of 4 AP # 511-040-06-S VALUATION Easement Acquisition = 2,175 SF @ $4.75/SF = $ 10,331.00 Prescriptive Right of Way = 2,161 SF = 100.00 Total Value Part Taken = $ 10,431.00 Cost to Cure Total Cost to Cure = $ 0.00 Part Taken = $ 10,431.00 Severance Damages = 0.00 Benefits = (0.00) Total Compensation = $ 10,431.00 Adjusted To = $ 10,500.00 Total Just Compensation for this Acquisition (Rounded) $ 10,500.00 TEN THOUSAND FIVE HUNDRED DOLLARS AND NO CENTS This summary of the basis of the amount offered as just compensation is presented in compliance with federal and state laws and has been derived from a formal appraisal prepared by a certified and state- licensed real estate appraiser, which includes supporting sales data and other documentation. The appraisal is hereby confirmed approved and accepted by this agency and a purchase offer based thereon is hereby approved and authorized. Exhibit C Page 3 of 4 AP # 511-040-06-S SUMMARY STATEMENT RELATING TO PURCHASE OF REAL PROPERTY OR AN INTEREST THEREIN Project: PW00969 City of Fresno – T-6162 West Ashlan Widening APN#: 511-040-06-S (Elvia Gonzalez) The City of Fresno is proposing to construct a city park at the location. Your property, located in Fresno, California, is within the project area and identified by your County Assessor as Parcel Numbers 511-040-06-S. Title III of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 and the California Relocation Assistance and Real Property Acquisition Guidelines requires that each owner from whom the City purchases real property or an interest therein or each tenant owning improvements on said property be provided with a summary of the appraisal of the real property or interest therein, as well as the following information: 1.You are entitled to receive full payment prior to vacating the real property being purchased unless you have heretofore waived such entitlement. You are not required to pay recording fees, transfer taxes, or the pro rata portion of real property taxes which are allocable to any period subsequent to the passage of title or possession. 2.The City will offer to purchase any remnant(s) considered by the City to be an uneconomic unit(s) which is/(are) owned by you or, if applicable, occupied by you as a tenant and which is/(are) contiguous to the land being conveyed. 3.All buildings, structures, and other improvements affixed to the land described in the referenced document(s) covering this transaction and owned by the grantor(s) herein or, if applicable, owned by you as a tenant, are being conveyed unless other disposition of these improvements has been made. The interests being acquired include is described in the Deeds. 4.The market value of the property being purchased is based upon a market value appraisal which is $10,500.00 summarized on the attached Appraisal Summary Statement and such amount: a.Represents the full amount of the appraisal of just compensation for the property to be purchased; b.Is not less than the approved appraisal of the fair market value of the property as improved; c.Disregards any decrease or increase in the fair market value of the real property to be acquired prior to the date of valuation caused by the public improvement for which the property is being acquired or by the likelihood that the property would be acquired for such public improvement, other than that due to physical deterioration within the reasonable control of the owner or occupant; and d.Does not reflect any consideration of or allowance for any relocation assistance and payments or other benefits which the owner is entitled to receive under an agreement with the City. Exhibit C Page 4 of 4 AP # 511-040-06-S 5.Pursuant to Civil Code of Procedure Section 1263.025, should you elect to obtain an independent appraisal, the City will pay for the actual reasonable costs of such an appraisal up to a maximum of $5,000.00 subject to the following conditions: a.You, not the City, must order the appraisal. Should you enter into a contract with the selected appraiser, the City will not be a party to your contract with an appraiser. b.The selected appraiser must be licensed with the California Office of Real Estate Appraisers (OREA). It is also recommended that such appraiser be experienced and qualified in the appraisal of easements if this offer is to purchase easements rather than the fee interest in your property. c.Within 30 days of your receipt of this offer, you must notify the City of your intent to obtain an independent appraisal. d.Appraisal cost reimbursement requests must be made in writing, and submitted to the City within 30 days of your receipt of the independent appraisal and no later than 120 days of your receipt of this offer. Copies of the contract (if a contract was made), appraisal report, and invoice for completed work by the appraiser must be provided to the City concurrent with submission of the appraisal cost reimbursement request. The appraisal costs must be reasonable and justifiable. 6.No person in the United States of America shall, on the grounds of race, color, national origin, sex, age, or disability be excluded from the participation in, be denied the benefits of, or be otherwise subjected to discrimination under any City programs or activities. If federal funding is being utilized in the project for which your property is being sought, notice is hereby provided that it is the policy of the City to assure full compliance with Title VI of the Civil Rights Act of 1964, the Civil Rights Restoration Act of 1987, and related statutes and regulations, in all programs and activities undertaken by the City. Any person who believes they have been subjected to unlawful discriminatory practice under Title VI has a right to file a formal complaint with the City. 7.The owner of a business conducted on a property to be acquired, or conducted on the remaining property which will be affected by the purchase of the required property, may be entitled to compensation for the loss of goodwill. Entitlement is contingent upon the business owners’ ability to prove such loss in accordance with the provisions of Section 1263.510 and 1263.520 of the Code of Civil Procedure. 8.If you ultimately elect to reject this offer for the purchase of your property, you are entitled to have the amount of compensation determined by a court of law in accordance with the laws of the State of California. District 1 Equal Employment Opportunity (EEO) Office 1656 Union Street Eureka, CA 95501 (707) 445-5318 District 2 EEO Office 1657 Riverside Drive Redding, CA 96001 (530) 225-3055 District 3 EEO Office 703 B Street Marysville, CA 95901 (530) 741-7130 District 4 EEO Office P.O. Box 23660, MS 6A Oakland, CA 94623 (510) 286-5871 District 5 EEO Office 50 Higuera Street San Luis Obispo, CA 93401 (805) 549-3037 District 6 EEO Office 1352 West Olive Avenue Fresno, CA 93728 (559) 444-2522 District 7 EEO Office 100 S. Main Street Los Angeles, CA 90012 (213) 897-0797 District 8 EEO Office 464 West 4th Street, MS 1249 San Bernardino, CA 92401 (909) 383-6396 District 9 EEO Office 500 S. Main Street Bishop, CA 93514 (760) 872-0752 District 10 EEO Office 1976 East Dr. Martin Luther King Jr. Blvd. Stockton, CA 95205 (209) 948-3911 District 11 EEO Office 4050 Taylor Street, MS 251 San Diego, CA 92110 (619) 688-4249 District 12 EEO Office 1750 East 4th Street, Suite 100 Santa Ana, CA 92705 (657) 328-6595 Headquarters Title VI Coordinator 1823 14th Street, MS 79 Sacramento, CA 95811 (916) 324-8379 Jan 2017 Your Rights Under Title VI and Related Statutes This brochure is designed to inform you of the requirements of Title VI of the Civil Rights Act of 1964 and your rights under those requirements. Caltrans & You This publication will be made available in alternative formats: Braille Large print Computer disc Audio version or in a different language upon request by calling the Caltrans Office of Business & Economic Opportunity (916) 324-8379 711 (TTY) What is Title VI? Title VI is a statute provision of the Civil Rights Act of 1964. Title VI (Sec. 601) of the Civil Rights Act of 1964 provides: “No person in the United States shall, on the grounds of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” (42 U.S.C. Sec. 2000d) Additionally, Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations 1994 provides: “Each Federal agency shall make achieving environmental justice part of its mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low-income populations.” Related statutes provide protection against discrimination on the basis of sex, age, or disability by programs receiving federal financial assistance. What does this mean? That Caltrans strives to ensure that access to and use of all programs, services, or benefits derived from any Caltrans activity will be administered without regard to race, color, national origin, sex, age, disability or socioeconomic status. Caltrans will not tolerate discrimination by a Caltrans employee or recipients of federal funds such as cities, counties, contractors, consultants, suppliers, universities, colleges, planning agencies, and any other recipients of federal-aid highway funds. Caltrans prohibits all discriminatory practices, which may result in: • Denial to any individual of any service, financial aid, or benefit provided under the program to which he or she may be otherwise entitled; • Different standards or requirements for participation; • Segregation or separate treatment in any part of the program; • Distinctions in quality, quantity, or manner in which the benefit is provided; • Discrimination in any activities conducted in a facility built in whole or part with federal funds. To ensure compliance with Title VI, related statutes, and the Presidential Executive Order on Environmental Justice, Caltrans will: • Avoid or reduce harmful human health and environmental effects on minority and low-income populations; • Ensure the full and fair participation by all communities including low-income and minority populations in the transportation decision-making process; • Prevent the denial of, reduction in, or significant delay in the receipt of benefits by minority and low-income populations. Additionally, any recipient, including, but not limited to, Metropolitan Planning Organizations and cities and counties, who receive federal financial aid bears a responsibility to administer its program and activities without regard to race, color, national origin, sex, age, disability, or socioeconomic status. Benefits and Services Caltrans’ mission is to provide the people of California with a safe, efficient, and effective inter-modal transportation system. All of the work Caltrans performs is intended to assist the transportation needs of all the people of California regardless of race, color, national origin, sex, age, disability, or socioeconomic status. Are your rights being violated? If you believe that you have been discriminated against because of your race, color, national origin, sex, age, or disability, you may file a written complaint with the Caltrans Equal Employment Opportunity (EEO) Office. District EEO offices are located statewide. The addresses and telephone numbers are located on the back of this brochure. Title VI complaints are forwarded to Sacramento for investigation by the Caltrans Office of Business & Economic Opportunity Title VI Program. Who bears the responsibility to Title VI? All of Caltrans employees and its functional programs.The Caltrans Office of Business & Economic Opportunity Title VI Program provides continuous leadership, guidance, and technical assistance to ensure ongoing compliance with Title VI and the Executive Order on Environmental Justice. Your Property Your Transportation Project 2 3 INTRODUCTION This booklet was prepared for you as a person who may potentially be affected by a proposed public transportation project. If it is your property that is affected, you may have wondered what will happen. Who will contact you? What will you be paid for your property? Who will pay your moving costs? Will the State Department of Transportation (Department) help you find a new place to live? Important questions like these require specific answers. We hope this booklet will answer some of your questions and present a better picture of our overall procedures. 4 WHY DOES A PUBLIC AGENCY HAVE THE RIGHT TO BUY MY PROPERTY? Our State and Federal constitutions recognize the need for public agencies to purchase private property for public use, and provide appropriate safeguards to accomplish this purpose. State and Federal constitutions and the Uniform Relocation Assistance and Real Property Acquisition Policies Act authorize the purchase of private property for public use and assure full protection of the rights of each citizen. The responsibility for studying potential sites for a transportation project rests with a team of specially trained individuals selected to do this important job. Many months or even years are spent in preliminary study and investigation to consider possible locations for a project. Consideration of the environmental and social impacts are as much a part of location determination as engineering and cost. Participation by private citizens and public agencies is actively sought so that various views can be considered in the study process. The process may include public hearings and/or workshops, which give persons an opportunity to express their views on the locations being considered. 5 The California Department of Transportation is composed of many specialists. Among these are: Transportation Planners These individuals determine methods and routes for the traveling public. This includes studies of existing traffic patterns, “origin-destination” surveys and user benefits. They also determine whether the proposed project location is economically sound. They research and analyze the effects produced by similar projects upon other communities. Environmental Planners These individuals evaluate the socio-economic and/or environmental impacts, including traffic, noise and visual impacts of the proposed project. Design Engineers These individuals recommend the type of transportation project which will be of the most benefit to the public. They prepare design plans which determine the properties needed for the project. 6 Relocation Specialists These individuals perform early studies of the general needs of persons who may need to be relocated and the kind of replacement properties which may be required. A relocation impact analysis will be completed before the Department requires anyone to move from their property. As a result of this team effort, the best possible location for a transportation facility is selected after thorough social, economic, engineering, and environmental analyses, as well as consideration of expressed public concerns and desires. The goal is that the project provide the greatest public good and the least private injury or inconvenience while rendering the best possible service. Transportation Surveyors These individuals perform field surveys and monument property lines to delineate and map the Department’s right of way needs. They are also authorized by law to enter real property to perform such tasks. It is the Department’s policy that owners and tenants of property will be notified prior to such surveys. 7 WHO WILL CONTACT ME? One of the first persons you will meet is a Right of Way Agent performing the staff appraisal. You will be afforded the opportunity to accompany the appraiser on the inspection of your property. At the time of the inspection the appraiser will also provide you with general project information. The appraiser will analyze your property and examine all of the features which contribute to its market value. Information about improvements you have made and any other special features that you believe may affect the market value of your property should be given to the appraiser to ensure he/she has all the information you feel is relevant. It is the duty of the Department to ensure that you receive fair market value as if you sold your property privately in the open market. The Department cannot buy your property for more than it is worth, but it can and will assure you that you do not have to sell your property for less than its fair market value. California law provides that the owner shall receive a copy of the appraisal or a summary of the valuation upon which the Department’s offer is based. 8 At the time the offer is made to purchase your property, you may obtain your own appraisal and the Department will reimburse you up to $5,000 for the actual, reasonable costs of obtaining an independent appraisal. A licensed State appraiser must perform your appraisal. Your Right of Way Agent will provide more information concerning this reimbursement at the time of the offer. WHAT ADVANTAGE IS THERE IN SELLING YOUR PROPERTY TO THE DEPARTMENT? A real estate purchase by the Department of Transportation is handled in the same way as any private sale of property. However, there can be financial advantages in selling to the Department. The Department will pay fair market value for your property. The Department will also pay for the preparation of all documents, all title and escrow fees, a policy of title insurance, recording fees and such other fees as may be required for the conveyance of title to the Department. Since this is a direct conveyance of real property from the property owner to the Department, there are no real estate commissions involved, and the Department will not recognize or pay any such real estate commissions. A private sale will usually cost thousands of dollars in sales expenses. There are no seller’s expenses in a purchase by the Department. 9 Additionally, depending on your specific circumstances, you may be eligible for relocation payments and benefits when you move. These benefits are described in supplemental booklets which will be provided to you, should the Department’s acquisition actually cause you to be displaced from your property. WILL I BE PAID FOR LOSS IN VALUE TO MY REMAINING PROPERTY? When only a part of your property is needed for a project, every reasonable effort is made to ensure that you do not suffer damages to the remainder of your property. The total payment by the Department will be for the property the Department actually purchases and for any loss in market value to your remaining property. The determination of any loss in market value is an appraisal analysis involving many variables. When this situation occurs, the Right of Way Agent will explain the effect of a partial acquisition on your remaining property. 10 MAY I RETAIN AND MOVE MY HOME, BUSINESS BUILDING, MACHINERY, OR EQUIPMENT? If your house is movable and you wish to make such an arrangement, the Department will pay you on the basis of the market value of your present lot including landscaping, plus the reasonable cost of moving the building. There are cases where, because of age, size or condition of the house, the cost of moving it would exceed its present market value, less its salvage value. In such a case, payment of moving costs would, of course, be an unwise expenditure of public funds. If you operate a farm or business, you may wish to keep and move fixed machinery and equipment. Additionally, as an owner of a business conducted on the property to be purchased, you may be entitled to compensation for a loss of business goodwill. Your specific circumstances will need to be analyzed on a case-by-case basis. If any of these concepts are applicable to your situation, they will be explained by the Right of Way Agent assigned to purchase your property. 11 WILL I HAVE TIME TO SELECT ANOTHER HOME AFTER THE DEPARTMENT MAKES ITS PURCHASE? The Department starts to appraise properties early enough so that you will have ample time to move prior to project construction. Like any other real estate transaction, it requires time to close an escrow after a right of way contract and deed have been signed. You will not be required to move until reasonable, decent, safe and sanitary replacement housing is available. Once you have received the written offer to purchase your property from the Department, it is in your best interest to look for a new place to live as soon as possible. Finding a home early that best suits your needs before you are required to move will minimize your personal inconvenience and will avoid having to make a choice of housing under pressure. In some instances you may be able to sell your property to the Department and rent back temporarily pending construction. The Department also offers to provide you with assistance in finding a new place in which to live. The Department will give you at least 90 days notice in writing before you are required to move. 12 WHAT HAPPENS TO THE LOAN ON MY PROPERTY? After you and the Department have agreed upon a price, a Right of Way Agent and/or a title company will contact all other parties having an interest in the property. Payment to satisfy outstanding loans or liens will be made through a title company escrow as in the case in any real estate transaction. WHAT WILL HAPPEN TO MY GI OR CAL-VET LOAN? The Veterans Administration and the California Department of Veterans Affairs allow your veteran loan privileges to be transferred and to become available for coverage on another property. Your Right of Way Agent will assist you in the transfer. However, it is to your benefit and your responsibility to check with the Veterans Administration or the California Department of Veterans Affairs for procedural instructions. 13 IF THE VALUE OF MY PROPERTY IS HIGHER TODAY THAN WHEN I PURCHASED IT, DO I HAVE TO PAY INCOME OR CAPITAL GAINS TAX ON THIS DIFFERENCE WHEN SELL/ CONVEY TO THE DEPARTMENT? According to the Internal Revenue Service, the sale of property to a governmental agency for public purposes comes under the definition of an “involuntary conversion.” In these cases, it is not necessary to pay income tax or capital gains tax if the money you receive is used to buy a similar property within a limited period of time. In every case, however, you should check with your local Internal Revenue Service office and/or accountant. WILL I LOSE THE FAVORABLE PROPERTY TAX BASIS THAT I NOW HAVE UNDER THE PROVISIONS OF PROPOSITION 13? Section 2(d) of Article XIII -A of the California Constitution and Section 68 of the Revenue and Taxation Code generally provide that property tax relief shall be granted to any real property owner who acquires comparable replacement property after having been displaced by governmental acquisition or eminent domain proceedings. 14 You will be given a copy of this information with an attached page showing examples of how to calculate estimates of the tax relief you may be eligible for. These are only approximations. You must see your county Tax Assessor for a final determination. THE DEPARTMENT’S RIGHT OF EMINENT DOMAIN An owner’s rights are guaranteed by the federal and State constitutions and applicable federal and State laws. The principal right is that “Just Compensation” must be paid. The vast majority of our transactions are settled by contract. However, if the owner and the Department cannot agree on the terms of sale, the Department may resort to the eminent domain process to avoid delaying the project, and will ultimately initiate condemnation proceedings. The Department will request authority from the California Transportation Commission (Commission) to file a condemnation action in court. You will be given an opportunity to appear before the Commission to question whether public interest, necessity, planning and location require the proposed project and your property. The Commission does not hear arguments regarding valuation or just compensation. 15 Condemnation lawsuit documents are prepared by the Department and filed with the court in the county where the property is located. The Summons and Complaint will then be served on all persons having a property interest in the parcel. The persons served must file an Answer to the lawsuit within 30 days. Counsel for the parties will then prepare for trial, and the court will set dates for preliminary motions and the trial. WHAT HAPPENS IN A CONDEMNATION TRIAL? The purpose of the trial is to determine the amount of Just Compensation. Usually the trial is conducted before a judge and jury. Both the property owner and Department will have the opportunity to present evidence of value. The jury will determine the amount of compensation after being instructed as to the law by the judge. In those cases where the parties choose not to have a jury, the judge will decide the amount of compensation. The Judgment is then prepared by counsel and signed by the judge. It will state that, upon payment of the amount of the verdict for the benefit of the property owner, title will be transferred to public ownership. 16 When the Department makes the payment as required by the Judgment, the Final Order of Condemnation is signed by the judge and recorded with the County Recorder’s office. This finalizes the actual transfer of title. WHO PAYS THE CONDEMNATION TRIAL COSTS? The Department pays the costs of its attorney and its engineering and appraisal witnesses. It will also pay the jury fees and your recoverable costs allowed by law. The fee for filing your Answer with the court is an example of such costs. If the judge determines that the Department’s offer of settlement was unreasonable, while the demand of the property owner was reasonable as viewed in light of the evidence admitted at trial and the verdict, the property owner may receive litigation expenses such as their attorney’s fees. The Judgment is then prepared by counsel and signed by the judge. 17 IF I WANT A TRIAL, MUST I HAVE AN ATTORNEY AND EXPERT WITNESSES? Most property owners will be represented by an attorney, although they have the right to represent themselves. You may wish to consult your family attorney. If you do not have one, in many communities the yellow pages of the telephone directory will refer you to an attorney reference service. The local bar association may also provide a list of attorneys who may offer services in eminent domain proceedings. You and your attorney must decide what type of case you will present and what witnesses will be needed. WILL I BE PAID ANY RELOCATION ASSISTANCE BENEFITS EVEN THOUGH I GO TO COURT? A decision to go to court has no effect on your right to relocation benefits. Payment of relocation benefits is administered separately from the condemnation action. You will be provided details of additional assistance to help displaced persons, businesses, farms or nonprofit organizations in finding, purchasing or renting, and moving to a new location. These are explained in various booklets prepared for homeowners, tenants, and business and farm operators and are made available by the Department of Transportation. 18 HOW LONG CAN I KEEP MY PROPERTY? Continued use of your property usually depends on when construction must begin, including utility relocations, and the demolition and/or clearance of buildings. If construction must begin before the trial, the Department will seek a court order for early possession of your property. In this regard the Department will be required to deposit with the State Treasurer, the probable amount of just compensation, as determined by an appraisal as security for the value of the property rights it is seeking. The court will determine if the amount of money deposited is adequate. Once the deposit is made the owner may withdraw all or a portion of it at any time during the condemnation proceedings. The court may then grant to the Department an order for early possession allowing the Department to use the property for construction of the project. To obtain an Order for Possession, the Department will file a motion with the court and schedule a hearing 90 days after you and all occupants of the property are served with the motion papers (60 days if the property is unoccupied). You and the occupants, if any, will have 30 days to oppose the motion. Once the court grants an Order for Possession of the property, the Department may obtain possession of the property 30 days after the owner and any occupants are served with the Order. 19 Subject to the rights of any other persons having an interest in the property, you may withdraw all or part of the pre-Judgement deposit. If you do not make a withdrawal, the Department will pay interest on the eventual court award, or agreed settlement sum from the time it legally occupied your property until the date of final payment to you. Interest will accrue at the applicable statutory rate until paid at the time of final settlement. The Department’s Right of Way Agent assigned to purchase your property will assist you in the transaction and will be available to answer any additional questions you may have. 20 . DEFINITIONS The language used in relation to eminent domain proceedings may be new to you. These are some terms you may hear and their general meaning. Acquire To purchase Answer The property owner’s written reply, in appropriate legal form, filed with the court in response to the eminent domain complaint and as requested by the summons. Compensation The amount of money to which a property owner is entitled under the law for the purchase of their property and any related damages. Complaint The document filed with the court by the Department which initiates an eminent domain proceeding. 21 Condemnation The legal process by which a proceeding in eminent domain is accomplished. Counsel An attorney or attorneys Department The State of California acting through the Department of Transportation. Eminent Domain The right of government to purchase private property for public use. Fair Market Value The fair market value of the property taken is the highest price on the date of valuation that would be agreed to by a seller, being willing to sell but under no particular or urgent necessity for so doing, nor obliged to sell, and a buyer, being ready, willing and able to buy but under no particular necessity for so doing, each dealing with the other with full knowledge of all the uses and purposes for which the property is reasonably adaptable and available. 22 Final Order of Condemnation The instrument which, when recorded, transfers title to public ownership. Judgment The court’s formal decision based on applicable law and the verdict. Just Compensation The measure of Just Compensation is Fair Market Value. Loss of Business Goodwill A loss in the value of a business caused by the Department’s acquisition of property that cannot be reasonably prevented by relocation of the business or the owner adopting prudent or reasonable steps that preserve the value of the business goodwill. Parcel Usually means the property that is being acquired. Plaintiff The public agency that desires to purchase the property. 23 Possession Legal control; to have the right to use. Property The right or interest which an individual has in land, including the rights to use or possess. Property is ownership; the exclusive right to use, possess or dispose of a thing. Right of Entry An agreement between an owner and the Department which allows the Department to utilize the property while continuing to negotiate the terms of settlement. Interest, calculated at the statutory rate, is included in the settlement upon conclusion of the transaction. Summons Notification of filing of a lawsuit in eminent domain and of the necessity to file answer or other responsive pleading. Title Legal ownership 24 Trial The hearing of the facts from a plaintiff and defendant in court of law, either with or without a jury. Verdict The amount of just compensation to be paid for a property including any damages to the remainder, if applicable. 25 NOTES 26 NOTES 27 28 STATE OF CALIFORNIA CALIFORNIA STATE TRANSPORTATION AGENCY DEPARTMENT OF TRANSPORTATION DIVISION OF RIGHT OF WAY AND LAND SURVEYS OCTOBER 2020 This is an informational pamphlet only. It is not intended to give a complete statement of all State or federal laws and regulations pertaining to the purchase of your property for a public use, the Relocation Assistance Program, technical legal definitions, or any form of legal advice. ADA Notice For individuals with disabilities, this document is available in alternate formats. For information contact: Division of Right of Way and Land Surveys (916) 654-5413 or write: 1120 N Street, MS 37 Sacramento, CA 95814 STATE OF CALIFORNIA • DEPARTMENT OF TRANSPORTATION EXHIBIT TITLE VI OF THE CIVIL RIGHTS ACT OF 1964 AND 2-EX-3 (REV 8/2018) RELATED STATUTES Page 1 of 3 NONDISCRIMINATION STATUTES • Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000, provides in Section 601 that: “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” (PROHIBITS DISCRIMINATION IN IMPACTS, SERVICES, AND BENEFITS OF, ACCESS TO, PARTICIPATION IN, AND TREATMENT UNDER A FEDERAL-AID RECIPIENT’S PROGRAMS OR ACTIVITIES) • The Age Discrimination Act of 1975, as amended 42 U.S.C. 6101, provides: “No person in the United States shall, on the basis of age, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” (PROHIBITS DISCRIMINATION BASED ON AGE) • The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, 42 U.S.C. 4601, provides: “For the fair and equitable treatment of persons displaced as direct result of programs or projects undertaken by a Federal agency or with Federal financial assistance.” (PROVIDES FOR FAIR TREATMENT OF PERSONS DISPLACED BY FEDERAL AND FEDERAL-AID PROGRAMS AND PROJECTS) • The Federal-aid Highway Act, 49 U.S.C. 306 Outlines the responsibilities of the U.S. Department of Transportation and, at (c) outlines the Secretary’s authority to decide whether a recipient has not compiled with applicable Civil Rights statutes or regulations, requires the Secretary to provide notice of the violation, and requires necessary action to ensure compliance. • The 1973 Federal-aid Highway Act, 23 U.S.C. 324, provides: “No person shall on the ground of sex be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal assistance under this Title or carried on under this title.” (PROHIBITS DISCRIMINATION ON THE BASIS OF SEX) EXHIBIT TITLE VI OF THE CIVIL RIGHTS ACT OF 1964 AND 2-EX-3 (REV 8/2018) RELATED STATUTES (Cont.) Page 2 of 3 • The Civil Rights Restoration Act of 1987, P.L. 100-209, provides: Clarification of the original intent of Congress in Title VI of the 1964 Civil Rights Act, Title IX of the Education Amendments of 1972, the Age Discrimination Act of 1975, and Section 504 of the Rehabilitation Act of 1973. (RESTORES THE BROAD, INSTITUTION-WIDE SCOPE AND COVERAGE OF THE NON-DISCRIMINATION STATUTES TO INCLUDE ALL PROGRAMS AND ACTIVITIES OF FEDERAL-AID RECIPIENTS, SUB-RECIPIENTS AND CONTRACTORS, WHETHER SUCH PROGRAMS AND ACTIVITIES ARE FEDERALLY ASSISTED OR NOT) • The Uniform Relocation Act Amendments of 1987, P.L. 101-246, provides: “For fair, uniform, and equitable treatment of all affected persons; …(and) minimizing the adverse impact of displacement… (to maintain) …the economic and social well-being of communities; and…to establish a lead agency and allow for State certification and implementation.” (UPDATED THE 1970 ACT AND CLARIFIED THE INTENT OF CONGRESS IN PROGRAMS AND PROJECTS WHICH CAUSE DISPLACEMENT) • The Americans with Disabilities Act, P.L. 101-336, provides: “No qualified individual with a disability shall, by reason of such disability, be excluded from the participation in, be denied benefits of, or be subjected to discrimination by a department, agency, special purpose district, or other instrumentality of a State or a local government.” (PROVIDED ENFORCEABLE STANDARDS TO ADDRESS DISCRIMINATION AGAINST PEOPLE WITH DISABILITIES) • The Civil Rights Act of 1991, in part, amended Section 1981 of 42 U.S.C. by adding two new sections that provided: “(b) For the purposes of this section, the term ‘make and enforce contracts’ includes the making, performance, modification, and termination of contracts and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship. (c) The rights protected by this section are protected against impairment by non-governmental discrimination and impairment under color of State law.” EXHIBIT TITLE VI OF THE CIVIL RIGHTS ACT OF 1964 AND 2-EX-3 (REV 8/2018) RELATED STATUTES (Cont.) Page 3 of 3 • Title VIII of the 1968 Civil Rights Act, 42 U.S.C. 3601, provides that: “(I) It shall be unlawful…to refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny a dwelling to any person because of race, color, religion or national origin.” (PROHIBITS DISCRIMINATION IN THE SALE OR RENTAL OF HOUSING – HUD is the primary interest agency, but FHWA and States under Title VI are responsible for preventing discrimination in the function of Right-of-Way) • The National Environmental Policy Act of 1969, 42 U.S.C. 4321 Requires the consideration of alternatives, including the “no-build” alternative, consideration of social, environmental and economic impacts, public involvement, and use of a systematic interdisciplinary approach at each decision- making stage of Federal-aid project development. • Title IX of the Education Amendments of 1972 Makes financial assistance available to institutions of higher education to: (1) strengthen, improve and, where necessary, expand the quality of graduate and professional programs leading to an advanced degree; (2) establish, strengthen, and improve programs designed to prepare graduate and professional students for public service; and (3) assist in strengthening undergraduate programs of instruction in certain instances. • Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 790, provides that: “(N)o qualified handicapped person shall, solely by reason of his handicap, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity that receives or benefits from Federal financial assistance.” (PROHIBITS DISCRIMINATION BASED ON PHYSICAL OR MENTAL HANDICAP) Source: U.S. Department of Transportation Federal Highway Administration Title VI Handbook Title VI Nondiscrimination in the Federal-Aid Highway Program FHWA Publication No. FHWA-HCR-06-006 STATE OF CALIFORNIA • DEPARTMENT OF TRANSPORTATION TITLE VI AND OTHER DISCRIMINATION COMPLAINT FORM OCR-0002 (REV 04/2020)Page 1 of 3 ADA Notice For individuals with sensory disabilities, this document is available in alternate formats. For alternate format information, contact the Forms Management Unit at (916) 445-1233, TTY 711, or write to Records and Forms Management, 1120 N Street, MS-89, Sacramento, CA 95814. Section I - Applicability Name:Electronic Mail Address: Phone Number (Include Area Code):Work Phone Number (Include Area Code): Address:City, State, Zip: Accessible Format Requirements: Large Print TDD Audio Tape Other Are you filing this complaint on your own behalf? Yes (Go to Section II)No If not, please supply the name and relationship of the person for whom you are complaining: Briefly and clearly explain why you have filed for a third party. Section II - Title VI Discrimination Because of: Race Color National Origin Name and Position of Person(s) That Discriminated Against You:Location Including City, State, Zip: Explain as briefly and clearly as possible what happened, and how you were discriminated against. Include date of alleged discrimination (Month, Day, Year). Indicate all persons who were involved. Be sure to describe how other persons were treated differently than you. Attach any written material pertaining to your case. Other Areas of Discrimination: RetaliationDisabilityAgeSex STATE OF CALIFORNIA • DEPARTMENT OF TRANSPORTATION TITLE VI AND OTHER DISCRIMINATION COMPLAINT FORM OCR-0002 (REV 04/2020)Page 2 of 3 ADA Notice For individuals with sensory disabilities, this document is available in alternate formats. For alternate format information, contact the Forms Management Unit at (916) 445-1233, TTY 711, or write to Records and Forms Management, 1120 N Street, MS-89, Sacramento, CA 95814. The laws prohibit retaliation against anyone because he/she has taken action, or participated in an action, to secure rights protected by these laws. If you feel you have been retaliated against (separate from the discrimination alleged above), please explain briefly and clearly the circumstances below. Please explain what actions you took which you believe were the basis for the allegation of retaliation. What remedy or action, do you seek for the alleged discrimination? Have you previously filed a complaint with this agency?Yes No Have you filed, or intend to file, a charge or complaint with the following? U.S. Equal Employment Opportunity Commission Federal State Courtor Department of Fair Employment and Housing Federal Highway Administration/U.S. Department of Transportation Federal Transit Administration/U.S. Department of Transportation If you have already filed a charge or complaint, please provide information about a contact person at the agency/court where the complaint was filed. Name: Title: Agency/Court: Address: Telephone Number (Including Area Code): Date Filed: Case Number: Date of Trial/Hearing: Provide any additional information, including witnesses, that you believe would assist in the investigation. Signature of Complainant:Date: FOR OFFICE USE ONLY Location: District/Division: Case: Date Complaint Received: Date Referred: Processed by: Referred to:USDOT FHWA FTA OTHER STATE OF CALIFORNIA • DEPARTMENT OF TRANSPORTATION TITLE VI AND OTHER DISCRIMINATION COMPLAINT FORM OCR-0002 (REV 04/2020)Page 3 of 3 ADA Notice For individuals with sensory disabilities, this document is available in alternate formats. For alternate format information, contact the Forms Management Unit at (916) 445-1233, TTY 711, or write to Records and Forms Management, 1120 N Street, MS-89, Sacramento, CA 95814. INSTRUCTIONS Section I Applicability – The complaint procedures apply to the beneficiaries of Caltrans programs, activities, and services, including but not limited to the public, contractors, subcontractors, consultants, and other sub-recipients of Federal funds. All complaints must be in writing and signed by the complainant. Complaints must include the complainant’s name, address, phone number, and specify all issues and circumstances of the alleged discrimination. In cases where the complainant is incapable of providing a written statement such as limited English proficient or having a disability, the complainant may be assisted in converting the verbal into a written complaint. Section II Title VI – Any person who believes he/she has been excluded from participation in or denied benefits or services of any program or activity administered by Caltrans, or its sub-recipients, consultants, and contractors. Discrimination Because of – Allegations must be based on issues involving race, color, national origin for a Title VI complaint or sex, age, disability, or retaliation. Filing Options and Time Limits – The use of the complaint form is not mandatory. You may submit your complaint in any form that includes your signature. 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Whites Bridge MapleBrawleyHerndon Bullard Shaw ClovisFowlerTemperanceWestPalmClovisFowlerTemperanceDe WolfShields McKinley Belmont ChestnutPeachAmerican CedarGrantlandHayesElmEastMarksWestWalnutCorneliaNorth California Jensen Ashlan GrantlandHayesCorneliaBrawleyMarksShaw Bullard Herndon Nees De WolfShields McKinley Belmont California Jensen North Kings Canyon AshlanPeachBehymer Copper Shepherd NeesBlackstoneFirstCedarChestnutGarfieldBryanPolkBlytheValentineVan NessFruitMaroaFresnoMillbrookMapleWillowDakota Clinton Olive Gettysburg Barstow Sierra Alluvial Nielsen Kearney Muscat Annadale Church WillowMinnewawaMalaga OrangeBryanSunnysideArmstrongLocanFigCherryHughesFruitPolkValentineBlytheAlluvial Sierra Barstow Perrin SunnysideArmstrongLocanClinton Olive Tulare Butler Church Annadale DakotaMinnewawaInternational Teague Property Location N 01.530.75 Miles Project ID: PW00969 Council District: 1 VICINITY MAP DEPARTMENT OF PUBLIC WORKS District 1 City Limits N Hayes AveN Hayes AveW Ashlan AveW Ashlan Ave W Austin WayW Austin Way W Hampton WayW Hampton Way W Laguna AveW Laguna Ave N Gregory AveN Gregory AveN Erie AveN Erie AveN Bain AveN Bain AveCopyright nearmap 2015 LOCATION MAPN 0 0.02 0.040.01 Miles DEPARTMENT OF PUBLIC WORKS Project ID: PW00969 Council District: 1 City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID 23-1470 Agenda Date:10/19/2023 Agenda #: REPORT TO THE CITY COUNCIL FROM:JENNIFER CLARK, Director Planning & Development Department BY:THOMAS VEATCH, Planner Planning & Development Department SUBJECT HEARING to consider Conditional Use Permit Application P22-03146 and related Environmental Assessment P22-03146 pertaining to ±1.38 acres of property located on the south side of West Bullard Avenue,between North Van Ness Boulevard and North Forkner Avenue (Council District 2)- Planning & Development Department. 1.DENY the appeal and ADOPT Environmental Assessment P22-03146,dated May 24,2023,a determination of Categorical Exemption,Section 15332/Class 32 of the California Environmental Quality Act (CEQA) Guidelines; and, 2.DENY the appeals and UPHOLD the action of the Planning Commission and Planning and Development Department Director to approve Conditional Use Permit Application P22-03146, authorizing the adaptive reuse of an existing residence to be used as a new residential respiratory care facility (congregate living health facility),subject to compliance with the Conditions of Approval dated September 6, 2023. EXECUTIVE SUMMARY Cesar Rodriguez of CR Consulting Group Inc,on behalf of Jason Andrade of Infinite Living,has filed Conditional Use Permit Application P22-03146 pertaining to a ±1.38-acre parcel located on the south side of West Bullard Avenue,between North Van Ness Boulevard and North Forkner Avenue ( Exhibit A). Conditional Use Permit Application P22-03146 proposes the adaptive reuse of an existing residence to be used as a new residential respiratory care facility (congregate living health facility)to be constructed in two (2)phases.Phase I proposes to remodel and expand an existing ±3,310 square- foot residence to ±4,500 square feet.Phase II proposes to build two (2)new residential care facility buildings with a combined area of ±9,011 square feet.The three (3)buildings will provide acute care services, skilled nursing care, and complex respiratory care to on-site residents. The project was approved by the Director on June 2,2023.The Director’s decision to approve the project was appealed on June 5, 2023 and June 14, 2023 (Exhibit L). Furthermore,in addition to appeal of the Director’s decision regarding a Conditional Use Permit,one City of Fresno Printed on 10/20/2023Page 1 of 17 powered by Legistar™ File #:ID 23-1470 Agenda Date:10/19/2023 Agenda #: Furthermore,in addition to appeal of the Director’s decision regarding a Conditional Use Permit,one of the appeal letters also included an appeal of the environmental determination.Pursuant to FMC Sec.15-5017(A)(1),appeals of Director’s decisions shall be referred to the Planning Commission for consideration.However,under FMC Secs.15-5017(A)(3)and 15-5005(A),appeals of an environmental determination shall be referred directly to the City Council.Therefore,the Conditional Use Permit Application P22-03146 was considered by the Planning Commission and the related Environmental Assessment P22-03146 shall be considered by City Council directly alongside review of the appeal of the Planning Commission’s decision regarding Conditional Use Permit Application P22-03146. The Planning Commission considered Conditional Use Permit Application P22-03146 as presented by staff in accordance with Fresno Municipal Code (FMC)Section 15-5017 at hearings held on July 19,2023 and September 6,2023.Various members of the public spoke on the project during the hearings.After close of the hearing on September 6,2023,the Planning Commission voted to deny the appeal and uphold the Director’s decision to approve Conditional Use Permit Application No.P22 -03146,on condition that the scope of the project be reduced to two (2)buildings total instead of three (3),with five votes in favor to zero votes against,one member absent and one member abstaining (Exhibit O - Planning Commission Resolution). The initial appeal included a request to appeal Environmental Assessment No.P22-03146 in accordance with FMC 15-5005-I,which requires a public hearing of City Council.Further,an appeal of the Planning Commission’s action was received from the Mayor’s office on September 21,2023 (Exhibit Q).Therefore,the City Council is considering this project pursuant to FMC Secs.15-5017 and 15-5005,which require a City Council Hearing and Action to consider the appeal of Conditional Use Permit P22-03146 and Environmental Assessment No. P22-03146. Staff recommends that the City Council deny the appeal and uphold the Planning Commission’s decision to approve a modified version of the Planning and Development Director’s approval of the Conditional Use Permit.based on evidence detailed in this staff report and that specific findings made by the Director pursuant to Section 15-5306 of the FMC remain valid.Additionally,staff recommends that the City Council clarify that the modified approval does not provide authorization to the applicant to build the two (2)approved buildings larger than those proposed in the original application.Finally,staff recommends the City Council deny the appeal of the environmental determination and adopt the related Environmental Assessment. BACKGROUND Subject and Surrounding Property Information The subject property is located within the boundaries of the Fresno General Plan and Bullard Community Plan.These plans designate the subject ±1.38-acre property for Residential -Low Density planned land uses.The existing underlying RS-2 (Residential Single-Family,Very Low Density)zone district is consistent with the Residential -Low Density planned land use designation. The surrounding land uses to the north,east,and west are planned and zoned for low density residential uses (Exhibit B).The property to the south is planned and zoned for public institutional uses.Existing single-family homes are located to the north and east of the project site.The property west of the project is vacant.Malloch Elementary School is located to the south on the opposite side of West Morris Avenue. City of Fresno Printed on 10/20/2023Page 2 of 17 powered by Legistar™ File #:ID 23-1470 Agenda Date:10/19/2023 Agenda #: The proposed project is located along West Bullard Avenue between the North Van Ness Boulevard and North Forkner Avenue.West Morris Avenue is located adjacent to the property to the rear which runs eastward to North Forkner Avenue.West Bullard Avenue is a four-lane arterial street,which according to the Fresno General Plan circulation element,is classified as a street type designed to serve high-volume inter-and intra-city traffic,and to act as a distributor between freeways,other arterials, and major traffic generators. West Morris is classified as a local street. Proposed Project Conditional Use Permit Application P22-03146 proposes the adaptive reuse of the existing residential property to be used as a new residential respiratory care facility (congregate living health facility)to be constructed in two (2)phases.Phase I proposes to remodel and expand an existing ±3,310 square-foot single-family residence located on the property to ±4,500 square feet.Phase II proposes to build two (2)new buildings with a combined area of ±9,011 square feet.Each of the buildings will provide acute care services,skilled nursing care,and complex respiratory care to on- site residents.Each building will provide 18 beds.Additional on and off-site improvements are proposed,including but not limited to five (5)drive approaches,parking,landscaping,curbs,gutters, and sidewalks.Additional information is provided in the attached operational statement and exhibits ( Exhibits C and D). For informational purposes,according to the project site plan and operational statement,the applicant might subdivide the subject property into three (3)separate but adjoining parcels in the future. Each of the proposed residential care facilities would be located on one of the future proposed parcels.It is noted that the future subdivision is not a requirement of the project and would only include areas which are already proposed for use as a residential care facility.It would not create undeveloped portions of property for future development or expansion. Analysis State Definition & Requirements The California Health and Safety Code contains provisions that define Congregate Living Health Facilities (CLHF) and regulate their operations. Cal. Health and Safety, §1250 states: (i)(1)“Congregate living health facility”means a residential home with a capacity,except as provided in paragraph (4),of no more than 18 beds,that provides inpatient care, including the following basic services:medical supervision,24-hour skilled nursing and supportive care,pharmacy,dietary,social,recreational,and at least one type of service specified in paragraph (2).The primary need of congregate living health facility residents shall be for availability of skilled nursing care on a recurring,intermittent, extended,or continuous basis.This care is generally less intense than that provided in general acute care hospitals but more intense than that provided in skilled nursing facilities. (2) Congregate living health facilities shall provide one or more of the following services: (A)Services for persons who are mentally alert,persons with physical disabilities,who City of Fresno Printed on 10/20/2023Page 3 of 17 powered by Legistar™ File #:ID 23-1470 Agenda Date:10/19/2023 Agenda #: (A)Services for persons who are mentally alert,persons with physical disabilities,who may be ventilator dependent. (B)Services for persons who have a diagnosis of terminal illness,a diagnosis of a life- threatening illness,or both.Terminal illness means the individual has a life expectancy of six months or less as stated in writing by his or her attending physician and surgeon.A “life-threatening illness”means the individual has an illness that can lead to a possibility of a termination of life within five years or less as stated in writing by his or her attending physician and surgeon. (C)Services for persons who are catastrophically and severely disabled.A person who is catastrophically and severely disabled means a person whose origin of disability was acquired through trauma or nondegenerative neurologic illness,for whom it has been determined that active rehabilitation would be beneficial and to whom these services are being provided.Services offered by a congregate living health facility to a person who is catastrophically disabled shall include,but not be limited to,speech, physical, and occupational therapy. (3)A congregate living health facility license shall specify which of the types of persons described in paragraph (2) to whom a facility is licensed to provide services. (4)(A)A facility operated by a city and county for the purposes of delivering services under this section may have a capacity of 59 beds. (B)A congregate living health facility not operated by a city and county servicing persons who are terminally ill,persons who have been diagnosed with a life-threatening illness,or both,that is located in a county with a population of 500,000 or more persons,or located in a county of the 16th class pursuant to Section 28020 of the Government Code,may have not more than 25 beds for the purpose of serving persons who are terminally ill. (5) A congregate living health facility shall have a noninstitutional, homelike environment. Cal.Health and Safety Code §1267.16 further establishes requirements for local jurisdictions on the permissibility of congregate living health facilities. a)A congregate living health facility which serves six or fewer persons shall be considered a residential use of property for purposes of any zoning ordinance or law related to the residential use of property.This article does not forbid any city,county,or local public entity from placing restrictions on building heights,setback,lot dimensions,or placement of signs of a congregate living health facility as long as these restrictions are identical to those applied to single-family residences. b)This article does not forbid the application to a congregate living health facility of any local ordinance which deals with health and safety,building standards,environmental impact standards,or any other matter within the jurisdiction of a local public entity, except as provided in subdivisions (a) and (b) of Section 1267.9 and this section. c)Any congregate living health facility of more than six beds for persons who are terminally ill and any congregate living health facility of more than six beds for persons who are catastrophically and severely disabled shall be subject to the conditional use permit requirements of the city or county in which it is located unless those requirements are waived by the city or county.However,any facility that,on the City of Fresno Printed on 10/20/2023Page 4 of 17 powered by Legistar™ File #:ID 23-1470 Agenda Date:10/19/2023 Agenda #: requirements are waived by the city or county.However,any facility that,on the effective date of this section,is performing the functions of a congregate living health facility for persons who are terminally ill and that is subsequently licensed as a congregate living health facility within 18 months of the effective date of this section shall not be subject to the conditional use permit requirements of the city or county in which it is located, unless the number of beds is increased. The key considerations of the sections above are that congregate living health facilities are specifically required to provide a non-institutional homelike environment.Further,the city is required per state law to process the application of a CLHF as a Conditional Use Permit application, regardless of the zoning ordinance of the city.Had the proposed project contained 6 beds or fewer, they are explicitly considered to be residential uses per State Law,which further demonstrates the requirement for these facilities to be residential in nature. Fresno Municipal Code Use Classification Article 67 of the FMC provides use classifications which describe one or more uses of land that have similar characteristics (e.g.,residential uses,commercial uses,industrial uses,etc.),but does not list every use or activity that may appropriately be within the classification.Pursuant to FMC Section 15- 6702 (Residential Use Classifications), the general use of Residential Care Facilities is defined as: Facilities that are licensed by the State of California to provide permanent living accommodations and 24-hour primarily non-medical care and supervision for persons in need of personal services,supervision,protection,or assistance for sustaining the activities of daily living.Living accommodations are shared living quarters with or without separate kitchen or bathroom facilities for each room or unit.This classification includes facilities that are operated for profit as well as those operated by public or not- for-profit institutions,including hospices,nursing homes,convalescent facilities,and group homes for minors,persons with disabilities,and people in recovery from alcohol or drug addictions.This use classification excludes Transitional Housing and Social Service Facilities. More specifically,the use of Residential Care Facilities includes two (2)subcategories which are described as follows: Residential Care, General. A facility providing care for more than six persons. Residential Care, Limited. A facility providing care for six or fewer persons. While this classification states that services provided are primarily non-medical care,by definition,a CLHF under State law can provide a range of other services such as supportive care,pharmacy, dietary,social or recreational needs;services for persons who are mentally alert;persons with physical disabilities,who may be ventilator dependent;services for persons who have a diagnosis of terminal illness;or services for persons who are catastrophically and severely disabled.Additionally, as demonstrated by the State requirements,the facility is explicitly required to be located in a non- institutional homelike environment.While not applicable to the proposed project,if the facility had six beds or fewer,it would be considered a residential use.The operational statement for the proposed project identifies that several non-medical services will be provided,including,but not limited to supportive care,therapy services,social and recreational activities,medication management,and City of Fresno Printed on 10/20/2023Page 5 of 17 powered by Legistar™ File #:ID 23-1470 Agenda Date:10/19/2023 Agenda #: supportive care,therapy services,social and recreational activities,medication management,and dietary management. The next closest use classification similar to the proposed use would be Elderly and Long-Term Care, as defined by FMC Section 15-6702, which is described as: Establishments that provide 24-hour medical,convalescent,or chronic care to individuals who,by reason of advanced age,chronic illness,or infirmity,are unable to care for themselves,and is licensed as a skilled nursing facility by the State of California,including,but not limited to,rest homes and convalescent hospitals,but not Residential Care, Hospitals, or Clinics. While this classification states 24-hour medical care is provided,it also states that the facility is to be licensed as a “skilled nursing facility”by the State,which is not the license type that applies to a CLHF.It also states that it does not apply to residential care facilities.Additionally,as stated above, this facility is intended to be a primary residence and will provide several non-medical services to its residents.Finally,Elderly and Long-Term Care facilities are not permitted in Residential Single Family zone districts,which is contrary to the state requirement that the facility be located in a non- institutional residential setting.Therefore,Elderly and Long-Term Care is not an appropriate classification for the proposed use as a CLHF. In conclusion,upon review of State law and the Residential Use Classifications of the FMC,the proposed use is most compatible with classification as a Residential Care Facility, General. Cal.Health and Safety Code §1250(i)(1)defines a CLHF as a “residential home with a capacity …of no more than 18 beds.”The proposed project is described as having 18 beds included in the remodel of the existing building included in phase 1,and 18 beds per each of the (2)two additional buildings included in phase 2,for a total of 54 beds.Cal.Healthy and Safety Code §1267.9(a)describes requirements “to prevent overconcentration’s of intermediate care facilities/developmentally disabled habilitative,intermediate care facilities/developmentally disabled-nursing,congregate living health facilities,or pediatric day health and respite care facilities which impair the integrity of residential neighborhoods.” These restrictions are enforced by the Director of the California Department of Public Health.(Cal. Health &Safety Code §1267.9(a).)However,Cal.Health and Safety Code §1267.9(b)(2)provides that these facilities may be closer than 300 feet “based on special local needs or conditions.”These requirements are enforced at the State level,not by the City,and the FMC definition of a Residential Care Facility does not specify a maximum limit to the number of beds provided.The project has been conditioned to require documentation of any subsequent approval for licensing by the State for the first and future phases prior to operation of the facility. Land Use and Zoning As previously mentioned,the Fresno General Plan and Bullard Community Plan designate the subject ±1.38-acre property for Residential -Low Density planned land uses.Furthermore,the subject property is zoned RS-2/EQ (Residential Single Family,Very Low Density/Equine Overlay). The underlying RS-2 (Residential Single-Family,Very Low Density)zone district is consistent with the Residential - Low Density planned land use designation. City of Fresno Printed on 10/20/2023Page 6 of 17 powered by Legistar™ File #:ID 23-1470 Agenda Date:10/19/2023 Agenda #: The Residential -Low Density planned land use designation is intended to provide for large lot residential development by allowing 1 to 3.5 housing units per acre when proposed.The resulting land use pattern is large lot residential in nature,such as rural residential,ranchettes,or estate homes.Given the planned land use designation and zoning,the subject ±1.38-acre property can accommodate approximately 2 - 4 dwelling units. Additionally,the General Plan and its implementation through the FMC both recognize that uses other than detached single-family residences are appropriate in the RS-2 zone district.Furthermore, according to the FMC,there is no minimum residential density requirement for the RS-2 zone district. Finally,given the project is not proposing a single-family residence(s),residential density standards are not applicable. Pursuant to Table 15-902 of the FMC,Residential Care,General,uses are permitted with an approved Conditional Use Permit.Additionally,according to FMC Section 15-1607-A-1 (Equine Overlay District -Use Regulations),those uses permitted in the base RS-2 zone district are permitted in the EQ overlay district,except it also allows for the keeping of horses.The Equine (EQ) Overlay District is established to identify suburban residential areas where horses and other equine are allowed to be kept,while ensuring the protection of the quality of the residential environment and securing the health,safety,and general welfare of the residents.The proposed project and existing adjacent properties do not include horse keeping uses or structures. Given the conditions of approval,Conditional Permit Application P22-03146 will meet all the provisions of the FMC.It will comply with all applicable design guidelines of the RS-2/EQ (Residential Single Family,Very Low Density/Equine Overlay)zone district,including but not limited to setbacks, building size and massing, parking, open space, pedestrian access, sidewalks, and façade design. Traffic Analysis As mentioned above,the proposed project is located on West Bullard Avenue between the intersections of North Van Ness Boulevard and North Forkner Avenue.West Morris Avenue is located adjacent to the property to the rear and runs eastward to North Forkner Avenue.West Morris Avenue is a one-way street.According to the Fresno General Plan Circulation Element,West Bullard Avenue is classified as a four-lane arterial street,which is designed to serve high-volume inter-and intra-city traffic, and to act as a distributor between freeways, other arterials, and major traffic generators. West Morris Avenue is designated as a local street which is designed to provide direct access to properties,while discouraging excessive speeds and volumes of motor vehicle travel incompatible with neighborhoods being served through the implementation of multiple,well-connected routes and traffic calming measures. Two (2)drive approaches are proposed along West Bullard Avenue,two (2)drive approaches are proposed along West Morris Avenue,and one (1)drive approach is proposed to the west,which contains a partially developed drive approach and access road (North Sequoia Drive)to an undeveloped subdivision.Due to the one-way nature of West Morris Avenue,users exiting the facility (onto West Morris Avenue)will be directed east to North Forkner Avenue.Users entering the facility City of Fresno Printed on 10/20/2023Page 7 of 17 powered by Legistar™ File #:ID 23-1470 Agenda Date:10/19/2023 Agenda #: (onto West Morris Avenue)will be directed east to North Forkner Avenue.Users entering the facility from West Morris Avenue must utilize the intersections of North Van Ness and West Celeste Avenues, or the intersections of West Roberts Avenue and North Forkner Avenue. Pursuant to Figure MT-4 of the Fresno General Plan,the proposed project is located within Traffic Impact Zone II (TIZ-II),which represents areas of the City currently built up and wanting to encourage infill development.Projects in TIZ-II are required to maintain a peak hour LOS standard of E or better for all intersections and roadway segments.A Traffic Impact Study (TIS)would be required for all development projected to generate 200 or more peak hour new vehicle trips. The projected Trip Generation Analysis for a congregate care facility based on operational data for the proposed project consists of 7 total daily passenger car trips,0 AM peak hour trips and 1 PM peak hour trip.The ITE Trip Generation Manual calculates congregate care facility trips based on the number of dwelling units,which was based on the three proposed buildings,each counted as an individual dwelling unit.The proposed project includes 18 beds per building,which are divided between shared rooms and not individual units.A more conservative estimate was provided by calculating trips for an assisted living facility which is calculated based on the number of beds the facility provides,which is 18 beds per building,54 beds in total.This calculation estimated 140 total daily passenger car trips,10 AM peak hour trips and 13 PM peak hour trips.Therefore,a Traffic Impact Study was not required by the City as no peak hour trips exceeded 200,and the project does not include a General Plan Amendment or Rezone. The Public Works Department,Traffic Engineering Division has reviewed the potential traffic related impacts for the proposed project and has determined that the streets adjacent to and near the subject site will be able to accommodate the quantity and kind of traffic which may be potentially generated subject to the standard city requirements for street improvements and subject to the project specific mitigation measures determined applicable by the City of Fresno Traffic Engineer.These requirements generally include:(1)street dedications;(2)street improvements,(including,but not limited to,construction of concrete curbs,gutters,pavement,underground street lighting systems; and (3)Payment of applicable impact fees (including,but not limited to,the Traffic Signal Mitigation Impact (TSMI)Fee,Fresno Major Street Impact (FMSI)Fee,and the Regional Transportation Mitigation Fee (RTMF)Fee.These requirements are outlined within the memorandum from the City Traffic Engineer dated December 16,2022,which are included in the Conditions of Approval dated June 2, 2023. Vehicle Miles Traveled (VMT) Analysis Senate Bill (SB)743 requires that relevant California Environmental Quality Act (CEQA)analysis of transportation impacts be conducted using a metric known as vehicle miles traveled (VMT)instead of Level of Service (LOS).VMT measures how much actual auto travel (additional miles driven)a proposed project would create on California roads.If the project adds excessive car travel onto our roads, the project may cause a significant transportation impact. On June 25,2020,the City of Fresno adopted CEQA Guidelines for Vehicle Miles Traveled Thresholds pursuant to Senate Bill 743 to be effective of July 1,2020.The Fresno VMT Thresholds document includes thresholds of significance for development projects,transportation projects,and land use plans.These thresholds of significance were developed using the County of Fresno as the applicable region,and the required reduction of VMT (as adopted in the Fresno VMT Thresholds) corresponds to Fresno County’s contribution to the statewide GHG emission reduction target.InCity of Fresno Printed on 10/20/2023Page 8 of 17 powered by Legistar™ File #:ID 23-1470 Agenda Date:10/19/2023 Agenda #: corresponds to Fresno County’s contribution to the statewide GHG emission reduction target.In order to reach the statewide GHG reduction target of 15%,Fresno County must reduce its GHG emissions by 13%. The method of reducing GHG by 13% is to reduce VMT by 13% as well. The City of Fresno VMT Thresholds Section 3.0 regarding Project Screening discusses a variety of projects that may be screened out of a VMT analysis including specific development and transportation projects.For development projects,conditions may exist that would presume that a development project has a less than significant impact.These may be size,location,proximity to transit,or trip ‐ making potential.For transportation projects,the primary attribute to consider is the potential to increase vehicle travel, sometimes referred to as “induced travel.” Per the adopted guidelines,the proposed project does not exceed the threshold of 500 Average Daily Trips (ADT),as it includes only 140 ADT,therefore the proposed project is eligible to screen out of additional VMT analysis and can be considered to result in a less than significant VMT impact and is consistent with CEQA Guidelines Section 15064.3(b)(1). For informational purposes,per ITE Trip generation estimates,a congregate care facility would need to provide 1,166 dwelling units to exceed 200 peak hour trips per LOS or exceed 247 dwelling units to exceed 500 Average Daily Trips per VMT.As the proposed project contains only 54 beds,the impact of the proposed project on either LOS or VMT would not be significant. Public Services Sewer The nearest sanitary sewer main to serve the proposed project is a 6-inch sewer main located in West Morris Avenue.The applicant will be required to install sewer house branches to the property, abandon any existing on-site private septic systems,and pay applicable sewer connection charges and fees.The requirements listed above,and additional requirements have been listed in the Department of Public Utilities memo dated December 7, 2022. Water The nearest water mains to serve the proposed project is an 8-inch water main located in West Bullard Avenue.Water facilities are available to provide service to the site subject to the conditions listed in the Department of Public Utilities memo dated December 7, 2022. Solid Waste The project was reviewed by the Department of Public Utilities to ensure that the proposed trash enclosures for the project comply will any applicable policies related to capacity,access,and overall design to ensure that service can be provided to the site without impacts to the site,surrounding properties,or solid waste service to the city.The requirements listed above and additional requirements have been listed in the Department of Public Utilities memo dated December 7, 2022. FMFCD City of Fresno Printed on 10/20/2023Page 9 of 17 powered by Legistar™ File #:ID 23-1470 Agenda Date:10/19/2023 Agenda #: The subject property is located in the Fresno Metropolitan Flood Control District’s (FMFCD)Drainage Area “D.”The FMFCD has indicated that the proposed development is not located within a flood prone area.These as well as additional requirements are listed in the memorandum from FMFCD dated December 12, 2022. Fire The City of Fresno Fire Department reviewed the proposed project and has determined that adequate Fire service will be available subject to compliance with Fire Department comments or conditions of approval related to access and design of proposed project.Review for compliance with fire and life safety requirements for the interior of proposed buildings and the intended use are reviewed by both the Fire Department and the Building and Safety Services Section of the Planning and Development Department when a submittal for building plan review is made as required by the California Building Code. Other Agencies All comments received from the applicable agencies have been incorporated into the conditions of approval for Conditional Use Permit Application P22-03146.The project will comply with all department comments and conditions and all zoning requirements as incorporated into the conditions of approval dated June 2, 2023. Land Use Plans and Policies The Fresno General Plan and Bullard Community Plan designate the subject site for Low Density residential planned land uses and provide objectives to guide the development of these projects. Fresno General Plan The Low-Density Residential designation is intended to provide for large lot residential development. Low Density residential allows one to 3.5 housing units per acre.The resulting land use pattern is large lot residential in nature,such as rural residential,ranchettes,or estate homes.However,the General Plan and its implementation through the FMC both identify that other land uses besides single family residential homes,such as residential care facilities,are permitted in residential land use and zoning classifications. The use of the subject property as a residential care facility is consistent with the applicable general plan designation and all applicable general plan policies as well as with applicable zoning designation and regulations.The project represents an adaptive reuse and infill opportunity of a partially developed semi vacant lot.The proposed use of a residential care facility provides services to the area and will provide diversity to the range of housing types in the area.Per state requirements the facility is required to be residential in nature and will be required to be consistent with the design of the overall neighborhood.These qualities will benefit both residents of the facility, as well as residents of the neighborhood who may themselves,or have family members who,require services the facility provides. City of Fresno Printed on 10/20/2023Page 10 of 17 powered by Legistar™ File #:ID 23-1470 Agenda Date:10/19/2023 Agenda #: The following are several goals, objectives, and policies that the project supports: ·Objective UF-1:Emphasize the opportunity for a diversity of districts,neighborhoods, and housing types. o Policy UF-1-a:Diverse Neighborhoods.Support development projects that provide Fresno with a diversity of urban and suburban neighborhood opportunities. o Policy UF-1-d:Range of Housing Types.Provide for diversity and variation of building types,densities,and scales of development in order to reinforce the identity of individual neighborhoods,foster a variety of market-based options for living and working to suit a large range of income levels,and further affordable housing opportunities throughout the city. o Policy UF-1-e:Unique Neighborhoods.Promote and protect unique neighborhoods and mixed-use areas throughout Fresno that respect and support various ethnic,cultural,and historic enclaves;provide a range of housing options,including furthering affordable housing opportunities;and convey a unique character and lifestyle attractive to Fresnans.Support unique areas through more specific planning processes that directly engage community members in creative and innovative design efforts. ·Objective UF-12:Locate roughly one-half of future residential development in infill areas-defined as being within the City on December 31,2012-including the Downtown core area and surrounding neighborhoods,mixed-use centers and transit-oriented development along major BRT corridors,and other non-corridor infill areas,and vacant land. o Policy UF-12-c:Local-Serving Neighborhood Centers.Design Neighborhood Centers for local services and amenities that build upon the character and identity of surrounding neighborhoods and communities. ·Objective LU-1:Establish a comprehensive citywide land use planning strategy to meet economic development objectives,achieve efficient and equitable use of resources and infrastructure, and create an attractive living environment. o Policy LU-1-a:Promote Development within the Existing City Limits as of December 31,2012.Promote new development,infill,and rehabilitation of existing building stock in the Downtown Planning Area,along BRT corridors,in established neighborhoods generally south of Herndon Avenue,and on other infill sites and vacant land within the City. o Policy LU-1-b:Land Use Definition and Compatibility.Include zoning districts and standards in the Development Code that provide for the General Plan land use designations and create appropriate transitions or buffers between new development with existing uses,taking into consideration the health and safety of the community. ·Objective LU-2:Plan for infill development that includes a range of housing types, building forms, and land uses to meet the needs of both current and future residents. o Policy LU-2-a:Infill Development and Redevelopment.Promote development of vacant,underdeveloped,and re-developable land within the City Limits where urban services are available by considering the establishment and implementation of supportive regulations and programs. ·Objective LU-5:Plan for a diverse housing stock that will support balanced urban City of Fresno Printed on 10/20/2023Page 11 of 17 powered by Legistar™ File #:ID 23-1470 Agenda Date:10/19/2023 Agenda #: ·Objective LU-5:Plan for a diverse housing stock that will support balanced urban growth and make efficient use of resources and public facilities. o Policy LU-5-a:Low Density Residential Uses.Promote low density residential uses only where there are established neighborhoods with semi-rural or estate characteristics. o Policy LU-5-g:Scale and Character of New Development.Allow new development in or adjacent to established neighborhoods that is compatible in scale and character with the surrounding area by promoting a transition in scale and architectural character between new buildings and established neighborhoods,as well as integrating pedestrian circulation and vehicular routes. o Policy LU-5-h:Housing Offering Amenities.Support housing that offers residents a range of amenities,including public and private open space,landscaping,and recreation facilities with direct access to commercial services,public transit,and community gathering spaces. ·Objective LU-8:Provide for the development of civic and institutional land uses to meet the educational,medical,social,economic,cultural,and religious needs of the community. o Policy LU-8-c:Zoning for Public Facilities.Allow public facility uses in zoning districts where appropriate. ·Objective HC-2:Create complete,well-structured,and healthy neighborhoods and transportation systems. o Policy HC-2-a:Healthy Neighborhoods.Promote the design of Complete Neighborhoods whose physical layout and land use mix allow for walking to local stores and services,biking,and transit use;foster community pride; enhance neighborhood identity;encourage public safety;are family-friendly; and address the needs of residents of all ages and abilities. o Policy HC-2-b:Supportive Housing.Continue to promote the availability of group housing facilities,emergency residential shelters,and similar housing arrangements throughout the city consistent with State and federal law. Bullard Community Plan No goals or policies were identified that are more restrictive than those included in the Fresno Municipal Code and General Plan guidelines. Fresno Municipal Code Findings Based upon analysis of the applications,the staff concludes that the required findings of Section 15- 5306 (Conditional Use Permit Findings)of the Fresno Municipal Code can be made.These findings are attached as Exhibit K. ENVIRONMENTAL FINDINGS The CEQA permits a public agency to determine whether a particular project is exempt from CEQA.A determination of a Categorical Exemption,Section 15332/Class 32 (In-fill Development Projects)of the CEQA Guidelines was made and Environmental Assessment P22-03146 was completed for this City of Fresno Printed on 10/20/2023Page 12 of 17 powered by Legistar™ File #:ID 23-1470 Agenda Date:10/19/2023 Agenda #: the CEQA Guidelines was made and Environmental Assessment P22-03146 was completed for this project on May 24, 2023. PUBLIC NOTICE AND INPUT District 2 Project Review Committee The Council District 2 Project Review Committee reviewed the project on November 14, 2022. The committee asked general questions ranging from if the use was permitted,how the site will be accessed,parking,and notice or comments from the neighborhood.The applicant presented the project and answered any specific questions from the committee.The committee voted to recommend approval of the project with the recommendation that the applicant conduct a neighborhood meeting by a 3-0 vote. Neighborhood Meeting The applicant conducted a neighborhood meeting on January 5th,2023.Five (5)members of the public attended,and the applicant discussed the project and answered any questions.Per the applicant, no negative comments were received at the meeting. Public Notice A notice of intent to take action was mailed to property owners within 1,000 feet of the subject property on January 26,2023.Thirty responses were received from the surrounding neighborhood in opposition,eight of which contained requests for notice of the action taken for the project.The responses stated the opposition to the project were based on: ·Concerns that traffic from the proposed project would negatively impact the neighborhood. ·Concerns that the drive approaches on West Bullard Avenue will cause traffic issues. ·Concerns that the drive approaches on West Morris Avenue will cause traffic issues and conflict with existing traffic from Malloch Elementary School.Since West Morris is a one-way street,employees and visitors of the residential care facility would travel through several local streets in the neighborhood to access the facility. ·Opposition to a commercial facility in a residential neighborhood ·Concerns that on and off-site parking will negatively impact the neighborhood. ·Concerns that noise and lighting from the facility will have impacts on the neighborhood. ·Claims that the proposed use does not fit the definition of a residential care facility and is therefore not permitted. ·Claims that the application materials were insufficient. ·Claims that a Traffic Impact Study is required. City of Fresno Printed on 10/20/2023Page 13 of 17 powered by Legistar™ File #:ID 23-1470 Agenda Date:10/19/2023 Agenda #: ·Claims that an Environmental Impact Study is required. ·Claims that the CEQA review is piecemealed due to the operational statement referencing a potential future subdivision. ·Claims that the application is a plan amendment and/or rezone application. Upon review of the concerns raised,no new information was provided to demonstrate that the required findings to approve a Conditional Use Permit cannot be made. As shown in this report and as well as the findings below,the use is permitted by state law and the FMC through a Conditional Use Permit,the required findings can be made,and the project is determined to be categorically exempt from CEQA through a Class 32 exemption. Second Meeting The applicant conducted a second meeting for respondents of the notice of intent to take action on February 23,2023,to discuss the project and provide opportunity for residents to request additional information and discuss their concerns. Project Approval The project was approved by the Director on June 2,2023 based on the determination that California State Law under Health and Safety Code §1267.16(c)requires the consideration of a CLHF through a Conditional Use Permit;that the required findings of FMC Section 15-5306 to approve the project could be made;and that the project was exempt from further environmental review based on a Section 15332/Class 32 categorical exemption pursuant to CEQA. Project Appeals Two (2)appeals of the Director’s decision were received during the 15-day appeal period (Exhibit L). An appeal was received from Councilmember Karbassi on June 5,2023,who expressed a desire for the project to be reviewed at City Council so that neighbors could voice their concerns at a public hearing.A second appeal was received from neighboring property owners.This appeal letter cited several concerns: ·Disputing that the project is allowed in the RS-2 zone district. ·Disputing that the project meets the classification of a residential care facility of the FMC. ·Disputing that the project meets density requirements of the FMC. ·Concerns about the impact of additional traffic to the surrounding neighborhood. ·Concerns about the impact of noise on the neighborhood. ·Stating that the project is not exempt from CEQA and an EIR is required. ·Stating that the intent of the applicant to subdivide the subject property at a later date is considered piecemealing. As demonstrated throughout this report,the RS-2 zoning classification permits a range of uses beyond just single-family homes.Residential Care Facility,General is the most appropriate use City of Fresno Printed on 10/20/2023Page 14 of 17 powered by Legistar™ File #:ID 23-1470 Agenda Date:10/19/2023 Agenda #: beyond just single-family homes.Residential Care Facility,General is the most appropriate use classification of the FMC,as other classifications are in direct contradiction to the State law defining a CLHF as being residential in nature.While state law requires CLHF’s to be residential in nature,it does not strictly require them to be within a single-family home.Therefore,the residential density requirement of FMC Section 15-903 does not apply.Similarly,Community or Religious Assembly Facilities and Parks,or School Facilities are other uses which are permitted in the RS-2 zone district but are also not subject to residential density standards. Traffic impacts were analyzed in accordance with the City’s standard procedures of review and the General Plan and were determined to not require a traffic impact study.Traffic impacts were also analyzed under VMT analysis,which is the standard of review for transportation impacts under CEQA.Quantitative analysis of projected trips did not identify a significant environmental impact regarding transportation. The environmental assessment utilized prior noise analysis conducted under the General Plan regarding evaluating impacts of transportation noise on the project.The assessment also evaluated the projects compliance with established noise standards and policies of the General Plan and FMC. The proposed project is a noise sensitive land use surrounded by other noise sensitive land uses and does not propose a use that will generate elevated noise levels beyond transportation related noise typical of the surrounding area,which includes a school facility which also generates similar transportation noises.West Bullard Avenue is a four-lane arterial street,which based on the General Plan circulation element is classified as a street type designed to serve high-volume inter-and intra- city traffic,and to act as a distributor between freeways,other arterials,and major traffic generators. Transportation related noise from the street and the use is expected and does not exceed requirements. Upon review of the concerns raised,no new information was provided to demonstrate that the required findings to approve a Conditional Use Permit cannot be made.As shown in this report and as well as the findings provided above,a CLHF is permitted by state law and the FMC through a CUP,the required findings to approve the project can be made,and the project is determined to be categorically exempt from CEQA through a Class 32 exemption.No evidence in the record demonstrates any significant environmental impacts may occur,therefore an Initial Study or EIR is not required.Further,if in future the applicant requests to subdivide the subject parcel into three separate smaller parcels where each of the proposed buildings occupy a single parcel,it would still be consistent with the previously approved environmental assessment so long as the proposed use does not change beyond what was originally approved. A third appeal letter was received on June 20,2023 (but dated June 16,2023),a day after the end of the appeal period. The letter is also attached as Exhibit L. Notice of Planning Commission Hearing In accordance with Section 15-5007 of the FMC,the Planning and Development Department mailed notices of the Planning Commission hearing to surrounding property owners within 1,000 feet of the subject property on July 7, 2023 (Exhibit H). City of Fresno Printed on 10/20/2023Page 15 of 17 powered by Legistar™ File #:ID 23-1470 Agenda Date:10/19/2023 Agenda #: Fresno City Planning Commission Action On July 19,2023,the Planning Commission considered the item as presented by staff,followed by a brief presentation by the applicant.Various members of the public spoke in opposition to the project during the hearing.After a complete hearing,the Planning Commission voted to continue the appeal to September 6,2023,to allow for further dialog between the applicant and adjacent property owners. On August 22,2023,the applicant met with neighboring property owners in an effort to resolve misunderstandings of the project.A summary of the meeting is included as Exhibit N (Additional Neighborhood Meeting Information). After a summary of the outreach and further testimony by the property owners and appellant,at the September 6,2023,the Planning Commission voted to approve the project,on condition that the total number of buildings proposed is reduced from three to two buildings,with five (5)votes to zero (0), one Commissioner absent and one abstaining.The Planning Commission resolution is attached as Exhibit O. Appeal of Planning Commission Action An appeal of the Planning Commission’s action to deny the appeal and uphold a modified version of the approval was received from the Mayor’s office on September 21, 2023 (Exhibit Q). Notice of City Council Hearing On October 6,2023,the Planning and Development Department mailed notices of the City Council Hearing to surrounding property owners within 1,000 feet of the subject site in accordance with Section 15-5007 of the FMC. See Exhibit P for Notice of City Council Hearing. LOCAL PREFERENCE Local preference was not considered because the project does not include a bid or award of a construction or service contract. FISCAL IMPACT Affirmative action by the City Council will result in timely deliverance of the review and processing of the applications as is reasonably expected by the applicant.Prudent financial management is demonstrated by the expeditious completion of this land use application in as much as the applicant has paid to the City a fee for the processing of this application and that fee is,in turn,funding the respective operations of the Planning and Development Department. CONCLUSION The appropriateness of the proposed project has been examined for its consistency with the goals and policies of the Bullard Community Plan and Fresno General Plan;its compatibility with surrounding existing or proposed uses;and its avoidance or mitigation of potentially significant adverse environmental impacts.These factors have been evaluated as described above and by the accompanying environmental assessment and concludes that the required findings contained withinCity of Fresno Printed on 10/20/2023Page 16 of 17 powered by Legistar™ File #:ID 23-1470 Agenda Date:10/19/2023 Agenda #: accompanying environmental assessment and concludes that the required findings contained within §15-5306 et seq.of the FMC can be made.Upon consideration of this evaluation,it can be concluded that the proposed modified Conditional Use Permit Application P22-03146 is appropriate for the subject property. If the City Council decides to uphold the appeal and deny the request to develop the proposed use, the City Council must find that there is insufficient evidence in the administrative record that the findings required by FMC Section 15-5306 can be made and amend the required findings accordingly. ATTACHMENTS: Exhibit A - Vicinity Map & Aerial Photograph Exhibit B - Planned Land Use & Zoning Map Exhibit C - Operational Statement Exhibit D - Exhibits Exhibit E - Conditions of Approval [09/06/2023] Exhibit F - Neighborhood Meeting Information Exhibit G - Comment Letters Exhibit H - Public Hearing Notice & Noticing Map Exhibit I -- Environmental Assessment P22-03146 [07/19/2023] Exhibit J - Additional Studies Exhibit K - Fresno Municipal Code Findings Exhibit L - Appeal Letters Exhibit M - Additional Letters Received Exhibit N - Additional Neighborhood Meeting Information Exhibit O - Planning Commission Resolution Exhibit P - City Council Public Hearing Notice & Noticing Map Exhibit Q - Appeal of PC action Exhibit R - Presentation City of Fresno Printed on 10/20/2023Page 17 of 17 powered by Legistar™ Exhibit A – Vicinity Map & Aerial Photograph Exhibit B – Planned Land Use & Zoning Map Exhibit C – Operational Statement 2287 W. Bullard Avenue, Fresno, CA 93711  559.286.6151  www.goinfiniteliving.com (coming soon) June 13, 2022 Re: Infinite Living 2287 W. Bullard Avenue Fresno, California 93711 2287 Bullard, Inc. dba Infinite Living proposes to convert a 3,310 square foot residential home into an approximately 5,000 square foot CLHF (Congregate Life Health Facility), which is located at 2287 W. Bullard Avenue, Fresno, California 93711. The property site on approximately 1.5 acres and is currently zoned R2 in which a CLHF license is permitted under this zoning with a CUP (Conditional Use Permit). Our site plan is currently in the City of Fresno’s DSR (Design Site Review) with an application number of 22TMP-013811. The property’s surrounding boundaries are 1 residential home, Malloch Elementary School and a few vacant lots. The property will consist of two phases and will not be subdivided until a later date. The first phase will consist of an existing house which lies north on the property and will be remodeled and expanded. In regards to the infrastructure for the entire property, this will all be done in the first phase as well due to the ingress and egress on the property (entrance and exits and traffic flow). The second phase will consist of two new construction houses that are just south of the existing house and any left over infrastructure that was not done during the first phase. There are three access points on the property, one north along Bullard Avenue, one along the northwest side that feeds into a round about to a future housing development and one along the south end portion of the property on Morris Avenue. All ingress and egress will be addressed in the first phase. A CHLF License which will be held by, Infinite Living, and will provide a comfortable residential home for those who are physically challenged and/or who have complex medical needs. Our team of medical professionals will provide Acute Care Services, Skilled Nursing Care and Complex Respiratory Care on a 24 hours a day basis. Our services area ideal for those who have suffered a traumatic brain injury or those who would otherwise be confined to hospitals, nursing homes or alike. Our large range of Medical Services includes: Complex Medical to Basic Medical Care and services. Our home will be comfortable, so it will feel like loved ones are living at home, while they are getting intensive levels of care and support, just as those provided in a larger commercial setting. The following services will be provided by Infinite Living: 1. Impatient Treatment 2. Medical Supervision 3. Supportive Care 4. Therapy Services 5. 24-Hour Skilled Nursing 6. Social and Recreational Activities 7. Medication Management 8. Dietary Management In which, well treat the following but not limited to: 1. 24/7 Sub Acute Nursing (For Vent and Trach Dependent Patients) 2. 24-Hour Skilled Nursing Care 3. Medical Supervision 4. Pharmacy 5. Dietary 6. Complex and Woud Care 7. Neuromuscular Disorders 8. Medically Complex Cases 9. Orthopedically Complex Cases 2287 W. Bullard Avenue, Fresno, CA 93711  559.286.6151  www.goinfiniteliving.com (coming soon) 10. Treatment for all levels of Spinal Cord Injuries 11. High-Intensity Rehabilitation Therapy 12. Acquired Brain Injuries 13. Social Recreational With our extensive team which will include: 1. RN 2. LVN (2) 3. CNA (3) 4. Cook 5. Dietician 6. Doctor (per diem) 7. Beautician 8. Activities Coordinator 9. House Keepers (2) 10. Maintenance We will provide: 1. Services to persons who are mentally alert, physically disabled, who may be ventilator dependent. 2. Services for persons who have a diagnosis of a terminal illness, a diagnosis of a life -threatening illness, or both. Terminal illness means the individual has a life expectancy of six months or less as stated in writing by his/her attending physician and surgeon. A “life-threatening illness” means the individual has an illness that can lead to a possibility of a termination of life within five years or less as stated in writing by his or her attending physician and surgeon. 3. Services for persons who are catastrophically and severely disabled. A catastrophically and severely disabled person means a person whose origin of disability was acquired through trauma or non- degenerative neurologic illness, for whom it has been determined that active rehabilitation would be beneficial and for whom these services would be provided. 4. Services offered by a CLHF to a catastrophically disabled person shall include, but not be limited to, speech, physical, and occupational therapy. Here at Infinite Living we are bound to CLHF standards which are found in H&S Code, Section 1267.13. In addition to these standards, CLHF’s are required to conform to CCR, Title 22, Skilled Nursing Regulations, except for those sections or portions of sections specified in H&S Code, Section 1267.13(n). These requirements in subsection 1267.13(n) are so specific to skilled nursing facilities, CLHF’s were exempted from compliance with these sections. We looked forward to receiving a favorable response from the City of Fresno, the Community of Central California and all of the families that will need care for their loved ones. In case of any questions or emergencies, the following contacts shall be used: Jason Andrade – President 559.286.6151 Patrick Miller – Secretary 619.385.8093 Larry Meza Jr. – Medical Operations 619.851.9144 Sincerely, Jason Andrade President Infinite Living Exhibit D – Exhibits (Site Plan, Elevations, Floor Plans, and Landscape Plan) ES GMGMES 6 9 9 55 5 12 7 7 7 12 12 9 2 2 12 4 3 3 3 8 8 6 11 10 11 3 3 3 3 16 16 1 1 11 4 17 17 17 17 19 19 13 13 8 2 1313 20 2 19 10 11 11 11 21 21 10 10 22 21 21 23 23 24 24 24 25 26 26 26 14 CARE FACILITY OMPANY1" = 20'-0" SITE CALCULATIONS PARKING SUMMARY Owner/Developer : Andrade Company 360 W. Bedford, 103 Fresno, CA. 93711 Contact Person: Jason Andrade (559)286-6151 SITE PLAN KEYNOTES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 SITE PLAN NOTES 21 22 23 12 24 25 26 CARE FACILITY OMPANY3/16" = 1'-0" 3/16" = 1'-0" 3/16" = 1'-0" 3/16" = 1'-0" CARE FACILITY OMPANY Exhibit E – Conditions of Approval dated September 6, 2023 2600 Fresno Street, Third Floor Fresno, California 93721-3604 (559) 621-8277 FAX (559) 498-1026 Planning and Development Department Jennifer K. Clark, AICP, Director June 2, 2023 Please reply to: Thomas Veatch (559) 621-8076 Jason Andrade Infinite Living jason@californiaretailbuilders.com (Sent via email only SUBJECT: CONDITIONAL USE PERMIT APPLICATION NO. P22-03146 FOR PROPERTY LOCATED AT 2287 WEST BULLARD AVENUE; LOCATED ON THE SOUTH SIDE OF WEST BULLARD AVENUE, BETWEEN NORTH VAN NESS BOULEVARD AND NORTH FORKNER AVENUE (APN: 415-033-44) On June 2, 2023, the Planning and Development Department Director approved the adaptive reuse of an existing single family residence located on ±1.5 acres to be used as a new residential respiratory care facility (Congregate Living Health Facility). The project is to be completed in two (2) phases. Phase I proposes to remodel and expand the existing ±3,310 square-foot residential structure to ±4,500 square feet. The remodel will include modifications and improvements to the existing building facade and interior space to accommodate a total of nine (9) bedrooms, nurses stations, administrative office, and restrooms. On-site parking and landscaping will also be provided as part of Phase I. Future Phase II proposes to build two (2) new buildings with a combined area of ±9,011 square feet which will also be utilized as residential respiratory care facilities. The facility will provide acute care services, skilled nursing care, and complex respiratory care to on-site residents on a 24-hour a day basis. A future voluntary subdivision is identified to separate the subject property into three separate parcels, each comprised of one of the proposed buildings to be utilized as a CLHF. The subject property is zoned RS-2/EQ (Residential Single-family, Low Density/Equine Area Overlay). The proposed project was determined to be exempt from the California Environmental Quality Act (CEQA) under Section 15332/Class 32 (In-Fill Development Projects) of the CEQA Guidelines. No further environmental assessment will be needed at this time. The approval of this project is subject to compliance with the following Conditions of Approval: 1) Development shall take place in accordance with the Conditions of Approval prepared for P22-03146 dated June 2, 2023. 2) Miscellaneous Requirements a) Approval of this special permit shall be considered null and void in the event of failure by the applicant and/or the authorized representative, architect, engineer, or designer to disclose and delineate all facts and information relating to the subject property and Conditional Use Permit Application No. P22-03146 June 2, 2023 Page 2 of 3 the proposed development including, but not limited to, the following: i) All existing and proposed improvements including but not limited to buildings and structures, signs and their uses, trees, walls, driveways, outdoor storage, and open land use areas on the subject property and all of the preceding which are located on adjoining property and may encroach on the subject property; ii) All public and private easements, rights-of-way and any actual or potential prescriptive easements or uses of the subject property; and, iii) Existing and proposed grade differentials between the subject property and adjoining property zoned or planned for residential use. b) Approval of this special permit may become null and void in the event that development is not completed in accordance with all the conditions and requirements imposed on this special permit, the Zoning Ordinance, and all Public Works Standards and Specifications. The Planning and Development Department shall not assume responsibility for any deletions or omissions resulting from the special permit review process or for additions or alterations to construction plans not specifically submitted and reviewed and approved pursuant to this special permit or subsequent amendments or revisions. APPEALS Please be advised that this project may be subject to a variety of discretionary conditions of approval. These conditions based on adopted City plans, ordinances and policies; those determined to be required through the interdepartmental/interagency review process; and those determined through the environmental assessment process as necessary to mitigate adverse effects on the health, safety and welfare of the community. The conditions of approval may also include requirements for development and use that would, on the whole, enhance the project and its relationship to the neighborhood and environment. All conditions of approval based on adopted plans, codes, and regulations are mandatory. Conditions based on the FMC may only be modified by variance, provided the findings required by FMC Section 15-5506 can be made. Discretionary conditions of approval may be appealed but will ultimately be deemed mandatory unless appealed in writing to the Director within 15 days. In the event you wish to appeal the Director’s decision, you may do so by filing a written appeal with the Director. The appeal shall include the appellant’s interest in or relationship to the subject property, the decision or action appealed and specific reasons why the applicant believes the decision or action appealed should not be upheld. If you wish to appeal the decision, a written request must be received by the Planning and Development Department by June 19, 2023. The written request should be addressed to Jennifer K. Clark, Director, and include the application number referenced above. Please submit the request in writing (mail or email to publiccommentsplanning@fresno.gov and CC the planner listed below) to the Planner by the date noted above. An $930.66 fee shall apply to an appeal from the applicant. Conditional Use Permit Application No. P22-03146 June 2, 2023 Page 3 of 3 COMPLIANCE REVIEW PROCESS Please Note: To complete the compliance review process for building permits relative to planning and zoning issues, please upload electronic PDF copies of the corrected, final site plan, together with electronic copies of the elevations, landscape and irrigation plans, operational statement, any fees and title reports for required covenants, and any required studies or analyses into the compliance record for final review and approval into the compliance record at least 15 days before applying for building permits. The compliance record number for this application is P23-01965. These documents can be uploaded electronically to the citizen access portal at www.fresno.gov/faaster. Contact Planner once any corrected exhibits are uploaded. It may be necessary to resubmit these “corrected exhibits” a second time if not all the requirements have been complied with or are not shown on the exhibits. Once the “corrected exhibits” are approved by the Development Services Division, please place these exhibits in the plan check set. Copies of the final approved site plan, elevations, and landscape plans stamped by the Development Services Division must be substituted for unstamped copies of the same in each of the sets of construction plans submitted for plan check prior to the issuance of building permits. EXPIRATION DATES The exercise of rights granted by these special permits must be commenced by June 2, 2026, (three years from the date of approval). An extension of up to one additional year may be granted, provided that the findings required under FMC Section 15-5013-A.1 are made by the Director. All required improvements must be installed prior to the operation of the proposed use. Pursuant to Section 15-5308 of the FMC an expiration date of seven years from the date of approval has been established for Conditional Use Permits. Therefore, the approval shall expire on June 2, 2030, and a new conditional use permit for the proposed use must be obtained prior to that expiration date for the use only (not the physical structure(s)). If you have any questions regarding this letter, feel free to give me a call at the number listed above. Sincerely, Thomas Veatch, Planner Development Services Division 2600 Fresno Street, Third Floor Planning and Development Department Fresno, California 93721-3604 Jennifer K. Clark, AICP, Director (559) 621-8277 FAX (559) 498-1026 June 2, 2023 September 6, 2023 Please reply to: Thomas Veatch (559) 621-8076 Thomas.veatch@fresno.gov Jason Andrade Infinite Living jason@californiaretailbuilders.com (Sent via email only) SUBJECT: CONDITIONAL USE PERMIT APPLICATION NO. P22-03146 FOR PROPERTY LOCATED AT 2287 WEST BULLARD AVENUE; LOCATED ON THE SOUTH SIDE OF WEST BULLARD AVENUE, BETWEEN NORTH VAN NESS BOULEVARD AND NORTH FORKNER AVENUE (APN: 415-033-44) CONDITIONS OF APPROVAL PART A – ITEMS TO BE COMPLETED The following items are required before issuance of building permits or final inspection: Planner to check when completed ☐ 1. Development and operations shall take place in accordance with Exhibit A, E, F and L dated December 27, 2022. Revise and transfer all comments or corrections to plan exhibits and upload to the related compliance record before issuance of building permits (see directions below). ☐ 2. Revise Site Plan, Operational Statement, Elevations, and Landscape plan to provide all required information from Content Requirements Checklist. ☐ 3. Revise Site Plan, Operational Statement, Elevations, and Landscape plan to reflect Planning Commission conditions of approval from September 6, 2023, to reduce scope of project by removing one of the three proposed buildings. ☐ 4. Revise site plan and elevation plans so that main entrance façade of the future building proposed adjacent to West Morris Avenue faces the street frontage. ☐ 5. Provide elevation plans for future buildings proposed for Phase 2. ☐ 6. Revise elevation plans so that all façade elevations visible from West Bullard and West Morris Avenues that are not a brick veneer have a secondary design element, pattern, or material to avoid blank walls (not including windows). Any wall or ground mounted equipment shall be screened from view. ☐ 7. Prior to operation of Phase 1, provide verification that the State of California Department of Public Health has issued a license to operate as a Congregate Living Health facility. Provide verification of State approval for Phase 2 prior to operation Conditional Use Permit Application No. P22-03146 June 2 2023 September 6, 2023 Page 2 of 6 of future buildings. ☐ 8. Revise site plan so that fencing and walls comply with Section 15-2006 (Fences, Walls, Hedges). The existing fencing on Bullard and Morris Avenues frontages does not comply with Section 15-2006-C, and conflicts with DPW Traffic Planning conditions identified below. ☐ 9. Revise operational statement to include a description of measures taken to minimize potential noise and lighting impacts on surrounding uses outside of normal business hours. ☐ 10. Revise site plan and landscape plan to provide a complete 10 foot landscape buffer yard along west and east property lines, in accordance with Table 15-2305-C-2 (Type 1). ☐ 11. Lighting shall be designed to be low-profile, indirect, or diffused, create a pleasing appearance, and avoid adverse impacts on surrounding uses. Comply with Section 15-2015. ☐ 12. Trash and recycling receptacles shall be available. The premises shall be kept in an orderly condition at all times. Litter shall be collected daily. ☐ 13. Landscaping must be in place before issuance and final inspection. A Hold on final inspection shall be placed on the proposed improvements until landscaping has been approved and verified for proper installation by the Planning Division. Include this note on the site plan and landscape plan. ☐ 14. Prior to final inspection, a written certification, signed by a landscape professional approved by the Planning and Development Department Director, shall be submitted stating that the required landscaping and irrigation system have been installed in accordance with the landscaping and irrigation plans approved by the Planning Division (Include this note on the site and landscape plans). PART B – OTHER AGENCY COMMENTS AND CONDITIONS REQUIREMENTS Planner to check when completed ☐ 1. Air District: Comply with the requirements outlined in the attached air district letters dated November 21, 2022. ☐ 2. Department of Public Utilities (Sewer, Solid Waste, Water): Comply with the attached memoranda dated December 7, 2022. ☐ 3. Fire Department: Comply with redlined commented plan dated February 15, 2023. All back checks are performed electronically through the Accela Program (FAASTER portal). You must submit the following documentation to the Building Department: 1) Provide copy of the original submittals (drawings, calculations, and supporting documents) including mark-ups from the plan reviewers who worked on your documents. 2) Provide a complete set of revised drawings, calculations, and supporting documents addressing plan check comments (all changes shall be clouded). 3) Provide a detailed typed response to each item listed in the plan check correction comments document. If you have additional questions regarding back check submittals, please contact the Building Department. Conditional Use Permit Application No. P22-03146 June 2 2023 September 6, 2023 Page 3 of 6 All revisions to plans shall be called out with a cloud or delta. If you have questions and would like more information regarding FFD Development Policies please see the following: https://www.fresno.gov/fire- training/manuals-and-forms/ 1. Emergency vehicle access shall be designated by painting the curb red (top and side) and stenciling “FIRE LANE NO PARKING” in 3-inch white letters on the most vertical curb, at least every 50 feet. If no curb is present, a minimum 6-inch wide red stripe shall be painted along the edge of the roadway with “FIRE LANE” in 3- inch white letters at least every 50 feet. (FFD Development Policy 403.005) ***Confirm areas to be designated as fire lanes. The entry to complex shall have the fire lanes marked as well as the areas between Phase II Buildings. Ensure the fire lane markings on the east side emergency access lane is marked on each side. See markup attached in documents. 2. Note on plan: Turns in private drives for fire apparatus access shall have minimum 44 foot centerline turn radius. ***The turn radius cannot be met on the east side of the complex next to Phase II Building (4,370 sq. ft.). See markup attached in documents showing the turn radius, per the provided scale, is not being met at the southeast vehicle access point. 3. Note on plan: All gates across fire hose and equipment access points shall be a minimum of 4 foot clear width. ***There is only one pedestrian gate shown but appears it does not meet this requirement. See the markup attached in documents. This project was reviewed by the Fire Department only for requirements related to water supply, fire hydrants, and fire apparatus access to the building(s) on site. Review for compliance with fire and life safety requirements for the building interior and its intended use are reviewed by both the Fire Department and the Building and Safety Section of DARM when a submittal for building plan review is made as required by the California Building Code by the architect or engineer of record for the building. ☐ 4. Flood Control: Comply with the attached memoranda submitted by the Fresno Metropolitan Flood Control District dated December 12, 2022. Pay the NOR Review and Grading Plan Review fee prior to the issuance of building permits. ☐ 5. Fresno County Environmental Health: Recommended Conditions of Approval: • Section 113789 of the California Health and Safety Code (California Retail Food Code) exempts child day care facilities, community care facilities, residential care facilities for the elderly, and residential care facilities for the chronically ill, which has the same meaning as a residential care facility, as defined in Health & Safety Code Sections 1250, 1502, 1568.01, and 1569.2. These facilities are not deemed to be FOOD FACILITIES, and, therefore, are exempt from this part. As such, this Division has no regulatory jurisdiction on the daycare facility The project should be routed to the following agency for comment: California Department of Public Health, Conditional Use Permit Application No. P22-03146 June 2 2023 September 6, 2023 Page 4 of 6 Licensing and Certification Division 285 W. Bullard Avenue, Suite 101 Fresno, CA 93704 (559) 437-1500 • The applicant may be required to obtain a Medical Waste Permit from the California Department of Health Services, Medical Waste Management Program. Call (916) 449-5671 for more information. • Facilities that use and/or store hazardous materials and/or hazardous wastes, they shall meet the requirements set forth in the California Health and Safety Code (HSC), Division 20, Chapter 6.95, and the California Code of Regulations (CCR), Title 22, Division 4.5. Any business that handles a hazardous material or hazardous waste may be required to submit a Hazardous Materials Business Plan pursuant to the California Health and Safety Code (HSC), Division 20, Chapter 6.95, Section 25507 (http://cers.calepa.ca.gov/). Contact the Fresno County Hazmat Compliance Program at (559) 600-3271 for more information. • The proposed project has the potential to expose nearby residents to elevated noise levels. Consideration should be given to the noise elements of your City’s municipal code and the Fresno County Noise Ordinance Code. • Should any underground storage tank(s) be found during construction, the applicant shall apply for and secure an Underground Storage Tank Removal Permit from the Fresno County Department of Public Health, Environmental Health Division. Contact the Fresno County Hazmat Compliance Program at (559) 600- 3271 for more information. • As a measure to protect ground water, all water wells and/or septic systems that exist or have been abandoned within the project area should be properly destroyed by an appropriately licensed contractor. The following comments pertain to the remodel of existing structure: • Should the structure have an active rodent or insect infestation, the infestation should be abated prior to demolition of the structure in order to prevent the spread of vectors to adjacent properties. • In the process of remodeling the existing structure, the contractor may encounter asbestos containing construction materials and materials coated with lead-based paints. • If asbestos containing materials are encountered, contact the San Joaquin Valley Air Pollution Control District at (559) 230-6000 for more information. • If the structure was constructed prior to 1979 or if lead-based paint is suspected to have been used in the structure, then prior to remodel/demolishing work the contractor should contact the following agencies for current regulations and requirements: Conditional Use Permit Application No. P22-03146 June 2 2023 September 6, 2023 Page 5 of 6 ? California Department of Public Health, Childhood Lead Poisoning Prevention Branch, at (560) 620-5600. ? United States Environmental Protection Agency, Region 9, at (415) 947- 8000. ? State of California, Industrial Relations Department, Division of Occupational Safety and Health, Consultation Service (CAL-OSHA) at (559) 454-5302. ☐ 6. Department of Public Works (Street Maintenance): Comply with the requirements listed in the attached letter dated March 8, 2023. 7. Department of Public Works (Street Trees): Comply with the requirements listed in the attached letter dated March 8, 2023. ☐ 8. Department of Public Works (Traffic): Comply with Public Works Traffic Planning conditions of approval and redlined Exhibits A, Check Print 1 dated December 16 2022. 9. Fresno Irrigation District Comply with the attached FID comment memo dated December 5, 2022 10. Airports Airspace Protection Airspace review required for any objects (temporary or permanent) over 100 feet tall 11. County of Fresno This project is likely to impact county facilities and should require a TIS, please include the count in all future routings best point of contact is hluna@fresnocountyca.gov. Using ITE trip Generation Manual (11th Edition) trips are calculated to be over the county's threshold. 12. Land Division and Impact Fee See fee estimate letter dated November 23, 2022 13. School District See Fresno Unified School District dated November 8, 2022. PART C – PLANNING DEVELOPMENT CODE STANDARDS 1. Density and Intensity Standards: Compliance with the conditions of approval included in Parts A and B above will result in modifications to the proposed site plan. Should corrections or revisions result in changes to the overall site plan configuration, development shall take place in accordance with FMC Tables 15-903 (Intensity and Massing Development Standards- Residential Single Family Districts) Conditional Use Permit Application No. P22-03146 June 2 2023 September 6, 2023 Page 6 of 6 2. General Site Regulations: Compliance with the conditions of approval included in Parts A and B above will result in modifications to the proposed site plan. Should corrections or revisions result in changes to the overall site plan configuration, development shall take place in accordance with FMC Chapter 15 Article 20 (General Site Regulations) 3. Site Design: Compliance with the conditions of approval included in Parts A and B above will result in a modification to the proposed site plan. Should corrections or revisions result in changes to the site plan configuration, development shall follow FMC Section 15-904 (Site Development Standards). 4. Parking and Loading: All parking shall be provided in accordance with the City of Fresno Parking Manual and per Article 24 of the FMC. 5. Landscaping: All landscaping shall be provided and maintained in accordance with Article 23 of the FMC. 6. Façade: Development shall comply with the façade design development standard under FMC Sections 15-905. 7. Fencing: All Fencing, Walls, and Hedges shall be provided and installed per FMC Section 15-2006. PART D – PLANNING – OTHER REQUIREMENTS 1. The development shall follow the policies of the Fresno General plan, Bullard Community Plan, and the Residential – Single Family, Low Density planned land use designation. 2. The development shall follow the RS-2/EQ (Residential Single-family Low Density/Equine Overlay) zone district and all other applicable sections of the Citywide Development Code, Chapter 15 of the Fresno Municipal Code (FMC). 3. Comply with the operational statement submitted for the proposed project dated December 27, 2022. 4. The development shall comply with the City of Fresno Parking Manual, California Building Code, and American Disabilities Act requirements. 5. The development shall take place in accordance with the "General Notes and Requirements for Entitlement Applications" listed below if applicable Property development standards and operational conditions are contained in Articles 13 (Employment Districts), 20 (General Site Requirements), 23 (Landscape), 24 (Parking and Loading), and 25 (Performance Standards). Any project revisions, development, and operation must comply with these property development standards and operational conditions. PART E - MISCELLANEOUS AND GENERAL NOTES AND REQUIREMENTS Not all notes and requirements listed below are applicable to all projects. Conditional Use Permit Application No. P22-03146 June 2 2023 September 6, 2023 Page 7 of 6 1. Approval of this special permit may become null and void in the event that development is not completed in accordance with all the conditions and requirements imposed on this special permit, the Zoning Ordinance, and all Public Works Standards and Specifications. This special permit is granted, and the conditions imposed, based upon the Operation Statement provided by the applicant. The Operation Statement is material to the issuance of this special permit. Unless the conditions of approval specifically require operation inconsistent with the Operation Statement, a new or revised special permit is required if the operation of this establishment changes or becomes inconsistent with the Operation Statement. Failure to operate in accordance with the conditions and requirements imposed may result in revocation of the special permit or any other enforcement remedy available under the law. The Planning and Development Department shall not assume responsibility for any deletions or omissions resulting from the special permit review process or for additions or alterations to construction plans not specifically submitted and reviewed and approved pursuant to this special permit or subsequent amendments or revisions. 2. Approval of this special permit shall be considered null and void in the event of failure by the applicant and/or the authorized representative, architect, engineer, or designer to disclose and delineate all facts and information relating to the subject property and the proposed development including, but not limited to, the following: a. All existing and proposed improvements including but not limited to buildings and structures, signs and their uses, trees, walls, driveways, outdoor storage, and open land use areas on the subject property and all of the preceding which are located on adjoining property and may encroach on the subject property; b. All public and private easements, rights-of-way and any actual or potential prescriptive easements or uses of the subject property; and, c. Existing and proposed grade differentials between the subject property and adjoining property zoned or planned for residential use. 3. No land shall be used, and no structure shall be constructed, occupied, enlarged, altered, demolished, or moved in any zoning district, except in accordance with the provisions of this Code. Specific uses of land, buildings, and structures listed as prohibited in any zoning district are hereby declared to be detrimental to the public health, safety, and welfare. 4. Development shall take place in accordance with the Standards, Specifications, and Standard Drawings of the City of Fresno Public Works Department. 5. Development shall take place in accordance with all city, county, state and federal laws and regulations. 6. Owners and persons having ownership interest in businesses operating in the City of Fresno (including leasing out any commercial or industrial property, or renting out four or more dwelling units) are required by the Fresno Municipal Code to obtain a Business Tax Certificate. Contact the City of Fresno Finance Department’s Business Tax Division at (559) 621-6880 for more information. Information and an application form is available at the following website: Click Here Conditional Use Permit Application No. P22-03146 June 2 2023 September 6, 2023 Page 8 of 6 7. All proposed building(s) or structure(s) constructed on the property must comply with the prevailing California Building Code Standards. 8. Any building modifications and/or additions not included with this application are not approved with this special permit and would be subject to a new special permit. 9. A permit granted under the Fresno Municipal Code shall automatically expire if it is not exercised or extended within three years of its issuance. Refer to section 15-5013, Expiration of Planning Entitlements, for more information about the exercise of rights. FENCES/WALLS, LANDSCAPING, PARKING 10. Nothing in the Development Code shall be deemed to prohibit the erection of temporary fencing around construction sites in compliance with the Building Code and other applicable provisions of the Fresno Municipal Code. 11. Future fences shall be reviewed and approved by the Planning and Development Department prior to installation. 12. Fences, hedges, and walls shall be maintained in good repair, including painting, if required, and shall be kept free of litter or advertising. Where hedges are used as screening, trimming or pruning shall be employed as necessary to maintain the maximum allowed height. Fences shall be maintained and shall stand upright and shall not lean. 13. All planting and other landscape elements shall be permanently maintained in good growing condition. Such maintenance shall include, where appropriate, pruning, mowing, weeding, cleaning, fertilizing, and regular watering. Wherever necessary, plantings shall be replaced with other plant materials to ensure continued compliance with applicable landscaping requirements. Yards shall be maintained free of refuse, debris, rubbish, or other accumulated matter and/or materials, and shall be maintained clean. Grass shall not exceed six inches in height. 14. New landscaping shall have an automatic irrigation system designed to provide adequate and efficient coverage of all plant material. Irrigation systems shall comply with the requirements of the California Green Building Standards Code and/or the California Model Water Efficient Landscape Ordinance and/or the California Plumbing Code as may be amended. 15. Trees shall be maintained by property owners to be free from physical damage or injury arising from lack of water, chemical damage, accidents, vandalism, insects, and disease. Any tree showing such damage shall be replaced with another tree. 16. No tree for which a Tree Removal Permit is required shall be removed until all conditions of the permit have been satisfied and the decision has become final. In addition, tree(s) approved for removal in conjunction with a development application shall not be removed before the issuance of a Building Permit or unless all of the conditions of approval of the development applications are satisfied. 17. The review authority shall issue a Tree Removal Permit if any of the following general criteria is met: Conditional Use Permit Application No. P22-03146 June 2 2023 September 6, 2023 Page 9 of 6 a) The tree(s) is irreparably diseased or presents a danger of falling that cannot be controlled or remedied through reasonable preservation and/or preventative procedures and practices so that the public health or safety requires its removal. b) The tree(s) can potentially cause substantial damage to existing or proposed main structure(s) (e.g. dwellings, other main structures, or public infrastructure) or interfere with utility services and cannot be controlled or remedied through reasonable relocation or modification of the structure or utility services. c) The retention of the tree(s) restricts the economic enjoyment of the property or creates an unusual hardship for the property owner by severely limiting the use of the property in a manner not typically experienced by owners of similarly zoned and situated properties, and the applicant has demonstrated to the satisfaction of the Review Authority that there are no reasonable alternatives to preserve the tree(s). 18. Landscaping must be in place before issuance of the certificate of occupancy. A Hold on Occupancy shall be placed on the proposed development until such time that landscaping has been approved and verified for proper installation by the Current Planning Division. (Include this note on the landscape plan.) 19. Future tenant improvements shall be reviewed and approved by the Planning and Development Department to ensure that adequate off-street parking is provided. 20. Trees required for parking lots are in addition to trees required elsewhere on the site as prescribed in other sections of the Fresno Municipal Code. 21. Parking lots, including landscaped areas, driveways, and loading areas, shall be maintained free of refuse, debris, or other accumulated matter and shall be kept in good repair at all times. 22. Parking lots, including landscaped areas, driveways, and loading areas, shall be maintained free of refuse, debris, or other accumulated matter and shall be kept in good repair at all times. 23. All accessible stalls shall be marked with the international symbol of spaces and a warning that vehicles in violation of Section 10-1017 of the Fresno Municipal Code shall be towed away. The international symbol and tow-away warning shall be posted conspicuously on seven-foot poles. (Include this note on the site plan.) 24. Applicants are encouraged to provide shared vehicle and pedestrian access between adjacent properties for convenience, safety, and efficient circulation. A joint access covenant shall be required. (Include this note on the site plan.) 25. All general standards of Section 15-2015 of the Fresno Municipal Code shall apply when lighting is provided to illuminate parking, sales or display areas. Depict all proposed lights on the site plan. Conditional Use Permit Application No. P22-03146 June 2 2023 September 6, 2023 Page 10 of 6 26. Bicycle parking spaces shall be supplied according to Table 15-2429-D: Required On-Site Bicycle Parking Spaces of the Fresno Municipal Code. Each bicycle parking space shall be a minimum of 30 inches in width and eight feet in length and shall be accessible without moving another bicycle. At least 30 inches of clearance shall be provided between bicycle parking spaces and adjacent walls, poles, landscaping, street furniture, drive aisles, and pedestrian ways and at least five feet from vehicle parking spaces to allow for the maneuvering of bikes. Overhead clearance shall be a minimum of seven feet. A minimum five-foot aisle between each row of bicycle parking shall be provided for bicycle maneuvering beside or between each row, when multiple rows are proposed. Bicycle parking spaces shall not encroach into pedestrian ways, landscaped areas, or other required open spaces, and shall be located proximal to structures. 27. All general provisions of Section 15-2403 of the Fresno Municipal Code shall apply to all parking areas. 28. The parking lot is required to meet the City of Fresno’s Parking Manual, Public Works Standards (P-21, P-22, and P-23) and Specifications. Parking must also comply with the California Building Code’s accessibility requirements and the Fire and Solid Waste Department’s minimum turning templates. Contact the Planning and Development Department for Parking Manual questions. SIGNAGE 29. All future signs shall be architecturally compatible with the proposed building(s). Provide a set of drawings, with descriptive information, including materials, design, and colors to allow for a preliminary assessment of the future signage. It is recommended that you provide a copy of the signage early in the project process to allow for staff comment. 30. Signs, other than directional signs, if applicable, are not approved for installation as part of this special permit. (Include this note on the site plan.) 31. All proposed signs shall conform to the current sign ordinance. The submittal checklist for signs is available online at: Click Here 32. Window signs limited to the hours of operation, address, occupancy, and emergency information, subject to the following standards: a) Operational windows signs shall not be mounted or placed on windows higher than the second story. b) The maximum area of exempt window signage shall not exceed three square feet in area. 33. Banners, streamers, moving signs, and inflatables (including air dancers, balloons, and similar objects) are allowed subject to Temporary Use Permit approval for establishments within Non-Residential Districts. Signs of this type do not count toward total maximum sign area. No sign per this section shall be displayed for more than 30 days, and a period of 30 must lapse before displaying another sign. Signs shall not be displayed for more than 60 total days during a calendar year. Conditional Use Permit Application No. P22-03146 June 2 2023 September 6, 2023 Page 11 of 6 34. Every sign displayed within the City, including exempt signs, shall be maintained in good physical condition and shall comply with adopted regulations. All defective or broken parts shall be replaced. Exposed surfaces shall be kept clean, in good repair, and painted where paint is required. MISCELLANEOUS 35. Noise levels shall not exceed the decibel levels described in Section 15-2506 of the Fresno Municipal Code at any time, measured at the nearest subject property line. 36. No vibration shall be produced that is transmitted through the ground and is discernible without the aid of instruments by a reasonable person at the lot lines of the site. Vibrations from temporary construction, demolition, and vehicles that enter and leave the subject parcel (e.g., construction equipment, trains, trucks, etc.) are exempt from this standard. 37. Lights shall be placed to deflect light away from adjacent properties and public streets, and to prevent adverse interference with the normal operation or enjoyment of surrounding properties. Direct or sky-reflected glare from floodlights shall not be directed into any other property or street. Except for public streetlights and stadium lights, no light, combination of lights, or activity shall cast light onto a residentially zoned property, or any property containing residential uses, exceeding one-half foot-candle. 38. No use shall be operated such that significant, direct glare, incidental to the operation of the use is visible beyond the boundaries of the lot where the use is located. Windows shall not cause glare that may disrupt adjoining properties, traffic on adjacent streets, etc. Glare or heat reflected from building materials shall be mitigated so as to not disrupt surrounding properties. 39. The address listed in the conditions of approval is the 'Official Address' given to the building. If you would like separate suite or unit numbers for a building, provide a floor plan and contact the City of Fresno Planning and Development Department for 'Official Addresses'. Only those addresses assigned by the City of Fresno will be recognized as 'Official Addresses'. The United States Post Office will only recognize addresses assigned by the City of Fresno. If a non-official address is given to a building and or/separate suites, the City of Fresno has the authority to charge a fee and have those addresses corrected. In addition, the United States Post Office will cease mail delivery to those addresses that are not 'Official Addresses'. 40. All projects, including projects that involve less than one acre of property, are required to comply with the City of Fresno’s Urban Storm Water Quality Management and Discharge Control Ordinance, Fresno Municipal Code Chapter 6, Article 7 (Sections 6-701 et seq.) When a project involves one acre or more of construction activity (including, but not limited to, grading) the developer is required to obtain a stormwater discharge permit for construction, with a Notice of Intent (NOI) filed prior to commencement of any grading construction activity. Contact the Fresno office of the California Regional Water Quality Control Board at (559) 445-6281 regarding the required NOI and stormwater discharge permit. Additional information on California's construction stormwater regulation may be obtained from the Water Board via the internet: Conditional Use Permit Application No. P22-03146 June 2 2023 September 6, 2023 Page 12 of 6 www.waterboards.ca.gov/water_issues/programs/stormwater/construction.shtml Helpful information for preparing and implementing stormwater pollution prevention plans may also be obtained from the California Stormwater Quality Association via its website, www.casqa.org When a project involves specified nonresidential activities (certain commercial and industrial activities), an ongoing industrial stormwater discharge permit is also required. Contact the Fresno office of the California Regional Water Quality Control Board at (559) 445-6281 to find out whether your project/business requires an industrial stormwater discharge permit, and to obtain details on securing this permit. Additional information on industrial stormwater regulations may be obtained from the following website: www.waterboards.ca.gov/water_issues/programs/stormwater/industrial.shtml, The California Stormwater Quality Association has additional information on preparing stormwater pollution prevention plans for industrial activities (www.casqa.org). 41. Screen all roof-mounted equipment from the view of public rights-of-way. Depict all mechanical equipment on site plan and elevations. 42. If archaeological and/or animal fossil material is encountered during project surveying, grading, excavating, or construction, work shall stop immediately. (Include this note on the site plan.) 43. If there are suspected human remains, the Fresno County Coroner shall be immediately contacted. If the remains or other archaeological material is possibly Native American in origin, the Native American Heritage Commission (Phone: (916) 653-4082) shall be immediately contacted, and the California Archaeological Inventory/Southern San Joaquin Valley Information Center (Phone: (805) 644-2289) shall be contacted to obtain a referral list of recognized archaeologists. An archeological assessment shall be conducted for the project, the site shall be formally recorded, and recommendations made to the City as to any further site investigation or site avoidance/preservation. (Include this note on the site plan.) 44. If animal fossils are uncovered, the Museum of Paleontology, U.C. Berkeley shall be contacted to obtain a referral list of recognized paleontologists. An assessment shall be conducted by a paleontologist and, if the paleontologist determines the material to be significant, it shall be preserved. (Include this note on the site plan.) 45. Connection to a municipal water system is required unless approved measures are included in the project conditions of approval for an alternative water supply. 46. Connection to a municipal City of Fresno sewer system is required unless approved measures are included in the project conditions for alternative wastewater treatment facilities. Conditional Use Permit Application No. P22-03146 June 2 2023 September 6, 2023 Page 13 of 6 47. City of Fresno water and sewer connection charge obligations applicable to this project will be computed during the building construction plan check process and shall be payable at the time of issuance of building permit unless other arrangements have been approved to defer such payments to a later date. For information relating to water and sewer service requirements and connection charges, contact Frank Saburit at (559) 621-8797. 48. Open street cuts are not permitted; all utility connections must be bored. 49. CROSS-CONNECTION CONTROL. A backflow prevention device may be required on the water service. Contact the Department of Public Utilities, Water Division (559) 621-5300 for requirements relating to approved devices, locations, testing and acceptance. This requirement must be satisfied prior to final occupancy. 50. This project was reviewed by the Fire Department only for requirements related to water supply, fire hydrants, and fire apparatus access to the building(s) on-site. Review for compliance with fire and life safety requirements for the building interior and its intended use are reviewed by both the Fire Department and the Building and Safety Section of the Planning and Development when a submittal for building plan review is made as required by the California Building Code by the architect or engineer of record for the building. 51. Open storage (outside an enclosed building) shall be limited to vehicles, boats, recreational vehicles, and trailers. Outdoor storage areas shall be screened from public view by building façades or solid fences. At the discretion of the Review Authority, the treatment of the ground surface of the open storage area may be gravel or other materials as prescribed by the San Joaquin Valley Air Pollution Control District, the Public Works Department, the Fire Department, and the Fresno Metropolitan Flood Control District. All open storage must be depicted on the site plan and described in operational statement. If it is not, it is not allowed on the site. 52. If video surveillance cameras are required or installed, provide signs under the surveillance cameras which notify the public that the subject property is monitored by video surveillance. FEES (Not all fees will be applicable to all projects. Please reach out to Frank Saburit at (559) 621-8797 for fee questions.) 53. NOTICE TO PROJECT APPLICANT: In accordance with the provisions of Government Code Section 66020(d)(1), the imposition of fees, dedication, reservations or exactions for this project are subject to protest by the project applicant at the time of approval or conditional approval of the development or within 90 days after the date of imposition of fees, dedications, reservation, or exactions imposed on the development project. This notice does not apply to those fees, dedications, reservations, or exactions which were previously imposed and duly noticed; or, where no notice was previously required under the provisions of Government Code Section 66020(d)(1) in effect before January 1, 1997. 54. CITYWIDE DEVELOPMENT IMPACT FEES Conditional Use Permit Application No. P22-03146 June 2 2023 September 6, 2023 Page 14 of 6 a) Traffic Signal Charge (Fresno Municipal Code Section 12-4.1101 to 12-4.1103) This project shall pay its Traffic Signal Mitigation Impact Fee at the time of building permit based on the trip generation rate(s) as set forth in the latest Master Fee Schedule. Refer to the adopted Master Fee Schedule for fee rate. This fee shall be paid at the time of building permit. b) Fire Facilities Fee (Fresno Municipal Code Section 12-4.901 to 12-4.906) (based on building square footage, or residential units) c) Police Facilities Fee (Fresno Municipal Code Section 12-4.801 to 12-4.806) (based on building square footage, or residential units). d) Parks Facilities Fee (Fresno Municipal Code Section 12-4.701 to 12-4.706) (based on the number of residential units) 55. CITYWIDE REGIONAL AND NEW GROWTH MAJOR STREET IMPACT FEES (Fresno Municipal Code Section 12-4.1006). a) Street Impact Fees shall be due and payable at the time of building permit issuance unless otherwise required by State law. b) Street Impact Fees will be a condition on all development entitlements granted. 56. FRESNO COUNTY FACILITY IMPACT FEE Fresno County adopted a Facilities Impact Fee, but the requirement to pay this fee was subsequently suspended by Fresno County. If the fee has been reinstated at the time of issuance of building permits for this project, or an alternative fee system has been adopted by Fresno County, proof of payment or payment of this fee will be required for issuance of building permits. 57. REGIONAL TRANSPORTATION MITIGATION FEE (RTMF) Pay the RTMF fee to the Joint Powers Agency located at 2035 Tulare Street, Suite 201, Fresno, CA 93721; (559) 233-4148, ext. 200; www.fresnocog.org. Provide proof of payment or exemption prior to issuance of certificate of occupancy. 58. SCHOOL FEES School fees must be paid, if required, prior to the issuance of building permits. Contact the applicable school district to obtain fee amount. Provide proof of payment (or no fee required) prior to the issuance of building permits. 59. FRESNO METROPOLITAN FLOOD CONTROL DISTRICT (FMFCD) FEES a) A FMFCD Development Fee is required for the review of proposed development projects, including applications for plan amendments, rezones, special permits, subdivisions, and grading plans. This fee is based on project acreage and must be paid directly to FMFCD in order for that agency to review projects and provide a Notice of Requirements. For more information, contact the FMFCD at (559) 456-3292. Conditional Use Permit Application No. P22-03146 June 2 2023 September 6, 2023 Page 15 of 6 b) FMFCD drainage fees are due, if required, prior to issuance of building permits and are payable at the rate in place at the time of building permit issuance. Unpaid drainage fee obligations that were unpaid for a prior project at the site of a new project must be satisfied by the developer of the new project. Drainage fees may be paid at the Planning and Development Department prior to, or at the time of building permit issuance. They may also be paid directly to FMFCD, and proof of payment provided to the City, in order to obtain construction permits. 60. SEWER CONNECTION CHARGES (Fresno Municipal Code Section 6-304(a)). The following sewer connection charges may be required and will be payable at the fee rate listed in the Master Fee Schedule at the time payment is due. New sewer connection charges adopted by the Council prior to the issuance of building permits may also be applied. a) Lateral Sewer Charge (based on property frontage to a depth of 100’) b) Oversize Sewer Charge (based on property frontage to a depth of 100’) c) Wastewater Facilities Charge d) Trunk Sewer Charge Effective January 9, 1999, Ordinance No. 98-97 also amended certain sewer connection charges. Fresno Municipal Code Article 15, Section 12 provides property owners the incentives and deletes certain sewer connection charges pursuant to the Simple Tiered Equity Program (STEP) and the Employment Development Program (EDP). For additional information on the STEP and EDP, contact the Department of Public Utilities, Administration Division at (559) 621-8600. 61. WATER CONNECTION CHARGES: (Fresno Municipal Code Sections 6-507 to 6-513). The following water connection charges may be required and will be payable at the fee rate listed in the Master Fee Schedule at the time payment is due. New water connection charges adopted by the Council prior to issuance of building permits may also be applied. a) Frontage Charge (based on property frontage) b) Service Charges (based on service size required by applicant) c) Meter Charges (based on service need) d) Water Capacity fee (based on size of meter) 62. Deferment of the payment of Citywide development impact fees for Fire, Police, Parks, Streets, and Traffic Signals is available for projects located within the Downtown Priority Areas in accordance with the provisions of City of Fresno Resolutions Nos. 2009-265 and 2010-19. PUBLIC WORKS DEPARTMENT GENERAL NOTES (to be added to the site plan) 63. Any survey monuments within the area of construction shall be preserved or reset by a person licensed to practice land surveying in the State of California. 64. Repair all damaged and/or off-grade concrete street improvements as determined by the Construction Management Engineer, prior to occupancy. Conditional Use Permit Application No. P22-03146 June 2 2023 September 6, 2023 Page 16 of 6 65. Two working days before commencing excavation operations within the street right-of-way and/or utility easements, all existing underground facilities shall have been located by underground services. 66. The performance of any work within the public street right-of-way requires a street work permit prior to commencement of work. All required street improvements must be completed and accepted by the City prior to occupancy. 67. Contact the Public Works Department, Traffic Engineering at (559) 621-8800, 10 working days prior to any off-site concrete construction. 68. For Standard Drawings Click Here 69. For Traffic Planning's website with useful links, additional notes, a sample of legend, Parking Manual and Traffic Study Checklist Click Here. 70. Traffic Planning Checklist Click Here. 71. For Traffic Study questions please contact Jill Gormley at (559) 621-8792 or via email at Jill.Gormley@fresno.gov. Page 1 of 6 12/16/2022 P22-03146 BULLARD 2287 W.doc SUBJECT: Conditions of Approval for P22-03146 DATE: December 16, 2022 TO: Thomas Veatch, Planner III Planning and Development Department FROM: Andreina Aguilar, Engineer II Public Works Department, Traffic Planning Section ADDRESS: 2287 West Bullard Avenue APN: 415-033-44 ATTENTION: The items below require a separate process with additional fees and timelines, in addition to the development permit process. Submit the following items early to avoid delaying approval of building permits. Final approval of the site plan is contingent on receipt of all items checked below. To be completed: Point of Contact Department and Contact Information Cross Access Agreement Cross access agreement with property to the west. Contact Planner for processing. Parcel Map Full off-site improvements are required for the existing lot of record. The parcel configuration depicted for the proposed development does not conform to record information. A Parcel Map is required; provide recorded documentation prior to Building Permits. -OR- Resubmit a new application of the proposed project within the existing lot of record. Thomas Veatch Planning and Development Department (559) 621-8076 Thomas.Veatch@fresno.gov Deeds (up to 2-month processing time) Deeds are required to provide easements to the City for required public improvements. They shall be prepared by the owner / developer’s engineer. Contact Jeff Beck for fees and processing requirements. Provide a copy of the recorded dedications to Traffic Planning prior to the issuance of building permits. Mario Rocha Public Works Department (559) 621-8676 Mario.Rocha@fresno.gov Page 2 of 6 12/16/2022 P22-03146 BULLARD 2287 W.doc ATTENTION: Provide corrections as noted on Exhibit “A”. Prior to resubmitting the corrected exhibit, provide the following information and conditions of approval on the site plan: A. GENERAL REQUIREMENTS 1. Parcel Lines: Verify parcel lines. 2. Easements: Identify, revise, and dimension existing and proposed easements. 3. Required Notes: Revise General Notes to include the required Public Works Department notes. a. Any survey monuments within the area of construction shall be preserved or reset by a person licensed to practice land surveying in the State of California. b. Repair all damaged and/or off-grade concrete street improvements as determined by the Construction Management Engineer, prior to occupancy. c. Two working days before commencing excavation operations within the street right-of way and/or utility easements, all existing underground facilities shall have been located by UNDERGROUND SERVICES ALERT (USA). CALL 1-800-642-2444 d. The performance of any work within the public street right-of-way requires a street work permit prior to commencement of work. All required street improvements must be completed and accepted by the City prior to occupancy. e. Deeds are required to provide easements to the city for required public improvements. They shall be prepared by the owner / developer’s engineer. Executed copies shall be submitted to the city with verification of ownership prior to the issuance of building permits. f. All existing driveway approaches which no longer provide access to approved vehicle parking areas shall be removed unless otherwise approved by the City Engineer. Such areas shall be reconstructed with curb, gutter, and sidewalk to match existing adjacent street improvements. This work shall be completed and accepted before a Permit of Occupancy is issued or the building is occupied per FMC 13-211. g. Submit street lighting plans to the Public Works Department. h. Submit signing and striping plans to the public works department. Comply with the current Caltrans standards. i. Provide a 4' minimum path of travel along the public sidewalk directly in front of property, to meet current accessibility regulations. A pedestrian easement may be required if requirements are not met. j. Contact the Public Works Department, Traffic Engineering at 559-621-8800, 10 working days prior to any offsite concrete construction. k. All existing sidewalks in excess of 2% maximum cross slope must be brought into compliance prior to acceptance by Public Works. l. All development shall take place in accordance with all city and county laws and regulations. Page 3 of 6 12/16/2022 P22-03146 BULLARD 2287 W.doc B. OFFSITE INFORMATION: 1. Section and Center Lines: Identify section and/or centerlines. 2. Public Street Improvements: a. Concrete sidewalk b. Sidewalk drains c. Drive approaches d. Curb ramps e. Streetlights f. Street tree wells 3. Accessibility: Identify and dimension the required 4’ minimum path of travel along the public sidewalk adjacent to the property. Provide pinch point dimensions. A pedestrian easement may be required if Title 24 requirements cannot be met. C. ONSITE INFORMATION: 1. State standard “STOP”: Identify and install a 30" state standard "STOP" sign at the location shown. Signs shall be mounted on a 2" galvanized post with the bottom of the lowest sign 7’ above ground, located behind curb and immediately behind a major street sidewalk. 2. Gates: a. Provide a minimum of 20’ setback measured from the gate to the back of walk/right-of-way/pedestrian easement or, b. Provide a gate operational statement on the site plan stating that the gate shall be locked/unlocked from private property or parked on-street without blocking the public sidewalk. Include hours of operation. PUBLIC IMPROVEMENT REQUIREMENTS The following requirements are based on city records and the accuracy of the existing and proposed on-site and off-site conditions depicted on the exhibits submitted. Requirements not addressed due to omission or misrepresentation of information, on which this review process is dependent, will be imposed whenever such conditions are disclosed. Construct additional offsite improvements, including but not limited to, concrete curb, gutter, sidewalk, approaches, ramps, pavement, utility relocations, etc. in accordance with City of Fresno’s Public Works Standards, Specifications, and the approved street plans. Repair all damaged and/or off grade off-site concrete street improvements as determined by the City of Fresno Public Works Department, Construction Management Division, (559) 621-5600. Pedestrian paths of travel must also meet current accessibility regulations. Page 4 of 6 12/16/2022 P22-03146 BULLARD 2287 W.doc All existing sidewalks and trails in excess of 2% maximum cross slope must be brought into compliance prior to acceptance by Public Works. The construction of any private overhead, surface or sub-surface structures, and appurtenances in the public right of way is prohibited unless an Encroachment Covenant is approved by the City of Fresno Public Works Department, Traffic and Engineering Services Division, (559) 621-8693. Encroachment Covenant must be approved prior to issuance of building permits. Bullard Avenue: 4-Lane Arterial (Provide the following as notes on the site plan.) 1. Construction Requirements: a. Construct a driveway approach to Public Works Standards P-2 and P-6, as shown on the site plan. Construct permanent paving as needed per Public Works Standard P-48. Construct a concrete pedestrian walkway behind all driveway approaches as identified on Exhibit “A”. b. Construct a 10’ sidewalk to Public Works Standard P-5. Construct 5’ x 6’ tree wells per Public Works Standard P-8 (modified). c. Planting and Irrigation of street trees shall conform to the minimum spacing, guidelines, and requirements as stated in the Standard Specification, Section 26-2.11(C) and Assembly Bill 1881. d. Construct an underground street lighting system to Public Works Standard E-1 within the limits of this application. Spacing and design shall conform to Public Works Standard E-7A for Arterials. Streetlights installed on major streets shall be fed from a service pedestal with a master photo control as detailed in Section 3-3.17 of the City Specifications and Public Works Standards E-15, E- 17 and E-18 or as approved by the City Engineer. e. Provide a 12’ visibility triangle at all driveways, per Fresno Municipal Code (FMC) 15-2018B. Morris Avenue: Local (Provide the following as notes on the site plan.) 1. Dedication Requirements: a. Dedicate a street easement sufficient to accommodate a 7' sidewalk pattern measured from the face of curb. b. Dedicate a corner cut street easement to accommodate the curb ramp. 2. Construction Requirements: a. Construct driveway approaches to Public Works Standards P-4 and P-6, as shown on the site plan. Construct permanent paving as needed per Public Works Standard P-48. Construct a concrete pedestrian walkway behind all driveway approaches as identified on Exhibit “A”. b. Construct a 5.5’ sidewalk per Public Works Standard P-5 to a 7’ pattern (5.5’ sidewalk-1.5’ back of walk to property right-of-way line). Page 5 of 6 12/16/2022 P22-03146 BULLARD 2287 W.doc c. Planting and Irrigation of street trees shall conform to the minimum spacing, guidelines, and requirements as stated in the Standard Specification, Section 26-2.11(C) and Assembly Bill 1881. d. Construct a concrete curb ramp per Public Works Standards P-29 and P-32. e. Provide a 12’ visibility triangle at all driveways, per Fresno Municipal Code (FMC) 15-2018B. Public Improvement Plans are required and shall be approved by the City Engineer. Contact Scott Tyler at (559) 621-8654 or at Scott.Tyler@fresno.gov and submit Public Improvement Plans for all required work, in a single package, to Engineering Services Division. Dedications shall be sufficient to accommodate additional paving and any other grading or transitions as necessary based on a 45 MPH design speed for Collectors and 55 MPH for Arterials. Utility poles, streetlights, signals, etc. shall be relocated as determined by the City Engineer. The performance of any work within the public right of way and/or easements (including street, bike, pedestrian, landscape, and utility easements) requires a Street Work Permit prior to commencement of work. Contact Public Works Department at (559) 621-8800, 10 working days prior to construction of any improvements in the public right-of-way and/or easements. All improvements shall be constructed in accordance with the City of Fresno, Public Works Department Standard Drawings and Specifications. Traffic Control Plans shall be required to ensure the sidewalk, or an approved accessible path remains open during construction. Contact Melessa Avakian at (559) 621-8812 or at Melessa.Avakian@fresno.gov and submit Traffic Control Plans to the Traffic Operations and Planning Division. All work shall be reviewed, approved, completed, and accepted prior to obtaining a certificate of occupancy. Two working days before commencing excavation operations within the street right of way and/or utility easements, all existing underground facilities shall have been located by Underground Services Alert (USA) Call 811. Any survey monuments within the area of construction shall be preserved or reset by a person licensed to practice Land Surveying in the State of California. PRIVATE IMPROVEMENT REQUIREMENTS Off-Street Parking Facilities and Geometrics: Contact the Planning and Development Department for review and approval of onsite parking. The parking lot is required to meet the City of Fresno’s Parking Manual, Public Works Standards (P-21, P-22, and P-23) and Specifications. Parking must also comply with the California Building Code’s accessibility requirements and the Fire and Solid Waste Department’s minimum turning templates. Traffic Signal Mitigation Impact (TSMI) Fee: This project shall pay all applicable TSMI Fees at the time of building permit. Contact the Public Works Department, Frank Saburit at (559)621-8797. The fees are based on the Master fee schedule. Page 6 of 6 12/16/2022 P22-03146 BULLARD 2287 W.doc Fresno Major Street Impact (FMSI) Fees: This entitlement is in the Infill Area; therefore, pay all applicable City-wide regional street impact fees. Contact the Public Works Department, Frank Saburit at (559) 621-8797. Regional Transportation Mitigation Fee (RTMF): Pay all applicable RTMF fees to the Joint Powers Agency located at 2035 Tulare Street, Suite 201, Fresno, CA 93721; (559) 233-4148 ext. 200; www.fresnocog.org. Provide proof of payment or exemption prior to issuance of certificate of occupancy. In order to obtain street or building permit approval from the Public Works Department, an approval stamp with a signature from Traffic Planning is required on the site plan and inserted in the building sets. Questions relative to these conditions may be directed to Andreina Aguilar (559) 621- 8674 Andreina.Aguilar@fresno.gov in the Public Works Department, Traffic Planning Section. Page 1 of 4 REV: June 1, 2015 P22-03146 2287 W BULLARD AVE MAINTENANCE CONDITIONS DATE: March 8, 2023 TO: Thomas Veatch, Planner III Planning & Development Department FROM: Adrian Gonzalez, Senior Engineering Technician Public Works Department, Traffic Operations and Planning Division SUBJECT: PUBLIC WORKS CONDITIONS OF APPROVAL FOR DEVELOPMENT PERMIT P22-03146 REGARDING MAINTENANCE REQUIREMENTS ADDRESS: 2287 West Bullard Avenue APN: 415-033-44 The Public Works Department has completed its review and the following requirements are to be placed on this development as a condition of approval by the Public Works Department. These requirements are based on City records, standards and the proposed improvements depicted for this development on the exhibits submitted. ATTENTION: The item (s) below requires a separate process with additional costs and timelines. In order to avoid delays with the approval of this development, the following item (s) shall be submitted to the Public Works Department and accepted for processing prior to Building Permit approval. X CFD 9 Annexation Request Package Adrian Gonzalez (559) 621-8693 Luis.Gonzalez@fresno.gov X Private Maintenance Covenant Requirements not addressed due to omission or misrepresentation of information, on which this review process is dependent, will be imposed whenever such conditions are disclosed and shall require a revision of this letter. Any change affecting the items in these conditions requires revision of this letter. INCOMPLETE Community Facilities District (“CFD”) Annexation Request submittals may cause delays to the annexation process and project approval. The annexation process takes from three to four months and SHALL be submitted for processing prior to Building Permit approval. All applicable construction plans for this development are to be submitted to the Public Works Department for review and approval prior to the CFD process. The Landscape Page 2 of 4 REV: June 1, 2015 P22-03146 2287 W BULLARD AVE MAINTENANCE CONDITIONS and Irrigation Plans are required to be approved prior to the finalization of the CFD process. 1. The Property Owner’s Maintenance Requirements The long term maintenance and operating costs, including repair and replacement, of certain required public improvements (“Services”) associated with all new Commercial, Industrial and Multi-Family developments are the ultimate responsibility of the Property Owner. The property owner shall provide Services either by a mechanism approved by the Public Works Department or by annexing to the City of Fresno’s Community Facilities District No. 9 (“CFD No. 9”). The following public improvements (existing and proposed) are eligible for Services by CFD No. 9 as associated with this development: ▪ All landscaped areas, trees and irrigation systems, as approved by the Public Works Department, within public street rights-of-way, required public trail easements, and landscape easements located between required sound walls and adjacent to public streets; including without limitation, median islands (1/2 if frontage is only on one side) and parkways. (Major and Local Public Streets) ▪ All amenities such as benches, drinking fountains, trash receptacles, City required fencing and low voltage lighting, as approved by the Public Works Department for officially designated and required public trails. ▪ Tree trimming only of required street trees within public street easements along Major and Local Public Street frontages. ▪ Concrete curb and gutters, valley gutters, sidewalks, curb ramps, median capping and maintenance bands (1/2 if frontage is only on one side), and traffic calming structures in the street rights-of-way. (Major Public Streets) ▪ Concrete curb and gutters, valley gutters, sidewalks, curb ramps, traffic calming structures, median island curbing and hardscape, street paving and street name signage. (Local Public Streets) ▪ All costs associated with the street lights (including repair and replacement) within public street rights-of-way. (Major and Local Public Streets) 2. The Property Owner may choose to do one or both of the following: I. The Property Owner may petition the City of Fresno to request annexation to CFD No. 9 by completing and submitting an Annexation Request Package to the Public Works Department, Land Section for review and approval. The Annexation Request Form is available, along with current costs, on-line at the Page 3 of 4 REV: June 1, 2015 P22-03146 2287 W BULLARD AVE MAINTENANCE CONDITIONS City’s website at http://www.fresno.gov, under the Public Works Department, Developer Doorway. ▪ Proceedings to annex territory to CFD No. 9 SHALL NOT commence unless this development is within the City limits and all construction plans (this includes Street, Street Light, Signal and Landscape and Irrigation plans as applicable) are considered technically correct. ▪ The annexation process will be put on HOLD and the developer notified if all of the requirements for processing are not in compliance. Technically Correct shall mean that the facilities and quantities to be maintained by CFD No. 9 are not subject to change after acceptance for processi ng. ▪ The annexation process takes from three to four months and SHALL be completed prior to building permit approvals. The review and approval of Landscape and Irrigation Plans are required to be approved by the Public Works Department prior to the completion of the annexation process. ▪ Public improvements not listed above will require special approval by the Public Works Department Director or his designee. -OR- II. The Property Owner may provide for Services privately for the above maintenance requirements. All City maintenance requirements not included for annexation to CFD No. 9 for Services SHALL be included in a Private Maintenance Covenant for the required Services associated with this development or as approved by the City Engineer. The property owner shall be responsible for the installation and maintenance of any City required street trees and irrigation systems (existing and proposed) within th e City rights-of- way sidewalk pattern along Street Name (s) frontage. The above ground infrastructure within the City rights-of-way currently exists. The property owner shall be responsible for the installation and maintenance of any City required street trees and irrigation systems (existing and proposed) within the City rights-of-way sidewalk pattern along Street Name (s) frontage. MAINTENANCE REQUIREMENTS OF PUBLIC IMPROVEMENTS The Property Owner for commercial, industrial and multi-family developments shall be responsible for providing maintenance for certain required public improvements located within and adjacent to the public streets on the perimeter associated with their development and as approved by the Public Works Department. This site has the basic maintenance requirements per the Fresno Municipal Code for their frontage. The above ground infrastructure within the City rights -of-way already exists. The property owner shall be responsible for the installation and maintenance of any City Page 4 of 4 REV: June 1, 2015 P22-03146 2287 W BULLARD AVE MAINTENANCE CONDITIONS required street trees and irrigation systems (existing and proposed) within the City rights - of-way along the Major and Local Street frontage. Any change to this development that would affect these conditions shall require a revision of this letter. For any questions regarding these conditions please contact me at (559) 621 -8693 / Luis.Gonzalez@fresno.gov DEPARTMENT OF PUBLIC UTILITIES MEMORANDUM DATE: December 7, 2022 TO: MINDI MARIBOHO – Development Services Coordinator Planning & Development Department – Current Planning FROM: DEJAN PAVIC, PE, Projects Administrator Department of Public Utilities – Utilities Planning & Engineering SUBJECT: DPU CONDITIONS OF APPROVAL FOR P22-03146 NEW RESPIRATORY FACILITY APN 415-033-44 General Requirements 1. Engineered improvement plans, prepared by a Registered Civil Engineer, if necessary, shall be submitted for Department of Public Utilities review and approval. 2. All Department of Public Utilities facilities shall be constructed in accordance with The Department of Public Works standards, specifications, and policies. 3. Street easements and/or deeds shall be recorded prior to approval of improvement plans. 4. Street work permit is required for any work in the Right -of-Way. 5. All underground utilities shall be installed prior to permanent street paving. Water Service Requirements The nearest water main to serve the proposed Project is an 8-inch water main located in West Bullard Avenue. Water facilities are available to provide service to the site subject to the following requirements: 1. On-site water facilities shall be private. 2. No water facilities shall be installed in West Morris Avenue. 3. Installation of water service(s) and meter box(es) shall be required. 4. The developer shall be financially responsible for abandonment of all unused water services previously installed to the property (if any). 5. Destruction of existing on-site wells: Destroy any existing on-site well(s) in compliance with the State of California Well Standards, Bulletins 74 -81 and 74-90, DPU CONDITIONS OF APPROVAL FOR P22-03146 NEW RESPIRATORY FACILITY APN 415-033-44 December 7, 2022 Page 2 of 4 or current revisions, issued by California Department of Water Resources, Fresno County standards, and City of Fresno standards. Applicant shall comply with Fresno Municipal Code (FMC) Section 6-518, as may be amended from time to time. Water Supply Requirements 1. The Project applicant shall be required to pay Water Capacity Fee charges for the installation of new water services and meters to serve the property. a. The Water Capacity Fee charge assessed to the applicant shall be based on the number and size of service connections and water meters requ ired to serve the property. b. The Water Capacity Fee charges by meter size are defined in the City’s Master Fee Schedule (MFS). c. The City reserves the right to require the Project applicant to increase or decrease the size of a water meter for a project or a property to ensure that the meter is properly sized to accommodate fire protection requirements and to allow for accurate volumetric flow measurements at low- and high-flow conditions. d. The Water Capacity Fee Charge for any new or expanded service connection shall be payable prior to the issuance of a building permit at the fee level in effect on the date such permit is issued. 2. The Project applicant shall be required to pay all other water-related fees and charges in accordance with the City’s MFS and FMC. Sewer Requirements The nearest sanitary sewer mains to serve the proposed Project are an 8-inch sewer main located in West Bullard Avenue and a 6-inch sewer main located in West Morris Avenue. Sanitary sewer facilities are available to provide service to the site subject to the following requirements: 1. Installation of sewer parcel/house branch(es) shall be required. 2. On-site sanitary sewer facilities shall be private. 3. House branch (sewer lateral) larger than 6-inch shall require a manhole connection. 4. Destruction of existing on-site private septic systems: All existing on-site private septic systems (including septic tanks) shall be destroyed and abandoned in compliance with the State of California standards, Fresno County standards, and City of Fresno standards, as may be amended from time to time. All sewer DPU CONDITIONS OF APPROVAL FOR P22-03146 NEW RESPIRATORY FACILITY APN 415-033-44 December 7, 2022 Page 3 of 4 connections and sewer main extensions shall comply with FMC Section 6 -303(a), as may be amended from time to time. 5. The developer shall be financially responsible for abandonment of all unused sewer services previously installed to the property, if any. 6. The Project developer shall contact Utility Billing and Collection Services at (559) 621-6765 prior to pulling building permits regarding conditions of service for special users. Sanitary Sewer Fees The following Sewer Connection Charges are due and shall be paid for the Project: 1. Lateral Sewer Charge. 2. Oversize Sewer Charge. 3. Wastewater Facility Sewer Charge (Non-Residential). 4. Upon connection of this Project to the City Sewer System the owner shall be subject to payment of Sewer Facility Charges per FMC Sections 6-304 and 6-305. Sewer Facility Charges consist of two components: a Wastewater Facilities Charge and Trunk Sewer Charge, where applicable. 5. Sewer Facility Charges are collected after occupancy on a monthly basis, based on metered usage (water or sewer effluent). The developer may contact the Department of Public Utilities/Wastewater-Environmental Control at (559) 621-5153 to receive an estimated cost of the Sewer Facility Charges applicable to the Project (based on a constant sewer discharge and loading (Biochemical Oxygen Demand [BOD] and Total Suspended Solids [TSS] levels anticipated) at the current rates in effect at that time, per City of Fresno MFS. The developer shall provide data regarding estimated sewer discharge rates (flow) and loading (BOD/TSS levels) required for calculating the estimated charges. Solid Waste Requirements: The following are Solid Waste Requirements for the purpose of establishing City solid waste service policies for office/commercial space. These service requirements apply to all office complexes within the City of Fresno. 1. This location is serviced by a Commercial Solid Waste Franchisee. For service information, please contact Allied Waste at (559) 275-1551 or (800) 493-4285. 2. All trash bins provided to office complexes must be serviced with a frequency of at least once per week. DPU CONDITIONS OF APPROVAL FOR P22-03146 NEW RESPIRATORY FACILITY APN 415-033-44 December 7, 2022 Page 4 of 4 3. All office complexes are required to subscribe for recycling services, per FMC 9- 405.1. Recycling services may be provided by the City of Fresno or any private recycling service provider. Recycling services must include, at the minimum, cardboard, newspaper, paper, glass, plastics, beverage containers, and metal recycling. 4. All trash and recyclable material must be placed in approved containers, per FMC 9-404. At no time may trash and recyclable material be placed on the ground or pavement. 5. Bin enclosures, if provided on site, must be used exclusively for the storage of trash and recycling bins, per The Public Works Standard Specifications P-33 and P-34. 6. This location will require 1 (one) 2-cell trash enclosure, designed to accommodate separate facilities containing 2 (two) – 4-cu. yd. bins, one for trash and one for recycling collection to be constructed to current (Public Works Standard Specifications) Solid Waste Standards (P-33, P-34, and P-95) to be serviced weekly. 7. Service Route Permits and Location Permits are required for all private trash company services within the City of Fresno per FMC 9-408. All private company trash service arrangements must be pre-approved through Solid Waste Management Division. 8. Developer will need to provide a 44-foot (centerline) turning radius at all corners and a T-turnaround (or hammerhead) area where the solid waste vehicle is to turn around. 9. Americans with Disability Act (ADA) requirement for office complexes (developments): Developer shall install (construct) a trash enclosure(s) for the Project that complies with the City’s ADA requirements as defined in the City’s Standard Drawings, Details and Specifications. The certificate of occupancy for the Project shall be withheld until developer installs (constructs) the trash enclosure(s) in accordance with the City’s ADA requirements. PROJECT NO: APN: ADDRESS: SENT: 2022-03146 2287 W. BULLARD AVE 415-033-44 December 12, 2022 PUBLIC AGENCY THOMAS VEATCH DEVELOPMENT SERVICES/PLANNING CITY OF FRESNO 2600 FRESNO STREET, THIRD FLOOR FRESNO, CA 93721-3604 DEVELOPER CESAR RODRIGUEZ - CR CONSULTING GROUP INC. 2615 TUOLUMNE STREET FRESNO, CA 93721 Drainage Area(s)Preliminary Fee(s) D $13,498.00 Development Review Service Charge(s)Fee(s) NOR Review $55.00 To be paid prior to release of District comments to Public Agency and Developer. Grading Plan Review $278.00 Amount to be submitted with first grading plan submittal. Total Drainage Fee: $13,498.00 Total Service Charge: $333.00 The proposed development will generate storm runoff which produces potentially significant environmental impacts and which must be properly discharged and mitigated pursuant to the California Environmental Quality Act and the National Environmental Policy Act. The District in cooperation with the City and County has developed and adopted the Storm Drainage and Flood Control Master Plan. Compliance with and implementation of this Master Plan by this development project will satisfy the drainage related CEQA/NEPA impact of the project mitigation requirements. Pursuant to the District’s Development Review Fee Policy, the subject project shall pay review fees for issuance of this Notice of Requirements (NOR) and any plan submittals requiring the District’s reviews. The NOR fee shall be paid to the District by Developer before the Notice of Requirement will be submitted to the City. The Grading Plan fee shall be paid upon first submittal. The Storm Drain Plan fee shall be paid prior to return/pick up of first submittal. The proposed development shall pay drainage fees pursuant to the Drainage Fee Ordinance prior to issuance of a building permit at the rates in effect at the time of such issuance. The fee indicated above is valid through 2/28/23 based on the site plan submitted to the District on 11/08/22 Contact FMFCD for a revised fee in cases where changes are made in the proposed site plan which materially alter the proposed impervious area. Considerations which may affect the fee obligation(s) or the timing or form of fee payment: a.)Fees related to undeveloped or phased portions of the project may be deferrable. b.) Fees may be calculated based on the actual percentage of runoff if different than that typical for the zone district under which the development is being undertaken and if permanent provisions are made to assure that the site remains in that configuration. c.)Creditable storm drainage facilities may be constructed, or required to be constructed in lieu of paying fees. d.)The actual cost incurred in constructing Creditable drainage system facilities is credited against the drainage fee obligation. e.)When the actual costs incurred in constructing Creditable facilities exceeds the drainage fee obligation, reimbursement will be made for the excess costs from future fees collected by the District from other development. f.) Any request for a drainage fee refund requires the entitlement cancellation and a written request addressed to the General Manager of the District within 60 days from payment of the fee. A non refundable $300 Administration fee or 5% of the refund whichever is less will be retained without fee credit. 5469 E. OLIVE - FRESNO, CA 93727 - (559) 456-3292 - FAX (559) 456-3194 FRESNO METROPOLITAN FLOOD CONTROL DISTRICT NOTICE OF REQUIREMENTS File No. 210.413 Page 1 of 3 Approval of this development shall be conditioned upon compliance with these District Requirements. 1. X a.Drainage from the site shall BE DIRECTED TO BULLARD AND/OR MORRIS AVENUE. b.Grading and drainage patterns shall be as identified on Exhibit No. c.The grading and drainage patterns shown on the site plan conform to the adopted Storm Drainage and Flood Control Master Plan. 2.The proposed development shall construct and/or dedicate Storm Drainage and Flood Control Master Plan facilities located within the development or necessitated by any off-site improvements required by the approving agency: Developer shall construct facilities as shown on Exhibit No. 1 as X None required. 3.The following final improvement plans and information shall be submitted to the District for review prior to final development approval: X Grading Plan Street Plan Storm Drain Plan Water & Sewer Plan Final Map X Drainage Report (to be submitted with tentative map) Other None Required 4.Availability of drainage facilities: X a.Permanent drainage service is available provided the developer can verify to the satisfaction of the City that runoff can be safely conveyed to the Master Plan inlet(s). b.The construction of facilities required by Paragraph No. 2 hereof will provide permanent drainage service. c.Permanent drainage service will not be available. The District recommends temporary facilities until permanent service is available. d.See Exhibit No. 2. 5.The proposed development: Appears to be located within a 100 year flood prone area as designated on the latest Flood Insurance Rate Maps available to the District, necessitating appropriate floodplain management action. (See attached Floodplain Policy.) X Does not appear to be located within a flood prone area. 6. The subject site contains a portion of a canal or pipeline that is used to manage recharge, storm water, and/or flood flows. The existing capacity must be preserved as part of site development. Additionally, site development may not interfere with the ability to operate and maintain the canal or pipeline. 5469 E. OLIVE - FRESNO, CA 93727 - (559) 456-3292 - FAX (559) 456-3194 FRESNO METROPOLITAN FLOOD CONTROL DISTRICT NOTICE OF REQUIREMENTS Page 2 of 3 7.The Federal Clean Water Act and the State General Permits for Storm Water Discharges Associated with Construction and Industrial Activities (State General Permits) require developers of construction projects disturbing one or more acres, and discharges associated with industrial activity not otherwise exempt from National Pollutant Discharge Elimination System (NPDES) permitting, to implement controls to reduce pollutants, prohibit the discharge of waters other than storm water to the municipal storm drain system, and meet water quality standards. These requirements apply both to pollutants generated during construction, and to those which may be generated by operations at the development after construction. a.State General Permit for Storm Water Discharges Associated with Construction Activities, effective July 1, 2010, as amended. A State General Construction Permit is required for all clearing, grading, and disturbances to the ground that result in soil disturbance of at least one acre (or less than one acre) if part of a larger common plan of development or sale). Permittees are required to: submit a Notice of Intent and Permit Registration Documents to be covered and must pay a permit fee to the State Water Resources Control Board (State Board), develop and implement a storm water pollution prevention plan, eliminate non-storm water discharges, conduct routine site inspections, train employees in permit compliance, and complete an annual certification of compliance. b.State General Permit for Storm Water Discharges Associated with Industrial Activities, April, 2014 (available at the District Office). A State General Industrial Permit is required for specific types of industries described in the NPDES regulations or by Standard Industrial Classification (SIC) code. The following categories of industries are generally required to secure an industrial permit: manufacturing; trucking; recycling; and waste and hazardous waste management. Specific exemptions exist for manufacturing activities which occur entirely indoors. Permittees are required to: submit a Notice of Intent to be covered and must pay a permit fee to the State Water Resources Control Board, develop and implement a storm water pollution prevention plan, eliminate non-storm water discharges, conduct routine site inspections, train employees in permit compliance, sample storm water runoff and test it for pollutant indicators, and annually submit a report to the State Board. c.The proposed development is encouraged to select and implement storm water quality controls recommended in the Fresno-Clovis Storm Water Quality Management Construction and Post-Construction Guidelines (available at the District Office) to meet the requirements of the State General Permits, eliminate the potential for non-storm water to enter the municipal storm drain system, and where possible minimize contact with materials which may contaminate storm water runoff. 8.A requirement of the District may be appealed by filing a written notice of appeal with the Secretary of the District within ten days of the date of this Notice of Requirements. 9.The District reserves the right to modify, reduce or add to these requirements, or revise fees, as necessary to accommodate changes made in the proposed development by the developer or requirements made by other agencies. 10. X See Exhibit No. 2 for additional comments, recommendations and requirements. Debbie Campbell Gary W. Chapman Design Engineer, RCE Engineering Tech III Digitally signed by Debbie Campbell Date: 12/12/2022 10:56:59 AM Digitally signed by Gary W. Chapman Date: 11/22/2022 3:55:07 PM 5469 E. OLIVE - FRESNO, CA 93727 - (559) 456-3292 - FAX (559) 456-3194 FRESNO METROPOLITAN FLOOD CONTROL DISTRICT NOTICE OF REQUIREMENTS Page 3 of 3 The District’s Master Plan drainage system is designed to serve medium-low density residential uses and the existing Master Plan storm drainage facilities do not have capacity to serve the density of the proposed project, which is more equivalent to a commercial type land use density. The developer shall be required to mitigate the impacts of the increased runoff from the proposed commercial type land use to a rate that would be expected if developed to medium-low density residential. The developer may either make improvements to the existing pipeline system to provide additional capacity or may use some type of permanent peak reducing facility in order to eliminate adverse impacts on the existing system. Should the developer choose to construct a permanent peak-reducing facility, such a system would be required to reduce runoff from a ten- year storm produced by a commercial type density development, to a two-year discharge, which would be produced by the property if developed medium-low density residential. Implementation of the mitigation measures may be deferred until the time of development. However, the District requests that the grading Engineer contact the District as early as possible to review the proposed site grading for verification and acceptance of mitigation design prior to preparing a grading plan. In an effort to improve storm runoff quality, outdoor storage areas shall be constructed and maintained such that material that may generate contaminants will be prevented from contact with rainfall and runoff and thereby prevent the conveyance of contaminants in runoff into the storm drain system. The District encourages, but does not require that roof drains from non-residential development be constructed such that they are directed onto and through a landscaped grassy swale area to filter out pollutants from roof runoff. Development No.FR CUP No. 2022-03146 OTHER REQUIREMENTS EXHIBIT NO. 2 2287 W. Bullard Avenue, Fresno, CA 93711  559.286.6151  www.goinfiniteliving.com (coming soon) June 13, 2022 Re: Infinite Living 2287 W. Bullard Avenue Fresno, California 93711 2287 Bullard, Inc. dba Infinite Living proposes to convert a 3,310 square foot residential home into an approximately 5,000 square foot CLHF (Congregate Life Health Facility), which is located at 2287 W. Bullard Avenue, Fresno, California 93711. The property site on approximately 1.5 acres and is currently zoned R2 in which a CLHF license is permitted under this zoning with a CUP (Conditional Use Permit). Our site plan is currently in the City of Fresno’s DSR (Design Site Review) with an application number of 22TMP-013811. The property’s surrounding boundaries are 1 residential home, Malloch Elementary School and a few vacant lots. The property will consist of two phases and will not be subdivided until a later date. The first phase will consist of an existing house which lies north on the property and will be remodeled and expanded. In regards to the infrastructure for the entire property, this will all be done in the first phase as well due to the ingress and egress on the property (entrance and exits and traffic flow). The second phase will consist of two new construction houses that are just south of the existing house and any left over infrastructure that was not done during the first phase. There are three access points on the property, one north along Bullard Avenue, one along the northwest side that feeds into a round about to a future housing development and one along the south end portion of the property on Morris Avenue. All ingress and egress will be addressed in the first phase. A CHLF License which will be held by, Infinite Living, and will provide a comfortable residential home for those who are physically challenged and/or who have complex medical needs. Our team of medical professionals will provide Acute Care Services, Skilled Nursing Care and Complex Respiratory Care on a 24 hours a day basis. Our services area ideal for those who have suffered a traumatic brain injury or those who would otherwise be confined to hospitals, nursing homes or alike. Our large range of Medical Services includes: Complex Medical to Basic Medical Care and services. Our home will be comfortable, so it will feel like loved ones are living at home, while they are getting intensive levels of care and support, just as those provided in a larger commercial setting. The following services will be provided by Infinite Living: 1. Impatient Treatment 2. Medical Supervision 3. Supportive Care 4. Therapy Services 5. 24-Hour Skilled Nursing 6. Social and Recreational Activities 7. Medication Management 8. Dietary Management In which, well treat the following but not limited to: 1. 24/7 Sub Acute Nursing (For Vent and Trach Dependent Patients) 2. 24-Hour Skilled Nursing Care 3. Medical Supervision 4. Pharmacy 5. Dietary 6. Complex and Woud Care 7. Neuromuscular Disorders 8. Medically Complex Cases 9. Orthopedically Complex Cases 2287 W. Bullard Avenue, Fresno, CA 93711  559.286.6151  www.goinfiniteliving.com (coming soon) 10. Treatment for all levels of Spinal Cord Injuries 11. High-Intensity Rehabilitation Therapy 12. Acquired Brain Injuries 13. Social Recreational With our extensive team which will include: 1. RN 2. LVN (2) 3. CNA (3) 4. Cook 5. Dietician 6. Doctor (per diem) 7. Beautician 8. Activities Coordinator 9. House Keepers (2) 10. Maintenance We will provide: 1. Services to persons who are mentally alert, physically disabled, who may be ventilator dependent. 2. Services for persons who have a diagnosis of a terminal illness, a diagnosis of a life -threatening illness, or both. Terminal illness means the individual has a life expectancy of six months or less as stated in writing by his/her attending physician and surgeon. A “life-threatening illness” means the individual has an illness that can lead to a possibility of a termination of life within five years or less as stated in writing by his or her attending physician and surgeon. 3. Services for persons who are catastrophically and severely disabled. A catastrophically and severely disabled person means a person whose origin of disability was acquired through trauma or non- degenerative neurologic illness, for whom it has been determined that active rehabilitation would be beneficial and for whom these services would be provided. 4. Services offered by a CLHF to a catastrophically disabled person shall include, but not be limited to, speech, physical, and occupational therapy. Here at Infinite Living we are bound to CLHF standards which are found in H&S Code, Section 1267.13. In addition to these standards, CLHF’s are required to conform to CCR, Title 22, Skilled Nursing Regulations, except for those sections or portions of sections specified in H&S Code, Section 1267.13(n). These requirements in subsection 1267.13(n) are so specific to skilled nursing facilities, CLHF’s were exempted from compliance with these sections. We looked forward to receiving a favorable response from the City of Fresno, the Community of Central California and all of the families that will need care for their loved ones. In case of any questions or emergencies, the following contacts shall be used: Jason Andrade – President 559.286.6151 Patrick Miller – Secretary 619.385.8093 Larry Meza Jr. – Medical Operations 619.851.9144 Sincerely, Jason Andrade President Infinite Living Plan Review Team Land Management PGEPlanReview@pge.com Public November 29, 2022 Re: P22-03146 Dear City of Fresno, Thank you for providing PG&E the opportunity to review the proposed plans for P22-03146 dated 11/8/2022. Our review indicates the proposed improvements do not appear to directly interfere with existing PG&E facilities or impact our easement rights. Please note this is our preliminary review and PG&E reserves the right for additional future review as needed. This letter shall not in any way alter, modify, or terminate any provision of any existing easement rights. If there are subsequent modifications made to the design, we ask that you resubmit the plans to the email address listed below. If the project requires PG&E gas or electrical service in the future, please continue to work with PG&E’s Service Planning department: https://www.pge.com/cco/. As a reminder, before any digging or excavation occurs, please contact Underground Service Alert (USA) by dialing 811 a minimum of 2 working days prior to commencing any work. This free and independent service will ensure that all existing underground utilities are identified and marked on-site. If you have any questions regarding our response, please contact the PG&E Plan Review Team at pgeplanreview@pge.com. Sincerely, PG&E Plan Review Team Land Management CITY OF FRESNO DEVELOPMENT AND IMPACT FEE ESTIMATE Proposed Development: Address: A.P.N. Planned Land Use: Current Zoning: Site Area: Building Area: Entitlement: Estimate Date: CITYWIDE/REGIONAL IMPACT FEES Existing Service Area Quantity Units Fee Rate Available Credit Citywide Fire Facilities Impact Fee SFR 1 Units $2,285.00 $2,285.00 Citywide Police Facilities Impact Fee SFR 1 Units $948.00 $948.00 Citywide Regional Street Charge SFR 1.48 AC $8,783.00 $12,998.84 New Growth Area Major Street Charge SFR 1.48 AC $27,490.00 n/a Citywide Traffic Signal Charge SFR 1 Units $762.00 $762.00 Calculated Impact Fee Credits $16,993.84 CITYWIDE/REGIONAL IMPACT FEES Proposed Service Area Quantity Units Fee Rate Proposed Impact Citywide Fire Facilities Impact Fee Comm. Office 4,500 Sq. Ft.$688.00 $3,096.00 Citywide Police Facilities Impact Fee Comm. Office 4,500 Sq. Ft.$844.00 $3,798.00 Citywide Regional Street Charge Comm. Office 1.48 AC $16,517.00 $24,445.16 Citywide Traffic Signal Charge Assisted Living 9 # Beds $334.00 $3,006.00 Citywide/Regional Impact Fees - As Proposed $34,345.16 Amount Due Notes Citywide Fire Facilities Impact Fee $811.00 [7] Citywide Police Facilities Impact Fee $2,850.00 [7] Citywide Regional Street Charge $11,446.32 [6] Citywide Traffic Signal Charge $2,244.00 [6] Total Fees and Charges $17,351.32 +/- 4,500 sq. ft. P22-03146 2287 W. Bullard Avenue November 23, 2022 415-033-44 +/- 1.48 acres RS-2 Congregate Care Facility The following estimates are based on preliminary conceptual information. The exact fee obligation will be computed at the time of development by Public Works Department, Land Division & Engineering. The fee rates in effect at the time of development shall apply. Low-Density Residential See notes on page 2 Printed 11/23/2022 Page 1 CITY OF FRESNO DEVELOPMENT AND IMPACT FEE ESTIMATE NOTES: [6] Due at Building Permit [7] Due with Certificate of Occupancy [9] Parks fee applicable only to residential developments Prepared and Reviewed By: Frank Saburit Date: November 23, 2022 (559) 621-8797 NOTICE OF 90-DAY PROTEST PERIOD (GOVERNMENT CODE §66020(d)(1)) A protest filed pursuant to subdivision and/or development (a) shall be filed at the time of approval or conditional approval of the development or within 90 days after the date of the imposition of the fees, dedications, reservations, or other exactions to be imposed on a development project. Each local agency shall provide to the project applicant a notice in writing at the time of the approval of the project or at the time of the imposition of the fees, dedications, reservations, or other exactions, a statement of the amount of the fees or a description of the dedications, reservations, or other exactions, and notification that the 90-day approval period in which the applicant may protest has begun. ● The Board of Directors of the Fresno County Regional Transportation Mitigation Fee Agency approved Resolution No. 2009-01 requiring the payment of Regional Transportation Mitigation Fee. The effective date of this resolution is January 1, 2010. Please contact the Council of Fresno County Governments (FCOG) at (559) 233-4148 to determine this fee obligation. Confirmation by the FCOG is required before the City of Fresno can issue the Certificate of Occupancy. ●On December 8,2016,Fresno City Council adopted Resolution No.2016-258,effective July 1,2018,administratively updating the impact fees adjusted by this resolution annually to the percentage change in the 20-City Construction Cost Index as reported in the Engineering News Record (ENR) for the 12-month period ending of May of the year of adjustment. ●Payment of Fresno Metropolitan Flood Control District (FMFCD)impact fees may be required.Please contact FMFCD at (559)456- 3292 to determine fee obligation. ●Payment of applicable school district fees is required prior to issuance of Building Permit.Please contact the respective school district to satisfy your fee obligation.Confirmation by the respective school district is required before the City of Fresno can issue building permits [3] Upon occupancy of the project, the subdivider shall pay the appropriate sewer facility charge pursuant to the Simple Tiered Equity Program (STEP) as determined by the Department of Public Utilities, Wastewater Division, Environmental Services Section (559-621-5153). [4] The Wastewater Facilities Charge (WWFC) is applicable to single family, duplex, and triplex developments. (FMC 6-302(i)); For Condominium conversions, WWFC may stay in the S.T.E.P. if the project continues to be master metered for water. If the condominiums are individually metered, the developer will pay the pro-rated portion of these fees. [2] Sewer House branches to be installed by Developer at the Developer's cost. Outside agencies developer impact fees: It is the developer's responsibility to contact those agencies for their fee estimates. These agencies include but are not limited to; Fresno County, Council of Fresno County Governments (FCOG), Fresno Metropolitan Flood Control District (FMFCD), various School Districts that serve the City of Fresno, etc. Within the City of Fresno's sphere of influence there are other sewer and water utility providers. If the project is within one of those districts, the developer must provide confirmation from the representitive Districts that all conditions for sewer and/or water connections and services have been satisfied, prior to issuance of a Building Permit. [1] Fees for Water Service Connections and/or Meters, and Water Capacity due at time of development. Charges based on service and/or meter sizes, (Rates as established by the Master Fee Schedule), determined by the Developer. City of Fresno Public Works Department Land Division & Engineering [5] The Trunk Sewer Charge is applicable to single family, duplex, and triplex developments. (FMC 6-302(i)); For Condominium conversions, Trunk Sewer Charges may stay in the S.T.E.P. if the project continues to be master metered for water. If the condominiums are individually metered, the developer will pay the pro-rated portion of these fees. [10] Fee not applicable on replacement or reconstruction of an existing structure that has been destroyed or demolished provided that the Building Permit for new construction is obtained within one year after the building is destroyed or demolished, and there is no change in the land use designation. (Res. Nos. 2005-428, 429) [11] Subject to the acceptance date of the vesting tentative map, fee may not be applicable until 2-years after the date of Final Map recordation; when applicable, fee is due at Building Permit for all un-developed lots at the fee rate then in effect. [8] Construction Fee Credits may be applicable. Contact the Public Works Engineering Services Division at (559) 621-8685 for more information. See notes on page 2 Printed 11/23/2022 Page 2 DEPARTMENT OF PUBLIC WORKS TO: Thomas Veatch, Planner III Planning & Development Department FROM: Adrian Gonzalez, Senior Engineering Technician Public Works, Traffic Operations and Planning Division DATE: March 8, 2023 SUBJECT: P22-03146; 2287 West Bullard Avenue (APN: 415-033-44) located on the south side of West Bullard Avenue and North Sequoia Drive. The Department of Public Works offers the following comments regarding the requirements for landscaping and irrigation in the street rights-of-way, landscape easements, outlots and median islands: GENERAL REQUIREMENTS STREET TREE REQUIREMENTS 1. The subdivider is required to provide street trees on all public street frontages per Fresno Municipal Code and for the dedication of planting and buffer landscaping easements as determined by the Planning Department. Street trees shall be planted at the minimum rate of one tree for each 40' of street frontage or one tree per home (whichever is greater) by the Developer. The subdivider is required to provide irrigation for all street trees. The irrigation system shall comply with AB 1881. 2. Street Tree Planting by Developer: For those lots having internal street tree frontage available for street tree planting, the developer shall plant one tree for each 40' of street frontage, or one tree per lot having street frontage, whichever is greater. Tree planting shall be within a 10' Public Planting and Utility Easement. a. Street tree inspection fees shall be collected for each 40' of public street frontage or one tree per lot whichever is greater. b. Street trees shall be planted in accordance with the City of Fresno, Department of Public Works “Standard Specifications.” c. Landscape plans for all public use areas, such as parkways, buffers, medians and trails, shall be reviewed and approved by the Department of Public Works, Engineering Services. A street tree planting permit shall be required for all residential street tree planting. d. Performance and payment securities, paid with final map, will be released when all landscaping installed on public and/or city-controlled property is in conformance with the Specifications of the City of Fresno. e. Upon acceptance of the required work, warranty security shall be furnished to or retained by the city for guaranty and warranty of the work for a period of ninety days following acceptance. f. There are no designated street trees for any of the streets on this project. Please choose appropriate trees form the list of Approved Street Trees. BUFFER LANDSCAPING & MAINTENANCE REQUIREMENTS 1. The subdivider shall provide long term maintenance for all proposed landscaped areas by either petitioning for annexation in the Community Facilities District or by forming a Home Owner’s Association. 2. Maintenance Service Through Annexation into the Community Facilities District. Landscape and Irrigation plans are required and shall be submitted to the Department of Public Works for review and approval prior to a Council approval of the final map. Plans shall be numbered to conform to and be included in the Department of Public Works street construction plan set for the final map. Fees are applicable when the subdivider elects to have landscaping maintained by annexing into the City’s Community Facilities District. a. Landscaping shall comply with Landscape Buffer Development Standards approved by the City Council on October 2, 1990. Landscape and irrigation plans shall comply with AB1881, water efficient landscaping. b. Should the proposed landscape buffers and/or parkway strips be located next to an existing buffer and/or parkway strip, the planting concept shall simulate the adjacent landscape design to present a more uniform appearance on the street. Variances in the landscape concept will be acceptable, but the design of the new landscape buffer and/or parkway strip shall strive to mimic the existing as much as possible. c. Landscape plans shall indicate grades on a cross-section detail to include fencing or wall details. All fencing shall be placed outside the landscape easement. Maximum slopes shall not exceed 4:1 with 1 foot of level ground between the slope and the back of the side walk and/or face of fence. Erosion control measures shall be implemented on all slopes of 4:1, including the use of synthetic erosion control netting in combination with ground cover species approved by the Department of Public Works/Engineering Services Division. d. The water meter(s) serving the buffer landscaping shall be sized for the anticipated service flows. e. No private flags, signs or identification of any kind shall be permitted in the right-of-way, within the City - controlled easement or on the fence or wall facing the street. f. Landscaping in the right-of-way and landscape setback adjacent to water well sites shall be the responsibility of the City of Fresno Water Division and may not be included in the CFD. Please submit all landscape and irrigation plans to: dpwplansubmittal@fresno.gov for plan review to the scale of 1” =20’ prior to the installation of any landscaping within the right-of-way. November 21, 2022 Erik Young City of Fresno Planning and Development Department 2600 Fresno Street Fresno, CA 93721 Project: Conditional Use Permit - P22-03146 District CEQA Reference No: 20221520 Dear Mr. Young: The San Joaquin Valley Air Pollution Control District (District) has reviewed the Conditional Use Permit (CUP) referenced above from the City of Fresno (City). Per the CUP, the project consists of constructing a respiratory care facility in two phases located on 1.38 acres. Phase one (1) consists of remodeling and expanding an existing house from 3,310 square feet to 4,500 square feet, and Phase two (2) consists of constructing one (1) 4,641 square foot building and one (1) 4,370 square foot building (Project). The Project is located 2287 W Bullard Ave in Fresno CA. The District offers the following comments regarding the Project: Project Related Emissions At the federal level under the National Ambient Air Quality Standards (NAAQS), the District is designated as extreme nonattainment for the 8 -hour ozone standards and serious nonattainment for the particulate matter less than 2.5 microns in size (PM2.5) standards. At the state level under California Ambient Air Quality Standards (CAAQS), the District is designated as nonattainment for the 8 -hour ozone, PM10, PM2.5 standards. Based on information provided to the District, Project specific annual criteria pollutant emissions from construction and operation are not expected to exceed any of the significance thresholds as identified in the District’s Guidance for Assessing and Mitigating Air Quality Impacts (GAMAQI): https://www.valleyair.org/transportation/GAMAQI.pdf. San Joaquin Valley Air Pollution Control District Page 2 of 7 District Reference No: 20221520 November 21, 2022 Construction Emissions The District recommends, to reduce impacts from construction-related diesel exhaust emissions, the Project should utilize the cleanest available off-road construction equipment, including the latest tier equipment. Health Risk Screening/Assessment The City should evaluate the risk associated with the Project for sensitive receptors (residences, businesses, hospitals, day-care facilities, health care facilities, etc.) in the area and mitigate any potentially significant risk to help limit exposure of sensitive receptors to emissions. To determine potential health impacts on surrounding receptors (residences, businesses, hospitals, day-care facilities, health care facilities, etc.) a Prioritization and/or a Health Risk Assessment (HRA) should be performed for the Pro ject. These health risk determinations should quantify and characterize potential Toxic Air Contaminants (TACs) identified by the Office of Environmental Health Hazard Assessment/California Air Resources Board (OEHHA/CARB) that pose a present or potential hazard to human health. Health risk analyses should include all potential air emissions from the project, which include emissions from construction of the project, including multi-year construction, as well as ongoing operational activities of the project. Note, two common sources of TACs can be attributed to diesel exhaust emitted from heavy-duty off-road earth moving equipment during construction, and from ongoing operation of heavy-duty on-road trucks. Prioritization (Screening Health Risk Assessment): A “Prioritization” is the recommended method for a conservative screening -level health risk assessment. The Prioritization should be performed using the California Air Pollution Control Officers Association’s (CAPCOA) methodology. The District recommends that a more refined analysis, in the form of an HRA, be performed for any project resulting in a Prioritization score of 10 or greater. This is because the prioritization results are a conservative health risk representation, while the detailed HRA provides a more accurate health risk evaluation. To assist land use agencies and project proponents with Prioritization analyses, the District has created a prioritization calculator based on the aforementioned CAPCOA guidelines, which can be found here: http://www.valleyair.org/busind/pto/emission_factors/Criteria/Toxics/Utilities/PRIORI TIZATION-CALCULATOR.xls San Joaquin Valley Air Pollution Control District Page 3 of 7 District Reference No: 20221520 November 21, 2022 Health Risk Assessment: Prior to performing an HRA, it is strongly recommended that land use agencies/ project proponents develop and submit for District review a health risk modeling protocol that outlines the sources and methodologies that will be used to perform the HRA. This step will ensure all components are addressed when performing the HRA. A development project would be considered to have a potentially significant health risk if the HRA demonstrates that the project-related health impacts would exceed the District’s significance threshold of 20 in a million for carcinogenic risk, or 1.0 for either the Acute or Chronic Hazard Indices. A project with a significant health risk would trigger all feasible mitigation measures. The District strongly recommends that development projects that result in a significant health risk not be approved by the land use agency. The District is available to review HRA protocols and analyses. For HRA submittals please provide the following information electronically to the District for review:  HRA (AERMOD) modeling files  HARP2 files  Summary of emissions source locations, emissions rates, and emission factor calculations and methodologies. For assistance, please contact the District’s Technical Services Department by:  E-Mailing inquiries to: hramodeler@valleyair.org  Calling (559) 230-5900 Recommended Measure: Development projects resulting in TAC emissions should be located an adequate distance from residential areas and other sensitive receptors in accordance to CARB's Air Quality and Land Use Handbook: A Community Health Perspective located at https://ww3.arb.ca.gov/ch/handbook.pdf. Clean Lawn and Garden Equipment in the Community Since the Project consists of commercial development, gas-powered commercial lawn and garden equipment have the potential to result in an increase of NOx and PM2.5 emissions. Utilizing electric lawn care equipment can provide residents with immediate economic, environmental, and health benefits. The District recommends the Project proponent consider the District’s Clean Green Yard Machines (CGYM) program which provides incentive funding for replacement of existing gas powered San Joaquin Valley Air Pollution Control District Page 4 of 7 District Reference No: 20221520 November 21, 2022 lawn and garden equipment. More information on the District CGYM program and funding can be found at: http://www.valleyair.org/grants/cgym.htm and http://valleyair.org/grants/cgym-commercial.htm. On-Site Solar Deployment It is the policy of the State of California that renewable energy resources and zero - carbon resources supply 100% of retail sales of electricity to California end-use customers by December 31, 2045. While various emission control techniques and programs exist to reduce air quality emissions from mobile and stationary sources, the production of solar energy is contributing to improving air quality and public health. The District suggests that the City consider incorporating solar power systems as an emission reduction strategy for the Project. Electric Vehicle Chargers To support and accelerate the installation of electric vehicle charging equipment and development of required infrastructure, the District offers incentives to public agencies, businesses, and property owners of multi-unit dwellings to install electric charging infrastructure (Level 2 and 3 chargers). The purpose of the District’s Charge Up! Incentive program is to promote clean air alternative-fuel technologies and the use of low or zero-emission vehicles. The District recommends that the City and project proponents install electric vehicle chargers at project sites, and at strategic locations. Please visit www.valleyair.org/grants/chargeup.htm for more information. District Rules and Regulations The District issues permits for many types of air pollution sources, and regulates some activities that do not require permits. A project subject to District rules and regulations would reduce its impacts on air quality through compliance with the District’s regulatory framework. In general, a regulation is a collection of individual rules, each of which deals with a specific topic. As an example, Regulation II (Permits) includes District Rule 2010 (Permits Required), Rule 2201 (New and Modified Stationary Source Review), Rule 2520 (Federally Mandated Operating Permits), and several other rules pertaining to District permitting requirements and processes. The list of rules below is neither exhaustive nor exclusive. Current District rules can be found online at: www.valleyair.org/rules/1ruleslist.htm. To identify other District rules or regulations that apply to future projects, or to obtain information about District permit requirements, the project proponents are strongly encouraged to contact the District’s Small Business Assistance (SBA) Office at (559) 230-5888. San Joaquin Valley Air Pollution Control District Page 5 of 7 District Reference No: 20221520 November 21, 2022 District Rules 2010 and 2201 - Air Quality Permitting for Stationary Sources Stationary Source emissions include any building, structure, facility, or installation which emits or may emit any affected pollutant directly or as a fugitive emission. District Rule 2010 (Permits Required) requires operators of emission sources to obtain an Authority to Construct (ATC) and Permit to Operate (PTO) from the District. District Rule 2201 (New and Modified Stationary Source Review) requires that new and modified stationary sources of emissions mitigate their emissions using Best Available Control Technology (BACT). This Project may be subject to District Rule 2010 (Permits Required) and Rule 2201 (New and Modified Stationary Source Review) and may require District permits. Prior to construction, the Project proponent should submit to the District an application for an ATC. For further information or assistance, the project proponent may contact the District’s SBA Office at (559) 230-5888. District Rule 9510 - Indirect Source Review (ISR) The District has reviewed the information provided and has determined the project size is below the District Rule 9510, section 2.1 applicability threshold of 20,000 square feet for a medical development. Therefore, District Rule 9510 requirements and related fees do not apply to the project. District Rule 4002 (National Emissions Standards for Hazardous Air Pollutants) In the event an existing building will be renovated, partially demolished or removed, the Project may be subject to District Rule 4002. This rule requires a thorough inspection for asbestos to be conducted before any regulated facility is demolished or renovated. Information on how to comply with District Rule 4002 can be found online at: http://www.valleyair.org/busind/comply/asbestosbultn.htm. District Rule 4601 (Architectural Coatings) The Project may be subject to District Rule 4601 since it may utilize architectural coatings. Architectural coatings are paints, varnishes, sealers, or stains that are applied to structures, portable buildings, pavements or curbs. The purpose of this rule is to limit VOC emissions from architectural coatings. In addition, this rule specifies architectural coatings storage, cleanup and labeling requirements. Additional information on how to comply with District Rule 4601 requirements can be found online at: http://www.valleyair.org/rules/currntrules/r4601.pdf San Joaquin Valley Air Pollution Control District Page 6 of 7 District Reference No: 20221520 November 21, 2022 District Regulation VIII (Fugitive PM10 Prohibitions) The project proponent may be required to submit a Construction N otification Form or submit and receive approval of a Dust Control Plan prior to commencing any earthmoving activities as described in Regulation VIII, specifically Rule 8021 – Construction, Demolition, Excavation, Extraction, and Other Earthmoving Activities. Should the project result in at least 1-acre in size, the project proponent shall provide written notification to the District at least 48 hours prior to the project proponents intent to commence any earthmoving activities pursuant to District Rule 8021 (Construction, Demolition, Excavation, Extraction, and Other Earthmoving Activities). Also, should the project result in the disturbance of 5- acres or more, or will include moving, depositing, or relocating more than 2,500 cubic yards per day of bulk materials, the project proponent shall submit to the District a Dust Control Plan pursuant to District Rule 8021 (Construction, Demolition, Excavation, Extraction, and Other Earthmoving Activities). For additional information regarding the written notification or Dust Control Plan requirements, please contact District Compliance staff at (559) 230-5950. The application for both the Construction Notification and Dust Control Plan can be found online at: https://www.valleyair.org/busind/comply/PM10/forms/DCP-Form.docx Information about District Regulation VIII can be found online at: http://www.valleyair.org/busind/comply/pm10/compliance_pm10.htm Other District Rules and Regulations The Project may also be subject to the following District rules: Rule 4102 (Nuisance) and Rule 4641 (Cutback, Slow Cure, and Emulsified Asphalt, Paving and Maintenance Operations). San Joaquin Valley Air Pollution Control District Page 7 of 7 District Reference No: 20221520 November 21, 2022 District Comment Letter The District recommends that a copy of the District’s comments be provided to the Project proponent. If you have any questions or require further information, please contact Patrick Chimienti by e-mail at Patrick.Chimienti@valleyair.org or by phone at (559) 230-6139. Sincerely, Brian Clements Director of Permit Services For: Mark Montelongo Program Manager Exhibit F – Neighborhood Meeting Information 2287 W. Bullard Avenue, Fresno, CA 93711 ⋅ 559.286.6151 ⋅ www.goinfiniteliving.com (coming soon) January 10, 2023 Re: Infinite Living – P22-03146 2287 W. Bullard Avenue Fresno, California 93711 On January 5th of 2023 a neighborhood meeting was scheduled at the Piccadilly Inn located on 2305 W. Shaw Avenue in Fresno, California 93711 inside of the Director’s Room. The meeting started at approximately 6:08 which gave everyone that was notified enough time to get settled and seated. There were 11 x 17 signs placed at each entrance (see attached) for the residents to find the meeting. The officers of the company that were present were, Mr. Jason Andrade, Mr. Nathan Miller, Mr. Irvin Marquez and Mr. Larry Meza. 143 Mailers were sent out via First Class Proof of Mailing to all names on the excel spreadsheet provided to us by the City of Fresno of residents within 1,000 feet from our address (project). At approximately 6:08 pm on January 5th, 5 people from 4 residents showed up to our neighborhood meeting. They were all given an operational statement of the new proposed project. All members gave a detailed message regarding the respiratory care facility (CHLF). Such topics of conversation were staffing, traffic, hours of operation, timing of construction, care provided, elevations of home, access to the project, phase I and II of the project, how many patients and the quality of construction. All 5 residents were thrilled and happy to see the vacant and abandoned home to be revitalized due to being an eye sore in their neighborhood for so long. A few of the residents were in the medical industry and were thankful that we would be providing such a service to Fresno. There were no negative comments nor any issues regarding the proposed project. Overall, the neighborhood meeting was a success and we had very happy residents leaving the meeting with all questions answered. Sincerely, Jason Andrade President Infinite Living 2287 W. Bullard Avenue, Fresno, CA 93711 ⋅ 559.286.6151 ⋅ www.goinfiniteliving.com (coming soon) June 13, 2022 Re: Infinite Living 2287 W. Bullard Avenue Fresno, California 93711 2287 Bullard, Inc. dba Infinite Living proposes to convert a 3,310 square foot residential home into an approximately 5,000 square foot CLHF (Congregate Life Health Facility), which is located at 2287 W. Bullard Avenue, Fresno, California 93711. The property site on approximately 1.5 acres and is currently zoned R2 in which a CLHF license is permitted under this zoning with a CUP (Conditional Use Permit). Our site plan is currently in the City of Fresno’s DSR (Design Site Review) with an application number of 22TMP-013811. The property’s surrounding boundaries are 1 residential home, Malloch Elementary School and a few vacant lots. The property will consist of two phases and will not be subdivided until a later date. The first phase will consist of an existing house which lies north on the property and will be remodeled and expanded. In regards to the infrastructure for the entire property, this will all be done in the first phase as well due to the ingress and egress on the property (entrance and exits and traffic flow). The second phase will consist of two new construction houses that are just south of the existing house and any left over infrastructure that was not done during the first phase. There are three access points on the property, one north along Bullard Avenue, one along the northwest side that feeds into a round about to a future housing development and one along the south end portion of the property on Morris Avenue. All ingress and egress will be addressed in the first phase. A CHLF License which will be held by, Infinite Living, and will provide a comfortable residential home for those who are physically challenged and/or who have complex medical needs. Our team of medical professionals will provide Acute Care Services, Skilled Nursing Care and Complex Respiratory Care on a 24 hours a day basis. Our services area ideal for those who have suffered a traumatic brain injury or those who would otherwise be confined to hospitals, nursing homes or alike. Our large range of Medical Services includes: Complex Medical to Basic Medical Care and services. Our home will be comfortable, so it will feel like loved ones are living at home, while they are getting intensive levels of care and support, just as those provided in a larger commercial setting. The following services will be provided by Infinite Living: 1. Impatient Treatment 2. Medical Supervision 3. Supportive Care 4. Therapy Services 5. 24-Hour Skilled Nursing 6. Social and Recreational Activities 7. Medication Management 8. Dietary Management In which, well treat the following but not limited to: 1. 24/7 Sub Acute Nursing (For Vent and Trach Dependent Patients) 2. 24-Hour Skilled Nursing Care 3. Medical Supervision 4. Pharmacy 5. Dietary 6. Complex and Woud Care 7. Neuromuscular Disorders 8. Medically Complex Cases 9. Orthopedically Complex Cases 2287 W. Bullard Avenue, Fresno, CA 93711 ⋅ 559.286.6151 ⋅ www.goinfiniteliving.com (coming soon) 10. Treatment for all levels of Spinal Cord Injuries 11. High-Intensity Rehabilitation Therapy 12. Acquired Brain Injuries 13. Social Recreational With our extensive team which will include: 1. RN 2. LVN (2) 3. CNA (3) 4. Cook 5. Dietician 6. Doctor (per diem) 7. Beautician 8. Activities Coordinator 9. House Keepers (2) 10. Maintenance We will provide: 1. Services to persons who are mentally alert, physically disabled, who may be ventilator dependent. 2. Services for persons who have a diagnosis of a terminal illness, a diagnosis of a life-threatening illness, or both. Terminal illness means the individual has a life expectancy of six months or less as stated in writing by his/her attending physician and surgeon. A “life-threatening illness” means the individual has an illness that can lead to a possibility of a termination of life within five years or less as stated in writing by his or her attending physician and surgeon. 3. Services for persons who are catastrophically and severely disabled. A catastrophically and severely disabled person means a person whose origin of disability was acquired through trauma or non- degenerative neurologic illness, for whom it has been determined that active rehabilitation would be beneficial and for whom these services would be provided. 4. Services offered by a CLHF to a catastrophically disabled person shall include, but not be limited to, speech, physical, and occupational therapy. Here at Infinite Living we are bound to CLHF standards which are found in H&S Code, Section 1267.13. In addition to these standards, CLHF’s are required to conform to CCR, Title 22, Skilled Nursing Regulations, except for those sections or portions of sections specified in H&S Code, Section 1267.13(n). These requirements in subsection 1267.13(n) are so specific to skilled nursing facilities, CLHF’s were exempted from compliance with these sections. We looked forward to receiving a favorable response from the City of Fresno, the Community of Central California and all of the families that will need care for their loved ones. In case of any questions or emergencies, the following contacts shall be used: Jason Andrade – President 559.286.6151 Patrick Miller – Secretary 619.385.8093 Larry Meza Jr. – Medical Operations 619.851.9144 Sincerely, Jason Andrade President Infinite Living December 21, 2022 Re: Respiratory Care Facility 2287 W. Bullard Avenue Fresno, California 93711 To Whom It May Concern: I am writing you this letter to inform you that we will be having a neighborhood meeting on January 5, 2023 at 6:00 PM at the Piccadilly Inn, which is located at 2305 W. Shaw Avenue, Fresno, California 93711. The meeting will be held in the Directors Room. We will be discussing our proposed development, a respiratory care facility, which will be located at the address referenced above, 2287 W. Bullard Avenue, Fresno, California 93711. The new facility will provide a comfortable residential home for those who are physically challenged and/or who have complex medical needs. We are happy to answer any questions you may have regarding our project. We look forward to seeing you there. Jason Andrade 559.286.6151 jasonaandrade@gmail.com Properties within 1,000 feet Override 1 Override 1 12/6/2022, 9:22:28 AM 0 0.1 0.20.05 mi 0 0.15 0.30.07 km 1:9,028 City of Fresno Exhibit G – Comment Letters FENNEMORE, DOWLING AARON David D. Schneider Director dschneider@fennemorelaw.com 8080 N Palm Avenue, Third Floor Fresno, California 93717 PH (5s9) 446-3218 | FX (ss9) 432-4s90 fen nemorelaw,com February 6,2023 VIA E-MAIL City of Fresno Planning and Development Department publiccommentsplannin@fresno. gov Re: CUP Application p22-03146 I 2287 W. Bullard Ave Dear Planning and Development Director: I represent several residents that currently reside within the immediate vicinity of, and in many cases within 1 ,000 feet of, 2287 W . Bullard Ave, Fresno, CA 937 Il (the "subject property',). The purpose of this letter is to formally object to CUP Application No. p22-03146 (the..eio¡eót',j. Several residents have requested materials from the City in an attempt to learn more about the Project, as the information initially provided to the residents has not been sufficiently detailed for them to understand all of the impacts the Project-a commercial medical office development- would have on the surrounding neighborhoods. They have since been provided .om" upplication materials from the City that comprise of: 1) June 13,2022letter from Infinite Living generally describing the planned use; 2) and, a 5 page site plan. These materials continue to-bã wholly inadequate and insufficient to inform and advise the residents of the Project's potential impacts. Under Section 15-5306 of the Development Code, one of the factors for approval is whether the project will have a substantial adverse impact to public health, safety, or welfare. The lack of sufficient information in the Application regarding the impact of the proposed development prevent the City from being able to meet the necessary findings. Giverr that the City has represented to the neighbors that this is the body of the application materials, it appears any findings to support the approval of a Conditional Use Permit would be unsupported by zubstantial evidence. This is particularly true given that the City does not appear-to have prepared an environmental document under the Califomia Environmental euality Act, g zrôoo, et seq.("CEQA"), and has not provided any information to the public regarding any supposedþ applicable exemption. Arizona I California I Colorado I Nevada FENNEMORE. DOWLING AARON City of Fresno February 6,2023 Page2 Alternatively, if the City has not provided all relevant application materials to area residents concerning the application for the Project, the City has failed io meet its obligations under the Public Records Act by failing to fully and timely respond to a request for records. lGovt. Code, 5 6253.) Either way, the city should decline to approve the projeci. In addition, while the application materials are incomplete and unclear, the City,s"Neighborhood Notification" charactenzes the proposed commercial project as a ..residential respiratory care facility" fApplication Description]. The Application fufihLr states, .,the facilitywill provide acute care services, skilled nursing care and complex respiratory care . . .', Ubidi.Fresno Municipal Code, Section l5-6702 defines "Residential Care Facilities as: Resídentíal Care Facílìtíes. Facilities that are licensed by the State o.f California to prottide permanent lit'ing accommodations and 24-hour prímaríly non-medìcal cøre ønd supervisionþr persons in need of personal setrices, supen,ision, protection, or assistance for sustaining thà activities of daily living... (emphasis added) Thus, it is clear that the proposed facility is not a Residential Care Facility as defined by the City. The current zoning designation for the lot at issue is RS-2/EQ. This denotes a district of single-family residences with very low density. Table l5-go2 (City Dìvelopment Code) does not even contemplate the proposed use - a group of structures housing up to fifty-plus residents requiring constant medical care. As such, the Application should be denied because it is not apermitted or conditional use under the city's Devôlopment code. Even if the City could assert the Project is a permitted or conditional use under the Development Code, the City would need to assess the impact associated with inviting commercial office and medical uses into the heart of a residential neighborhood. CEQA requires agencies to evaluate the land use and planning impacts associated with projects proposed under CEþR. tn its evaluation of this issue, a land agency must ask whether thepróposeà pioject would: -Conflict with any applicable land use plan, policy, or regulation of an agency withjurisdiction over the project (including, but not limited to the general plan, specific plan, local coastal program, or zoning ordinance) adopted for the pnrpor" oiavoiáing or - mitigating an environmental effect. (cEeA Guidelines, Rppendix c.¡ My clients and the residents of this neighborhood purchased their homes with the understanding that they were moving into a low density, non-commercial neighborhood. The proposed Application seeks to radically transmogrif, the lot at issue to triple the normal number of structures on the lot, construct large numbers of parking places (more thån twenty), and operate a twenty-four hour a day business with numerous vehicle trips in and out ofthe facility. A business FENNEMORE, DOWLING AARON City of Fresno February 6,2023 Page 3 operating twenty-four hours a day, seven day a week, three hundred sixty-five days ayear in a residential neighborhood is the proverbial square peg in a round hole. The applicant's Operational Statement also contains admissions that the City is seeking to piecemeal environmental review of the Project. Specifically, the Applicant's June 13,2022litter contemplates subdividing - "The property will consist of two phases and will not be subdivided until a later date.". This is a clear signal that the applicant is seeking to avoid CEQA at this time, and that a subdivision will be requeJte d after the Èioject is fully built out. Subdivision is plainly a discretionary action that requires CEQA review. (Rominger v. County of Colusa (2014) (224 Cal.App.4th 690.) Given that the applicant expressly intends to subdivid ", iny exemption or other CEQA document that fails to describe all project components would result in the environmental failing to assess the "whole of the action" as required under Section 15378 of the CEeA Guidelines. (See also Santiago Water Dist. v. County íf Orange (1981) l l8 Cal.App.3d 8lS, g3ò.) At a minimum, the Applicant and the City should provide information relating to the expected number of vehicle trips, the distance of those trips, the noise, light, and other environmental factors associated with a three structure facility populated *ítn ñ'or" than frfty residents and fìfteen staff members in a low density zoned neighbòrhood. Based on the foregoing, my clients respectfully request that the Application be denied. I hereby request notice of the Director's final action on the Application. Sincerely, FENNEMORE DOWLING AARON DDSC/tIb Thomas Veatch (Thomas.veatch@fresno. gov) Brent Smittcamp (brent@smittcampag.com) Mike Karbassi (Mike.Karbassi@fresno.gov) cc 2873s904n0r378.0909 7409497 Clyde & Co US LLP is a Delaware limited liability partnership with offices in Atlanta, Boston, Chicago, Denver, Las Vegas, Los Angeles, Miami, New Jersey, New York, Orange County, Phoenix, San Francisco and Washington D.C. Clyde & Co US LLP is affiliated with Clyde & Co LLP, a limited liability partnership registered in England and Wales. February 6, 2023 City of Fresno Planning and Development Department PublicCommentsPlanning@fresno.gov Re: CUP Application P22-03146 / 2287 W. Bullard Ave Dear Director of Planning and Development : Please be advised that I represent multiple residents who reside close to 2287 W. Bullard Ave, Fresno, CA 93711. My clients have received a “Neighborhood Notification” regarding Conditional Use Permit Application No. P22-03146. Further, I am a resident at 2330 W. Roberts Ave, Fresno, CA 93711 – near the proposed commercial development and a recipient of the City’s “Neighborhood Notification”. The purpose of this letter is to formally object to the CUP Application (hereinafter “the Application”). The Proposed Project is Not Permitted in the RS-2 Zoning and Would Fundamentally Alter the Character of the Neighborhood The subject residential lot at 2287 W. Bullard has been a residential lot for more than fifty years and is zoned RS-2/EQ – a single family residential designation with low density. The proposal seeks to construct two additional structures, for a total of three structures on the property, to house a total of more than fifty residents in a medical environment. This proposed business, which is most akin to a medical office or hospital land use—neither of which are permitted by right or conditionally in the RS-2/EQ zoning district—seeks to operate twenty-four hours a day and will require staff at all times. It should be noted that there are no other known businesses operating in this residential neighborhood. The proposed use is a fundamental and drastic alteration of the current and zoned residential use. The neighbors purchased their homes with the understanding that they would reside in a residential setting, not a commercial setting burdened with increased traffic, noise, lighting, Clyde & Co US LLP 150 California Street 15th Floor San Francisco, CA 94111 USA Telephone: +415 365 9840 Facsimile: +415 365 9801 www.clydeco.com andrew.wanger@clydeco.us February 6, 2023 Page 2 7409497 additional structures and parking lots on individual lots that otherwise alter the aesthetic nature of their neighborhood. The City Must Conduct an Environmental Review Under CEQA in Advance of Considering a Conditional use Permit for the Project A Conditional Use Permit is a quintessentially discretionary decision. As such, CEQA applies to the City’s consideration of the Project. No environmental document appears to have been prepared by the City. The City cannot consider approval of the project without completing environmental review under CEQA. The City bears the burden - not the neighbors - to assess the environmental impact of the proposed commercial use. (Sundstrom v. County of Mendocino (1988) 202 Cal.App.3d 296, 311 [“CEQA places the burden of environmental investigation on government rather than the public,” and a lead agency “should not be allowed to hide behind its own failure to gather data.”].) Prior to considering any “project” under CEQA, a lead agency must first determine whether to prepare a Negative Declaration, a Mitigated Negative Declaration, or an EIR for the project. (CEQA Guidelines, § 15063.) The lead agency makes this determination based on what is called the “fair argument” standard. (CEQA Guidelines, § 15064(f)(1).) As explained by the California Supreme Court: [S]ince the preparation of an EIR is the key to environmental protection under CEQA, accomplishment of the high objectives of hat act requires the preparation of an EIR whenever it can be fairly argued on the basis of substantial evidence that the project may have a significant environmental impact. (No Oil, Inc. v. City of Los Angeles (1975) 13 Cal.3d 68, 75.) The Supreme Court has explained that even in “close and doubtful cases,” an EIR should always be prepared to ensure “the Legislature’s objective of ensuring that environmental protection serve as the guiding criterion in agency decisions.” (Id. at 84; see also Pub. Resources Code, § 21101, subd. (d).) Many courts have stated that the “EIR is the heart of CEQA. The report . . . may be viewed as an environmental ‘alarm bell’ whose purpose it is to alert the public and its responsible officials to environmental changes before they have reached ecological points of no return.” (Citizens for Quality Growth v. City of Mount Shasta (1988) 198 Cal.App.3d 433, 438 [quoting County of Inyo v. Yorty (1973) 32 Cal.App.3d 795, 810] [emphasis added].) The CEQA Guidelines set forth the “fair argument” test used to evaluate whether an EIR is required: If the lead agency finds there is substantial evidence in the record that the project may have a significant effect on the environment, the lead agency shall prepare an EIR. Said another way, if a lead agency is presented with a fair argument that a project may have a significant effect on the environment, the lead agency shall prepare an EIR even though it may February 6, 2023 Page 3 7409497 also be presented with other substantial evidence that the project will not have a significant effect. (CEQA Guidelines, § 15064(f)(1); see also Pub. Resources Code, § 21080, subd. (d) [internal citations omitted].) Accordingly, if any commenting party makes a fair argument that the proposed project’s environmental impacts “may have a significant effect on the environment,” the County must prepare an EIR, even if other substantial evidence supports the argument that adverse environmental effects will not occur. (CEQA Guidelines, § 15064(g)(1); see also Sierra Club v. County of Sonoma (1992) 6 Cal.App.4th 1307, 1316 [“[i]f there is substantial evidence of such an impact, contrary evidence is not adequate to support a decision to dispense with an EIR.”].) Here, substantial evidence supports a fair argument that an EIR is necessary: Traffic The Application provides no information regarding ingress and egress plans. This despite the fact that there will be more than fourteen staff members (per the Application) arriving at and leaving the facility daily, emergency vehicles, delivery vehicles, and visitor vehicles all entering and leaving the facility. Bullard Avenue is a highly trafficked throughfare that does not afford a realistic ingress / egress point for regular vehicle traffic. The Application offers no traffic study to provide the residents comfort that a feasible plan exists to prevent the aforementioned vehicle traffic from coming into the residential neighborhood to use Roberts Ave, Celeste Ave, Sequoia Ave or Morris Ave access to the property. These access points are already the subject of weekday school traffic and voluminous pedestrian traffic (adult and juvenile) due to the presence of Malloch Elementary. The Applicants do not take a position nor provide their view as to which ingress / egress point will be used. This is likely intentional because they must know that Bullard is not a realistic and safe option. As such, the resultant burden to the residential neighborhood will be extensive and unfair. The roads in this neighborhood already suffer greatly from the Malloch Elementary traffic and the neighbors have been in contact with the County (specifically, Supervisor Brandau’s office directed residents to Robert Jeffers for road repair updates) for years to obtain repairs to Roberts Ave, Sequoia Ave and Celeste Ave. The requested repairs have yet to commence and roads remain in disrepair. Additional vehicle traffic on these roads from the commercial use of the subject lot will further degrade these roads. The increased vehicle and truck traffic will also heighten the safety risk to residents and students, parents, and users of Malloch Elementary (this includes numerous youth sports teams that utilize the fields at Malloch on a weekly basis). A medical facility with fifty-four residents will require frequent deliveries, emergency vehicle and staff trips in and out of the property. A normal residence in this neighborhood has two to three vehicles – the Application denotes more than twenty parking spaces for staff and visitors. The deviation from a normal residential lot use is not reasonable nor desirable. February 6, 2023 Page 4 7409497 The intersections of Bullard and Van Ness and Bullard and Forkner are frequently the scenes of vehicular accidents. Adding another inflection point on the busy thoroughfare that Bullard Ave is constitutes a dubious proposal. Lighting The Application appears to contemplate at least six light posts to provide lighting to the extensive parking areas that will surround the three buildings. No indication is given in the Application as to how many other additional lighting sources will be constructed – but there will undoubtedly be lighting attached to the three structures that will remain on the entirety of the night given that the facility necessarily will be staffed twenty-four hours a day. The application fails to address the glare and aesthetic impact of the commercial lighting plan in a residential neighborhood, or otherwise offer any mitigation to ensure there will be no adverse impacts on the school or adjacent residential properties. Noise A commercial facility shoehorned into a residential neighborhood will necessarily generate additional noise during the entirety of its operational day – here, twenty-four hours a day. This will mean vehicle noise, emergency vehicle noise, delivery truck noise (with corresponding reverse gear warnings), and HVAC units necessary to regulate temperatures within three medical structures. The Operational Statement Suggests the Applicant Seeks to Avoid Environmental Review Under CEQA Until a Later Date Given that the City did not provide any information concerning CEQA in response to requests for records concerning the Project, it appears the City and the Applicant may seek to assert the Project is exempt from environmental review. This suspicion has been heightened because the Operational Statement submitted by the Applicant suggests that the project includes a potential subdivision, but the property will “not be subdivided until a later date.” This strongly suggests the Applicant is seeking to avoid discretionary actions for which no exemption applies to a later date—after the Project is fully built and the construction is part of the environmental baseline. Because the Applicant plainly intends to subdivide at some point in the future, the “project” as a whole admittedly includes a subdivision, which would not be exempt from CEQA. If the environmental review does not include assessment of the subdivision, this constitutes a piecemeal approach to environmental review, which is prohibited under CEQA as a failure to assess the “whole of an action.” (CEQA Guidelines, § 15378(c).) Application Materials are Insufficient The materials submitted to the City and the impacted neighbors are wholly inadequate to enable a reasoned analysis and review of the project and Application. If this is a function of the owners not wanting to invest in a thorough plan – that creates concerns that the project itself will be done on the “cheap” and degrade the character of the neighborhood. If the lack of information is due to the owners not wishing to reveal the “whole story” then this is also a problem for the residents. Again, the applicant seeks to fundamentally alter a use that has existed for more than fifty years February 6, 2023 Page 5 7409497 – the neighbors should not have to carry the burden of justifying why such a proposal is unreasonable. The Application should explain why the use is necessary and reasonable. It is the position of my clients that the Application should be denied and the integrity of this residential neighborhood preserved. I wish to be notified of the Director’s final project action so as to preserve any appellate rights. Very truly yours, Andrew Wanger Cc: Thomas Veatch (Thomas.veatch@fresno.gov) Mike Karbassi (Mike.Karbassi@fresno.gov) Elizabeth Helon 1432 W. San Bruno Avenue Fresno, CA 93711 February 6, 2023 City of Fresno Planning and Development Department PublicCommentsPlanning@fresno.gov RE: CUP Application P22-03146 / 2287 W. Bullard Avenue Dear Director of Planning and Development, I am writing regarding the Conditional Use Permit Application Number P22-03146 for 2287 W. Bullard Avenue, Fresno, CA 93711. As a Malloch Elementary School parent, I strongly oppose the consideration of a Conditional Use Permit for without an Environment Impact Review. Through an Environmental Impact Review, the city will find that the single family residential, low density zoning designation is not an appropriate location for a 24-hour medical business. My primary concern is for the safety and well-being of students, parents, and users of Malloch Elementary (sports teams, after school programs, etc.). The addition of a medical facility with fifty-four residents will create an influx in traffic that cannot be supported by this residential neighborhood. Malloch Elementary’s weekday school traffic (pedestrian and vehicle) already impacts the residential neighborhood of Roberts Avenue, Celeste Avenue, Sequoia Avenue and Morris Avenue. The front of the school faces Morris Avenue, a one-way street that, according to the application, would be used as an ingress / egress point of the medical facility. Morris Avenue is also where school buses are picking up or dropping off students at multiple points throughout the day. This residential neighborhood is not meant for this additional traffic flow and will put everyone at risk. Additionally, I feel that adding an ingress / egress point on Bullard Avenue, between Van Ness and Forkner creates additional safety concerns as those intersections have frequent vehicle accidents as it is. Furthermore, a commercial business, with three buildings on a single lot no less, is not meant for a low density residential neighborhood. The lighting, noise and aforementioned traffic, will drastically impact the residents and alter the character of the neighborhood. Consideration and approval of this Conditional Use Permit is negligent before conducting an Environmental Impact Review. I wish to be notified of the Director’s final project action. Thank you, Elizabeth Helon Cc: Thomas Veatch (Thomas.veatch@fresno.gov) Mike Karbassi (Mike.Karbassi@fresno.gov) Jennifer Clark AICP, HDFP, Director Planning and Development Department City of Fresno RE: Public input on Permit application No P22-03146 Location: 2287 W Bullard Ave south side of West Bullard Ave between N Van Ness Bld and N Forkner Ave. Ms. Clark, My husband Viktor and I are residents of Van Ness extension (2216 W Roberts Ave) and live within 1000 ft of the proposed project area covered by permit application #P22-03146. We are writing to express our absolute opposition to the proposed permit and project action. Van Ness extension is a residential neighborhood and we are opposed to the following actions: 1. Rezoning of the 2287 W Bullard Ave location. Currently the area is zoned residential single family, very low density / equine overlap. We oppose rezoning. This is an expensive, quite neighborhood and we want to keep it that way. Zoning changes and the building of this sprawling facility will bring pollution, noise, traffic, medical waste and unwanted attention to the area. Our neighborhood is well established with home values above the average for the area. This proposed project will negatively impact home values, crime and safety. 2. Creation of a medical/ nursing residential care facility at the 2287 W Bullard ave. location. This is an absolute inappropriate use of the site location. Our neighborhood is small and cannot cope with the additional traffic burden that this facility will bring. We already have an elementary school with insufficient parking in the same neighborhood. Increased traffic also means increased risk to the youngsters that attend Mallock elementary. We strongly oppose this permit application and project, and we urge you to reject both. In addition, we wish to be notified of your final action regarding this permit so that we can be involved in any potential appeals process. Finally, we would like to be notified of date and location that the vote will take place as we would like to be present in person to represent our dissent. Thank you for your consideration, _______________________ ________________________ Dr. Chelsey Juarez Viktor Zaytsev Chelsey.juarez@gmail.com Viktor.Zaytsev.V@gmail.com 510-612-0673 919-389-7339 2/2/23 2/2/23 February 4, 2023 To all concerned: As residents at 2310 W. Roberts Ave. since 1975, we are most concerned about the potential approval of Conditional Use Permit No. P22-03146 for 2287 W. Bullard Ave. This CUP would modify long- standing planning rules and allow development of a “residential respiratory care facility” in a neighborhood historically devoted to single-family homes. We have a number of objections, but our primary concern is with the obvious traffic problems that will be added along Morris Avenue, where an entrance and exit are indicated on the site plan. This small stretch of Morris is a narrow, one-way street already over-loaded by moving and parked buses and cars associated with the adjacent Malloch Elementary School. And, for your information, Morris currently has a problem with wrong-way violators seeking a shortcut to the school. The proposed project can only magnify these issues. (To properly reach the Morris entrance, visitors and other drivers wishing to access the care home will need to detour approximately one-half mile through residential streets.) We are likewise concerned about changing the character of this quiet residential neighborhood to one of mixed use and with the precedent approval of this permit will set. We are greatly concerned about the safety to Malloch’s students that more traffic will cause. Thank you for your attention to this matter and careful consideration of neighbors’ objections to the proposal. As objectors, we wish to be notified of any and all actions that are taken on this matter. You may use our e-mail address or mailing address of 2310 W. Roberts Ave., Fresno, CA 93711. As a point of interest, Mr. Glaser has reviewed the applicant’s materials both from the standpoint of a neighbor and a retired career planner for the City of Fresno. Sincerely, Lynne Enders and Francis E. Glaser February 6, 2023 City of Fresno Planning and Development Department PublicCommentsPlanning@fresno.gov Re: CUP Application P22-03146 / 2287 W. Bullard Ave Dear Director of Planning and Development : Please be advised that we are residents who reside close to 2287 W. Bullard Ave, Fresno, CA 93711. We have received a “Neighborhood Notification” regarding Conditional Use Permit Application No. P22-03146. The purpose of this letter is to formally object to the CUP Application (hereinafter “the Application”). We set forth below language from another resident with which we fully agree and ask that it be incorporated by reference. The Proposed Project is Not Permitted in the RS-2 Zoning and Would Fundamentally Alter the Character of the Neighborhood The subject residential lot at 2287 W. Bullard has been a residential lot for more than fifty years and is zoned RS-2/EQ – a single family residential designation with low density. The proposal seeks to construct two additional structures, for a total of three structures on the property, to house a total of more than fifty residents in a medical environment. This proposed business, which is most akin to a medical office or hospital land use— neither of which are permitted by right or conditionally in the RS-2/EQ zoning district—seeks to operate twenty-four hours a day and will require staff at all times. It should be noted that there are no other known businesses operating in this residential neighborhood. The proposed use is a fundamental and drastic alteration of the current and zoned residential use. The neighbors purchased their homes with the understanding that they would reside in a residential setting, not a commercial setting burdened with increased traffic, noise, lighting, additional structures and parking lots on individual lots that otherwise alter the aesthetic nature of their neighborhood. The City Must Conduct an Environmental Review Under CEQA in Advance of Considering a Conditional use Permit for the Project A Conditional Use Permit is a quintessentially discretionary decision. As such, CEQA applies to the City’s consideration of the Project. No environmental document appears to have been prepared by the City. The City cannot consider approval of the project without completing environmental review under CEQA. The City bears the burden - not the neighbors - to assess the environmental impact of the proposed commercial use. (Sundstrom v. County of Mendocino (1988) 202 Cal.App.3d 296, 311 [“CEQA places the burden of environmental investigation on government rather than the public,” and a lead agency “should not be allowed to hide behind its own failure to gather data.”].) Prior to considering any “project” under CEQA, a lead agency must first determine whether to prepare a Negative Declaration, a Mitigated Negative Declaration, or an EIR for the project. (CEQA Guidelines, § 15063.) The lead agency makes this determination based on what is called the “fair argument” standard. (CEQA Guidelines, § 15064(f)(1).) As explained by the California Supreme Court: [S]ince the preparation of an EIR is the key to environmental protection under CEQA, accomplishment of the high objectives of hat act requires the preparation of an EIR whenever it can be fairly argued on the basis of substantial evidence that the project may have a significant environmental impact. (No Oil, Inc. v. City of Los Angeles (1975) 13 Cal.3d 68, 75.) The Supreme Court has explained that even in “close and doubtful cases,” an EIR should always be prepared to ensure “the Legislature’s objective of ensuring that environmental protection serve as the guiding criterion in agency decisions.” (Id. at 84; see also Pub. Resources Code, § 21101, subd. (d).) Many courts have stated that the “EIR is the heart of CEQA. The report . . . may be viewed as an environmental ‘alarm bell’ whose purpose it is to alert the public and its responsible officials to environmental changes before they have reached ecological points of no return.” (Citizens for Quality Growth v. City of Mount Shasta (1988) 198 Cal.App.3d 433, 438 [quoting County of Inyo v. Yorty (1973) 32 Cal.App.3d 795, 810] [emphasis added].) The CEQA Guidelines set forth the “fair argument” test used to evaluate whether an EIR is required: If the lead agency finds there is substantial evidence in the record that the project may have a significant effect on the environment, the lead agency shall prepare an EIR. Said another way, if a lead agency is presented with a fair argument that a project may have a significant effect on the environment, the lead agency shall prepare an EIR even though it may also be presented with other substantial evidence that the project will not have a significant effect. (CEQA Guidelines, § 15064(f)(1); see also Pub. Resources Code, § 21080, subd. (d) [internal citations omitted].) Accordingly, if any commenting party makes a fair argument that the proposed project’s environmental impacts “may have a significant effect on the environment,” the County must prepare an EIR, even if other substantial evidence supports the argument that adverse environmental effects will not occur. (CEQA Guidelines, § 15064(g)(1); see also Sierra Club v. County of Sonoma (1992) 6 Cal.App.4th 1307, 1316 [“[i]f there is substantial evidence of such an impact, contrary evidence is not adequate to support a decision to dispense with an EIR.”].) Here, substantial evidence supports a fair argument that an EIR is necessary: Traffic The Application provides no information regarding ingress and egress plans. This despite the fact that there will be more than fourteen staff members (per the Application) arriving at and leaving the facility daily, emergency vehicles, delivery vehicles, and visitor vehicles all entering and leaving the facility. Bullard Avenue is a highly trafficked throughfare that does not afford a realistic ingress / egress point for regular vehicle traffic. The Application offers no traffic study to provide the residents comfort that a feasible plan exists to prevent the aforementioned vehicle traffic from coming into the residential neighborhood to use Roberts Ave, Celeste Ave, Sequoia Ave or Morris Ave access to the property. These access points are already the subject of weekday school traffic and voluminous pedestrian traffic (adult and juvenile) due to the presence of Malloch Elementary. The Applicants do not take a position nor provide their view as to which ingress / egress point will be used. This is likely intentional because they must know that Bullard is not a realistic and safe option. As such, the resultant burden to the residential neighborhood will be extensive and unfair. The roads in this neighborhood already suffer greatly from the Malloch Elementary traffic and the neighbors have been in contact with the County (specifically, Supervisor Brandau’s office directed residents to Robert Jeffers for road repair updates) for years to obtain repairs to Roberts Ave, Sequoia Ave and Celeste Ave. The requested repairs have yet to commence and roads remain in disrepair. Additional vehicle traffic on these roads from the commercial use of the subject lot will further degrade these roads. The increased vehicle and truck traffic will also heighten the safety risk to residents and students, parents, and users of Malloch Elementary (this includes numerous youth sports teams that utilize the fields at Malloch on a weekly basis). A medical facility with fifty-four residents will require frequent deliveries. The intersections of Bullard and Van Ness and Bullard and Forkner are frequently the scenes of vehicular accidents. Adding another inflection point on the busy thoroughfare that Bullard Ave is constitutes a dubious proposal. Lighting The Application appears to contemplate at least six light posts to provide lighting to the extensive parking areas that will surround the three buildings. No indication is given in the Application as to how many other additional lighting sources will be constructed – but there will undoubtedly be lighting attached to the three structures that will remain on the entirety of the night given that the facility necessarily will be staffed twenty-four hours a day. The application fails to address the glare and aesthetic impact of the commercial lighting plan in a residential neighborhood, or otherwise offer any mitigation to ensure there will be no adverse impacts on the school or adjacent residential properties. Noise A commercial facility shoehorned into a residential neighborhood will necessarily generate additional noise during the entirety of its operational day – here, twenty-four hours a day. This will mean vehicle noise, emergency vehicle noise, delivery truck noise (with corresponding reverse gear warnings), and HVAC units necessary to regulate temperatures within three medical structures. The Operational Statement Suggests the Applicant Seeks to Avoid Environmental Review Under CEQA Until a Later Date Given that the City did not provide any information concerning CEQA in response to requests for records concerning the Project, it appears the City and the Applicant may seek to assert the Project is exempt from environmental review. This suspicion has been heightened because the Operational Statement submitted by the Applicant suggests that the project includes a potential subdivision, but the property will “not be subdivided until a later date.” This strongly suggests the Applicant is seeking to avoid discretionary actions for which no exemption applies to a later date—after the Project is fully built and the construction is part of the environmental baseline. Because the Applicant plainly intends to subdivide at some point in the future, the “project” as a whole admittedly includes a subdivision, which would not be exempt from CEQA. If the environmental review does not include assessment of the subdivision, this constitutes a piecemeal approach to environmental review, which is prohibited under CEQA as a failure to assess the “whole of an action.” (CEQA Guidelines, § 15378(c).) Application Materials are Insufficient The materials submitted to the City and the impacted neighbors are wholly inadequate to enable a reasoned analysis and review of the project and Application. If this is a function of the owners not wanting to invest in a thorough plan – that creates concerns that the project itself will be done on the “cheap” and degrade the character of the neighborhood. If the lack of information is due to the owners not wishing to reveal the “whole story” then this is also a problem for the residents. Again, the applicant seeks to fundamentally alter a use that has existed for more than fifty years. The neighbors should not have to carry the burden of justifying why such a proposal is unreasonable. The Application should explain why the use is necessary and reasonable. It is our position that the Application should be denied and the integrity of this residential neighborhood preserved. We wish to be notified of the Director’s final project action so as to preserve any appellate rights. Richard J. Yrulegui Carol s. Yrulegui 5745 N. Van Ness Blvd. 559-269-0925 rulege@att.net From:Dave Kroeker To:PublicCommentsPlanning Cc:Thomas Veatch Date:Wednesday, February 01, 2023 9:06:16 PM External Email: Use caution with links and attachments Planning department Permit app. P22-03146 I resided in the neighborhood at 2260 w Roberts. This area is a residential area and introducing this planned commercial medical project would substantially increase traffic. The people that use our streets to get to the school regularly speed and drive very aggressively, both parents and school employees. Bringing another project like this would only increase the traffic and bad driving. Commercial projects in Fresno today no matter where they are Herndon or Copper all attract drug dealing, robberies, and encampments like we see all over town. There would also be traffic issues on Bullard between Van Ness and Forkner. This is a residential area and needs to stay that way. Please deny this application Dave Kroeker From:Wanger, Andrew To:Thomas Veatch Subject:RE: P22-03146 RE: 2287 W. Bullard Date:Wednesday, February 01, 2023 8:35:19 PM Attachments:image001.png External Email: Use caution with links and attachments Thank you Andrew Wanger Partner | General Counsel | Clyde & Co US LLP Direct Dial: +1 415 365 9840 | Mobile: +1 415 225 7549, +1 559 222 5768 150 California Street | 15th Floor | San Francisco | CA 94111 | USA Main +1 415 365 9800 | Fax +1 415 365 9801 | www.clydeco.us From: Thomas Veatch <Thomas.Veatch@fresno.gov> Sent: Wednesday, February 1, 2023 11:59 AM To: Wanger, Andrew <Andrew.Wanger@clydeco.us> Cc: Jamee Moltini (moltini3@yahoo.com) <moltini3@yahoo.com>; Ryan Peranick <ryan@bpprecision.com>; Geoff Dervishian (ggdervishian@gmail.com) <ggdervishian@gmail.com>; Wanger, Christa L <c_councilman@hotmail.com>; Lynn Glaser (leglaser@comcast.net) <leglaser@comcast.net>; Brad Jones <bradajones44@gmail.com> Subject: RE: P22-03146 RE: 2287 W. Bullard Andrew, Some of the recipients Cc’ed did not receive the file because it was too large. The packet is available at the link below. https://cityoffresno.sharefile.com/d-s8c67e9f5ff0d4b579c1d25cab0fc290a From: Thomas Veatch Sent: Wednesday, February 01, 2023 11:37 AM To: 'Wanger, Andrew' <Andrew.Wanger@clydeco.us> Cc: Jamee Moltini (moltini3@yahoo.com) <moltini3@yahoo.com>; Ryan Peranick <ryan@bpprecision.com>; Geoff Dervishian (ggdervishian@gmail.com) <ggdervishian@gmail.com>; Wanger, Christa L <c_councilman@hotmail.com>; Lynn Glaser (leglaser@comcast.net) <leglaser@comcast.net>; Brad Jones <bradajones44@gmail.com> Subject: P22-03146 RE: 2287 W. Bullard Andrew, Attached is a packet of the exhibits including the operational statement and site plan. The application is currently still in the review process, and I don’t have any CEQA documents at this time. An environmental assessment will be included when an action is taken on the project. Feel free to contact me if you have any questions, Thomas Veatch Thomas.Veatch@fresno.gov 559 621 8076 Planner City of Fresno, Planning and Development Department 2600 Fresno Street, Room 3043 · Fresno, CA 93721 From: Wanger, Andrew <Andrew.Wanger@clydeco.us> Sent: Tuesday, January 31, 2023 6:13 PM To: Thomas Veatch <Thomas.Veatch@fresno.gov> Cc: Jamee Moltini (moltini3@yahoo.com) <moltini3@yahoo.com>; Ryan Peranick <ryan@bpprecision.com>; Geoff Dervishian (ggdervishian@gmail.com) <ggdervishian@gmail.com>; Wanger, Christa L <c_councilman@hotmail.com>; Lynn Glaser (leglaser@comcast.net) <leglaser@comcast.net>; Brad Jones <bradajones44@gmail.com> Subject: 2287 W. Bullard External Email: Use caution with links and attachments Dear Mr. Veatch: I received a notice re a CUP application for 2287 W. Bullard Ave, Fresno, CA 93711. Would it be possible for you to send to me via email: -the CUP application materials (including site plan and operational statement); -any CEQA documents re the subject property/ application. Thank you for your attention to this matter. Andrew Wanger Andrew G. Wanger Partner | U.S. General Counsel | Clyde & Co US LLP Direct Dial: +1 415 365 9840 | Mobile: +1 415 225-7549 150 California Street | 15th Floor | San Francisco | CA 94111 | USA Main +1 415 365 9800 | Fax +1 415 365 9801 | www.clydeco.us If our account details change, we will notify these to you by letter, telephone or face-to-face and never by email. This email message and any attachments may contain legally privileged and/or confidential information intended solely for the use of the individual or entity to whom it is addressed. If the reader of this message is not the intended recipient, you are hereby notified that any reading, dissemination, distribution or copying of this message or its attachments is strictly prohibited. If you have received this email message in error, please immediately notify us by telephone, fax or email and delete the message and all attachments thereto. Thank you. Clyde & Co US LLP is a Delaware limited liability law partnership affiliated with Clyde & Co LLP, a multinational partnership regulated by The Law Society of England and Wales. Disclosure: To ensure compliance with requirements imposed by the IRS in Circular 230, we inform you that any tax advice contained in this communication (including any attachment that does not explicitly state otherwise) is not intended or written to be used, and cannot be used, for the purpose of avoiding penalties under the Internal Revenue Code or promoting, marketing or recommending to another party any transaction or matter addressed herein. From:Carol Yrulegui To:Thomas Veatch Subject:Conditional Use Permit - P22-03146 Date:Thursday, February 02, 2023 8:33:16 AM External Email: Use caution with links and attachments Mr. Veatch: As a homeowner in the vicinity of this proposed project - am very concerned about the additional traffic in an intersection that already has multiple accidents Bullard/Van Ness - plus having a grammar school on the back side. Am requesting an electronic copy of this project. Please send as soon as possible - This written notice was mailed (postmarked) on 1/27/23 and was received on 1/31/23 - with a comment deadline of 1/6/23. Was this short notice done intentionally?? Thank you for your prompt response. Carol Yrulegui From:Brad Homen To:Thomas Veatch Subject:Conditional Use Permit Application No. P22-03146 Date:Thursday, February 02, 2023 8:40:48 AM External Email: Use caution with links and attachments Mr. Veatch, We live on Celeste and Sequoia, the only concern I have about this project is to make sure there is no access to this business from Sequoia or Morris Ave. Can you tell me that the only access to the business will be from Bullard Ave, and the back of the property will not have public access? Thank you, Brad & Connie Homen 2315 W Celeste From:alan davis To:Thomas Veatch Subject:2287 WEST BULLARD PROJECT COMMENTS Date:Thursday, February 02, 2023 10:15:22 AM External Email: Use caution with links and attachments I am a nearby resident located at 5740 N Woodson Ave, I am concerned with the additional congestion this would cause to the surrounding area on Bullard Ave and Morris Ave. Thank you Alan Davis Home owner From:Stephanie Krahnke To:Thomas Veatch Cc:Mike Karbassi; christa councilman Subject:Opposition to Proposed rezoning of 2287 W. Bullard Ave Date:Thursday, February 02, 2023 11:23:06 AM External Email: Use caution with links and attachments Good morning. I am writing this email in order to oppose the proposed rezoning of 2287 W. Bullard Ave into a commercial zone from a residential zone. As a member of this neighborhood who lives at 2261 W. Roberts Ave and purchased my childhood home which my family has owned since 1996, I can truthfully say that rezoning the property on Bullard would be a terrible deal for the neighborhood. The proposed plan will add multiple buildings with an estimated minimum of 26 parking spaces and will house an estimated 54 patients and minimum 14 staff based upon the information given during the neighborhood meeting. The amount of traffic from Malloch Elementary School is already increased from years prior and the proposed plan would add a likely 100+ cars per day addition to our roads which already are being used at high volume for residential streets. In addition, the facility will operate 24 hours a day and will add an increase of traffic, noise, and lighting during all hours. With terminal patients at care facilities, ambulances are called quite regularly during all hours and will be quite a nuisance in a residential neighborhood as well as a safety hazard with the amount of school traffic already using the streets. The lot on Bullard is zoned residential as this is a neighborhood for families, not businesses. There are many lots open to the developer that would not require rezoning in an established residential neighborhood that is already being used at capacity for vehicles due to the school. Also, if the lot is rezoned commercial and this business fails as many do within the first several years, we, the neighbors, have no recourse if they sell this lot to any other commercial developer who wants to put in any kind of commercial building. Again, this is an established residential zone for a reason. There are many people and especially children who walk our streets for exercise who do not need the increased danger from both traffic and constant unknown visitors coming from outside the neighborhood. We implore you, as long time residents of this neighborhood, to please deny the rezoning of this residential lot for the safety, security, and livability of our established neighborhood. Thank you, Stephanie Pardini-Krahnke 559-630-5353 Svpardini@gmail.com Resident of 2261 W. Roberts Ave Sent from my iPhone From:Art Estrada To:Thomas Veatch Subject:Re- zone of area behind Smittcamp property. Across from Malloch Elementary. We are OPPOSED! No. P22-03146. Date:Thursday, February 02, 2023 11:59:04 AM External Email: Use caution with links and attachments From:Leo Landaverde To:PublicCommentsPlanning Cc:Thomas Veatch; Sandra Garcia; Leo Landaverde Subject:Feedback on Conditional Use Permit Application No. P22-03146 Date:Friday, February 03, 2023 11:26:35 AM External Email: Use caution with links and attachments To Whom it May Concern, I recently received a letter from the Planning and Development Department from the City of Fresno alerting me of a conditional permit for a property located at 2287 West Bullard Ave, located within 1,000 feet of my residence. My wife and I STRONGLY OPPOSE this permit. We feel it would significantly increase traffic on already busy street. We live near the corner of Bullard and Van Ness Boulevard and it took 3 minutes to walk from my house to the proposed site of the permit. I am very concerned about noise pollution, added traffic, proposed construction, etc. Please consider our input and deny the permit. Please notify me of final action on the project. Please feel free to call me should you have any questions. Thank you in advance for taking our comments into consideration. Respectfully, Leo & Sandra Landaverde 559-455-8700 From:Mark B. Schuh To:PublicCommentsPlanning; Thomas Veatch Cc:Wanger, Andrew Subject:CUP Application # P22-03146 Date:Friday, February 03, 2023 4:43:17 PM External Email: Use caution with links and attachments Dear Mr. Veatch My name is Mark Schuh and my wife and I live at 5630 N. Van Ness Blvd., Fresno, CA. We have lived in our current location since 1997 and raised a family including sons at our current home. Additionally, I have lived in the general neighborhood since 1976 so I know this area, the streets, traffic patterns and neighborhood issues very, very well. With that said, the reason for my email to you is to express my strong opposition to CUP Application No. P22-03146. This proposed use simply does not belong in our single-family residential neighborhood that is facing a myriad of other issues materially impacting our quality of life, so much so, that we recently had to gather for a community meeting at Malloch Elementary School to discuss these issues with a host of public representatives. Discussed at that session were a minimum of the following concerns: public safety, homelessness, gang activity, infrastructure deterioration, an unmanned or unmaintained Oso De Oro Park and the ever-growing problem of the vacant lot on the southeast corner of Bullard and Van Ness. Adding yet another negative impact in the form of a non- conforming use stands to further devalue our residences. Most importantly, the proposed use when compared to a single-family residential use will undoubtedly increase traffic flows by and next to our neighborhood school (the aforementioned Malloch Elementary). As someone who walks or runs by the school every morning and done so for the past 25+ years, I can tell you that several times a week during peak morning drop-off time I am nearly run over by parents dropping their children. Given that several of the proposed ingress/egress points for the proposed respiratory care facility are adjacent to the school, the safety of the children attending this school will no doubt be endangered by the additional activity (whether ambulance, fire or other medical transportation) the use will generate. Mr. Veatch, I would like to implore you or any others who are involved with the decision or have a vote on this application to please spend some time at Malloch Elementary School and next to the proposed site for a school morning at approximately 8 am. I promise you that it will open your eyes as to why this proposed facility is not only ill-suited for this location but will be considered a danger to the young children attending Malloch if approved. Thank you in advance for your time and consideration. Sincerely – Mark Schuh ▪ This email may contain confidential and privileged material for the sole use of the intended recipient. Any review or distribution by others is strictly prohibited. If you are not the intended recipient, please contact the sender and delete all copies.▪Mark B. Schuh President, Cima Management Corporation Chief Financial Officer, Saladino's, Inc. P.O. Box 12266 Fresno, CA 93777-2266 559.256.4640 (office) 559.974.4640 (cell) 559.365.7028 (fax) mark_schuh@cimamanagement.com From:Jenny Lemker To:Thomas Veatch Subject:Opposition to CUP Application #22TMP-013811 Date:Saturday, February 04, 2023 11:46:48 AM External Email: Use caution with links and attachments Re: 2287 Bullard Development by Infinite Living As homeowners around the corner, we are writing to formally oppose the proposed development by Infinite Living at 2287 Bullard. The initial legal notice sent to us indicated a small residential facility, but the recent meeting with the developer told an entirely different long term story: 3 buildings, 52 residents, 26 parking spaces, plus at least 15 staff members for every shift with 2/3 egress onto small residential streets including the one way Morris Ave on which school children walk to school and wait for school buses daily. This is not in line with the character and pedestrian dignity of the neighborhood. To our knowledge there are no other commercial developments between Marks & Forkner, Herndon & Barstow. The proposal is without precedent for this area and would significantly change traffic flow and character of our neighborhood. There is no shortage of other spaces already zoned for the purpose set forth by the developer. There are no benefits to the impacted neighborhood but plenty of costs, the most salient being impacted property values and bodily danger to pedestrians including the hundreds of school children, student athletes, teachers and residents who have until now enjoyed safe pedestrian dignity in this area. We will not quietly allow this development force its way into our neighborhood. The addition to our neighborhood is unwelcome and unacceptable, and we ask that the proposal for rezoning and development be denied. Sincerely, Jennifer Lemker, CLC, ALC Erich S Lemker, MD 2217 W Roberts Ave (559) 473-9835 From:FRANCIS GLASER To:PublicCommentsPlanning; Thomas Veatch; Mike Karbassi Subject:CUP for 2287 W. Bullard Date:Saturday, February 04, 2023 7:22:58 PM Attachments:February 4.docx External Email: Use caution with links and attachments From:Jim Maxwell To:PublicCommentsPlanning Cc:Thomas Veatch Subject:Conditional Use Permit P22-03146 Date:Sunday, February 05, 2023 6:08:49 PM External Email: Use caution with links and attachments I’m writing to express my objections to the approval of Conditional Use Permit P22-03146. This application should not be approved. This parcel is immediately adjacent to a very active elementary school (Malloch). The traffic pattern of those coming and going to the elementary school is on Morris where children are dropped off and picked up directly across the of some of the proposed project’s driveways. Currently, the traffic on Morris doesn’t flow efficiently as there is too much traffic for the existing roadway which has resulted in having to limit traffic to one way, in a west to east direction. The day to day safety of these elementary school children is of the utmost priority. As a recipient of the City’s “Neighborhood Notification” we have live within the 1,000 foot boundary surrounding the above referenced project. We have lived in this neighborhood for more than 35 years. The proposed project would dramatically alter the long established character of this neighborhood. We are relying on the City to protect those who live in this neighborhood from the significant adverse influences related to this project. From:Vic K To:PublicCommentsPlanning Cc:Thomas Veatch Subject:APN: 415-033-44 Response to Proposal Date:Sunday, February 05, 2023 9:55:04 PM External Email: Use caution with links and attachments To whom this may concern: I am a resident at 2276 W. Bullard Ave, Fresno Ca. 93711 who opposes to the idea of having a nursing care facility across the street from my home. To begin, I feel a facility of this size should not be in a residential zone, because it can negatively impact the neighborhood. In addition, I believe this will increase the traffic on Bullard Ave, which already is very busy. In my opinion this will also impact the traffic in front of Malloch Elementary school when parents are dropping off and picking up their children. Also, this will increase noise levels from the ambulance vehicles, as well as medical supply vehicles and will disturb our peace. One other point I would like to make is it could negatively impact the value of the homes in the area. I understand that there are investors from bigger cities that want to grow their company, but we the locals would be the ones impacted by this facility. I grew up in NW Fresno and take great pride in our city and community and therefore I feel a facility like this should be in a commercial setting. I appreciate your time and consideration regarding my concerns on this matter. Regards, Varoujan K. Sent from Yahoo Mail on Android From:Kristine Maxwell To:PublicCommentsPlanning Cc:Thomas Veatch Subject:Application P22-03146/2287 W. Bullard Ave. Date:Monday, February 06, 2023 4:11:29 AM External Email: Use caution with links and attachments Director of Planning and Development, Please be advised that my family and myself object to the approval of application P22-03146 at 2287 W. Bullard Ave. The applicant is proposing a large 24 hour a day, 7 days a week care facility across the street from our cul de sac. This would dramatically change the residential feel of our neighborhood. We purchased our property over 35 years ago with the belief that we would always be surrounded by single family residences. I view the proposal as a large, care facility, a hospital of sorts with many non residents coming in and going out of the area. Parking, laundry, medical care supplies, food supplies, medical personnel, visitors, lighting, all required for the 'care facility'. This a far cry from a Single Family Residential environment. City of Fresno Planning and Development, please, deny this application and protect our Single Family Residential neighborhood. Thank you, Kris Maxwell From:Devon Casida To:PublicCommentsPlanning Cc:Thomas Veatch; Mike Karbassi Subject:Objection to No. P22-03146 Date:Monday, February 06, 2023 10:22:37 AM External Email: Use caution with links and attachments Dear Director of Planning and Development: My family resides at 6026 N. Van Ness Blvd, 93711. I am writing today to strongly object to the Conditional Use Permit Application currently being considered by your Department (No. P22-03146). I urge you to consider many factors that make this project a poor planning decision such as increases in traffic on an already busy street, noise pollution, light pollution, and lack of cohesiveness with the rest of the obviously well-established residential community. Above all, I urge you to consider safety. The Van Ness/ Bullard intersection is dangerous at baseline. There are frequent, severe motor vehicle accidents that necessitate ambulance, police, and fire department response. As a nurse, when I hear a crash I have to run to stabilize the crash victims until EMS arrives. I have lost track of the number of times I've had to provide emergency response myself. Approving this proposed project will increase the traffic, and thus increase the number of accidents. Additionally, I urge you to consider the lack of bicycle and pedestrian safety. There are many children who walk or bike to and from school at Malloch Elementary and Tenaya Middle School. They will all tell you harrowing incidents about almost being hit by cars, and how the Forkner/Van Ness and Bullard areas are the most dangerous. I can confidently say this as my son and I came within inches of being hit despite following all the road safety rules. Please understand that this proposed project is a bad idea for countless reasons. I urge you to deny this application immediately. If you have any questions you can call my cell phone at (559) 284-4794. Sincerely, Devon Casida 6026 N. Van Ness From:Scott Black To:PublicCommentsPlanning Cc:Thomas.veacth@fresno.gov; Andrew.Wanger@clydeco.us Subject:FW: 2287 W. Bullard Ave Date:Monday, February 06, 2023 9:36:01 AM External Email: Use caution with links and attachments Dear Director of Planning and Development Department: ?? I write to you to object to Conditional Use Permit Application No. P22-03146. ?? I reside at 2342 W. Bullard Ave ??? across the street from 2287 W. Bullard Ave.?? The proposal to alter 2287 W. Bullard from a single-family residence to a commercial medical business is an unacceptable and undesirable use of the residential lot at issue.?? This alteration to our neighborhood will open the door to any commercial business applying to build multiple structures on a residential lot in our purely residential neighborhood.?? I purchased my home because of its location and inclusion in a low-density area not next to commercial developments.?? ??To consider creating an entry / exit point for a business on this stretch of Bullard Ave is not well-planned.?? Bullard Ave is a busy street and adding vehicles that will turn off of Bullard into a business will negatively impact the flow of traffic and create a safety hazard. ?? I respectfully request that the Planning Department reject the Application and maintain the current zoning for our neighborhood. ?? I wish to be advised of the Director???s final decision and can be reached at sblack@calfund.net ?? Thank you, S. Scott Black ?? ?? S. Scott Black NMLS # 325429 ?? California Funding 700 E. Shaw Ave, Ste 101 Fresno, CA 93711 (559) 224-6200 (559) 437-1593 NMLS # 325594 ?? CONFIDENTIALITY NOTICE ?? The information contained in this email message is privileged and confidential information, and is protected under The Privacy Act of 1974 and The Gramm-Leach-Bliley Act of 2000, and is intended only for the use of the individual or entity named above. If you are not the intended recipient, you may not read, disseminate, distribute or copy this email message or any attachments. Please notify the sender immediately by reply email if you received this email message by mistake and delete this email message and any attachements from your system. ?? ?? From:alan davis To:Thomas Veatch Subject:2287 WEST BULLARD PROJECT COMMENTS Date:Thursday, February 02, 2023 10:15:22 AM External Email: Use caution with links and attachments I am a nearby resident located at 5740 N Woodson Ave, I am concerned with the additional congestion this would cause to the surrounding area on Bullard Ave and Morris Ave. Thank you Alan Davis Home owner From:Wanger, Andrew To:PublicCommentsPlanning Cc:Mike Karbassi; Thomas Veatch Subject:2287 W. Bullard letter (final) Date:Monday, February 06, 2023 11:34:04 AM Attachments:image001.png2287 W. Bullard letter (final).pdf External Email: Use caution with links and attachments Dear Planning Department: Please see attached objection letter to CUP Application P22-03146. Thank you, Andrew Wanger Andrew Wanger Partner | General Counsel | Clyde & Co US LLP Direct Dial: +1 415 365 9840 | Mobile: +1 415 225 7549, +1 559 222 5768 150 California Street | 15th Floor | San Francisco | CA 94111 | USA Main +1 415 365 9800 | Fax +1 415 365 9801 | www.clydeco.us If our account details change, we will notify these to you by letter, telephone or face-to-face and never by email. This email message and any attachments may contain legally privileged and/or confidential information intended solely for the use of the individual or entity to whom it is addressed. If the reader of this message is not the intended recipient, you are hereby notified that any reading, dissemination, distribution or copying of this message or its attachments is strictly prohibited. If you have received this email message in error, please immediately notify us by telephone, fax or email and delete the message and all attachments thereto. Thank you. Clyde & Co US LLP is a Delaware limited liability law partnership affiliated with Clyde & Co LLP, a multinational partnership regulated by The Law Society of England and Wales. Disclosure: To ensure compliance with requirements imposed by the IRS in Circular 230, we inform you that any tax advice contained in this communication (including any attachment that does not explicitly state otherwise) is not intended or written to be used, and cannot be used, for the purpose of avoiding penalties under the Internal Revenue Code or promoting, marketing or recommending to another party any transaction or matter addressed herein. From:Scott Burns To:Thomas Veatch Subject:Re: P22-03146 - exhibits packet Date:Monday, February 06, 2023 10:53:29 AM External Email: Use caution with links and attachments Thomas, Thanks for the earlier conversation and answers to my questions. You were very helpful. Will take a look at the attachments. In reading the cover letter, it references subdivision in later phases. Do you know why a subdivision is contemplated, and why the applicant did not provide subdivision proposal at this time? Would this project be processed differently if a parcel map was included? Is there a CEQA issue with segmenting a reasonably foreseeable component? Also, seems some of the project improvements we discussed would be influenced by the proposed parcel configuration. Appreciate your offer to answer further questions. Also, would appreciate being notified of decision. Mailing address is: S.E. Burns, 2140 W. Rue St. Michel, Fresno 93711. Thanks again, Scott Burns 760.914.1510 Scott.burns56@yahoo.com Sent from my iPad On Feb 6, 2023, at 10:17 AM, Thomas Veatch <Thomas.Veatch@fresno.gov> wrote:  Scott, Attached is the exhibits packet for the proposed respiratory care facility. Feel free to contact me if you have any questions, Thomas Veatch Thomas.Veatch@fresno.gov 559 621 8076 Planner City of Fresno, Planning and Development Department 2600 Fresno Street, Room 3043 · Fresno, CA 93721 <P22-03146 Exhibits packet.pdf> From:ryan@bpprecision.com To:PublicCommentsPlanning; Thomas Veatch Subject:FW: 2287 W. Bullard Ave Date:Monday, February 06, 2023 11:38:12 AM External Email: Use caution with links and attachments From: ryan@bpprecision.com <ryan@bpprecision.com> Sent: Monday, February 6, 2023 11:36 AM To: 'mailto: ' <mailto:PublicCommentsPlanning@fresno.gov> Cc: 'mailto:Thomas.veatch@fresno.gov' <mailto: > Subject: 2287 W. Bullard Ave Director of Planning and Development, I am writing this letter in regards to the subject property of 2287 W. Bullard Ave. My wife and I have been long time residents of the Malloch area with both us attending (Malloch) and now two of our three children attending that same school. We reside at 2340 W. Roberts Ave……close proximity to the subject property. We recently purchased the home and went through an extensive remodel because we loved the feel of the neighborhood…. (not to be next to a commercial operated facility/business.) I am writing this letter to OBJECT to the Conditional Use Permit Application that is currently under consideration. There is plenty of opportunity and land elsewhere throughout the City of Fresno, it does not belong in this neighborhood and nor does it fit with the landscape that has been developed over the many decades. Thank you for your time on this matter. Sincerely, Ryan & Lauren Peranick From:renea61 To:Thomas Veatch Subject:FW: Opposed: CUP Application No. P22-03146; Date:Monday, February 06, 2023 12:17:03 PM External Email: Use caution with links and attachments Sent from Samsung Galaxy smartphone. -------- Original message -------- From: renea61 <renea61@comcast.net> Date: 2/6/23 12:15 PM (GMT-08:00) To: PublicCommentsPlanning@fresno.gov Subject: Opposed: CUP Application No. P22-03146; This email is to state my opposition to CUP Application No. P22-03146. I am a resident and property owner in this specific area and will be directly impacted. I oppose on the grounds of having purchased my home in good faith the neighborhood and surrounding area would remain residential. I also oppose on the grounds of the increased traffic and noise this would bring to an already impacted area due to Malloch Elementary. I also strongly believe the safety of pedestrians and children would be impacted. Specially the children walking to and from school and attending multiple sporting events held at Malloch. Lastly, as a retired police officer, I believe this rezoning and building of the medical facility and parking lots will increase criminal activity in our neighborhood. Parking lots and commercial sites attract thefts at various levels, the homeless, etc. I do not believe this is an environment we want to create across the street from a walk-in elementary school. Respectfully, Renea Estrada 5661 N. Sequoia Ave. Fresno, CA 93711 Sent from Samsung Galaxy smartphone. From:Brent Smittcamp To:PublicCommentsPlanning Cc:Thomas Veatch; Mike Karbassi Subject:Conditional Use Permit Date:Monday, February 06, 2023 1:43:16 PM External Email: Use caution with links and attachments Dear Director of Planning and Development: My family has resided at 5811 N. Forkner, Fresno, CA 93711 for more than forty years. Our property sits to the east of 2287 W. Bullard Ave and shares a fence along our western property line. The purpose of this letter is to object to the Conditional Use Permit Application currently being considered by your Department (No. P22-03146). The proposal to modify the current use of 2287 W. Bullard from a single family residence to a three building commercial enterprise that operates full-time - 24 hours a day, 365 days a year – is wholly inconsistent with the current zoning and, more importantly, the current character of our neighborhood. While the Application materials are thin and lacking in details to afford me the opportunity to analyze noise, vehicle and human traffic, lighting, trash, and other important factors that will necessarily impact my property – the logical conclusion is that the residential character of our property and the surrounding properties will be negatively impacted. The proposed use will need to involve significant lighting for a commercial parking lot which will undoubtedly cause glare issues for my family’s residence. This lighting will need to remain on the entirety of the night given that the facility intends to operate 24 hours a day. Additionally, the traffic pattern for the property will significantly increase the flow of vehicles and trucks around my property. This will not be a desirable consequence. Bullard Ave is highly used thoroughfare and the idea that staff or delivery vehicles will be able to regularly enter the business from Bullard is not logical or feasible. The alternative solution then becomes increasing daily traffic around Malloch Elementary – and introducing vehicles that may not be familiar with the student population and less careful than a neighbor or parent is when driving around a school populated with their children. My family purchased our home with the intent of joining a residential neighborhood and becoming part of the fabric of a vibrant, safe and family-based community. My father made significant improvements to our five acre lot. The concept of wedging a full-time business next door to our residence will surely devalue our property and negatively impact our enjoyment and use of the property. Accordingly, I strongly encourage you to reject the Application and listen to the community that has resided around 2287 W. Bullard for decades. I wish to be notified of the Director’s final action and can be reached at: brent@smittcampag.com. Thank you for your consideration of this objection to the CUP Application. Brent Smittcamp President – Smittcamp Ag Enterprises From:LeeAnn Kipp To:PublicCommentsPlanning Cc:Thomas Veatch; karbassi@fresno.gov Subject:Objection to CUP Application #P22-031 46 Date:Monday, February 06, 2023 1:58:15 PM External Email: Use caution with links and attachments Good afternoon, My husband Larry Kipp and I live at 2351 W. Celeste Avenue, Fresno, California. We purchased our home in 1997 and have enjoyed the quiet, peaceful family neighborhood the area has offered. I am emailing you to submit my official objection to CUP Application No. P22-031 46. I believe approval of the application will negatively impact our neighborhood in the following ways: *Increased traffic - traffic surrounding Malloch Elementary is already congested. Adding additional vehicles will make matters worse *Street maintenance - the streets surrounding the area are already in poor condition. The increased traffic will cause further damage *Safety - increased traffic and numerous employees coming and going will increase safety issues *Noise - increased traffic and day to day running of the facility (day and night) will add unnecessary noise to a quiet neighborhood *Lights - the facility will need exterior lighting for it's safety, and thus negatively impact our neighborhood *Re-zoning / Multiple structures - residents of this neighborhood intentionally purchased in a "residential zone" and do not wish it changed to a "commercial / business zone" due to the many negative results of doing so Please note that I wish to be notified of the final project action. Thank you. LeeAnn (Leonore) Kipp 559-974-4472 Larry (Lawrence) Kipp 559-974-4473 From:Shari Rainwater To:PublicCommentsPlanning; Thomas Veatch; Mike Karbassi Subject:CUP No. P22-031-46 Date:Monday, February 06, 2023 2:21:30 PM External Email: Use caution with links and attachments I write on behalf of myself and my husband Greg Rainwater in objection to the planned respiratory facility at 2267 W. Bullard. We reside directly across the street at 6045 N Sequoia Ave. When I spoke to Mr. Andrade he described a small 15 bed care facility however what is proposed is a major medical facility that will include "acute care services". This facility will be a 24/7 operation that must include numerous staff, visitors, delivery trucks: food, laundry, various medical supplies, pharmacy, repair, transport, ambulances, lights etc.. This area of Bullard Ave is residential, with many people walking, jogging and biking in the area. Bullard Ave has become a busy road and a large commercial facility would be a detriment to the neighborhood and a safety hazard. Respectfully, Shari Rainwater 559-250-7927 From:Monica Swanson To:publicommentsplanning@fresno.gov Cc:Thomas Veatch; Mike Karbassi Subject:Opposition to Proposed Rezoning of 2287 W. Bullard Ave Date:Monday, February 06, 2023 2:39:52 PM External Email: Use caution with links and attachments To Whom it May Concern: I am writing to you in light of the Neighborhood Notification we received (CUP Application No. P22- 03146), as we reside within 1,000 feet of this proposal. We purchased our home in 2017, at 6075 N. Sequoia Avenue, to raise our family because it is located in a residential zone, not a commercial zone. The adverse effects of this rezoning does not end with the obvious increased traffic, resulting commotion from emergency vehicles, and glaring lights. The student body of Malloch Elementary will undoubtedly be subjected to a vastly increased level of harm. The roadway is already compromised and will only worsen with the addition of a commercial facility impinging on a long established elementary school. We strongly oppose the rezoning of 2287 W. Bullard Avenue. We urge you to consider the negative impact of this decision to permit this illegitimate rezoning. Please consider how you would feel if this was your home, children, and school and find another location more suitable and less damaging to the residents who have built their livelihood in this area. Sincerely, Monica Swanson Sent from Mail for Windows From:Mark Topoozian To:PublicCommentsPlanning Subject:CUP#P22-04146 Date:Monday, February 06, 2023 3:01:35 PM External Email: Use caution with links and attachments I live at 5775 N Van Ness about 500 feet from the proposed project. I OBJECT TO THIS BECAUSE I feel it is not consistent with the residential make up of the area and will be a safety and traffic headache. The corner of Van Ness/Bullard is an accident prone intersection already and this project if allowed will greatly add to more accidents. Please do not allow this type of use in the area. Mark Topoozian From:Kit Burden To:thomas.veatch@fresno.com Cc:Mike Karbassi; PublicCommentsPlanning Subject:Opposition to Proposed rezoning of 2287 W. Bullard Ave Date:Monday, February 06, 2023 2:33:17 PM External Email: Use caution with links and attachments To whom it may concern, I am writing concerning the proposed rezoning of 2287 W. Bullard Ave from a residential zone to a commercial zone. We have lived for 40 years on North Sequoia Drive, a cul-de-sac that opens onto Bullard Ave. and would be directly across from this proposed facility. As it is, exiting our street at certain times of the day can be precarious. I can only imagine how difficult it would be if there was a medical facililty on the other side. I walk down Bullard avenue every day in order to reach surrounding neighborhoods. This is a residential area. Adding the traffic of the proposed plan would be destructive and dangerous for pedestrians. Thank you for taking into account the residential neighborhoods surrounding this project. Cathleen and Jim Burden 6060 N Sequoia From:Elizabeth Helon To:PublicCommentsPlanning Cc:Thomas Veatch; Mike Karbassi Subject:2287 W. Bullard - Objection to CUP Application Date:Monday, February 06, 2023 3:10:00 PM Attachments:2287 W. Bullard Avenue_Helon Family.pdf External Email: Use caution with links and attachments Hello - please see my attached letter opposing the 2287 W. Bullard Ave., Fresno CA 93711 CUP application. Please let me know if any other information is needed. I would like to be notified of the Director's final decision. Thank you, Elizabeth Helon elizrandall@gmail.com From:Carol Yrulegui To:PublicCommentsPlanning Cc:Thomas Veatch Subject:CUP Application P22-03146 Date:Monday, February 06, 2023 3:15:47 PM Attachments:zoning letter.docx External Email: Use caution with links and attachments Please see attached letter referencing above application From:Bohlander, Tara To:PublicCommentsPlanning Cc:Schneider, David Subject:CUP Application P22-03146 / 2287 W. Bullard Ave Date:Monday, February 06, 2023 3:08:12 PM Attachments:0.png1.png2.png3.png1737_001.pdf External Email: Use caution with links and attachments Good afternoon, Attached please find correspondence of this date from Mr. Schneider. Sincerely, Tara Bohlander Tara L. Bohlander Legal Administrative Assistant 8080 North Palm Avenue, Third Floor, Fresno, CA 93711 T: 559.446.3208 | F: 559.432.4590 tbohlander@fennemorelaw.com Legal Administrative Assistant to: Leigh W. Burnside, Jared C. Marshall, David D. Schneider CONFIDENTIALITY NOTICE: The information contained in this message may be protected by the attorney-client privilege. If you believe that it has been sent to you in error, do not read it. Please immediately reply to the sender that you have received the message in error. Then delete it. Thank you. From:Oliver XEzenwugo To:PublicCommentsPlanning Cc:healthnetwork@netzero.net Subject:2287 W. Bullard - Objection to CUP Application Date:Monday, February 06, 2023 3:44:40 PM External Email: Use caution with links and attachments Hello, I hope that this e-mail finds you in good spirit, I am writing to express my concerns as well as my objections to the CUP Application No. P22-03146. I live on 6040 N. Sequoia Drive, Fresno, Ca. 93711.....quite close to the property/location in question. My objection to CUP Application No. P22-03146 is multifaceted; First and foremost, I believe that chances are that this applicant probably does not live in the Fresno Metropolitan Area otherwise, he or she will know the History of this neighborhood from many, many years ago....thus will not contemplate opening a commercial entity at this addressor location. My second objection to this application is the safety concern for our school children in the neighborhood, because opening up this project will increase the traffic in the neighborhood. At issue also is the fact that this proposed commercial business in a residential neighborhood will be 3 buildings on a single lot. As the traffic will be increased the traffic will be during the day and night hours including the emergency teams (EMT) and the enforcement officials, 911 responders, who will have the sirens and it can disturb the sleep of individuals living in the neighborhood, considering the said I submit my objections asking the City seriously consider this application and not to approve this CUP. Please at your earliest priority....if you were to drive by the address in question, you will immediately notice the peace and tranquility that is about to be disrupted and your decision will be swift, especially if you were to be living in the neighborhood as well.....please every great day starts with the night before and that is all we are asking for, and to everyone in the Panel....."this above all else, and to thy known selves, please be true". Thank you. Best, Dr. Oliver Ezenwugo CC. PublicCommentsPlanning@fresno.gov CC. Thomas.veatch@fresno.gov CC. Mike.karbassi@fresno.gov From:Mark Topoozian To:Thomas Veatch Subject:CUP#P22-04146 Date:Monday, February 06, 2023 4:03:53 PM External Email: Use caution with links and attachments I live at 5775 N Van Ness about 500 feet from the proposed project. I OBJECT TO THIS BECAUSE I feel it is not consistent with the residential make up of the area and will be a safety and traffic headache. The corner of Van Ness/Bullard is an accident prone intersection already and this project if allowed will greatly add to more accidents. Please do not allow this type of use in the area. Mark Topoozian From:Jordan Esraelian To:PublicCommentsPlanning; Mike Karbassi; Thomas Veatch Subject:2287 w Bullard Date:Monday, February 06, 2023 4:09:24 PM External Email: Use caution with links and attachments Jordan esraelian Teacher at Malloch Elementary Objection to the 2287 w. Bullard Adding three buildings to this neighborhood will create more traffic and therefore create safety issues for the students attending Malloch Elementary. From:Seth Mehrten To:PublicCommentsPlanning Cc:Thomas Veatch; Mike Karbassi; Kara Mehrten Subject:CUP Application No. P22-03146 - 2287 West Bullard Avenue Date:Monday, February 06, 2023 4:28:37 PM External Email: Use caution with links and attachments Dear Director of Planning and Development: The purpose of this e-mail is to formally object to Conditional Use Permit Application No. P22-03146. My family and I reside at 2573 West Calimyrna Avenue, which is within a half-mile of 2287 West Bullard Avenue, Fresno, California 93711, and have been notified of this application. We strongly object to this application because we believe the proposed project would fundamentally alter the current/zoned residential use. A significant reason that we purchased our home was because it was located in a neighborhood that is insulated from the noise, traffic, density, and lighting that is associated with commercial buildings and higher density areas. The proposed plan would significantly change the quiet, residential nature of this area. For these reasons, we object to this application and proposed project. -- Seth Mehrten 559.906.9387 From:William Podolsky, MD To:monica_swanson@msn.com; ckristinemaxwell@hotmail.com; jimburden44@gmail.com;jim@agrilandfarming.com; healthnetwork@netzero.net; slrainwater1@aol.com; kitburden@hotmail.com;PublicCommentsPlanning; Thomas Veatch; Mike Karbassi; andrew.wanger@clydeco.us; karensan@aol.com Subject:Re: 2287 W. Bullard - objection to CUP application Date:Monday, February 06, 2023 4:37:32 PM External Email: Use caution with links and attachments Dear planning department/council: My wife Karen and I live at 6072 North Sequoia Avenue, entering Sequoia off Bullard across from a proposed subacute care facility,CUP Application No. P22-03146. This facility would be intermediate between a nursing home and a hospital, not a "residential facility" in the usual sense of the word. It would be a complete change from the residential zoning and would add traffic (possibly also noise and lights) to an area of homes and an elementary school. There would not be a safe way to enter/exit from westbound traffic. We request that you do not approve this facility or zoning change. William Podolsky, MD (phone 559-940-2455) If our account details change, we will notify these to you by letter, telephone or face-to-face and never by email. This email message and any attachments may contain legally privileged and/or confidential information intended solely for the use of the individual or entity to whom it is addressed. If the reader of this message is not the intended recipient, you are hereby notified that any reading, dissemination, distribution or copying of this message or its attachments is strictly prohibited. If you have received this email message in error, please immediately notify us by telephone, fax or email and delete the message and all attachments thereto. Thank you. Clyde & Co US LLP is a Delaware limited liability law partnership affiliated with Clyde & Co LLP, a multinational partnership regulated by The Law Society of England and Wales. Disclosure: To ensure compliance with requirements imposed by the IRS in Circular 230, we inform you that any tax advice contained in this communication (including any attachment that does not explicitly state otherwise) is not intended or written to be used, and cannot be used, for the purpose of avoiding penalties under the Internal Revenue Code or promoting, marketing or recommending to another party any transaction or matter addressed herein. From:Josh Clarke To:PublicCommentsPlanning; Thomas Veatch; Mike Karbassi Subject:objection to CUP Application No. P22-03146 Date:Monday, February 06, 2023 4:51:43 PM External Email: Use caution with links and attachments To whom it may concern, I’m writing to declare my objection to objection to CUP Application No. P22-03146. I am a homeowner at the following address which is about 1/4 mile away from the property listed in the application. 2581 W Calimyrna Fresno, CA. 93711 I have many concerns with the proposed project but chiefly the increased traffic and safety issues that will impact Malloch elementary school. This area already has congestion during schools days and this project will only exacerbate it. I’m also concerned with panting a business in the middle of a residential neighborhood. Neighbors of this business will have to deal with increased noise, lighting, and traffic that they shouldn’t need to be exposed to at their homes. Thank you for your time, Josh Clarke Sent from my iPhone From:PublicCommentsPlanning To:Thomas Veatch Subject:FW: Reason to commercial on Bullard Date:Monday, February 06, 2023 5:04:57 PM FYI From: Saib Salem <saibsalem@yahoo.com> Sent: Monday, February 06, 2023 4:54 PM To: PublicCommentsPlanning <PublicCommentsPlanning@fresno.gov> Subject: Reason to commercial on Bullard External Email: Use caution with links and attachments Hello My name is Saib Salem. I reside at 6044 N. Van Ness Blvd. in Fresno. I would like to voice my concern in regards to the new commercial building that is adjacent to our neighborhood. I completely oppose this rezone this will bring in so much traffic so much siren so many people in one area it takes away from the character of the area to have such a thing around Just put yourself in my spot and you’ll know exactly what I’m talking about. You don’t want things like that around your kids when they go out and walk when they’re playing with their friends a commercial building does not belong in a residential neighborhood , very well established neighborhood to say the least . Saib salem 559-307-2220 6044 N. Van Ness Blvd. Fresno, CA 93711 From:PublicCommentsPlanning To:Thomas Veatch Subject:FW: CUP Application P-22-03146/2287 Date:Monday, February 06, 2023 5:05:26 PM FYI -----Original Message----- From: Jamee Moltini <moltini3@yahoo.com> Sent: Monday, February 06, 2023 5:05 PM To: PublicCommentsPlanning <PublicCommentsPlanning@fresno.gov> Cc: thomasveatch@fresno.gov Subject: CUP Application P-22-03146/2287 External Email: Use caution with links and attachments Dear Mr Veatch My name is Jamee Moltini and I live at 2331 W Roberts Ave and my parents, Jim and Terran Ashjian live at 5560 N Forkner. I will not go into a long dissertation as to why we do not agree with the proposed project at 2287 W Bullard and why we feel this is not the neighborhood for it. As we know you are well aware of the surrounding neighbors concerns and we do not need to reiterate. However, please know that we are in full agreement that this project would have such a negative impact on this neighborhood and surrounding neighborhoods. We strongly believe that if you spent any time over here during school and park hours you would agree with our concerns. I thank you in advance for your time and consideration. Kindly, Jamee Moltini Sent from my iPhone From:Dave Kroeker To:Thomas Veatch Date:Monday, February 06, 2023 5:17:04 PM External Email: Use caution with links and attachments Dear Thomas Please oppose the 2287 W Bullard ave CUP P22-03146 project. This is not in keeping with this residential area. We do not need more traffic on our street. I am a co signer of the letter sent by Andrew Wanger Thank you Dave Kroeker 2260 W Roberts ave From:PublicCommentsPlanning To:Thomas Veatch Subject:FW: Date:Tuesday, February 07, 2023 7:09:49 AM FYI From: Dave Kroeker <davekroeker@ymail.com> Sent: Monday, February 06, 2023 5:12 PM To: PublicCommentsPlanning <PublicCommentsPlanning@fresno.gov> Subject: External Email: Use caution with links and attachments To the planning department Regarding 2287 w Bullard p22-03146 I live on the street Roberts ave This proposed project is not in the communities best interest It is not a normal home, it will increase traffic and additional blight to the neighborhood. I am a co signer to the letter written by Andrew Wanger Thank you Dave Kroeker 2260 w roberts ave From:Bohlander, Tara To:brent@smittcampag.com; Thomas Veatch; Mike Karbassi Subject:CUP Application P22-03146 / 2287 W. Bullard Ave Date:Tuesday, February 07, 2023 9:57:53 AM Attachments:0.png1.png2.png3.png1737_001.pdf External Email: Use caution with links and attachments Good morning, Attached please find correspondence from Mr. Schneider to The City of Fresno. Sincerely, Tara Bohlander Tara L. Bohlander Legal Administrative Assistant 8080 North Palm Avenue, Third Floor, Fresno, CA 93711 T: 559.446.3208 | F: 559.432.4590 tbohlander@fennemorelaw.com Legal Administrative Assistant to: Leigh W. Burnside, Jared C. Marshall, David D. Schneider CONFIDENTIALITY NOTICE: The information contained in this message may be protected by the attorney-client privilege. If you believe that it has been sent to you in error, do not read it. Please immediately reply to the sender that you have received the message in error. Then delete it. Thank you. From: Bohlander, Tara Sent: Monday, February 6, 2023 3:08 PM To: PublicCommentsPlanning@fresno.gov Cc: Schneider, David <DSCHNEIDER@fennemorelaw.com> Subject: CUP Application P22-03146 / 2287 W. Bullard Ave Good afternoon, Attached please find correspondence of this date from Mr. Schneider. Sincerely, Tara Bohlander From:Chelsey Juarez To:PublicCommentsPlanning; Thomas Veatch; Mike Karbassi Cc:Wanger, Andrew Subject:CUP Application No. P22-03146 Date:Thursday, February 23, 2023 8:46:12 PM External Email: Use caution with links and attachments Mr. Karabassi, I live at 2216 W Roberts Ave. Fresno 93711. On 2/23/23 I attended a meeting held at Mallock Elementary School by Mr. Jason Andrade, President of Infinite Living regarding the proposed CUP application No. P22-03146. There were approximately 30 members of the neighborhood present at this meeting. I can confidently say after attending the meeting that the concerns of the neighbors were not allayed by Mr. Andrade or his team. I am vehemently opposed to this permit and to this facility. This meeting made it even more clear that the VanNess extension neighborhood is not the appropriate place for this facility. I again urge you and your fellow. council members to vote NO on this permit and prevent this facility from moving any further. Best, Dr. Chelsey Juarez -- Dr. Chelsey Juarez Associate Professor of Anthropology Department of Anthropology California State University Fresno The Fresno State campus sits in the midst of the San Joaquin Valley, a valley rich in the traditions and representation of Native American peoples and cultures. We are grateful to be in the traditional homelands of the Yokuts and Mono peoples, whose diverse tribal communities share stewardship over this land. From:Carol Yrulegui To:PublicCommentsPlanning Cc:Thomas Veatch Subject:CUP application P22-03146 Date:Saturday, February 25, 2023 12:20:18 PM Attachments:Application P22-03146 #2.doc External Email: Use caution with links and attachments As residents in a neighborhood to be impacted by the above CUP application - please see attached follow-up letter opposing this application Febrauary 24, 2023 City of Fresno Planning and development department PublicCommentsPlanning@fresno.gov Re: Conditional Use Permit (CUP) Application P22-03146 Dear Director of Planning: This is a follow up communication regarding the above CUP application. This is also being sent following a neighborhood meeting ( February 23, 2023) with the business applying for this permit. Although the developers of this business indicated that the purpose of the meeting was to address all concerns and questions about their proposed project – It was disappointing to learn that they weren’t there to “Listen.” The reality is that none of the neighbor’s concerns were satisfied. This was not surprising, as the mood of all attendees was that the project as presented was not appropriate for the area. Neither side agreed with the other. The primary issues are traffic and the safety of the children, parents and teachers. The size of this project – up to 50 beds - begs to have an Environmental Impact Report. (EIR). When it was suggested by the neighbors to have an EIR, it was refused by the developers saying it wasn’t needed. Unless an EIR is done – there can be no possible way the Planning Commission can make an informed decision. A thorough and non- biased EIR needs to be done to independently assess these issues, as this has not yet been done by the developers. \ Although this type of medical facility may very well be an asset and in the best interest to the community - the location is NOT because of the high volume traffic – both cars and people - in the area. As it stands today – we are against the project as currently presented with a 50 bed medical facility. We respectively encourage the Planning Commission to decline this permit as presented. We wish to be notified of the Commission’s and City Council’s final action so as to preserve any appellate rights. Richard Yrulegui rulege@att.net Carol Yrulegui cyrulegui@att.net. CITY OF FRESNO PLANNING AND DEVELOPMENT DEPARTMENT NEIGHBORHOOD NOTIFICATION Please Note: You are receiving this notice because you live within 1,000 feet of a property that has requested a special permit for a use described below. For this type of permit, the Fresno Municipal Code (FMC) requires that the City give notice to surrounding property owners to give you the opportunity to express concerns or appeal the permit. Further information is provided below. If you have no concerns regarding the permit, no response is needed. NOTICE IS HEREBY GIVEN that the Planning and Development Department Director, in accordance with Common Procedures of the FMC, Section 15-5007, will take action on the applications below: Application Type and Number: Conditional Use Permit Application No. P22-03146 Applicant: Cesar Rodriguez of CR Consulting Group on behalf of Jason Andrade of Infinite Living Location: 2287 West Bullard Avenue; Located on the south side of West Bullard Avenue, between North Van Ness Boulevard and North Forkner Avenue. APN: 415-033-44 Application Description: Conditional Use Permit Application No. P22-03146 proposes the adaptive reuse of an existing residence to be used as a new residential respiratory care facility to be constructed in two (2) phases. Phase I proposes to remodel and expand the existing ±3,310 square-foot home from to ±4,500 square feet. Phase II proposes to build two (2) new buildings with a combined area of ±9,011 square feet. The facility will provide acute care services, skilled nursing care, and complex respiratory care to on-site residents. Additional on and off-site improvements are proposed, including but not limited to four (4) drive approaches, parking, landscaping, curbs, gutters, and sidewalks. Zone District: RS-2/EQ(Residential Single Family, Very Low Density/Equine Overlay) Comment Deadline: February 6, 2023 at 5:00 p.m. The purpose of this notice, at this time, is only to solicit public input and provide members of the public with the opportunity to communicate comments or concerns for consideration prior to the Director making a final determination for project action. In the event you wish to provide comments for consideration, you may do so by written letter sent via post mail to the address below or via written email to PublicCommentsPlanning@fresno.gov (cc thomas.veatch@fresno.gov). Comments must include the person's interest in, or relationship to, the subject property and specific reason(s) why the person believes the project should or should not be approved. ANY WRITTEN comments, concerns, or requests for notification of final project action must be submitted to this office prior to the close of business on: February 6, 2023 If you wish to be notified of the Director’s final action in order to be provided an opportunity to formally appeal said action, you must specify in your written comments that you wish to be notified of the final project action. If no written request for notification of final project action is included in the written comments, you will not be notified of the Director's final action, and no further communication or notice will be sent. Once the Director takes final action, there will be a 15-day appeal period. Unless otherwise specified in governing state or federal law, all formal appeals shall be filed with the Director in writing within 15 days of the date of the Director's final project action, decision, CEQA determination, motion, or resolution from which the final action is taken. Failure to object to the Director's final action and/or state said reasons prior to the decision shall potentially bar any later court challenge to the project approval. All documents related to this project are available for public review at the Planning and Development Department at the address listed below. Electronic copies may be requested by contacting the Planner at the number listed below. Documents are available for viewing at City Hall during normal business hours (Monday-Friday, 8 a.m.-5 p.m.) by appointment only. Please contact the Planner listed below via email or phone to request electronic copies or schedule an appointment to view documents. For additional information regarding this project, contact Thomas Veatch, Planning and Development Department, by telephone at (559) 621-8076 or via email at Thomas.Veatch@fresno.gov. Si necesita información en Español, comuníquese con Enrique Aponte al teléfono (559) 621-8046. PLANNING AND DEVELOPMENT DEPARTMENT Jennifer K. Clark, AICP, HDFP, Director Dated: January 27, 2023 Thomas Veatch PLANNING AND DEVELOPMENT DEPARTMENT 2600 FRESNO STREET, ROOM 3043 FRESNO CA 93721 THIS IS A LEGAL NOTICE 2287 West Bullard Avenue CUP No. P22-03146 VICINITY MAP Planning and Development Department 2600 Fresno Street, Room 3043 · Fresno, CA 93721 · Phone (559) 621-8277 Legend Subject property: Exhibit H – Public Hearing Notice & Noticing Map CITY OF FRESNO PLANNING AND DEVELOPMENT DEPARTMENT NOTICE OF PUBLIC HEARING ON THE APPLICATION LISTED BELOW NOTICE IS HEREBY GIVEN that the Fresno City Planning Commission, in accordance with Sections 65090 and 65091 (Planning and Zoning Law) of the Government Code and in accordance with the procedures of Article 50, Chapter 15, of the Fresno Municipal Code (FMC), will conduct a public hearing to consider the items below which pertain to approximately ±1.38 acres of property located on the south side of West Bullard Avenue, between North Van Ness Boulevard and North Forkner Avenue. 1.Environmental Assessment No. P22-03146, dated July 19, 2023, recommending (to City Council) a determination of Categorical Exemption under Section 15332/Class 32 of the California Environmental Quality Act (CEQA) Guidelines; and, 2.Conditional Use Permit No. P22-03146: Staff recommends the Planning Commission DENY the appeal and UPHOLD the action of the Planning and Development Department Director to approve Conditional Use Permit Application No. P22-03146, authorizing the adaptive reuse of an existing residence to be used as a new residential respiratory care facility (congregate living health facility), subject to compliance with the Conditions of Approval dated June 2, 2023. Any interested person may also participate electronically during the public hearing to speak in favor or against the project proposal, by either Zoom meeting or telephone with instructions provided on the Planning Commission Agenda, and present written testimony at least 24 hours in advance, via an eComment or by email to PublicCommentsPlanning@fresno.gov (cc thomas.veatch@fresno.gov). All documents submitted to the Planning Commission for its consideration prior to or at the hearing shall be submitted to the Planning Commission at least 24 hours prior to the Commission agenda item being heard, pursuant to the Planning Commission rules and procedures, or they may be excluded from the administrative record of proceedings. If you challenge the above application(s) in court, you may be limited to raising only those issues, you, or someone else, raised at the public hearing described in this notice, or in written correspondence delivered to the Development Services Division of the Planning and Development Department and/or Planning Commission/City Council at, or prior to, the public hearing. The environmental determination shall be considered by the City Council pursuant to FMC Section 15-5005-I. NOTE: This public hearing notice is being mailed to surrounding property owners within 1,000 feet of the project site pursuant to the requirements of FMC Section 15-5007. All documents related to this project are available for public review at the Planning and Development Department at the address listed below or electronic copies may be requested by contacting the Planner at the number listed below. Documents are available for viewing at City Hall during normal business hours (Monday-Friday, 8 a.m.-5 p.m.) by appointment only. Please contact the Planner listed below via e-mail or by phone to request electronic copies or schedule an appointment to view documents. For additional information regarding this project, contact Thomas Veatch, Planning and Development Department, Development Services Division, by telephone at (559) 621-8076, or via e-mail at thomas.veatch@fresno.gov. Si necesita información en Español, comuníquese con Jose Valenzuela e al teléfono (559) 621-8076. Jennifer K. Clark, AICP, HDFP, Director Planning and Development Department Dated: July 7, 2023 Assessor’s Parcel No: 415-033-44 SEE MAP ON REVERSE SIDE Planning and Development Department 2600 Fresno Street, Room 3043 · Fresno, CA 93721 · Phone (559) 621-8277 FRESNO CITY PLANNING COMMISSION Date/Time: Wednesday, July 19th at 6:00 p.m., or thereafter Place: City Hall Council Chamber, 2nd Floor, 2600 Fresno Street, Fresno, CA 93721; or, watch the live broadcast via the Zoom link located on the Planning Commission agenda found here: https://fresno.l egistar.com/Calendar.aspx Thomas Veatch PLANNING AND DEVELOPMENT DEPARTMENT 2600 FRESNO STREET, ROOM 3043 FRESNO, CA 93721-3604 THIS IS A LEGAL NOTICE REGARDING 2287 West Bullard Avenue P22-03146 VICINITY MAP Planning and Development Department 2600 Fresno Street, Room 3043 · Fresno, CA 93721 · Phone (559) 621-8277 Legend Subject property: Exhibit I – Environmental Assessment No. P22-03146, dated July 19, 2023 CITY OF FRESNO CATEGORICAL EXEMPTION ENVIRONMENTAL ASSESSMENT FOR PLANNED DEVELOPMENT & DEVELOPMENT PERMIT APPLICATION NO. P22-03146 THE PROJECT DESCRIBED HEREIN IS DETERMINED TO BE CATEGORICALLY EXEMPT FROM THE PREPARATION OF ENVIRONMENTAL DOCUMENTS PURSUANT TO ARTICLE 19 OF THE STATE CEQA GUIDELINES. APPLICANT: Cesar Rodriguez CR Consulting Group Inc. 2615 Tuolumne Street Fresno, CA 93721 PROJECT LOCATION: 2287 West Bullard Avenue; Located on the south side of West Bullard Avenue, between North Van Ness Boulevard and North Forkner Avenue (APN: 415-033-44). PROJECT DESCRIPTION: Conditional Use Permit Application No. P22-03146 proposes the adaptive reuse of an existing single family residence located on ±1.5 acres to be used as a new residential respiratory care facility (Congregate Living Health Facility). The project is to be completed in two (2) phases. Phase I proposes to remodel and expand the existing ±3,310 square-foot residential structure to ±4,500 square feet. The remodel will include modifications and improvements to the existing building facade and interior space to accommodate a total of nine (9) bedrooms, nurse’s stations, administrative office, and restrooms. On-site parking and landscaping will also be provided as part of Phase I. Future Phase II proposes to build two (2) new buildings with a combined area of ±9,011 square feet which will also be utilized as residential respiratory care facilities. The facility will provide acute care services, skilled nursing care, and complex respiratory care to on-site residents on a 24-hour a day basis. Supportive care, therapy services, social and recreational activities, medication management, and dietary management will also be provided. A future voluntary subdivision is identified to separate the subject property into three separate parcels, each comprised of one of the proposed buildings to be utilized as a CLHF. This project is exempt under Section 15332/Class 32 of the California Environmental Quality Act (CEQA) Guidelines. Section 15332/Class 32 (Class 32/In-Fill Development Projects) of the CEQA Guidelines exempts from the provisions of CEQA, projects characterized as in-fill development, which meet the following conditions: a) The project is consistent with the applicable general plan designation and all applicable general plan policies as well as with applicable zoning designation and regulations. The existing RS-2/EQ (Residential Single Family, Very Low Density/Equine Overlay) zone district is consistent with the Low Density Residential planned land use designation approved for this site by the Fresno General Plan, Bullard Community Plan, and the Fresno County Airport Land Use Compatibility Plan. The proposed Congregate Living Health Facility (CLHF), as defined by Cal. Health and Safety §1250(i), is consistent with the Use Classification of a Residential Care Facility, as defined by Fresno Municipal Code (FMC) §15-6702. Per §15-6702, a Residential Care Facility is defined as “facilities that are licensed by the State of California to provide permanent living accommodations and 24-hour primarily non-medical care and supervision for persons in need of personal services, supervision, protection, or assistance for sustaining the activities of daily living. Living accommodations are shared living quarters with or without separate kitchen or bathroom facilities for each room or unit. This classification includes facilities that are operated for profit as well as those operated by public or not-for-profit institutions, including hospices, nursing homes, convalescent facilities, and group homes for minors, persons with disabilities, and people in recovery from alcohol or drug addictions.” While the Residential Care Facility classification may state that services provided are “primarily non-medical care,” by definition, a CLHF can provide a range of other services such as “supportive care, pharmacy, dietary, social or recreational” needs; “services for persons who are mentally alert; persons with physical disabilities, who may be ventilator dependent;” “services for persons who have a diagnosis of terminal illness;” or “services for persons who are catastrophically and severely disabled.” (FMC §15-6702; Cal. Health & Safety Code §1250(i)(1), (i)(2)(A) & (B) & (C).) Additionally, pursuant to Cal. Health & Safety Code §1250(i)(5) a CLHF is explicitly required to be located in “a non-institutional, homelike environment.” While not applicable to the proposed project, if the facility served “six or fewer persons,” it would be considered a ”residential use of the property.” (Cal. Health & Safety Code §1267.16(a).) As demonstrated by FMC §15-902, Residential Single Family (RS) zone districts permit a range a uses beyond the exclusive use of single family homes. These uses include but are not limited to: small adult day cares, small domestic violence shelters, small family day cares, small group residential, community and religious assembly facilities less than 2,000 square feet, and parks and recreation facilities, schools and limited residential care facilities, which are permitted by right. (FMC §15-902.) Large adult family day cares, large family day cares, community and religious assembly larger than 2,000 square feet, public safety facilities, and general residential care facilities, are permitted subject to conditional use permit approval. (FMC §15-902). The proposed use here is a Residential Care Facility (General), and is thus permitted subject to approval of a conditional use permit. The proposed development was reviewed for intensity, building form, massing, and location standards. No inconsistencies were found with the proposed setbacks, landscape standards, intensity, height, or lot coverage. Building design, window design, materials, and finishes all conform to the standards of the RS-2 (Residential Single-family, low density residential) zone district. Given the Conditions of Approval issued for the project dated June 2, 2023, the proposed project will meet all the provisions of the FMC and all applicable design guidelines and development standards for Residential Singly Family Districts, including, but not limited to, FMC Secs. 15-903 (Density and Massing), 15-904 (Site Design Development Standards), and 15-905 (Façade Design). Additional applicable regulations include, but are not limited to: §15-2006 (Fences, Walls, and Hedges), §15-2007 (Walls for noise attenuation), §15-2008 (Screening between differing land uses), §15-2015 (Outdoor Lighting and Illumination), §15-2409 (Required Parking), and Ch. 15. Art. 25 (Performance Standards). Therefore, it can be concluded that the development is consistent with the objectives and policies of the base zone district and with the purpose of the regulations. Further, per FMC Section 15- 104(A)(1), the development code applies “to the extent permitted by State and Federal law, to all private property” within the City. Cal. Health and Safety Code §1267.16(c) states that a “facility of more than six beds for persons who are terminally ill and any congregate living health facility of more than six beds for persons who are catastrophically and severely disabled shall be subject to the conditional use permit requirements of the city or county in which it is located.” As discussed above, the proposed project has been evaluated to be consistent with FMC Ch. 15, Art. 53 (Conditional Use Permits) of the FMC. b) The proposed development occurs within city limits on a project site of no more than five acres substantially surrounded by urban uses. The proposed project is located within the city limits, occurs on a vacant project site of approximately ±1.38 acres, which is less than the five-acre maximum, and is surrounded by residential and public institutional zoned uses. Existing single-family homes are located to the north and east, and an elementary school is located to the south and west. c) The project has no value as habitat for endangered, rare or threatened species. The project site contains previously disturbed land and is currently vacant. The Fresno Program Environmental Impact Report (PEIR) did not identify this site as habitat for rare or threatened species. Surrounding developments consists of existing commercial and residential development. Therefore, it has no value as habitat for endangered, rare, or threatened species. d) Approval of the project would not result in any significant effects relating to traffic, noise, air quality, or water quality. The proposed project was routed to the San Joaquin Air Pollution Control District, the city of Fresno Public Utilities Department-Water Division, City of Fresno Department of Public Works, and Fresno Metropolitan Flood Control District, and no significant effects were identified relating to traffic, noise, air quality, or water quality. Traffic Senate Bill (SB) 743 requires that relevant CEQA analysis of transportation impacts be conducted using a metric known as vehicle miles traveled (VMT) instead of Level of Service (LOS). VMT measures how much actual auto travel (additional miles driven) a proposed project would create on California roads. If the project adds excessive car travel onto our roads, the project may cause a significant transportation impact. The State CEQA Guidelines were amended to implement SB 743, by adding Section 15064.3. Among its provisions, Section 15064.3 confirms that, except with respect to transportation projects, a project’s effect on automobile delay shall not constitute a significant environmental impact. Therefore, LOS measures of impacts on traffic facilities is no longer a relevant CEQA criteria for transportation impacts. CEQA Guidelines Section 15064.3(b)(4) states that “[a] lead agency has discretion to choose the most appropriate methodology to evaluate a project’s vehicle miles traveled, including whether to express the change in absolute terms, per capita, per household or in any other measure. A lead agency may use models to estimate a project’s vehicle miles traveled and may revise those estimates to reflect professional judgment based on substantial evidence. Any assumptions used to estimate used to estimate vehicle miles traveled and any revision to model outputs should be documented and explained in the environmental document prepared for the project. The standard of adequacy in Section 15151 shall apply to the analysis described in this section.” On June 25, 2020, the City of Fresno adopted CEQA Guidelines for Vehicle Miles Traveled Thresholds, dated June 25, 2020, pursuant to Senate Bill 743 to be effective of July 1, 2020. The thresholds described therein are referred to herein as the City of Fresno VMT Thresholds. The City of Fresno VMT Thresholds document was prepared and adopted consistent with the requirements of CEQA Guidelines Sections 15064.3 and 15064.7. The December 2018 Technical Advisory on Evaluating Transportation Impacts in CEQA (Technical Advisory) published by the Governor’s Office of Planning and Research (OPR), was utilized as a reference and guidance document in the preparation of the Fresno VMT Thresholds. The City of Fresno VMT Thresholds adopted a screening standard and criteria that can be used to screen out qualified projects that meet the adopted criteria from needing to prepare a detailed VMT analysis. The City of Fresno VMT Thresholds Section 3.0 regarding Project Screening discusses a variety of projects that may be screened out of a VMT analysis including specific development and transportation projects. For development projects, conditions may exist that would presume that a development project has a less than significant impact. These may be size, location, proximity to transit, or trip‐making potential. For transportation projects, the primary attribute to consider with transportation projects is the potential to increase vehicle travel, sometimes referred to as “induced travel.” The projected Trip Generation Analysis for a congregate care facility based on operational data for the proposed project consists of 7 total daily passenger car trips, 0 AM peak hour trips and 1 PM peak hour trip. The ITE Trip Generation Manual calculates congregate care facility trips based on the number of dwelling units, which was based on each of the three buildings counted as an individual dwelling unit. The proposed project includes 18 beds per building, which are divided between shared rooms and not individual units. A more conservative estimate was provided by calculating trips for an assisted living facility which is calculated based on the number of beds the facility provides, which is 18 beds per building, 54 beds in total. This calculation estimated 140 total daily passenger car trips, 10 AM peak hour trips and 13 PM peak hour trips. Therefore, a Traffic Impact Study was not required by the City as no peak hour trips exceeded 200, and the project does not include a General Plan Amendment or Rezone. The proposed project is eligible to screen out because the project meets the criteria described in the adopted guidelines of generating less than 500 Average Daily Trips (ADT). A trip generation report provided by JBL Traffic Engineering, Inc on March 6, 2023 states the project will include only 140 ADT. Therefore, as per the City’s VMT Guidelines, the project will not have a significant VMT impact. For informational purposes, per ITE Trip generation estimates, a congregate care facility would need to exceed 247 dwelling units, or an assisted living facility include more than 187 beds, to exceed 500 Average Daily Trips per VMT. In conclusion, the Project will result in a less than significant VMT impact and is consistent with CEQA Guidelines Section 15064.3(b). Noise The project is a residential care facility. The project will occur on a vacant ±1.28 acre project site. Existing single-family homes are located to the north and east of the project site. The property west of the project is vacant. Malloch Elementary School is located to the south on the opposite side of West Morris Avenue. The Fresno General Plan, Fresno Program Environmental Impact Report (PEIR) and Municipal Code were reviewed to determine if proposed projects could produce a significant increase in ambient noise levels. Section 15-2506 (Noise) of the FMC establishes a 65 dB Ldn criterion within outdoor activity areas of residential or medical care facility uses. Existing noise levels in the project vicinity are dominated by traffic noise along adjacent major street roadways. West Bullard Avenue is designated as a four-lane arterial. The Future (year 2035) Vehicle Noise Contours for West Bullard Avenue are represented in Figure NS-3 of the Fresno General Plan, and identify the expected noise levels in CNEL (Community Noise Equivalent Level - a weighted average of noise level over time.) at specific distances away from specific roadways. Per Appendix I of the PEIR, a 4 Lane arterial is assumed to generate traffic noise at 70 CNEL at 64.2 feet, 65 CNEL at 130.6 feet, 60 CNEL at 277.5 feet, and 55 CNEL at 596 feet from the centerline of the road. The edge of the proposed building is 85 feet from the centerline of the road. Generally, the outdoor areas of the project that fall within the 65-70 db CNEL area is limited to parking areas, which is reasonable to expect noise from transportation noise sources. The proposed project will not increase the volume or types of vehicle trips projected for Herndon beyond that which was analyzed in the General Plan and MEIR for future vehicle noise based upon General Plan buildout. Therefore, given that the proposed project will not introduce traffic or vehicle trips not previously anticipated, staff has determined that the proposed project will not result in any significant mobile or transportation-related noise impacts. The proposed project will not involve activities which would be anticipated to result in major noise-generating stationary uses which would impinge on existing noise-sensitive uses within the project area in excess of ambient plus 5 dB. Finally, there are no known state or federal standards that specifically address construction noise or vibration. As set forth by FMC Sec. 10-109 – Exceptions, the provisions of Article 1 (Noise Regulations) of the FMC “shall not apply to: (a) construction, repair, or remodeling work accomplished pursuant to a building, electrical, plumbing, mechanical, or other construction permit issued by the city or other governmental agency, or to site preparation and grading, provided such work takes place between the hours of 7:00 a.m. and 10:00 p.m. on any day except Sunday.” Thus, although development activities associated with buildout of the subject area could potentially result in a temporary or periodic increase in ambient noise levels in the project vicinity, construction activity would be exempt from the City of Fresno noise regulations, as long as such activity is conducted pursuant to an applicable construction permit and occurs between 7:00 a.m. and 10:00 p.m., excluding Sunday. Therefore, the short-term construction impacts associated with the exposure of persons to the generation of noise levels in excess of standards established in the local general plan or noise ordinance or applicable standards of other agencies would not result in any significant effects. Air Quality The project is conditioned to comply with any applicable regulations and conditions from the San Joaquin Valley Air Pollution Control District and the project is subject to review by the agency in regards to air quality during construction and operation. The SJVAPCD provided formal comments stating the project is not expected to exceed any significance thresholds identified in the Districts Guidance for Assessing and Mitigating Air Quality Impacts guidelines. The project is required to comply with any applicable Air District regulation or policy in regard to construction and operation of the project. The project will be required to submit an Authority To Construct application with the air district, and may be required to submit a construction notification from and/or dust control plan prior to commencing any earthmoving activities. Therefore, analysis of this project shows it will not have a significant effect on air quality. Water Quality Fresno Metropolitan Flood Control District (FMFCD) provided comments on December 12, 2022, which stated that drainage should be directed to Bullard or Morris Avenues, construction of storm drainage or flood control master plan facilities are not required, permanent drainage service is available, and the project is not located in a flood prone area. On-site grading will be reviewed by the City of Fresno Building Division and FMCD for compliance with storm water conveyance and pollution prevention. The applicant will be required to comply with all requirements of the City of Fresno Department of Public Utilities that will reduce the projects water impacts to less than significant. When Development Permits are issued the subject site will be required to pay drainage fees pursuant to the Drainage Fee Ordinance. established by FMC Chapter 12, Article 19. Therefore, compliance with conditions of approval dated June 2, 2023 will ensure that the proposed project will not result in any significant effects related to traffic, noise, air, quality, and water quality. e)The site can be adequately served by all required utilities and public services. The project has been reviewed and conditioned by the Fresno Irrigation District, Fresno Metropolitan Flood Control District, City of Fresno Public Works, City of Fresno Public Utilities, and the City of Fresno Fire Departments, which were included in the Conditions of Approval for the project dated June 2, 2023. In addition, given the surrounding properties and neighborhoods have been substantially developed and utilities and public services already exist in the area, the site can be adequately served by all required utilities, including sewer, water, and solid waste, as well as public services. None of the Exceptions to Categorical Exemptions set forth in the CEQA Guidelines, Section 15300.2 apply to the project. Furthermore, the proposed project is not expected to have a significant effect on the environment. The proposed project is not located on a hazardous waste site, a historical resource, or adjacent to a scenic highway. A categorical exemption, as noted above, has been prepared for the project and the area is not environmentally sensitive. Date: July 19, 2023 Prepared By: Thomas Veatch Planner Submitted by: Thomas Veatch Planner City of Fresno Planning & Development Department (559) 621-8076 Exhibit J – Additional Studies (Trip Generation Analysis, Cultural Resource Survey) www.JLBtraffic.com 516 W Shaw Ave., Ste. 103 Fresno, CA 93704 Page | 1 info@JLBtraffic.com (559) 570-8991 March 6, 2023 Andrade Company Jason Andrade. President 360 W Bedford Avenue, Suite 103 Fresno, CA 93711 Subject: Bullard Infinite Living Project Trip Generation Analysis (JLB Project 004-187) Dear Mr. Andrade, JLB Traffic Engineering, Inc. (JLB) has completed a Trip Generation Analysis (TGA) for the Bullard Infinite Living Project located in the City of Fresno. Based on information provided to JLB, the Project proposes to expand an existing residential home to a congregate facility and build two new congregate care facilities. The address of the Project is 2287 West Bullard Avenue in the City of Fresno and is located in the southeast quadrant of Bullard Avenue and Van Ness Boulevard. Per information provided to JLB, the proposed Project is consistent with the City of Fresno General Plan Land Use designation. The purpose of this TGA is to evaluate the potential trip generation of the proposed Project. Project Description The Project proposes to expand an existing 3,310 square foot residential home to a 4,500 square foot congregate care facility and build two new congregate care facilities with a total square footage of 9,011. The combined total square footage of the three facilities is 13,511. Based on information provided to JLB, the Project will operate as a congregate care facility. For the purpose of estimating trip generation, the Institute of Transportation Engineers (ITE) land use Congregate Care Facility and dwelling units will be used for the activities that will take place. Additionally, JLB has included the ITE land use Assisted Living and number of beds to provide a conservate estimate of the trip generation of the Project. The project proposes to hold a capacity of 54 beds within 3 dwelling units. An aerial of the Project Vicinity and Project Site Plan are shown in Exhibits A and B, respectively. Project Trip Generation The trip generation rates for the proposed Project site were obtained from the 11th Edition of the Trip Generation Manual published by the Institute of Transportation Engineers (ITE). Table I presents the total trip generation for the Project site with trip generation rates for Congregate Care Facility. Per the ITE Trip Generation Manual, the proposed Project is estimated to generate approximately 7 daily, 0 AM peak hour and 1 PM peak hour driveway trips. www.JLBtraffic.com 516 W Shaw Ave., Ste. 103 Fresno, CA 93704 Page | 2 info@JLBtraffic.com (559) 570-8991 Jason Andrade Bullard Infinite Living Trip Generation Analysis March 6, 2023 Table I: Project Trip Generation – Congregate Care Facility Notes: d.u. = Dwelling Unit Table II presents the total trip generation for the Project site with trip generation rates for Assisted Living. Per the ITE Trip Generation Manual, the proposed Project is estimated to generate approximately 140 daily, 10 AM peak hour and 13 PM peak hour driveway trips. Table II: Project Trip Generation – Assisted Living Conclusions Conclusions and recommendations regarding the proposed Project are provided below: • The new Project site as a Congregate Care Facility is estimated to generate approximately 7 daily, 0 AM peak and 1 PM peak hour driveway trips. • Conservatively, the new Project site as an Assisted Care Facility is estimated to generate approximately 140 daily, 10 AM peak hour and 13 PM peak hour driveway trips. • Each land use results in a daily trip generation considerably less than 500 daily trips. • The proposed Project is consistent with the City of Fresno General Plan. • Since the Project is consistent with the City of Fresno General Plan and is projected to generate 500 or less daily trips, the Project should be screened out from a Vehicle Miles Traveled (VMT) analysis. If you have any questions or require additional information, please contact me via phone at (559) 570- 8991, or via email at jbenavides@jlbtraffic.com. Sincerely, Jose Luis Benavides, P.E., T.E. President Z:\01 Projects\004 Fresno\004-187 Bullard Infinite Living TGA\04 Letter\L03062023 Bullard Infinite Living TGA.docx Land Use (ITE Code) Size Unit Daily AM (7-9) Peak Hour PM (4-6) Peak Hour Rate Total Trip Rate In Out In Out Total Trip Rate In Out In Out Total % % Congregate Care Facility (253) 3 d.u. 2.21 7 0.08 58 42 0 0 0 0.18 49 51 0 1 1 Total Project Driveway Trips 7 0 0 0 0 1 1 Land Use (ITE Code) Size Unit Daily AM (7-9) Peak Hour PM (4-6) Peak Hour Rate Total Trip Rate In Out In Out Total Trip Rate In Out In Out Total % % Assisted Living (254) 54 Beds 2.60 140 0.18 60 40 6 4 10 0.24 39 61 5 8 13 Total Project Driveway Trips 140 6 4 10 5 8 13 www.JLBtraffic.com 516 W Shaw Ave., Ste. 103 Fresno, CA 93704 Page | 3 info@JLBtraffic.com (559) 570-8991 Jason Andrade Bullard Infinite Living Trip Generation Analysis March 6, 2023 Exhibit A: Vicinity Map www.JLBtraffic.com 516 W Shaw Ave., Ste. 103 Fresno, CA 93704 Page | 4 info@JLBtraffic.com (559) 570-8991 Jason Andrade Bullard Infinite Living Trip Generation Analysis March 6, 2023 Exhibit B: Project Site Plan HISTORIC PROPERTY SURVEY FOR THE PROPOSED CONGREGATE LIFE HEALTH FACILITY PROJECT 2287 WEST BULLARD AVENUE (APN 415-033-44) FRESNO, FRESNO COUNTY, CALIFORNIA Submitted To: Mr. Jason Andrade President California Retail Builders, Inc. 360 West Bedford, Suite 103 Fresno, California 93711 Submitted By: Jon L. Brady, M.A. J&R Environmental Services 17900 Auberry Road Clovis, CA 93619 February 2023 Approximately 1.13 Acres USGS Fresno North, California, 7.5' Quadrangle Section 7, T13S R20E, Mount Diablo Base Meridian Historic Property Survey for the CLHF Project, 2287 W. Bullard Avenue (APN 415-033-44), Fresno, Fresno County, California i J&R Environmental Services EXECUTIVE SUMMARY On February 3, 2023, an architectural survey was performed within the parcel boundaries of Assessor Parcel Number (APN) 415-033-44 located at 2287 West Bullard Avenue in the city of Fresno, California. The owner of the property, 2287 Bullard, Inc., doing business as Infinite Living, proposes to convert a 3,310 square foot residential home into an approximately 5,000 square foot Congregate Life Health Facility (CLHF), which is in northwest Fresno, California. Remodeling and new construction will be undertaken by California Retail Builders, Inc., located in Fresno, California. The project is further described as being in a portion of Section 7, Township 13 South, Range 20 East, Mount Diablo Base & Meridian (M.D.B.&M) (USGS Fresno South 7.5 Quadrangle, 2021). The Project Area Limits is bounded on the north by West Bullard Avenue, APN 415-033-34T to the south, APN 415-033-47 to the east, and APN 415-033-45 to the west. The property site on approximately 1.29 acres and is currently zoned R2 in which a CLHF license is permitted under this zoning with a Conditional Use Permit (CUP). California Retail Builders, Inc., submitted the site plan to the City of Fresno. The site plan is in the City of Fresno’s Design Site Review (DSR) with an application number of 22TMP-013811. The property will consist of two phases and will not be subdivided. The first phase will consist of an existing house which lies north side of the property and will be remodeled and expanded. Regarding the infrastructure for the entire property, this will all be done in the first phase as well due to the ingress and egress on the property (entrance and exits and traffic flow). The second phase will consist of new construction of two houses just south of the existing house and any leftover infrastructure that was not done during the first phase. To comply with the California Environmental Quality Act (CEQA) as well as the City of Fresno Code of Ordinances, the City of Fresno is required to determine if the proposed project will have a significant impact on important historical resources. This report documents the efforts to identify and evaluate historic-era resources that fulfills California Environmental Quality Act (CEQA) requirements that mandate public agencies determine whether a project will have a significant impact on important historical resources. A substantial adverse change in the significant qualities of a historical resource is considered a significant impact. As defined by CEQA, in part, a “historical resource” is a resource listed in, or determined to be eligible for listing in, the California Register of Historical Resources (CRHR) [14 California Code of Regulations (CCR) 15064.5 (a)(3)]. This report also meets the City of Fresno Code of Ordinances Article 16, Section 12-1602 compliance for the aforementioned project. J&R Environmental Services Historic Property Survey for the CLHF Project, 2287 W. Bullard Avenue (APN 415-033-44), Fresno, Fresno County, California ii No further built environment investigations are recommended for the current project unless project plans are altered to include areas not covered by this study. If there are any ground disturbing activities planned for future projects at this location, an archaeological investigation may be required. J&R Environmental Services Historic Property Survey for the CLHF Project, 2287 W. Bullard Avenue (APN 415-033-44), Fresno, Fresno County, California iii TABLE OF CONTENTS Executive Summary ............................................................................................................. i Table of Contents .............................................................................................................. iii 1.0 Introduction ............................................................................................................. 1 1.1 Project Description .......................................................................................................... 1 2.0 Regulatory Context ................................................................................................. 3 2.1 California Environmental Quality Act ........................................................................ 3 2.2 City of Fresno Historic Preservation Ordinance ....................................................... 4 3.0 Historical Context .................................................................................................... 4 3.1 Development of Fresno ................................................................................................. 4 3.2 Expansion of Fresno North of Divisadero Avenue .................................................. 7 3.3 Project-Specific History ................................................................................................... 9 4.0 Research Methods ................................................................................................ 11 4.1 Records Search .............................................................................................................. 11 4.2 Historical Research ........................................................................................................ 11 4.3 Field Methodology ........................................................................................................ 11 5.0 Results and Findings .............................................................................................. 12 5.1 Records Search .............................................................................................................. 12 5.2 Architectural Survey ...................................................................................................... 12 5.2.1 Site Evaluation .............................................................................................................. 12 6.0 Conclusions and Recommendations .................................................................. 12 Appendix A: Qualifications of Preparers ...................................................................... 16 Appendix B: Record Search ........................................................................................... 17 Appendix C: DPR Forms 523A & 523B ........................................................................... 21 LIST OF FIGURES Figure 1. Project Location ................................................................................................................ 2 Figure 2. Project Area Location ....................................................................................................... 3 Figure 3. Artist's Rendering of Building in 1968 ........................................................................ 10 J&R Environmental Services Historic Property Survey for the CLHF Project, 2287 1 W. Bullard Avenue (APN 415-033-44) Fresno, Fresno County, California 1.0 INTRODUCTION This report presents the findings of an architectural survey of the Proposed Congregate Life Health Facility Project located at 2287 West Bullard Avenue (APN] 415-033-44), Fresno, Fresno County, California within Township 13 South, Range 20 East, Section 7, M.D.B.&M.; see Figures 1 and 2. The City of Fresno has requested that California Retail Builders, Inc., have an architectural historian, who meets the Secretary of the Interior’s Professional Qualifications, conduct an architectural survey for the property at 2287 West Bullard Avenue, Fresno, Fresno County, California. At the behest of the City of Fresno, with California Retail Builders, Inc., J&R Environmental Services located in Clovis, California to complete the historic property survey. This report documents the efforts to identify and evaluate historic-era resources to fulfill CEQA requirements that mandate public agencies determine whether a project will have a significant impact on important historical resources. A substantial adverse change in the significant qualities of a historical resource is considered a significant impact. As defined by CEQA, in part, a “historical resource” is a resource listed in, or determined to be eligible for listing in, the California Register of Historical Resources (CRHR) [14 California Code of Regulations (CCR) 15064.5 (a)(3)]. The City of Fresno Historic Preservation Ordinance (Fresno Municipal Code, Chapter 13, Article 4) provides addition guidelines that the owner of the property within the PAL must address. Jon L. Brady, architectural historian, from J&R Environmental Services conducted an architectural survey of the PAL on February 3, 2023. Photographic documentation was performed on the same day. No significant cultural resources (historic resources) were identified as the result of the architectural survey and formal evaluation of the project ‘s PAL (Figure 2). 1.1 PROJECT DESCRIPTION The owner of the property, 2287 Bullard, Inc., doing business as Infinite Living proposes to convert a vacant residence property into a 5,000 square-foot CLFH. The proposal includes converting a 3,310 square foot residential home into an approximately 5,000 square foot Congregate Life Health Facility (CLHF), which is in northwest Fresno, California. Remodeling and new construction will be undertaken by California Retail Builders, Inc., located in Fresno, California. The PAL for this project is limited to a parcel located at 2287 West Bullard Avenue (APN 415-033-44), in the city of Fresno, Fresno County, California in Township 13 South, Range 20 East, Section 7, M.D.B. & M, as shown on the Fresno North 7.5 Minute topographic quadrangle (USGS 2021) (Figure 1). J&R Environmental Services Historic Property Survey for the CLHF Project, 2287 2 W. Bullard Avenue (APN 415-033-44) Fresno, Fresno County, California Figure 1. Project Location (U.S.G. S. Fresno North 7.5 Minute Quadrangle). Project Location J&R Environmental Services Historic Property Survey for the CLHF Project, 2287 3 W. Bullard Avenue (APN 415-033-44) Fresno, Fresno County, California Figure 2. Project Area Limits – 2287 West Bullard, Fresno, California. 2.0 REGULATORY CONTEXT 2.1 CALIFORNIA ENVIRONMENTAL QUALITY ACT CEQA requires consideration of project impacts on archaeological or historical sites deemed to be "historical resources." Under CEQA, a substantial adverse change in the significant qualities of a historical resource is considered a significant effect on the environment. For the purposes of CEQA, a "historical resource" is a resource listed in, or determined to be eligible for listing in, the California Register of Historical Resources (Title 14 CCR §15064.5[a][1]-[3]). Historical resources may include, but are not limited to, "any object, building, site, area, place, record, or manuscript which is historically or archaeologically significant, or is significant in the Project PAL J&R Environmental Services Historic Property Survey for the CLHF Project, 2287 4 W. Bullard Avenue (APN 415-033-44) Fresno, Fresno County, California architectural, engineering, scientific, economic, agricultural, educational, social, political, military, or cultural annals of California" (PRC §5020.1[j]). The eligibility criteria for the California Register are the definitive criteria for assessing the significance of historical resources for the purposes of CEQA (Office of Historic Preservation n.d.). Generally, a resource is considered "historically significant" if it meets one or more of the following criteria for listing on the California Register: (1) Is associated with events that have made a significant contribution to the broad patterns of California's history and cultural heritage. (2) Is associated with the lives of persons important in our past. (3) Embodies the distinctive characteristics of a type, period, region, or method of construction, or represents the work of an important creative individual, or possesses high artistic values. (4) Has yielded, or may be likely to yield, information important in prehistory or history. (PRC §5024.1[c]) 2.2 CITY OF FRESNO HISTORIC PRESERVATION ORDINANCE The City of Fresno Historic Preservation Ordinance (Fresno Municipal Code, Chapter 13, Article 4) established a Historic Preservation Commission and a Local Register of Historic Resources. Any building, structure, object, or site may be designated as a historical resource and listed on the Local Register if the Historic Preservation Commission and the City Council find that the resource is more than 50 years old; possesses integrity of location, design, setting, materials, workmanship, feeling, and association; and meets at least one of the following criteria: i. It is associated with events that have made a significant contribution to the broad patterns of our history; or ii. It is associated with the lives of persons significant in our past; or iii. It embodies the distinctive characteristics of a type, period, or method of construction, or represents the work of a master, or possesses high artistic values; or iv. It has yielded or may be likely to yield information important in prehistory or history. (Fresno Municipal Code, Chapter 13, Article 4). 3.0 HISTORICAL CONTEXT 3.1 DEVELOPMENT OF FRESNO In 1856, Fresno County was formed from portions of Mariposa, Merced, and Tulare counties, with the town of Millerton designated as the first seat of government. By 1874, the seat had moved to the more centrally located city of Fresno, located adjacent to the recently completed Central Pacific Railroad tracks (Brady 1985:6; Carter nd:5). J&R Environmental Services Historic Property Survey for the CLHF Project, 2287 5 W. Bullard Avenue (APN 415-033-44) Fresno, Fresno County, California The city of Fresno was founded under the conditions discussed below. The Central Pacific Railroad, having completed the western segment of the transcontinental railroad, decided to connect the northern part of California with Los Angeles (Eaton 1965: ix). The railroad line was planned to traverse Fresno County, with its principal stop being located at Sycamore (now Herndon) on the San Joaquin River. Construction crews commenced work on the rail line in Sacramento on December 31, 1869. During an inspection tour in November 1871, several officials of the Central Pacific Railroad (including its director, Leland Stanford), visited the 2,000- acre A.Y. Easterby ranch east of Fresno’s eventual site (Clough and Secrest 1984:121). Upon seeing the fields of “gently-waving green grain,” Stanford exclaimed “Wonderful! Here we must build the town” (Eaton 1965). The site was in the “Sinks of Dry Creek” the lowest spot between the San Joaquin and Kings rivers (Clough and Secrest 1984:121; Eaton 1965). Shortly after Stanford’s visit to Easterby’s ranch, the Contract and Finance Company (the Central Pacific’s real estate subsidiary) purchased 4,480 acres of land from the so-called German Syndicate of San Francisco to which Easterby belonged. This group of real estate speculators, in which German-born members predominated, had previously purchased 80,000 acres of undeveloped central California land from William S. Chapman (Eaton 1965: ix; Clough and Secrest 1984:121). By the spring of 1873, track had been laid as far as the new Fresno town site. In April 1873, further additions there included sidetracks and a turning table. Over the course of the next month, the town site was first surveyed by Edward H. Mix. It was divided into “302- by 400-foot blocks, with 25- by 150-foot lots and twenty-foot alleys” (Eaton 1965; Clough and Secrest 1984:121). The cost of individual lots depended on their proximity to the embryonic civic center and the railroad tracks – ranged from $60 to $250. Within two years the city boasted of having “four general stores, two fruit stores, one drugstore, three hotels, two restaurants, six saloons, two law offices, two physicians, one tinsmith, one saddle shop, two butcher shops, three blacksmiths one tailor, the Expositor [newspaper], and twenty-five private residences” (Clough and Secrest 1984:122). As the community grew in stature and increased population, calls for changing the county seat from Millerton to Fresno were being made. Eventually, a petition for this purpose was submitted to the Fresno County Board of Supervisors, calling for a special election to address this issue. On March 23, 1874, with the special election completed, Fresno emerged as the winner, and became the new county seat. The growth of the community was enhanced when Fresno became the center of the raisin industry during the 1880s. Other important local crops during that time included peaches, nectarines, apricots, figs, and almonds. This rapid growth was made possible by a system of irrigation canals that brought water from the Kings River to the plains around Fresno (Brady and Hattersley-Drayton 2003:7). J&R Environmental Services Historic Property Survey for the CLHF Project, 2287 6 W. Bullard Avenue (APN 415-033-44) Fresno, Fresno County, California Although the city’s population had grown from only1,112 in 1880 to 3,464 in 1885, and despite not having a “…police force, sewer system or truly efficient fire department, and cattle were still roaming the dusty streets that became winter lakes” (Clough and Secrest 1984:141), the city incorporated in 1885. Incorporation allowed the city government to collect property taxes and other municipal assessments. Additional revenues contributed to the progress made by 1885, as it was said that in that year “…street grades and town lot numbers were established, and four years later the first street paving was accomplished” (Clough and Secrest 1984:319). Fresno’s economy was booming in 1887, and this was tied to several events. First, the development of Fresno was directly linked to the presence of the railroad. Irrigation canals were slowly being constructed and extending water to the surrounding areas of “the new county seat.” Almost as important was the development of farm colonization enterprises by outside capital in the early 1880s. Added to this was the unusual marketing of Fresno “…as no other locality had been, and people had their eyes opened to the interior ‘cow country’ wonder” (Vandor 1919:359). Thus, when 1887 rolled around, the boom was hailed as a “matter of fact” (Relatively inexpensive land and low startup costs played a role in this). Real estate transactions during the year reflected the upward spiraling economy. During the month of April alone, the county recorder reported 375 deed transactions totaling more than one million dollars. In 1919, local historian Paul Vandor (363) noted that in June alone “…302 deeds were recorded and fifty-two June 25 representing $141,235 with fourteen nominals swelling the total to estimated $200,000.” Over 1,100 deeds were filed with the Fresno County Recorder in November 1887, and the last 70 original Central Pacific’s town site holdings were purchased by Jefferson Guy Rhodes in August 1887 (Vandor 1919:366). Land sales beyond the city limits, especially north of present-day Divisadero Avenue, were spawned by the need to expand both residential and commercial areas. With Fresno’s economy still in high gear, new buildings continued to be erected. On Mariposa Street in 1889 alone, the cost of construction amounted to close to one million dollars. The Fresno Morning Republican noted that it was hard for any business to fail during this period (Clough and Secrest 1884). By 1890, the city population was estimated at just under 10,890, and the county had a population of approximately 31,158 (Vandor 1919:360 cited in Brady and Hattersley-Drayton 2003:7). Prior to this boom period in Fresno, most of the property within a five-block radius of Mariposa and J Street (later, Fulton) was selling for a nominal $62.50, but if one wanted a corner lot, the price was $125.00. Vandor (1919:358) notes that land prices shot up “…during the boom times in 1887, and in 1911 within a radius of five miles they ranged from $150 to $200 and as high as $300 for a pair.” J&R Environmental Services Historic Property Survey for the CLHF Project, 2287 7 W. Bullard Avenue (APN 415-033-44) Fresno, Fresno County, California With growth of the downtown area, both commercial and residential buildings could be found along K (later, Van Ness) Street, between Tulare and Inyo streets. More outlying residential areas, such as those along O Street, were still in relatively rural settings (Brady and Hattersley-Drayton 2003:7). Wealth achieved through land speculation in the Fresno area allowed prominent individuals, such as county officeholder and pioneer William Faymonville, to build a fine house at K Street and Stanislaus Avenue; the house eventually became the residence of C.S. Pierce, a gentleman who made his fortune in the local lumber industry. S.N. Griffith, notable land speculator and real estate dealer, built another palatial residence at Voorman and San Pablo (Vandor 1919:358). As properties were selling at a premium with the city limits, additional land for both commercial and residential development was being annexed by the city. The Woodward Addition, located at the southern end of the community, was the first to be annexed by the city in 1887; however, growth potential appeared to be directed to the north and west of the city limits (Vandor 1919:361). The first major addition to Fresno’s city limits was the Villa Homestead Tract, platted by W.H. McKenzie in 1880. The tract encompassed an area bounded by Blackstone, Divisadero, First and Belmont avenues (Thompson 1891; Fresno County 1880). It would be further subdivided over the next few decades; some of the subdivisions included the Altamont Addition of 1888, the Monroe Addition, the Villa Addition, and the Hadbell Addition, just to name a few. The expansion of the city, especially during the 1880s, necessitated the creation of a municipal transportation system. The introduction of a trolley system linking the downtown area with the new subdivisions provided that link. 3.2 EXPANSION OF FRESNO NORTH OF DIVISADERO AVENUE The expansion of the city north from the economic hub of Fresno – the downtown area – necessitated the creation of a municipal transportation system. The introduction of this new system in the 1880s made living north of the downtown area more attractive. In 1887 several horse-drawn trolley car franchises were awarded contracts by the City of Fresno to extend their services “from the railroad depot through the commercial district and from there into the surrounding and growing residential areas” (Hamm 1979:13; Guard 1909, 1911, and1913; and Progressive Map Services 1920, 1935). Some of the early franchises failed in 1887, but over the next couple of years new lines were established. Thomas E. Hughes was one of the latest to lay out a “…line from the depot, along Tulare Street to I, thence to Ventura Street and eastward to the Fair grounds.” A second line ran from the depot up to Mariposa Street to K Street then up to Tulare Street to its terminus (Winchell 1933:148). Perhaps the most important trolley line during the 1880s was the Fresno, Belmont, and Yosemite J&R Environmental Services Historic Property Survey for the CLHF Project, 2287 8 W. Bullard Avenue (APN 415-033-44) Fresno, Fresno County, California Railroad that began at the Southern Pacific Railroad depot and ran along Mariposa Street to J Street (later, Fulton) and then north along J Street to the City limits at Sylvia Street (later Divisadero Avenue). At Tuolumne Street the line split, proceeding along O Street where it turned into Blackstone Avenue, which at the time was only a country road. The line terminated at Belmont Avenue where the system’s car barns and stables were located (Winchell 1933:148). Fresno’s population continued to grow during the latter 1800s and early 1900s and with it a demand for more streetcar service. In 1902 the Forthcamp streetcar line commenced. It was one of three routes developed by the Fresno City Railway. The other two routes extended east toward Sunnyside area and the other extended as far as Recreation. All three routes were single track lines and efforts were made to expand service through double tracking systems. However, the Forthcamp line appeared to be the priority as work commenced on double tracks in 1909. The area along the Forthcamp line (present-day Fulton Avenue) between Belmont and Olive avenues was widened to accommodate the expanded street service. Another double track line along Fulton Street was completed between Divisadero and Belmont avenues (Weitze 1991:6). The expansion of streetcar services not only provided transportation between the city’s economic hub (downtown) and newly developed subdivisions, but also provided a connection with recreational areas such as Roeding Park (the Roeding Line) and the Fresno Beach (the Fresno Beach Line). Both lines were built in the early 1900s. The Fresno Beach Electric Line (FBEL) was the larger of the two double track lines. The FBEL was the “…first line to run along Wishon Avenue, and the Beach cars ran the length of Wishon” (Hamm 1979: 59). According to Hamm (1979: 59): Leaving S.P. Depot the cars went north on Mariposa to J (Fulton) and then followed Forthcamp trackage to Olive Avenue. Turning off Olive to go north on Wishon, this was the second extension of the original Forthcamp service. From Olive Avenue the new tracks ran clear to the San Joaquin River. The FBEL was the brainchild of J.C. Forkner, a pioneer Fresno realtor, who thought an interurban line through his vast land holding in northwest Fresno County. By connecting Fresno’s economic downtown hub with the San Joaquin River, Forkner had the potential for buyers to lands that he would eventually subdivide (Hamm 1979: 59). A second incentive to movement north into Fresno County was the popularity of the automobile that allowed people to look to the suburbs and beyond, during the 1920s and 1930s, for alternatives as housing became too expensive in the downtown area. Residential development north of Belmont Avenue continued to J&R Environmental Services Historic Property Survey for the CLHF Project, 2287 9 W. Bullard Avenue (APN 415-033-44) Fresno, Fresno County, California expand into the 1950s along with commercial development both north and east of the economic hub of Fresno. 3.3 PROJECT-SPECIFIC HISTORY Most of the land north of the Fresno city limits was under cultivation dating back to 1891 (Thompson 1891: Sheet 59). The land north of present-day West Bullard belonged to Frank Bullard (Section’s 5-6) and Charles Baum owning most of the acreage south of the same street. Mr. Baum owned Section’s 7 and 8. In the general area of the project in 1907, there were two subdivisions already platted. This included the Perrin Colony with 215 20-acre parcels and the California Poultry Farm with 96 10-acre parcels, both located east and south of the current PAL. Ownership of most of the land around the PAL was owned by the Bullard Company (Section’s 4-6) and Eliza Baum (Section’s 7-8) (Harvey 1907: Sheet 15). By 1909, Bullard and Company had bought out most of the Baum family property included the current project PAL (Guard 1909). In 1913, Charles P. Jensen surveyed and platted the “Map of Bullard Lands Irrigation Subdivision Number 2” (Subdivision No. 2; see Figure 3 below) on behalf of the Bullard Company and the Fresno Canal and Irrigation Company. Mr. E.A. Bullard, President of the Bullard Company, and Mr. Drew, Secretary for the Fresno Canal and Irrigation Company submitted the subdivision map to the County of Fresno. The subdivision included 76 20-acre lots. The subdivision was bounded in the north by Bacon Avenue (present-day West Sierra Avenue), by Chittenden Avenue (present- day North West Avenue) on the east, by Carnine Avenue (present-day West Shaw Avenue), and on the west by the western boundary of Section’s 6 and 7 (Fresno County Record of Surveys 1913: Book 9, Page 15). The project PAL is in a portion of Lot 33 of the Bullard Lands Irrigation Subdivision Number 2. Archival research identified two individuals by the name of Dwelle and Miles as owning Lot 33, a 20-acre parcel (Progressive Maps of Fresno County 1935: Sheet 33-B). All 72 lots had been purchased by individuals and families by 1935 (Progressive Map Service 1935). In 1937, most of the land around the project PAL was dominated by tree orchards. On the north side of West Bullard Avenue there were at least five residences directly across from the project area (Fresno County, California Aerial Survey 1937). J&R Environmental Services Historic Property Survey for the CLHF Project, 2287 10 W. Bullard Avenue (APN 415-033-44) Fresno, Fresno County, California Figure 3: 1913 Map for the Bullard Lands Irrigated Subdivision Number 2 (After Fresno County Record of Surveys, Book 9, Page 15). Based on a 1950 aerial photograph, Lot 33 of the Subdivision No. 2 was split into two parcels (Fresno County, California Aerial Survey 1950); however, by 1951 Lot 33 appears to have been split, yet again, into three equally divided lots. In that same year, according to the Fresno County Assessor Records, the residence at 2287 West J&R Environmental Services Historic Property Survey for the CLHF Project, 2287 11 W. Bullard Avenue (APN 415-033-44) Fresno, Fresno County, California Bullard Avenue was constructed for John F. Maxwell, Jr., and his wife Sadie Dean (R.L. Polk & Company 1957). Mr. Maxwell was the son of a pioneer Fresno photographer, John F. Maxwell, Sr. who operated Maxwell Studio in Fresno beginning in 1896. Mr. Maxwell Jr., worked for his father as a photographer from 1936 located on 1149 Fulton Avenue, after he graduated from high school, until he joined the military during World War II and served locally at Hammer Field as an aircraft engine inspector. Following his discharge, he and his brother, Ed, bought Maxwell Studio from their father in 1948. Both brothers moved the photo shop to 415 Blackstone Avenue in 1948 and continued to operate Maxwell Studio until John F. Maxwell, Jr., retired in 1986. Mr. Maxwell, Jr., passed away at the age of 71 (The Fresno Bee 1988: Metro Section – B10). His wife Sadie Dean would pass away in 1998 at the age of 80 (The Fresno Bee 1998: A13). Ed Maxwell, John’s brother, would continue to operate the studio until about 2010. 4.0 RESEARCH METHODS 4.1 RECORDS SEARCH Prior to the commencement of fieldwork, J&R Environmental Services initiated a priority records search at the Southern San Joaquin Valley Information Center (SSJVIC) of the California Historical Resource Information System, located at California State University, Bakersfield (Appendix B). The digital files of the SSJVIC were examined by SSJVIC staff for known cultural resources in or near the PAL and previously completed cultural resources studies pertaining to the vicinity. Additional sources consulted at the SSJVIC included the National Register of Historic Places, the California Register of Historical Resources, California Historical Landmarks List, Points of Historical Interest, the Historic Property Data File, the California Inventory of Historic Resources, as well as site records and existing cultural resources reports. 4.2 HISTORICAL RESEARCH Mr. Brady conducted library and archival research. Sources of information included the Fresno County Assessor’s Office and the Henry Madden Library Map Room, California State University, Fresno. Internet resources included http://newspapers.com; http://ancestry.com; http://historicaerials.com, and http://goggleearth.com. 4.3 FIELD METHODOLOGY Mr. Brady, J&R Environmental Services, performed an architectural survey and photographed the historic era building in February 2023. This 1951 building was recorded on California Department of Parks and Recreation Primary Record and Building, Structure and Object Record forms (DPR 523A and 523B). These completed forms are provided at Appendix C. J&R Environmental Services Historic Property Survey for the CLHF Project, 2287 12 W. Bullard Avenue (APN 415-033-44) Fresno, Fresno County, California 5.0 RESULTS AND FINDINGS 5.1 RECORDS SEARCH According to the records, on file at the Southern San Joaquin Valley Information Center, the project PAL had not been previously surveyed for cultural resources prior to compiling this report. No cultural resource surveys have been conducted within a 1/8th mile radius of the project area. No archaeological sites, historic-era buildings, or other cultural resources within the PAL were found to have been previously recorded at the Information Center (Appendix B). No cultural resources within a one-eighth mile radius are designated as California State Historic Landmarks or California Points of Historic Interest or are listed in the National Register of Historic Places or the California Register of Historical Resources. 5.2 ARCHITECTURAL SURVEY The following parcel with historic-era building was identified within the project PAL: • APNs 445-080-18 (2287 W. Bullard Avenue, Fresno, California) 5.2.1 Site Evaluation The subject property located at 2287 W. Bullard Avenue located in Fresno, California was identified, photographed, and formally evaluated on California DPR Forms 523A and 523B (Appendix C). 6.0 CONCLUSIONS AND RECOMMENDATIONS The building at 2287 West Bullard Avenue is not eligible for the California Register of Historical Resources or the City of Fresno Local Register under any qualifying criteria; thus, the proposed project will have no significant impact on the environment or important archaeological or other cultural resources. Therefore, no further cultural resource investigation is recommended at this time. If project plans change, additional built environment and/or archaeological studies may be required. J&R Environmental Services Historic Property Survey for the CLHF Project, 2287 13 W. Bullard Avenue (APN 415-033-44) Fresno, Fresno County, California REFERENCES Brady, Jon L. 1985 Stagecoaching in the San Joaquin Valley, California: 1850-1875. Unpublished Master’s Thesis, California State University, Fresno. Brady, Jon L., and Karana Hattersley-Drayton 2003 Historic Property Survey for the City of Fresno Veterans, South Marks and West California EA H-2003-23. Prepared for the City of Fresno by J&R Environmental Services and Karana Hattersley-Drayton, Historic Preservation Project Manager, City of Fresno Planning Department. California Office of Historic Preservation n.d. California Environmental Quality Act (CEQA) and Historic Resources. California Office of Historic Preservation Technical Assistance Series #1/ Department of Parks and Recreation, Sacramento Carter, Brenda M. n.d. Historic District Plan – Historic Structure Plan. Prepared for the City of Fresno, California. Clough, Charles W., and William B. Secrest, Jr. 1984 Fresno County - The Pioneer Days: From the Beginning to 1900. Bobbye Sisk Temple, Editor. Panorama West Books, Fresno. Fresno County Record of Surveys 1913 Map of Bullard Lands Irrigation Subdivision No. 2. On file at the J&R Environmental Services, Clovis, CA. Eaton, Edwin M. 1965 Vintage Fresno – Pictorial Recollections of a Western City. The Huntington Press, Fresno. Hamm, Edward J. 1979 When Fresno Rode the Rail Trolleys of the San Joaquin. Reprinted 1984. Glendale Interurbans. Polk, R. L. & Company 1957- Fresno City Directory. R.L. Polk & Company, Publishers. San Francisco, 1998 CA. Vandor, Paul E. 1919 History of Fresno County, California with Biographical Sketches of the Leading Men and Women of the County Who have been Identified J&R Environmental Services Historic Property Survey for the CLHF Project, 2287 14 W. Bullard Avenue (APN 415-033-44) Fresno, Fresno County, California with its Growth and Development from the Early Days to the Present. Two volumes. Los Angeles: Historic Record Company. Weitze, Karen, Ph.D. 1991 Historical Architectural Survey Report for a Proposed Freeway in the City of Fresno, 6-FRE-41-R23.8/R29.5, 6-FRE-180-R56.1/R60.9 06-025721. Prepared for the California Department of Transportation, District 6, Fresno, California. Winchell, Lilborne Alsip 1933 History of Fresno County and the San Joaquin Valley. Fresno: Arthur H. Cawston. MAPS Guard, W.C. 1909 Atlas of Fresno County, California. Fresno, CA: The Author. 1911 Atlas of Fresno County, California. Fresno, CA: The Author. 1913 Atlas of Fresno County, California. Fresno, CA: The Author. Harvey, William 1907 Atlas of Fresno County, California. Fresno, CA: The Author. Progressive Map Service 1920 Progressive Atlas of Fresno County. Fresno County Public Library, Publisher. 1935 Atlas of Fresno County. Compiled from Official and Private Data by the Progressive Map Service. Fresno, California Thompson, Thomas H. 1891 Official Historical Atlas Map of Fresno County. Thos. H. Thompson, Tulare, California. USGS (United States Geological Survey, U.S. Department of the Interior) 1921 Topographic Map: Fresno North, California, 7.5-Minute Quadrangle. NEWSPAPERS The Fresno Bee 1988 John F. Maxwell Jr., 71, Retired Partner in Photography Studio. The Metro Section, Page B10 (Obituaries). J&R Environmental Services Historic Property Survey for the CLHF Project, 2287 15 W. Bullard Avenue (APN 415-033-44) Fresno, Fresno County, California 1998 Maxwell, Sadie Dean. Obituaries, Page A13. AERIAL PHOTOGRPAHS United States, Agricultural Adjustment Administration 1937 Aerial Photographs, Fresno County – Flight Line 13-ABI 49-35I. Map Room, Henry Madden Library, California State University, Fresno. 1950 Aerial Photographs, Fresno County – Flight Line ABI-3G-34. Map Room, Henry Madden Library, California State University, Fresno. 1957 Aerial Photographs, Fresno County – Flight Line ABI-54T-7. Map Room, Henry Madden Library, California State University, Fresno. 1970 Aerial Photographs, Fresno County – Flight Line 2866-1-6. Map Room, Henry Madden Library, California State University, Fresno. WEB SITES Google Earth Maps (2023). Retrieved from http://maps.google.com in February 2023. http://ancestry.com accessed February 2023. http://historicalaerials.com, accessed February 2023. http://newspapers.com, accessed February 2023. J&R Environmental Services Historic Property Survey for the CLHF Project, 2287 16 W. Bullard Avenue (APN 415-033-44) Fresno, Fresno County, California Appendix A: Qualifications of Preparers Jon L. Brady meets the Secretary of the Interior’s Guidelines for archaeology and architectural history. Mr. Brady holds a B.A. in both Political Science and Anthropology and an M.A. in History (with an emphasis on Historical Archaeology) from California State University, Fresno. Mr. Brady has worked as a consulting archaeologist and historian over the last forty-three years working with both Section 106 and CEQA compliance documents. He has also taught at the community college level in California over a period of twenty years as an adjunct instructor. Courses taught include Ancient Civilizations, Modern European History, U.S. History, Political Science, Cultural Anthropology, and Field Methods in Archaeology. Justin M. Brady, working under the supervision of the Principal Investigator for this project, assisted in research and photography. Mr. Brady has eighteen years of archaeological survey experience in California. He has participated in numerous archaeological surveys in the Greater Central Valley and the Sierra Nevada. He has also participated as a research assistant in a number of architectural surveys in Fresno, Tulare, and Kern counties. Mr. Brady has a Bachelor of Arts degree in Anthropology at California State University, Fresno and an AA degree in Social Sciences from Fresno City College. J&R Environmental Services Historic Property Survey for the CLHF Project, 2287 17 W. Bullard Avenue (APN 415-033-44) Fresno, Fresno County, California Appendix B: Record Search California Historical Resources Information System CHRIS Data Request Form 5.Eligibility Listings and Documentation: Within project area Within ______ radius yes / no yes / no yes / no yes / no yes / no yes / no yes / no yes / no yes / no yes / no yes / no yes / no OHP Built Environment Resources Directory3: Directory listing only (Excel format) Associated documentation4 OHP Archaeological Resources Directory1,5: Directory listing only (Excel format) Associated documentation4 California Inventory of Historic Resources (1976): Directory listing only (PDF format) Associated documentation4 6.Additional Information: The following sources of information may be available through the Information Center. However, several of these sources are now available on the OHP website and can be accessed directly. The Office of Historic Preservation makes no guarantees about the availability, completeness, or accuracy of the information provided through these sources. Indicate below if the Information Center should review and provide documentation (if available) of any of the following sources as part of this request. Caltrans Bridge Survey yes / no / no yes yes / no yes / no yes / no yes / no yes / no yes / no Ethnographic Information Historical Literature Historical Maps Local Inventories GLO and/or Rancho Plat Maps Shipwreck Inventory Soil Survey Maps 1 In order to receive archaeological information, requestor must meet qualifications as specified in Section III of the current version of the California Historical Resources Information System Information Center Rules of Operation Manual and be identified as an Authorized User or Conditional User under an active CHRIS Access and Use Agreement. 2 “Other” Reports GIS layer consists of report study areas for which the report content is almost entirely non-fieldwork related (e.g., local/regional history, or overview) and/or for which the presentation of the study area boundary may or may not add value to a record search. 3 Provided as Excel spreadsheets with no cost for the rows; the only cost for this component is IC staff time. Includes, but not limited to, information regarding National Register of Historic Places, California Register of Historical Resources, California State Historical Landmarks, California State Points of Historical Interest, and historic building surveys. Previously known as the HRI and then as the HPD, it is now known as the Built Environment Resources Directory (BERD). The Office of Historic Preservation compiles this documentation and it is the source of the official status codes for evaluated resources. 4 Associated documentation will vary by resource. Contact the IC for further details. 5 Provided as Excel spreadsheets with no cost for the rows; the only cost for this component is IC staff time. Previously known as the Archaeological Determinations of Eligibility, now it is known as the Archaeological Resources Directory (ARD). The Office of Historic Preservation compiles this documentation and it is the source of the official status codes for evaluated resources. 3 of 3 2-29-2020 Version J&R Environmental Services Historic Property Survey for the CLHF Project, 2287 21 W. Bullard Avenue (APN 415-033-44) Fresno, Fresno County, California Appendix C: DPR Forms 523A & 523B Page 1 of 11 *Resource Name or # (Assigned by recorder) Maxwell Property, 2287 W. Bullard Avenue *P11. Report Citation: Historic Property Survey for the Proposed Congregate Life Health Facility Project, 2287 West Bullard Avenue (APN 415-033-44), Fresno, Fresno County, California *Attachments: NONE Location Map  Sketch Map  Continuation Sheet  Building, Structure, and Object Record  Archaeological Record  District Record  Linear Feature Record  Milling Station Record  Rock Art Record  Artifact Record  Photograph Record  Other (list) __________________ DPR 523A (1/95) *Required Information State of California – The Resources Agency Primary # _____________________________________ DEPARTMENT OF PARKS AND RECREATION HRI # ________________________________________ PRIMARY RECORD Trinomial _____________________________________ NRHP Status Code 6z Other Listings _______________________________________________________________ Review Code __________ Reviewer ____________________________ Date ___________ 1. Other Identifier: *P2. Location:  Not for Publication  Unrestricted *a. County Fresno and (P2b and P2c or P2d. Attach a Location Map as necessary.) *b. USGS 7.5’ Quad Fresno North Date 1965 T13S; R 20E; _NE ¼ of Sec 7 ; M.D.B.M. c. Address 2287 W. Bullard Avenue City Fresno Zip 93711 d. UTM: (give more than one for large and/or linear resources) Zone _____; _mE/_mN e. Other Locational Data: APN 415-030-44; this property is located on a portion of Lot 33 of the Bullard Lands Irrigated Subdivision No. 2 (Fresno County Record of Surveys 1913). P3a. Description: (Describe resource and its major elements. Include design, materials, condition, alterations, size, setting, and boundaries) This is a 1.29-acre parcel that consists of: A residence (Feature 1), detached garage (Feature 2), and shed-type building (Feature 3), and a concrete half-circle drive fronting W. Bullard Avenue. In addition to this, there is a rock faced water pond as well as a rock faced barbecue. The property also includes a concrete driveway, mature front lawn, orange and lemon trees, as well as mature exotic shade trees. The entire property is enclosed. The property has its own well. Fronting W. Bullard are two primary entryways from the street, through two wrought-iron gates on wheels (Photo No. 15). The north and south boundaries of the property are enclosed with seven-foot stucco walls supported with square brick piers. The west side of the property is enclosed with a five-foot concrete block wall, while the eastern boundary of the property is enclosed with a wood fence. The eastern wall also includes a secondary entryway onto the property. Feature 1 (Residence): This is an irregular shaped residence resting atop a concrete slab. The roofline includes a primary and secondary hipped-shaped roofs with wide boxed eaves (Photo No. 1). The roofs are covered with composition shingles. The exterior walls consist of stucco-over-wood framing. The asymmetrical façade is covered with faced brick over stucco, while the other three elevations include a three-foot brick veneer over the stucco walls (Photo’s 1 and 4). There are multiple entryways into the interior spaces of the residence. The primary entryway on the façade is recessed under the primary roof. Access into the interior spaces of the residence is up a two-step rock faced porch through a pedestrian doorway currently boarded up. The entryway has opaque side lights on either side of the doorway. One of the secondary pedestrian entryways is located on the east elevation of the residence. While it too is boarded up, it appears to have a double-wide sliding glass doors with vinyl side lights (Photo 4). There are three secondary entryways on the rear elevation. This includes two entryways with wood-framed doors and a six-foot, double-wide sliding glass door (Photo 7) (continued on Page 3). *P4. Resources Present: x Building  Structure  Object  Site  District  Element of District  Other (Isolates, etc.) *P5b. Description of Photo: (View, date, accession #) Refer to Photo Nos. 1-17 *P6. Date Constructed/Age and Sources:  Historic  Prehistoric  Both 1951 (Fresno County Tax Records); Remodeled in 1967 *P7. Owner and Address: 2287 Bullard, Inc. DBA Infinite Living Fresno, CA 93619 *P8. Jon L. Brady, M.A. J&R Environmental Services 17900 Auberry Road Clovis, CA 93619 *P9. Date Recorded: February 28, 2023 *P10. Survey Type: Architectural Photo No. 1: View southeast toward façade of residence and detached garage. Page 2 of 11 *NRHP Status Code 6z *Resource Name or # Maxwell Property, 2287 W. Bullard Avenue DPR 523B (1/95) *Required Information State of California – The Resources Agency Primary # _____________________________________ DEPARTMENT OF PARKS AND RECREATION HRI # ________________________________________ BUILDING, STRUCTURE, AND OBJECT RECORD B1. Historic Name: John F. Maxwell, Jr., Residence B2. Common Name: B3. Original Use: Residence B4. Present Use: Vacant *B5. Architectural Style: Post-WWII Modern *B6. Construction History: (Construction date, alteration, and date of alterations) According to the Fresno County tax records the Maxwell residence was constructed in 1951. The 1957 Fresno City Directory (R.L. Polk and Company 1957) has the Maxwell family residing at this property in that year. There is a strong likelihood that the residence was indeed constructed for the Maxwell family. The detached garage was part of the original construction. According to Fresno County tax records the residence was remodeled in 1967; however, it is unclear as to what was remodeled. Based on a pedestrian survey conducted by J&R Environmental Services, modifications to the property occurred after the original construction date includes (most likely after 1967): The addition of a single shed-typed addition to the residence along with enclosing the rear covered patio; energy-efficient windows were most likely added to the residence and garage after 1970; the detached garage was added onto based on a review of historic aerial photographs (1957, 1965, and 1970). A detached rectangular room was also constructed after 1970 based on a review of historic aerial photographs (1965 and 1970). All the fencing of the property was also added after 1951. The fence running along the west side of property was constructed with concrete blocks. In addition to this, the north and south boundaries of the property were enclosed with seven-foot stucco over wood framing supported by rectangular brick posts and the eastern boundary is enclosed with a wood fence. *B7. Moved? No B8. Related Features: None B9. a. Architect: Unknown b. Builder: Unknown *B10. Significance: N/A Theme Residential Area Fresno, California Period of Significance N/A Property Type Single-family residence Applicable Criteria N/A (Discuss importance in terms of historical or architectural context as defined by theme, period, and geographic scope. Also address integrity.) The current property was originally a part of the Bullard Lands Irrigation Subdivision Number 2 (1913). Between 1913 and 1951 this portion of Lot 33 vacant was farmland. In 1951, the Maxwell residence and detached two-car garage was constructed on this 1.29-acre residence. These two original buildings (Feature 1 and 2) were constructed in the Post-WWII Modern tradition. Following the conclusion of World War II, the demand for residential and commercial buildings both in the city and county of Fresno increased as former soldiers returning to the Fresno area. This style of home became popular in the 1950s, when “…developers began mass-producing them for suburban homeowners.” This style was also popular in rural areas. This style was also popular for its open air, interior spaces. This style of home was also popular as they were generally more energy-efficient than other types of homes. Characteristics of this style of architecture included: Simple one story with a low-pitched roof and open floor plan; large windows and sliding glass doors; and brick, stone, and wood exterior siding. Other character defining features of this style included horizontality and low entryways. This style of building was also characterized by stressing single-story construction (Continued on Page 3). 11. Additional Resource Attributes: (List attributes and codes) *B12. References: McAlester, Virginia and Lee, A Field Guide to American Houses (New York: Alfred A. Knopf, 1990); Fresno County Assessor Records, Plat Book 17, Page 19, 1954); (Henry Madden Library, CSUF, Fresno 1957, Flight Line ABI-51T-7; Henry Madden Library, CSUF, Fresno 1965, Flight Line FRE-4-198;1970, Flight Line 2866-1-6). B13. Remarks: None *B14. Evaluator: Jon L. Brady, M.A. J & R Environmental Services 17900 Auberry Road Clovis, CA 93619 *Date of Evaluation: February 28, 2023 (This space reserved for official comments.) (Sketch Map with north arrow required.) Detached Garage (Feature 2) Residence (Feature 1) Shed type living space (Feature 3) Page 3 of 11 *Resource Name or # Maxwell Property, 2287 W. Bullard Avenue *Recorded by Jon L. Brady *Date February 28, 2023  Continuation  Update DPR 523J (1/95) *Required Information State of California – The Resources Agency Primary # _____________________________________ DEPARTMENT OF PARKS AND RECREATION HRI # ________________________________________ Continuation Page Trinomial ____________________________________________ P3a. Description (Continued from Page 1): Window piercings are filled with energy-efficient vinyl windows of varying sizes (Photo’s 2 and 7). There are two rock faced chimneys on both the primary and secondary roofs. The primary roof has a chimney protruding along the apex of the hipped roof. The second chimney is located on the northeast corner of the projecting wing of the residence (Photo 3). Modifications to the residence includes a brick veneer on the façade and a three-foot brick wainscot on the other three elevations, vinyl energy-efficient windows, and the addition of a shed-type room located at the southeast corner of the building (Photo 6). All three modifications occurred after the original construction date. The rectangular addition was added to the residence after the original construction date. It is a rectangular addition with a shed-type roof. The exterior walls are covered with stucco over wood framing and a three-foot brick faced wainscot. It has one pedestrian door on the south elevation (Photo 6). Window piercings are filled with vinyl energy-efficient vertical windows. Finally, the rear elevation is not under the primary hipped roof, but it appears that there was a patio roof at one time that was eventually closed in. This modification was completed after the original construction date of 1951. Feature 2 (Detached Garage): The detached two-car garage (with additional living space added later) measures approximately 23 feet wide (E/W) and 67 feet along the long axis (N/S). The garage has an irregular footprint resting atop a concrete floor. There are two decorated roll-up garage doors on the north elevation. There are two wood-framed paneled doors on the west elevation on an addition that was added to the detached garage after the original construction date of 1951 (Photo 12). The gabled roof is covered with composition shingles. The roof also has shallow boxed eaves. The exterior walls of the garage/living space is covered with stucco over wood-framing. A three-foot brick wainscot covers all four elevations (Photo 12). Sitting atop of the garage roof are enclosed, gabled dormers with vertical aluminum vents. Window piercings on the west elevation (only side with windows) are filled with vinyl energy-efficient sliding windows (Photo 12). Modifications: The original detached garage measured 23 feet wide (E/W) and 27 feet long (N/S) (Map Room, Henry Madden Library 1957). A rectangular addition was added to the south side of the garage, which was utilized as living space. The addition was added after the original construction date. The present garage doors on the façade were installed after the original construction date (for a discussion of the addition, please refer to Feature 2 above. Feature 3 (A Stand Alone Shed-type Room): This shed-type building is rectangular in shape that appears to have been used as a recreation room or living space. The shed-type roof is covered with composition shingles. The boxed eaves are shallow. There are two entryways into the building. The façade of the building is located on the south elevation. It also has a wood-framed metal awning covering the entryway. The primary entryway includes a double- wide, wood-framed doors with five shingle-pane windows inset into each door (Photo 13). The second entryway is located on the north elevation (the entryway is boarded up). The exterior walls are covered with stucco over wood-framing. Based on historic aerial photographs, this building was added to the property between 1965 and 1970 (Map Room, Henry Madden Library, CSUF 1965, 1970). Modifications to the Property as a Whole: Originally, the property was not fenced in. Today, there are fences on all sides of the limits of the property. The original one-half circle drive was covered with what appears to be aggregate rock, but today, it is covered with concrete. B10: Significance (continued from Page 2): The Maxwell property has undergone a number of alterations to both Feature 1 and Feature 2. The alterations two both additions occurred after the original construction date . Other alterations included the inclusion of brick facing and wainscots on the exterior walls on both buildings as well as well as the replacement of the original windows with vinyl energy-efficient windows. The enclosure of the original patio to provide more living space also impacted the historical integrity of the property. Consequently, the historical integrity of the property is fair. The subject property does not appear to be eligible for the California Register of Historical Resources or the City of Fresno Local Register under any qualifying criteria. This architectural style could be found throughout the San Joaquin Valley and the Fresno area, especially. Thus, the subject property is not associated with important events at the local, state, or regional levels (Criterion 1/i). A review of local historical archives and previous ownership indicates that the subject property is not associated with individuals that have made important contributions to local historical events (Criterion 2/ii). John F. Maxwell was the son of John Sr., who established Maxwell Studio in Fresno in 1896. Mr. Maxwell Jr., worked for his father in the original location on Fulton Avenue in downtown Fresno until the United States military entered WWII. After WWII, John Jr. and his brother Ed bought the studio from their father who retired in 1948. The brothers moved the studio to 415 Blackstone Avenue in the same year. They continued to operate Maxwell Studio together until 1986 when John Jr. retired. Ed continued to operate the business into the second decade of the 21st Century. While the Maxwell brothers continued to operate the business, it was originally established in 1896. The brothers were not associated with the establishment of Maxwell Studio. The Maxwell residence does not imbue the distinctive characteristics of a type, period, or method of construction associated with a master craftsman, nor does it reflect high- style architecture (Criterion 3/iii). The subject property does not appear to be eligible under Criterion 4/iv as any research potential can be gleaned from archival research. The subject property is not a historic resource for the purposes of CEQA. If a historic district were to be identified in the area, this property would not be a contributing element to any such district. Page 4 of 11 *Resource Name or # Maxwell Property, 2287 W. Bullard Avenue *Recorded by Jon L. Brady *Date February 28, 2023  Continuation  Update DPR 523J (1/95) *Required Information State of California – The Resources Agency Primary # _____________________________________ DEPARTMENT OF PARKS AND RECREATION HRI # ________________________________________ Continuation Page Trinomial ____________________________________________ Photographs (continued from page 1): Photograph 2: View south toward north elevation of building (Photo taken By Jon Brady on February 3, 2023). Photograph 3. View southwest toward the east and north elevations (Photo taken by Jon Brady on February 3, 2023). Page 5 of 11 *Resource Name or # Maxwell Property, 2287 W. Bullard Avenue *Recorded by Jon L. Brady *Date February 28, 2023  Continuation  Update DPR 523J (1/95) *Required Information State of California – The Resources Agency Primary # _____________________________________ DEPARTMENT OF PARKS AND RECREATION HRI # ________________________________________ Continuation Page Trinomial ____________________________________________ Photograph 4. View east toward façade from the former Valley Children’s Hospital. (Photo taken by Jon Brady on February 3, 2023). Photograph 5: View south toward east elevation of residence (Photograph taken by Jon Brady, February 3, 2023). Page 6 of 11 *Resource Name or # Maxwell Property, 2287 W. Bullard Avenue *Recorded by Jon L. Brady *Date February 28, 2023  Continuation  Update DPR 523J (1/95) *Required Information State of California – The Resources Agency Primary # _____________________________________ DEPARTMENT OF PARKS AND RECREATION HRI # ________________________________________ Continuation Page Trinomial ____________________________________________ Photograph 6: View northwest toward portions of east and south elevations of residence (Photograph taken by Jon Brady, February 3, 2023). Photograph 7: View north toward rear elevation (south) of residence (Photograph taken by Jon Brady, February 3, 2023). Page 7 of 11 *Resource Name or # Maxwell Property, 2287 W. Bullard Avenue *Recorded by Jon L. Brady *Date February 28, 2023  Continuation  Update DPR 523J (1/95) *Required Information State of California – The Resources Agency Primary # _____________________________________ DEPARTMENT OF PARKS AND RECREATION HRI # ________________________________________ Continuation Page Trinomial ____________________________________________ Photograph 8: View northeast toward portions of south and west elevations of residence (Photograph taken by Jon Brady, February 3, 2023). Photograph 9: View southeast toward façade of detached garage and portion of east elevation of same (Photograph taken by Jon Brady, February 3, 2023). Page 8 of 11 *Resource Name or # Maxwell Property, 2287 W. Bullard Avenue *Recorded by Jon L. Brady *Date February 28, 2023  Continuation  Update DPR 523J (1/95) *Required Information State of California – The Resources Agency Primary # _____________________________________ DEPARTMENT OF PARKS AND RECREATION HRI # ________________________________________ Continuation Page Trinomial ____________________________________________ Photograph 12: View northeast toward rear two-thirds of detached garage – west and rear elevations (Photograph taken by Jon Brady, February 3, 2023). Photograph 11: View northwest toward west elevation of detached garage (Photograph taken by Jon Brady, February 3, 2023). Page 9 of 11 *Resource Name or # Maxwell Property, 2287 W. Bullard Avenue *Recorded by Jon L. Brady *Date February 28, 2023  Continuation  Update DPR 523J (1/95) *Required Information State of California – The Resources Agency Primary # _____________________________________ DEPARTMENT OF PARKS AND RECREATION HRI # ________________________________________ Continuation Page Trinomial ____________________________________________ Photograph 13: View north toward façade (south facing) of shed type living space (Photograph taken by Jon Brady, February 3, 2023). Photograph 14: View south toward portions of north and east elevations of shed type building utilized as living space (Photograph taken by Jon Brady, February 3, 2023). Page 10 of 11 *Resource Name or # Maxwell Property, 2287 W. Bullard Avenue *Recorded by Jon L. Brady *Date February 28, 2023  Continuation  Update DPR 523J (1/95) *Required Information State of California – The Resources Agency Primary # _____________________________________ DEPARTMENT OF PARKS AND RECREATION HRI # ________________________________________ Continuation Page Trinomial ____________________________________________ Photograph 15: View northwest toward half-circle concrete drive fronting W. Bullard Avenue (Photograph taken by Jon Brady, February 3, 2023). Photograph 16: View north toward rock-faced water fountain between east elevation of residence and west elevation of detached garage (Photograph taken by Jon Brady, February 3, 2023). Page 11 of 11 *Resource Name or # Maxwell Property, 2287 W. Bullard Avenue *Recorded by Jon L. Brady *Date February 28, 2023  Continuation  Update DPR 523J (1/95) *Required Information State of California – The Resources Agency Primary # _____________________________________ DEPARTMENT OF PARKS AND RECREATION HRI # ________________________________________ Continuation Page Trinomial ____________________________________________ Photograph 17: View south toward rock-faced barbecue between residence and detached garage (Photograph taken by Jon Brady, February 3, 2023). Exhibit K – Fresno Municipal Code Findings FRESNO MUNICIPAL CODE FINDINGS FOR CONDITIONAL USE PERMIT APPLICATION NO. P22-03146 CONDITIONAL USE PERMIT FINDINGS Findings per Fresno Municipal Code Section 15-5306 The Director or Planning Commission may only approve a Development Permit application if it finds that the application is consistent with the purposes of this article and with the following: Finding a: The proposed use is allowed within the applicable zoning district and complies with all other applicable provisions of this Code and all other chapters of the Municipal Code; Per FMC Section 15-104(A)(1), the Development Code “applies to the extent permitted by State and Federal law to all private property” within the City. Cal. Health and Safety Code §1250(i) provides the definition of a Congregate Living Health Facility (CLHF) and states that a CLHF shall have a “noninstitutional, homelike environment.” Cal. Health and Safety Code §1267.16(c) further specifies that a “facility of more than six beds for persons who are terminally ill and any congregate living health facility of more than six beds for persons who are catastrophically and severely disabled shall be subject to the conditional use permit requirements of the city or county in which it is located unless those requirements are waived by the city or county.” Therefore, the proposed project has been evaluated to be consistent with FMC Chapter 15, Article 53 (Conditional Use Permits) in this Findings document. Further, the proposed CLHF is consistent with the Use Classification of a Residential Care Facility, General as defined by FMC §15-6702. Per this section, Residential Care Facilities are defined as “facilities that are licensed by the State of California to provide permanent living accommodations and 24-hour primarily non-medical care and supervision for persons in need of personal services, supervision, protection, or assistance for sustaining the activities of daily living. Living accommodations are shared living quarters with or without separate kitchen or bathroom facilities for each room or unit. This classification includes facilities that are operated for profit as well as those operated by public or not-for-profit institutions, including hospices, nursing homes, convalescent facilities, and group homes for minors, persons with disabilities, and people in recovery from alcohol or drug addictions.” While this classification may state that services provided are primarily non-medical care, by definition, a CLHF, under State law, can provide a range of non-medical services such as “supportive care, pharmacy, dietary, social, or recreational” needs; “services for persons who are mentally alert; persons with physical disabilities, who may be ventilator dependent;” “services for persons who have a diagnosis of terminal illness;” or “services for persons who are catastrophically and severely disabled.” (Cal. Health & Safety Code §1250(i).) The proposed project here would also provide supportive care, therapy services, social and recreational activities, medication management, and dietary management. Additionally, as demonstrated by the State requirements, the facility is explicitly required to be located in a “non-institutional homelike environment.” (Cal. Health & Safety Code §1250(i)(5).) While not applicable to the proposed project, if the facility had six beds or fewer, it would be considered a residential use. (Cal. Health & Safety Code §1267.16(a).) Thus, a facility licensed as a CLHF under State law fit best with the FMC §15-6702 definition for Residential Care Facilities. As demonstrated by FMC §15-902, Residential Single Family (RS) zone districts permit a range of uses beyond the exclusive use of single-family homes. These uses include but are not limited to: small adult day cares, small domestic violence shelters, small family day cares, small group residential, community and religious assembly facilities less than 2,000 square feet, and parks and recreation facilities, schools and limited residential care facilities, which are permitted by right. Large adult family day cares, large family day cares, community and religious assembly larger than 2,000 square feet, public safety facilities, and general residential care facilities, are permitted subject to conditional use permit approval. (FMC §15-902.) As discussed above, Residential Care Facilities, General, are permitted subject to Conditional Use Permit approval in the RS-2/EQ (Residential Single Family, Very Low Density/Equine Overlay) zone district. The proposed project is subject to, and has been conditioned for compliance with, the development standards of said zone district, including, but not limited to FMC Secs. 15- 903 (Density and Massing), 15-904 (Site Design Development Standards), and 15-905 (Façade Design). Additional applicable regulations include but are not limited to: Section 15-2006 (Fences, Walls, and Hedges), Section 15-2007 (Walls for noise attenuation), Section 15-2008 (Screening between differing land uses), Section 15-2015 (Outdoor Lighting and Illumination), Section 15-2409 (Required Parking), and Chapter 15 Article 25 (Performance Standards). Finding b: The proposed use is consistent with the General Plan and any other applicable plan and design guideline the City has adopted; The Low-Density Residential designation is intended to provide for large lot residential development. Low Density residential allows one to 3.5 housing units per acre. The resulting land use pattern is large lot residential in nature, such as rural residential, ranchettes, or estate homes. However, the General Plan and its implementation through the FMC both identify that other land uses besides single family residential homes, such as residential care facilities, are permitted in residential land use and zoning classifications. The use of the subject property as a residential care facility is consistent with the applicable general plan designation and all applicable general plan policies as well as with applicable zoning designation and regulations. The project represents an adaptive reuse and an infill opportunity of a partially developed semi vacant lot. The proposed use of a residential care facility provides services to the area and will provide diversity to the range of housing types in the area. Per State requirements the facility is required to be residential in nature and will be required to be consistent with the design of the overall surrounding neighborhood. (Cal. Health & Safety Code §1250(i) & 1267.16(a).) These qualities will benefit both residents of the facility, as well as residents of the neighborhood who may themselves, or have family members who, require services the facility provides. The following are several goals, objectives, and policies that the project supports: Objective UF-1, Policies UF-1-a, UF-1-d, UF-1e. Objective UF-12, Policy UF-12-c. Objective LU-1, Policy LU-1-a, LU-1-b. Objective LU-2, Policy LU-2-a. Objective LU-5, Policies LU-5-a, LU-5-g, LU-5-h. Objective LU-8; Policy LU-8-c. Objective HC-2, Policies HC-2-a, HC-2-b. As evidenced above, the proposed use is consistent with the policies of the Fresno General Plan and the Bullard Community Plan, and the planned land use designation of Single Family Residential. Finding c: The proposed use will not be substantially adverse to the public health, safety, or general welfare of the community, nor be detrimental to surrounding properties or improvements; The proposed use as a residential care facility will provide provides inpatient care, medical supervision, 24-hour skilled nursing and range of other services such as supportive care, pharmacy, dietary, social or recreational needs; and other services for persons who are mentally alert; persons with physical disabilities, persons who may be ventilator dependent; services for persons who have a diagnosis of terminal illness; or services for persons who are catastrophically and severely disabled. The use is required per State Code to exhibit a “non-institutional homelike environment.” (Cal. Health & Safety Code §1250(i)(5).) As demonstrated in the findings above, the project has been specifically conditioned that all applicable regulations are enforced to ensure that the project will not be substantially adverse to the public health, safety, or general welfare of the community, nor be detrimental to surrounding properties or improvements. Finding d: The design, location, size, and operating characteristics of the proposed activity are compatible with the existing and reasonably foreseeable future land uses in the vicinity; and As demonstrated in the sections above, the facility is required per State Code to exhibit a “non-institutional homelike environment.” (Cal. Health & Safety Code Sec. 1250(i)(5).) The inherent purpose of a CLHF is to provide services for persons who are mentally alert; persons with physical disabilities, persons who may be ventilator dependent; services for persons who have a diagnosis of terminal illness; or services for persons who are catastrophically and severely disabled a residence that is fully integrated in a residential community. As demonstrated in the finding above, the project is subject to any applicable requirement of the FMC regarding design, location, size, and operating characteristics. Per the FMC, there are no restrictions on the size, number of dwelling units, or beds of a residential care facility, beyond the maximum height, minimum setbacks, and maximum lot coverage. The project as conditioned will comply with the massing development standards. Therefore, the design, location, size, and operating characteristics of the proposed facility are proposed and conditioned to exhibit characteristics of a single-family home as feasibly possible and are therefore compatible with the existing and reasonably foreseeable future land uses in the vicinity. Finding e: The site is physically suitable for the type, density, and intensity of use being proposed, including access, emergency access, utilities, and services required; and; The project site is physically suitable for the type, density, and intensity, of the use being proposed. The project proposes a CLHF that is required to exhibit appearance and design characteristics of a residential home, to the extent possible. Therefore, it is physically suited for the surrounding area which is predominately a residential neighborhood. Access is provided from two (2) drive approaches on West Bullard Avenue, which is an arterial street, which is a roadway designed to move traffic within and between neighborhoods and to and from freeways and expressways. Two (2) additional drive approaches are proposed, one south of the property on West Morris Avenue, a local street, and one approach west of the property on a private access road. 26 parking stalls are provided, which is more than the required 24 stalls required based on FMC requirements for residential care facilities. The project has been reviewed and conditioned accordingly by the Fire Department, Department of Public Works, and Department of Public Utilities to ensure that emergency access, utilities, and services are available in accordance with applicable requirements. Therefore, adequate access, parking, utilities, and services shall be provided to serve the property, and were reviewed for consistency with the requirements of the residential single family planned land use and the RS zone district. In conclusion, the site is physically suitable for the type, density, and intensity, of the use being proposed. Finding f: Fresno County Airport Land Use Compatibility Plan (as may be amended) adopted by the Fresno County Airport Land Use Commission pursuant to California Public Utilities Code Sections 21670-21679.5. The proposed residential care facility use is located within the Traffic Pattern Safety Zone 7 (Precision Approach Zone) of the Fresno Air Terminal. The only prohibited use in this safety zone are hazards to flight, which is not applicable to the proposed project since it is a one-story building. Therefore, the proposed project is consistent with the ALUCP. Exhibit L – Appeal Letters MIKE KARBASSI Councilmember, District Two -Northwest Monday, June 5, 2023 Jennifer Clark Director, Planning and Development City of Fresno 2600 Fresno St Fresno CA 93721 RE: CUP Application No. P-22-03146 Dear Director Clark: I am appealing your department's decision on 06/02/2023 approving the CUP as is, for the above-mentioned item. I am concerned about the impacts to the neighborhood, should this CUP move forward. Given that this is a quasi-judicial matter, as the elected representative of the residents of this neighborhood, I believe there is a need for members of the public to voice their opinions at a public hearing of the City Council. Mike Karbassi Councilmember City of Fresno City Hall • 2600 Fresno Street • Fresno, California 93 721-3600 (559) 621-8000 • FAX (559) 237-4010 • www.fresno.gov Clyde & Co US LLP is a Delaware limited liability partnership with offices in Atlanta, Boston, Chicago, Denver, Las Vegas, Los Angeles, Miami, New Jersey, New York, Orange County, Phoenix, San Francisco and Washington D.C. Clyde & Co US LLP is affiliated with Clyde & Co LLP, a limited liability partnership registered in England and Wales. Clyde & Co US LLP 150 California Street 15th Floor San Francisco, California 94111 Telephone: (415) 365-9800 Facsimile: (415) 365-9801 www.clydeco.us Andrew G. Wanger andrew.wanger@clydeco.us June 14, 2023 VIA EMAIL PLANNING AND DEVELOPMENT DEPARTMENT Attn: Ms. Jennifer K. Clark PublicCommentsPlanning@fresno.gov Re: Appeal of Action Granting CUP Application No. P22-03146 Dear Director Clark: Please accept the following as an Appeal of the “Notice of Action granting Conditional Use Permit Application No. P22-03146 & Related Environmental Assessment” date June 2, 2023. A. The Director’s Approval of Permit Application No. P22-03146 Fresno Municipal Code section 15-5017, subdivision (A), states the following: Decisions of the Director made pursuant to this Code may be appealed to the Planning Commission by filing a written appeal with the Director. Appeals may be filed by any person aggrieved by the decision. The appeal shall identify the decision being appealed and shall clearly and concisely state the reasons for the appeal. The appeal shall be signed by the person making the appeal and accompanied by the required fee. All appeals shall be filed with the Director in writing within 15 days of the date of the action, decision, CEQA determination, motion, or resolution from which the action is taken.” (Municipal Code § 15-5017, subd. (B).) The Director issued notice of her approval of Permit Application No. P20-03146 on June 2, 2023. As such, this appeal, on the grounds described below, is timely submitted. B. Appellants Interest in / Relationship to the Subject Property The Appellants, including the undersigned, are comprised of multiple members of the public who reside within 1000 feet of 2287 W. Bullard Ave, Fresno, CA 93711. Specifically, I reside at 2330 W. Roberts Ave, Fresno, CA 93711. CLYDE&Co PLANNING AND DEVELOPMENT DEPARTMENT Attn: Ms. Jennifer K. Clark June 14, 2023 Page 2 C. Grounds for Appeal The City cannot make the findings required under Section 15-5306 of the Fresno Municipal Code to support the approval of a CUP Section 15-5306 states: A Conditional Use Permit shall only be granted if the decision-maker determines that the project as submitted or as modified conforms to all of the following criteria. If the decision- maker determines that it is not possible to make all of the required findings, the application shall be denied. A. The proposed use is allowed within the applicable zoning district and complies with all other applicable provisions of this Code and all other chapters of the Municipal Code; B. The proposed use is consistent with the General Plan and any other applicable plan and design guideline the City has adopted; C. The proposed use will not be substantially adverse to the public health, safety, or general welfare of the community, nor be detrimental to surrounding properties or improvements; D. The design, location, size, and operating characteristics of the proposed activity are compatible with the existing and reasonably foreseeable future land uses in the vicinity; and E. The site is physically suitable for the type, density, and intensity of use being proposed, including access, emergency access, utilities, and services required; and F. The proposed use is consistent with the Fresno County Airport Land Use Compatibility Plan (as may be amended) adopted by the Fresno County Airport Land Use Commission pursuant to California Public Utilities Code Sections 21670-21679.5. (Fresno Municipal Code, § 15-5306.) The CUP at issue does not satisfy the requirements of multiple sections of 15-5306 as noted below. 1. The proposed project seeks to house fifty-four residents within 100 feet of an elementary school. The Applicant offers no evidence that its policies or procedures will prohibit individuals convicted of a crime under California Penal Code sections 288 or 288.5 from residing across the street from Malloch Elementary School. This potentially violates Penal Code section 3003(g). The State of California has deemed ½ mile a suitable distance for such high-risk individuals to reside in relation to elementary schools such as Malloch. No accounting for this scenario appears to have been considered by the Applicant or the Director in granting the CUP. [Section 15- 5306 (c) above.] CLYDE&Co PLANNING AND DEVELOPMENT DEPARTMENT Attn: Ms. Jennifer K. Clark June 14, 2023 Page 3 2. The Proposed Project is not suitable for RS-2 Zoning, the current zoning of the property at issue, and would fundamentally alter the character of the neighborhood. The subject residential lot at 2287 W. Bullard has been a residential lot for more than fifty years and is zoned RS-2/EQ – a single-family “very low density” residential designation. The proposal seeks to construct two additional structures, for a total of three structures on the property, to house a total of more than fifty residents in a commercial medical environment. This proposed business, which is most akin to skilled nursing facility or hospital land use—neither of which are permitted by right or conditionally in the RS-2/EQ zoning district—seeks to operate twenty-four hours a day and will require staff at all times. It should be noted that there are no other known businesses or similar operations in the neighborhood bounded by Forkner Ave to the east, Herndon Ave to the north, Barstow Ave to the south and Van Ness Boulevard to the west. Fresno Municipal Code section 15-903 (Density and Massing) contemplates a single dwelling per lot for RS-2 zoning. The Application seeks approval for three distinct residential structures totalling more than 13000 square feet. Thus, the statement in the “Categorical Exemption Environmental Assessment” document that , “. . . the proposed project will meet all the provisions of the FMC . . .” is incorrect and mis- leading. [Section 15-5306 (a, d, e) above.] Further, the “Categorical Exemption Environmental Exemption” document contains a further error when it states, “The project site . . . is currently vacant.” (Section (c)). There currently exists a single-family residence on the property, consistent with the RS-2 zoning. The Planning Department repeatedly characterizes the project as a “residential care facility” when in fact it is not. It is a commercial medical facility more akin to a skilled nursing facility. The proposed residents, as described by the Applicant, likely could not survive without constant medical intervention, e.g, the use of ventilators. Residential care facilities have been established for adult residents able to independently engage in daily living activities in a non-medical setting. Indeed, the Applicant characterized the facility as follows: “Our team of medical professionals will provide Acute Care Services, Skilled Nursing Care and Complex Respiratory Care on a 24 hours a day basis.” [See, June 13, 2022 Infinite Care Living letter describing project] This project cannot be likened to a Residential Care Facility. The appellants and residents of the neighborhood purchased their homes with the understanding that they would reside in a residential setting, not a commercial setting burdened with increased traffic, noise, lighting, additional structures and parking lots on individual lots that otherwise alter the aesthetic nature of their neighborhood. Introducing a commercial medical facility with fifty-four residents in close proximity to single-family residential properties has the likelihood of diminishing property values and opening the door to future commercial properties in the neighborhood. This is CLYDE&Co PLANNING AND DEVELOPMENT DEPARTMENT Attn: Ms. Jennifer K. Clark June 14, 2023 Page 4 an unprecedented commercial-medical use of a residential lot in the neighborhood in direct contravention of the applicable zoning. 3. Traffic - The Application provides no information regarding ingress and egress plans beyond identifying the access points to the property. This despite the fact that there will be more than fourteen staff members (per the Application) arriving at and leaving the facility daily, emergency vehicles, delivery vehicles, waste management vehicles, and visitor vehicles - all entering and leaving the facility. Bullard Avenue is a highly trafficked throughfare that does not afford a realistic ingress / egress point for regular vehicle traffic. The Application offers no traffic study to provide the residents comfort that a feasible plan exists to prevent the aforementioned vehicle traffic from coming into the residential neighborhood to use Sequoia Ave or Morris Ave access to the property. These access points are already the subject of weekday school traffic (morning, noon and afternoon drop-off and pick-up) and voluminous pedestrian traffic (adult and juvenile) due to the presence of Malloch Elementary. The Applicants do not take a position nor provide their view as to which ingress / egress point will be used – Bullard Ave or Morris Ave. This is likely intentional because they must know that Bullard is not a realistic or safe option. The use of Morris Ave would significantly increase traffic around Malloch Elementary. Further, use of Morris Ave will create an unreasonable and unforeseen burden to the residential neighborhood. The increased vehicle and truck traffic will also heighten the safety risk to residents and students, parents, and users of Malloch Elementary (this includes numerous youth sports teams that utilize the fields at Malloch on a weekly basis). A medical facility with fifty-four residents will require frequent deliveries, medical waste removal, emergency vehicle and staff trips in and out of the property. A normal residence in this neighborhood has two to three vehicles – the Application denotes more than twenty parking spaces for staff and visitors. The deviation from a normal residential lot use is not reasonable nor desirable. The intersections of Bullard and Van Ness and Bullard and Forkner are frequently the scenes of vehicular accidents. Adding another inflection point for deliveries, employee turns and visitor traffic on the busy thoroughfare that Bullard Ave is represents a dubious and mis-guided proposal. 4. Noise - A commercial medical facility shoehorned into a residential neighborhood will necessarily generate additional noise during the entirety of its operational day – here, twenty-four hours a day. This will mean vehicle noise, emergency vehicle noise, delivery truck noise (with corresponding reverse gear warnings), and HVAC units necessary to regulate temperatures within three medical structures. The “Categorical Exemption Environmental Exemption” prepared by the Planning Department offers the conclusory and unsupported statement, “. . . staff has CLYDE&Co PLANNING AND DEVELOPMENT DEPARTMENT Attn: Ms. Jennifer K. Clark June 14, 2023 Page 5 determined that the proposed project will not result in any significant mobile or transportation-related noise impacts.” This statement ignores reality – there will be noise impacts 24 / 7 as delivery vehicles, employee vehicles, emergency vehicles, waste removal vehicles and visitor vehicles will frequent the proposed project. To state otherwise is to misrepresent the facts. Prior to considering any “project” under CEQA, a lead agency must first determine whether to prepare a Negative Declaration, a Mitigated Negative Declaration, or an EIR for the project. (CEQA Guidelines, § 15063.) The lead agency makes this determination based on what is called the “fair argument” standard. (CEQA Guidelines, § 15064(f)(1).) As explained by the Supreme Court: [S]ince the preparation of an EIR is the key to environmental protection under CEQA, accomplishment of the high objectives of hat act requires the preparation of an EIR whenever it can be fairly argued on the basis of substantial evidence that the project may have a significant environmental impact. (No Oil, Inc. v. City of Los Angeles (1975) 13 Ca1.3d 68, 75.) The Supreme Court has explained that even in “close and doubtful cases,” an EIR should always be prepared to ensure “the Legislature’s objective of ensuring that environmental protection serve as the guiding criterion in agency decisions.” (Id. at 84; see also Pub. Resources Code, § 21101, subd. (d).) Many courts have stated that the “EIR is the heart of CEQA. The report . . . may be viewed as an environmental ‘alarm bell’ whose purpose it is to alert the public and its responsible officials to environmental changes before they have reached ecological points of no return.” (Citizens for Quality Growth v. City of Mount Shasta (1988) 198 Cal.App.3d 433, 438 [quoting County of Inyo v. Yorty (1973) 32 Cal.App.3d 795, 810] [emphasis added].) The CEQA Guidelines set forth the “fair argument” test used to evaluate whether an EIR is required: If the lead agency finds there is substantial evidence in the record that the project may have a significant effect on the environment, the lead agency shall prepare an EIR. Said another way, if a lead agency is presented with a fair argument that a project may have a significant effect on the environment, the lead agency shall prepare an EIR even though it may also be presented with other substantial evidence that the project will not have a significant effect. (emphasis added) (CEQA Guidelines, § 15064(f)(1); see also Pub. Resources Code, § 21080, subd. (d) [internal citations omitted].) Moreover, an agency’s failure to gather or analyze information on a project’s impacts can expand the scope of the fair argument standard necessitating the preparation of an EIR. (See, e.g., Sundstrom v. County of Mendocino (1988) 202 Cal.App.3d 296, 311 [“CEQA places the burden of environmental investigation on government rather than the public,” and a lead agency “should not be allowed to hide behind its own failure to gather data.”].) CLYDE&Co PLANNING AND DEVELOPMENT DEPARTMENT Attn: Ms. Jennifer K. Clark June 14, 2023 Page 6 Accordingly, if any commenting party makes a fair argument that the proposed project’s environmental impacts “may have a significant effect on the environment,” the City must prepare an EIR, even if other substantial evidence supports the argument that adverse environmental effects will not occur. (CEQA Guidelines, § 15064(g)(1); see also Sierra Club v. County of Sonoma (1992) 6 Cal.App.4th 1307, 1316 [“[i]f there is substantial evidence of such an impact, contrary evidence is not adequate to support a decision to dispense with an EIR.”].) Here, substantial evidence supports a fair argument that an EIR is necessary, as explained above. (See supra, § C.2-4) Because the Class 32 exemption does not apply, and a “fair argument” exists, an EIR must be prepared. The City has determined that the Project falls within the Class 32 Exemption for In-Fill Development Projects. (CEQA Guidelines, § 15332.) That exemption states: Class 32 consists of projects characterized as in-fill development meeting the conditions described in this section. (a) The project is consistent with the applicable general plan designation and all applicable general plan policies as well as with applicable zoning designation and regulations. (b) The proposed development occurs within city limits on a project site of no more than five acres substantially surrounded by urban uses. (c) The project site has no value, as habitat for endangered, rare or threatened species. (d) Approval of the project would not result in any significant effects relating to traffic, noise, air quality, or water quality. (e) The site can be adequately served by all required utilities and public services. (Id.) The substantial evidence test governs judicial review of an agency’s factual determination of whether a project fits within a categorical exemption. (See, e.g., Don’t Cell Out Parks v. City of San Diego (2018) 21 Cal.App.5th 338, 358; Walters v. City of Redondo Beach (2016) 1 Cal.App.5th 809, 817; Meridian Ocean Sys. v. State Lands Common’s (1990) 222 Cal.3d 153, 169.) As noted above, the City’s conclusion that the project would not result in any significant effects relating to traffic, noise, air quality, or water quality is unsupported by the evidence, much less “substantial evidence”. But even if the Class 32 exemption facially applied, Section 15300.2 of the CEQA Guidelines provides several exceptions to the use of categorical exemptions. (See generally Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086.) Section 15300.2 applies to all categorical exemptions. As provided in Section 15300.2 and elucidated in cases such as Berkeley Hillside, “unusual circumstances” prevent an agency from relying upon a categorical exemption when those circumstances present a “fair argument” that there will be a significant environmental effect. CLYDE&Co PLANNING AND DEVELOPMENT DEPARTMENT Attn: Ms. Jennifer K. Clark June 14, 2023 Page 7 Both “unusual circumstances” and a “fair argument” exist here. First, this Project seeks to construct a commercial medical facility in residential neighborhood that is zoned as such (RS-2). The placement of such a facility would be a first in the area and a radical alteration of the character of the neighborhood. Second, the proposed square footage of the development - 13,000 – far exceeds any residence in the area and is disproportionately larger than any residence in the area. Third, there are no RS-2 zoned lots in the neighborhood wherein three commercial buildings have been shoehorned into a single lot. These all support the conclusion that Application raises “unusual circumstances” that are unprecedented in this very low density residential neighborhood. In addition, there is certainly a “fair argument”, as discussed above, that the Project would result in potentially significant environmental impacts. Under Section 15-5005, subdivision (I), “any aggrieved person may appeal the following environmental determinations made by non-elected decision making bodies of the City directly to Council in the manner described in Section 15-5017 . . . .” 1. Determination that a project is or is not subject to environmental review. 2. Determination that a project is exempt from environmental review. 3. Approval of a Negative Declaration or Mitigated Negative Declaration. 4. Approval of a Finding of Conformity with the Master EIR. 5. Certification of a Final EIR. Section 15-5005(D)(1) further states: If the Director has determined that a project is exempt from environmental review under CEQA, such determination shall be supported with necessary written findings and substantial evidence and included in any public notice required for the project. The notice shall include a citation to the applicable statute or CEQA Guideline section under which it is found to be exempt. (emphasis added) The Planning and Development Department’s decision lacks evidence, much less “substantial evidence” as required by 15-5005, that the project should be considered exempt from CEQA. Indeed, the decision is filled with conclusory statements unsupported by evidence. The decision seeks to transmogrify the proposed medical facility into a “Residential Care Facility” – a legally recognized entity under the State of California regulatory scheme found in the California Code of Regulations Title 22, Division 6, Chapter 8. Additionally, because the Applicant plainly intends to subdivide at some point in the future, the “project” as a whole admittedly includes a subdivision, which would not be exempt from CEQA. Applicant’s June 13, 2022 letter provided to residents living within 1000 feet of the project and part of the Planning Department’s file states: “The property will consist of two phases and will not be subdivided until a later date.” (emphasis added) If the environmental review does not PLANNING AND DEVELOPMENT DEPARTMENT Attn: Ms. Jennifer K. Clark June 14, 2023 Page 8 include assessment of the subdivision, this constitutes a piecemeal approach to environmental review, which is prohibited under CEQA as a failure to assess the “whole of an action.” (CEQA Guidelines, § 15378(c).) In approving the Development, the Director erroneously determined the Project was not subject to environmental review. As such, this appeal is also made pursuant to Section 15-5005(I)(1), such that the appeal must be heard by the City Council. D. Conclusion For each of the foregoing reasons, Appellants request that the Planning Commission and/or the City Council hear this appeal and overrule the Planning Director’s approval of the Conditional Use Permit. Thank you for your consideration of this appeal. Very truly yours, Andrew G. Wanger cc: Thomas Veatch (thomas.veatch@fresno.gov) PLANNING AND DEVELOPMENT DEPARTMENT Attn: Ms. Jennifer K. Clark June 14, 2023 Page 9 APPELLANTS Andrew & Christa Wanger Geoff & Linda Dervishian 2330 W. Roberts Ave 2350 W. Roberts Ave Ryan & Lauren Peranick Jamee & Phil Moltini 2340 W. Roberts Ave 2331 W. Roberts Ave Monica & Steve Swanson Lynn & Frank Glaser 6075 N. Sequoia 2310 W. Roberts Ave Chelsey Juarez / Viktor Zaytsev William & Karen Podolsky 2216 W. Roberts Ave 6072 N. Sequoia Ave Jim & Kitty Burden Leo & Sandra Landaverde 6060 N. Sequoia Ave 5786 N. Woodson Ave Art & Renea Estrada Jennifer & Erich Lemker 5661 N. Sequoia Ave 2217 W. Roberts Ave Richard & Carol Yrulegui Mark & Mary Schuh 5745 N. Van Ness Blvd 5630 N. Van Ness Blvd John Garry 2361 W. Celeste cl(ffi .. ) SMITTCAMP ENTERPRISES June 16, 2023 VIA EMAIL PLANNING AND DEVELOPMENT DEPARTMENT Attn: Ms. Jennifer K. Clark PublicCommentsPlanning@fresno.gov Re: Appeal of Action Granting CUP Application No. P22-03146 Dear Director Clark: Iii 559.500.6767 @ 680 W. Shaw Ave., Suite 200 Fresno, CA 93704 Please accept the following as an Appeal of the "Notice of Action granting Conditional Use Permit Application No. P22-03146 & Related Environmental Assessment" date June 2, 2023. Appellant Interest in / Relationship to the Subject Property I own the five-acre parcel at 5811 N. Forkner Ave. This residential property shares its west fence line with 2287 W. Bullard Ave -the property at issue. For the entirety of the time my family has owned 5811 N. Forkner, 2287 W. Bullard has been a single-family residence. The CUP at issue allows the transformation of 2287 W. Bullard into a commercial property -maybe not in zoning designation, but for sure in reality-with the potential to be subdivided into three separate lots -all with commercial medical buildings on site. This proposal and potentiality for change to the neighborhood is an unacceptable alteration of the residential character of our neighborhood and I am appealing the Planning and Development departments decision to grant the CUP. Grounds for Appeal 1. Section 15-5306 of the Fresno Municipal Code applies to the approval of a CUP application. Section 15-5306 states: A Conditional Use Permit shall only be granted if the decision-maker determines that the project as submitted or as modified conforms to ~ of the following criteria. If the decision-maker determines that it is not possible to make all of the required findings, the application shall be denied. A. The proposed use is allowed within the applicable zoning district and complies with all other applicable provisions of this Code and all other chapters of the Municipal Code; PLANNING AND DEVELOPMENT DEPARTMENT Attn: Ms. Jennifer K. Clark June 16, 2023 Page 2 B. The proposed use is consistent with the General Plan and any other applicable plan and design guideline the City has adopted; C. The proposed use will not be substantially adverse to the public health, safety, or general welfare of the community, nor be detrimental to surrounding properties or improvements; D. The design, location, size, and operating characteristics of the proposed activity are compatible with the existing and reasonably foreseeable future land uses in the vicinity; and E. The site is physically suitable for the type, density, and intensity of use being proposed, including access, emergency access, utilities, and services required; and F. The proposed use is consistent with the Fresno County Airport Land Use Compatibility Plan (as may be amended) adopted by the Fresno County Airport Land Use Commission pursuant to California Public Utilities Code Sections 21670-21679.5. (Fresno Municipal Code, § 15-5306.) The proposed alteration of the single-family residence at 2287 W. Bullard into a three building, 13,500 square foot commercial medical operation is a drastic alteration of the property's use that violates 15-5306 (A-E). Fresno Municipal Code section 15-903 (Density and Massing) contemplates a single dwelling per lot for RS-2 zoning. There exists no justification for altering the property's current use given the RS-2 zoning. The unprecedented proposal to build three separate structures on the property and operate them as commercial enterprises with the proposed subdivision of the lot later (into three parcels) constitutes an unusual and unacceptable use of the lot. No such similar property use exists in the neighborhood. This is a "single family very low density" zoned neighborhood. The CUP seeks to triple the density of a single lot, alter it from a single family lot to a commercial property housing 54 residents plus staff, operating 24 hours a day, seven days a week and does so without any explanation as to why this lot and why this neighborhood. Our family residence has been used an enjoyed for decades as a part of a distinct neighborhood that exemplifies the City's use of the RS-2 zoning designation. The current proposal to allow the current zoning to be drastically altered will result in unacceptable amount of increased traffic, noise, lighting, and additional structures and parking lots on an individual lot. The proposed commercial medical facility with fifty-four residents will be completely at odds with any other lot in the neighborhood. 1. Traffic -Bullard Avenue is a highly trafficked thoroughfare essential to the City's efficient movement of morning and evening commute traffic. The Application and department of Planning documents provide scant information as to how employee, delivery, emergency and waste removal vehicles will impact Bullard Ave with PLANNING AND DEVELOPMENT DEPARTMENT Attn: Ms. Jennifer K. Clark June 16, 2023 Page 3 frequent entry into and exit from the commercial facility. The number of trips in and out of the facility will create an unusual and unique traffic patter for Bullard that should be studied. 2. Noise -The proposed commercial medical facility will generate unusual and never before experienced additional noise that will necessarily impact my residence. There will be increased vehicle noise, emergency vehicle noise, delivery truck noise, and operational activity involved with the commercial facility. The facility proposes to operate 24 hours a day, seven days a week-offering no break in its noise production to my residence or the neighbors residences. There are normal "single family" noises that our neighborhood experiences -occasional dog barking, children playing, basketballs being dribbled. But, we have never had a daily flow of emergency vehicles, waste disposal vehicles, employee traffic that will never cease, break or disappear -it will be omnipresent for as long as the facility operates with no limit on the hour of the day or night as to when the noise can be regulated. This is why cities create residential neighborhoods and commercial districts -to allow for the quiet enjoyment of one's property after one purchases a residential, very low density property. There are more appropriate sites in the City for the proposed commercial medical facility. 3. Lighting -A commercial medical facility that operates 24 hours a day will necessarily require night time lighting that far exceeds that of a single family home. The additional light required for three buildings totaling 13,500 square feet will be unusual and excess 'ive for the neighborhood. My concern is that my residence will be directly impacted by any proposed lighting plan that will need to account for employees coming and going, emergency vehicles entering the property and general security concerns. Conclusion For each of the foregoing reasons, Appellant requests that the Planning Commission and/or the City Council hearth is appeal and overrule the Planning Director's approval of the Conditional Use I Permit. Appellant also joins in the letter filed with the Planning and Development Department by Andrew Wanger on June 14, 2023. Thank you for your consideration of this appeal. Brent Smittcamp cc: Thomas Veatch (thomas .veatch@fresno .gov ) PLANNING AND DEVELOPMENT DEPARTMENT Attn: Ms. Jennifer K. Clark June 16, 2023 Page 4 Exhibit M - Additional Letters Received From:Wanger, Andrew To:PublicCommentsPlanning Cc:Thomas Veatch; brent@smittcampag.com Subject:Fresno City Planning Commission meeting - July 19, 2023 / CUP P22-03146 Date:Tuesday, July 18, 2023 4:24:23 PM Attachments:image001.pngscanner@truenorthprops.com_20230718_182743.pdfscanner@truenorthprops.com_20230718_182632.pdfscan20230718155730.pdf External Email: Use caution with links and attachments Dear Fresno City Planning Commission: Please find enclosed: 1.Exhibits 1-9 2.Statement of Brent Smittcamp dated July 18, 2023 These documents should be included as part of the meeting record for the Application for a Conditional Use Permit No. P22-03146. Andrew Wanger Andrew Wanger Partner | General Counsel | Clyde & Co US LLP Direct Dial: +1 415 365 9840 | Mobile: +1 415 225 7549, +1 559 222 5768 150 California Street | 15th Floor | San Francisco | CA 94111 | USA Main +1 415 365 9800 | Fax +1 415 365 9801 | www.clydeco.us If our account details change, we will notify these to you by letter, telephone or face-to-face and never by email. This email message and any attachments may contain legally privileged and/or confidential information intended solely for the use of the individual or entity to whom it is addressed. If the reader of this message is not the intended recipient, you are hereby notified that any reading, dissemination, distribution or copying of this message or its attachments is strictly prohibited. If you have received this email message in error, please immediately notify us by telephone, fax or email and delete the message and all attachments thereto. Thank you. Clyde & Co US LLP is a Delaware limited liability law partnership affiliated with Clyde & Co LLP, a multinational partnership regulated by The Law Society of England and Wales. Disclosure: To ensure compliance with requirements imposed by the IRS in Circular 230, we inform you that any tax advice contained in this communication (including any attachment that does not explicitly state otherwise) is not intended or written to be used, and cannot be used, for the purpose of avoiding penalties under the Internal Revenue Code or promoting, marketing or recommending to another party any transaction or matter addressed herein. From:robert To:Thomas Veatch Subject:Re: Environmental assessment No. P22-03146 July 19.2023 Date:Tuesday, July 18, 2023 11:34:24 AM External Email: Use caution with links and attachments Thomas. Also noise from ambulances, sirens etc very loud for the environment and increased traffic in residential area. Thank you. Robert Norswing Jr. > On Jul 18, 2023, at 10:54 AM, robert <bestemore@msn.com> wrote: > > Dear Thomas. We received a notice of public hearing on environmental assessment No. P2203146 concerning conditional use permit No. P22-03146. We are opposed to this project. It is the wrong project for this residential neighborhood. The entrances to the property on Bullard Ave will cause additional traffic congestion and accidents. There are already enough accidents at Bullard and Van Ness as it is. Safety should be a concern for your department. The property entrance next to Malloch School is not conducive for ingress/egress either, this is where the children get on the school buses. This and many other concerns make this a very poorly conceived project. Thank you. Robert and Victoria Norswing Jr. Planning Commission September 6, 2023 Additional Comments Received Item VII-A ID 23-1286 P22-01346 From:bigmamagibbs@aol.com To:Thomas Veatch Subject:Property @ 2287 West Bullard Avenue Date:Wednesday, September 06, 2023 11:38:14 AM External Email: Use caution with links and attachments City of Fresno Planning and Development, My husband and I have lived at 5737 N. Sequoia Avenue for the past 36 years. It's a very quiet street outside of school traffic at peak times of the day, which has been of no concern to us. Recently, the above referenced home has become a concern. The proximity of the Bullard Avenue home to ours is only a hundred feet and easily visable if you are in our front yard. Following is a recent history of the home at 2287 West Bullard Avenue. In early 2000 a rapist lived in a trailer on the back side of the property for several years. He was allowed to live by the school even though he was a registered sex offender, due to the fact he was not a pedophile. Next, came the son of the homeowner who dealt drugs out of the house for several years. The drug dealing literally happened on the street in front of Malloch Elementary at all hours of the day and night. We watched the buyers come and go for years. A couple moved in for the next 6 or 7 years until the property was sold in April of 2022. The owner ran his construction business out of the home. Since his death, and the sale of the home, the house has been occupied on and off by homeless people. This is when the property and driveway access were boarded up to hopefully prevent further access by unauthorized people. An officer from the Fresno Police Department checks the surrounding area on a frequent basis and has told me he can't believe this goes on across from the elementary school. Two weeks ago we heard the helicopter and Fresno PD asking someone to come out with their hands up. I do not know details of the incident, but someone was hiding in the home. Last Saturday, September 2, 2023 at 2:00 in the afternoon smoke was billowing from the fireplace. Obviously someone was inside either cooking food or possibly meth! With all due respect to the neighbors who oppose this project, you most likely have not visually experienced what goes on at this location. I am confident that your concern for the children attending Malloch School is of more concern than a commercial property being built on the location. The property has been zoned RS-2 for as long as we have known, so some type of commercial use is likely going to happen. ( We doubt anyone would build a single family home facing Bullard which is such a busy street.) This Respiratory Care Center seems to be an acceptable and safe solution to the problem as long as access to the facility is on Bullard Avenue and not Morris Avenue. Thank you, Jim and Mary Ann Gibbs From:jason californiaretailbuilders.com To:Thomas Veatch Subject:Pictures Date:Wednesday, September 06, 2023 10:30:31 AM External Email: Use caution with links and attachments Pics of outside and pics of a existing CLHF California Retail Builders, Inc. Jason Andrade President 360W. Bedford, Suite 103 Fresno, California 93711 559.286.6151 www.californiaretailbuilders.com License Number - 997048 From:jason californiaretailbuilders.com To:Thomas Veatch Subject:Email 2 of 2 pics of existing CLHF Date:Wednesday, September 06, 2023 10:29:52 AM External Email: Use caution with links and attachments California Retail Builders, Inc. Jason Andrade President 360W. Bedford, Suite 103 Fresno, California 93711 559.286.6151 www.californiaretailbuilders.com License Number - 997048 From:jason californiaretailbuilders.com To:Thomas Veatch Subject:Pics email of existing CLHF 1 of 2 Date:Wednesday, September 06, 2023 10:29:12 AM External Email: Use caution with links and attachments California Retail Builders, Inc. Jason Andrade President 360W. Bedford, Suite 103 Fresno, California 93711 559.286.6151 www.californiaretailbuilders.com License Number - 997048 From:Jason Andrade To:Thomas Veatch Subject:Pics property Bullard Date:Wednesday, September 06, 2023 10:20:29 AM External Email: Use caution with links and attachments Pics of our property From:PublicCommentsPlanning To:Thomas Veatch Subject:FW: CUP Application No. P22-03146 Sept. 6 2023 meeting Date:Wednesday, September 06, 2023 7:40:21 AM FYI Rob Holt | Supervising Planner Current Planning | Planning & Development 2600 Fresno Street | Fresno CA 93721 559.621.8056 Robert.Holt@Fresno.gov Resources: Planning & Development | GIS Data Hub – Interactive Zoning Map | Fresno Municipal Code Accela Citizens Access (ACA) Online Plans/Permits/Inspections | ACA Instruction Videos From: jim burden <jimburden44@gmail.com> Sent: Tuesday, September 05, 2023 6:29 PM To: PublicCommentsPlanning <PublicCommentsPlanning@fresno.gov> Subject: CUP Application No. P22-03146 Sept. 6 2023 meeting External Email: Use caution with links and attachments My wife and family built and have lived in our home 1/2 block from the terrible proposed project on Bullard Ave. for 35 years. It is not Zoned for such use and will bring down the values of all homes in the area. And each of you knows that the objections Mr. Wanger has presented are all true and warranted. It is very clear. Whoever votes yes on this project will be remembered and replaced ASAP. This IS OUR BACKYARD, and we will not forget if you vote in favor of violating our zoning Laws. Jim & Kitty Burden... From:Lynne Glaser To:Thomas Veatch Subject:2287 W. Bullard Date:Tuesday, September 05, 2023 5:42:37 PM External Email: Use caution with links and attachments As long-time residents of this low-density residential neighborhood, we strongly oppose the development of a major commercial full-time residential medical building at 2287 W. Bullard Ave. First, it is completely out of sync with the intent and here-to-fore use of the property, and the developed use of the neighborhood in which it would reside. Second, it will appreciably add to the traffic flow, a flow already intensified during the comings and goings at the adjacent Malloch School. Access from Bullard will be dicey going westward, because of the heavy eastward flow. Access via Roberts, Celeste, morris and/or Celeste already impact residential neighbors because of the school, which we agreeably live with. Additionally, the increased traffic will wear more seriously on the roads’ surfaces. Add on to that, the type of lighting and other services/utilities required to operate, and you get what could only be considered an obtrusive mess. Neighbors have attempted to interface with the hopeful developers to no avail, in part due to one partner’s dismissive and rude behavior. For one thing, we have proposed a single building with lower number of patients. But we were informed that the developers could not make enough money that way. We also proposed more small housing through condos or as a PUD. That is something that is sorely needed, and would maintain the original intent and long-existing character/use. Please say NO. Lynne and Frank Glaser 2310 W. Roberts, Fresno 93711 Sent from my iPhone From:Wanger, Andrew To:PublicCommentsPlanning; Thomas Veatch Subject:CUP Application No. P22-03146 / Sept. 6, 2023 meeting Date:Tuesday, September 05, 2023 3:51:39 PM Attachments:image001.pngscanner@truenorthprops.com_20230905_175636.pdf External Email: Use caution with links and attachments Dear Director Clark: Please see attached in advance of tomorrow’s meeting. Very truly yours, Andrew Wanger Andrew Wanger Partner | General Counsel | Clyde & Co US LLP Direct Dial: +1 415 365 9840 | Mobile: +1 415 225 7549 150 California Street | 15th Floor | San Francisco | CA 94111 | USA Main +1 415 365 9800 | Fax +1 415 365 9801 | www.clydeco.us If our account details change, we will notify these to you by letter, telephone or face-to-face and never by email. This email message and any attachments may contain legally privileged and/or confidential information intended solely for the use of the individual or entity to whom it is addressed. If the reader of this message is not the intended recipient, you are hereby notified that any reading, dissemination, distribution or copying of this message or its attachments is strictly prohibited. If you have received this email message in error, please immediately notify us by telephone, fax or email and delete the message and all attachments thereto. Thank you. Clyde & Co US LLP is a Delaware limited liability law partnership affiliated with Clyde & Co LLP, a multinational partnership regulated by The Law Society of England and Wales. Disclosure: To ensure compliance with requirements imposed by the IRS in Circular 230, we inform you that any tax advice contained in this communication (including any attachment that does not explicitly state otherwise) is not intended or written to be used, and cannot be used, for the purpose of avoiding penalties under the Internal Revenue Code or promoting, marketing or recommending to another party any transaction or matter addressed herein. From:PublicCommentsPlanning To:Thomas Veatch Subject:FW: CUP Application No. P22-03146 / Sept. 6, 2023 meeting Date:Wednesday, September 06, 2023 1:00:28 PM FYI Rob Holt | Supervising Planner Current Planning | Planning & Development 2600 Fresno Street | Fresno CA 93721 559.621.8056 Robert.Holt@Fresno.gov Resources: Planning & Development | GIS Data Hub – Interactive Zoning Map | Fresno Municipal Code Accela Citizens Access (ACA) Online Plans/Permits/Inspections | ACA Instruction Videos From: Renea Estrada <renea61@comcast.net> Sent: Wednesday, September 06, 2023 12:59 PM To: PublicCommentsPlanning <PublicCommentsPlanning@fresno.gov> Subject: CUP Application No. P22-03146 / Sept. 6, 2023 meeting External Email: Use caution with links and attachments To Whom It May Concern: My husband Art Estrada and I are the homeowners at 5661 N. Sequoia Ave. Fresno, CA 93711. We are unable to attend tonight’s meeting due to my husband testing positive for Covid this morning. We would like to have our opposition to this development noted. We do not support this property being developed into anything other than low-density residential, in keeping with our current neighborhood situation. Respectfully, Renea Estrada Sent from Mail for Windows Exhibit N – Additional Neighborhood Meeting Information From:jason californiaretailbuilders.com To:Thomas Veatch; jason californiaretailbuilders.com Subject:Neighbor Meeting - CLHF Date:Wednesday, August 23, 2023 2:07:59 PM External Email: Use caution with links and attachments Infinite Living (CLHF) 287 W. Bullard Avenue Fresno, Ca 93711 Town Hall Meeting Malloch Elementary 2251 W Morris Ave, Fresno, CA 93711 August 22, 2023 Start of Meeting: 6:05 End of Meeting: 6:48 14 Residents Attended (2 new residents) Meeting Purpose: Educate, Collaborate, and Address Concerns with neighbors/residents regarding the Congregate Living Health Facility, Infinite Living Towards Resolving Misunderstandings and Differences. The Town Hall meeting for Infinite Living was held at 6:00 P.M. at Malloch Elementary School, Tuesday August 23, 2023. Similar to prior neighborhood meetings, the same groups of residents/neighbors were invited and encouraged to attend. Approximately 14 households were represented at the meeting. While the meeting had a rocky start with residents generally wanting to have their points of view heard, addressed, and resolved on their own terms, by the meeting’s end, the group appeared to be more cohesive and willing to collaborate where participants appeared generally engaged in discussing and agreeing on constructive solutions to those concerns raised by other fellow homeowners – present and not. Among concerns raised, neighbors expressed concern over esthetics, number of beds, traffic, lighting, parking, lot line adjustments, and access points. The issues were summarily addressed. Some misgivings about access and traffic were corrected. Ultimately, while some appeared satisfactorily educated and unconcerned following discussion on points raised, the apparent majority maintained lingering concerns and general opposition to the project as constituted. In the spirit of compromise, CLHF offered concessions to the neighbors if the opposition would end and/or support for the project by these individual in opposition would commence. Those concessions, conditioned on an agreement to support or not oppose the project were: to 1) limit the number of residential structures from three to two, 2) agree that ownership would commit to a term of years as owners, 3) and covenant not to subdivide or split the property. The meeting began its descent towards conclusion where, homeowner, Mr. Andrew Wanger, Esq., agreed to coordinate with Brian Whelan of CLHF’s group to see about getting behind the project on these compromised terms. Mr. Wanger, however, was candid with CLHF insofar as he had reservations that the terms would ever be accepted by certain or all neighbors. Nonetheless, CLHF encouraged proactive engagement towards reaching conciliation and common ground as many of those in attendance seemed interested in getting behind such a modified proposal. The day following the meeting, Brian Whelan communicated with Mr. Wanger with a general framework proposal as substantially articulated above. Thereafter, other neighbors, who had not been present at the meeting, contacted Mr. Whelan and indicated that there was no interest in such a compromise and the project should not proceed. Given the generally positive nature of the meeting’s end, both Mr. Wanger and Mr. Whelan will continue to collaborate on behalf of the respective parties to see if a following up meeting (on date to be determined and before the City Hall Meeting on September 6, 2023) would result in progress following Mr. Wanger’s further engagement with homeowners. Ultimately, if the those presently in opposition to the project will support CLHF upon such modified terms as otherwise indicated, then CLHF would embrace the conditions as a condition of the CUP. If the neighbors ultimately remain resistant, CLHF will not agree to any CUP modifications, but will very likely take it upon itself to reduce the size of the project. California Retail Builders, Inc. Jason Andrade President 360W. Bedford, Suite 103 Fresno, California 93711 559.286.6151 www.californiaretailbuilders.com License Number - 997048 Exhibit O - Planning Commission Resolution FRESNO CITY PLANNING COMMISSION RESOLUTION NO. 13811 The Fresno City Planning Commission, at its regular meeting on September 6, 2023, adopted the following resolution relating to Conditional Use Permit Application No. P22- 03146. WHEREAS, Conditional Use Permit Application No. P22-03146 was filed with the City of Fresno by Cesar Rodriguez of CR Consulting Group Inc, on behalf of Jason Andrade of Infinite Living, for ±1.38 acres of property located on the south side of West Bullard Avenue, between North Van Ness Boulevard and North Forkner Avenue; and, WHEREAS, Conditional Use Permit Application No. P22-03146 proposes the adaptive reuse of an existing residence to be used as a new residential respiratory care facility (congregate living health facility) to be constructed in two (2) phases. Phase I proposes to remodel and expand an existing ±3,310 square-foot residence to ±4,500 square feet. Phase II proposes to build two (2) new residential care facility buildings with a combined area of ±9,011 square feet. The three (3) buildings will provide acute care services, skilled nursing care, and complex respiratory care to on-site residents.; and, WHEREAS, on July 19, 2023, the Fresno City Planning Commission (Commission) reviewed the subject conditional use permit application in accordance with the policies of the Fresno General Plan and Bullard Community Plan, and, WHEREAS, during the hearing, the Commission received a staff report with related information, an environmental assessment and considered testimony regarding the proposed application and related environmental assessment, which were appealed on June 5, 2023 and June 14, 2023; and, WHEREAS, various of the members in attendance spoke in opposition of the proposed Conditional Use Permit application; and, WHEREAS, during the hearing, the Commission continued the subject Conditional Use Permit application to a September 6, 2023 public hearing, and directed the applicant, appellant, and neighbors to discuss concerns raised during public testimony; and, WHEREAS, the Commission continued the item at a public hearing on September 6, 2023, to review additional information provided by the Planning and Development Department and consider the Department’s recommendation to deny the appeal and uphold the approval for the proposed application subject to the Conditions of Approval dated June 2, 2023; and, NOW THEREFORE BE IT RESOLVED, the Commission hereby finds and determines that there is no substantial evidence in the record to indicate that Conditional Use Permit Application No. P22-03146 will have a significant effect on the environment. Therefore, it has been determined based upon the evidence in the record that the project will not have Planning Commission Resolution No. 13811 Conditional Use Permit Application No. P22-03146 September 6, 2023 Page 2 a significant impact on the environment and that a determination of a Class 32 (Infill Development Project) Categorical Exemption from the State of California Environmental Quality Act (CEQA) is appropriate in accordance with the provisions of CEQA Section 15332. Accordingly, the Commission recommends the Council deny the CEQA appeal and uphold the adoption of the Categorical Exemption for Environmental Assessment No. P22-03146 dated May 24, 2023, and, BE IT FURTHER RESOLVED that the Fresno City Planning Commission hereby denies the appeal and upholds the Planning & Development Director’s approval of Conditional Use Permit Application No. P22-03146, on condition that the scope of the proposed project be reduced to tow (2) buildings instead of three (3). The foregoing Resolution was adopted by the Fresno City Planning Commission upon a motion by Commissioner Bray, seconded by Commissioner Diaz. VOTING: Ayes - Bray, Criner, Diaz, Lyday, Vang (Chair) Noes - None Not Voting - Hardi (Vice Chair) Absent - Wagner DATED: September 6, 2023 _______________________________ JENNIFER K. CLARK, Secretary Fresno City Planning Commission Resolution No. 13811 Conditional Use Permit Application No. P22-03146 Filed by Cesar Rodriguez of CR Consulting Group Inc, on behalf of Jason Andrade of Infinite Living. Action: Denial of appeal and uphold approval of Conditional Use Permit. Recommend Approval to the City Council of the Environmental Assessment. Exhibit P – City Council Public Hearing Notice & Noticing Map CITY OF FRESNO PLANNING AND DEVELOPMENT DEPARTMENT NOTICE OF PUBLIC HEARING NOTICE IS HEREBY GIVEN that the Fresno City Council, in accordance with Sections 65090 and 65091 (Planning and Zoning Law) of the Government Code and in accordance with the procedures of Article 50, Chapter 15, of the Fresno Municipal Code (FMC), will conduct a public hearing to consider the appeal of items below which pertain to approximately ±1.38 acres of property located on the south side of West Bullard Avenue, between North Van Ness Boulevard and North Forkner Avenue. 1.Environmental Assessment P22-03146, dated July 19, 2023, a determination of Categorical Exemption, Section 15332/Class 32 of the California Environmental Quality Act (CEQA) Guidelines; and, 2.Conditional Use Permit Application P22-03146, authorizing the adaptive reuse of an existing residence to be used as a new residential respiratory care facility (congregate living health facility), subject to compliance with the Conditions of Approval dated September 6, 2023. Any interested person may also participate electronically during the public hearing to speak in favor or against the project proposal, by Zoom meeting with instructions provided on the City Council Agenda, and present written testimony at least 24 hours in advance, pursuant to the City Council rules and procedures, or they may be excluded from the administrative record of proceedings. If you challenge the above application(s) in court, you may be limited to raising only those issues, you, or someone else, raised at the public hearing described in this notice, or in written correspondence delivered to the Development Services Division of the Planning and Development Department and/or Planning Commission/City Council at, or prior to, the public hearing. NOTE: This public hearing notice is being mailed to surrounding property owners within 1,000 feet of the project site pursuant to the requirements of FMC Section 15-5007. All documents related to this project are available for public review at the Planning and Development Department at the address listed below or electronic copies may be requested by contacting the Planner at the number listed below. Documents are available for viewing at City Hall during normal business hours (Monday-Friday, 8 a.m.-5 p.m.) by appointment only. Please contact the Planner listed below via e-mail or by phone to request electronic copies or schedule an appointment to view documents. For additional information regarding this project, contact Thomas Veatch, Planning and Development Department, Development Services Division, by telephone at (559) 621-8076, or via e-mail at thomas.veatch@fresno.gov. Si necesita información en Español, comuníquese con Jose Valenzuela e al teléfono (559) 621-8076. Jennifer K. Clark, AICP, HDFP, Director Planning and Development Department Dated: October 6, 2023 Assessor’s Parcel No: 415-033-44 SEE MAP ON REVERSE SIDE Planning and Development Department 2600 Fresno Street, Room 3043 · Fresno, CA 93721 · Phone (559) 621-8277 FRESNO CITY COUNCIL Date/Time: Thursday, October 19th at 10:05 a.m., or thereafter Place: City Hall Council Chamber, 2nd Floor, 2600 Fresno Street, Fresno, CA 93721; or, watch the live broadcast via the Zoom link located on the City Council agenda found here: https://fresno.legistar.com/Calendar.aspx Thomas Veatch PLANNING AND DEVELOPMENT DEPARTMENT 2600 FRESNO STREET, ROOM 3043 FRESNO, CA 93721-3604 THIS IS A LEGAL NOTICE REGARDING 2287 West Bullard Avenue P22-03146 VICINITY MAP Planning and Development Department 2600 Fresno Street, Room 3043 · Fresno, CA 93721 · Phone (559) 621-8277 Legend Subject property: Exhibit Q – Appeal of PC action Exhibit R - Presentation City Council HearingOctober 19, 2023CONSIDERATION OFCONDITIONAL USE PERMIT APPLICATION NO. P22-03146ANDRELATED ENVIRONMENTAL FINDING FOREA NO. P22-03146Filed byCesar Rodriguez of CR Consulting Group Inc, on behalf of Jason Andrade of Infinite Living. City Council HearingOctober 19, 2023RECAPThe project proposes a congregate living health facility through the remodelof an existing single-family home, and the construction of two additionalbuildings as part of a future phase of development.June 2, 2023:Planning Director approved project.June 5 & 14, 2023:Director’s decision was appealed.July 19, 2023: Appeal considered by Planning Commission.Item continued to allow for an additional neighborhood meeting.August 23, 2023:Neighborhood meeting held by applicant.Fourteen (14) members of the public attended.Summary available asExhibit N.September 6, 2023:Planning Commission denied the appeal and upheld theapproval, on condition that the scope of the project is reduced by reducing the totalnumber of buildings from 3 to 2. City Council HearingOctober 19, 2023Site Plan City Council HearingOctober 19, 2023STAFF RECCOMENDATION1. DENYthe appeal andUPHOLDaction of the Planning Commission andPlanning and Development Department Director to approve EnvironmentalAssessment P22-03146, dated July 19, 2023, a determination of CategoricalExemption, Section 15332/Class 32 of the California Environmental Quality Act(CEQA) Guidelines; and,2. DENYthe appeal andUPHOLDthe action of the Planning Commission andPlanning and Development Department Director to approve Conditional UsePermit Application P22-03146, authorizing the adaptive reuse of an existingresidence to be used as a new residential respiratory care facility (congregateliving health facility), subject to compliance with the Conditions of Approvaldated September 6, 2023.If the City Council decides to uphold the appeal and deny the request todevelop the proposed use, the Council must find that there is insufficientevidence in the administrative record that the findings required by FMC§15-5306 cannot be made and amend the required findings accordingly. City Council HearingOctober 19, 2023VICINITY MAP City Council HearingOctober 19, 2023State Law Requirements:Per Cal Health and Safety Section 1250 (i) (1), aCongregate Living Health Facility (CLHF) isdefined as a residential home, and include: medical supervision, 24-hour skilled nursingand supportive care, pharmacy, dietary, social, recreational, and at least one type of servicespecified as: (2) (a) Services for persons who are mentally alert, persons with physicaldisabilities, who may be ventilator dependent; (b) Services for persons who have a diagnosisof terminal illness, or, a diagnosis of a life-threatening illness, or both; or (c) services forpersons who are catastrophically and severely disabled.Per that section, acongregate living health facilityshall have a noninstitutional,homelike environment.Per Cal Health and Safety Section 1267.16 (c), a CLHFshall be subject to the conditionaluse permit requirements of the city or county in which it is located.Fresno Municipal Code– While classification for “Residential Care Facility” per the Fresno Municipal Code states thatservices provided are primarily non-medical care, a CLHF can provide a range of otherservices such as supportive care, pharmacy, dietary, social or recreational needs.– The FMC classification also includes hospices, nursing homes, and convalescent facilities,which are uses that could also provide medical care and which are uses similar to theproposed use.Use Classification Analysis 1 Mary Quinn From:Michael Durkee < Sent:Tuesday, October 17, 2023 1:20 PM To:Clerk; Jennifer Clark; Raj Badhesha Cc:Richard Grassetti; Wanger, Andrew; Brent Smittcamp; Michael Durkee Subject:Submission of Additional Materials Regarding Agenda Item #2, ID 23-1470, on the October 19, 2023, City Council Agenda Attachments:Fresno - 2287 W. Bullard Appeal - Supplemental Submission (10.17.23).pdf Follow Up Flag:Follow up Flag Status:Flagged External Email: Use caution with links and attachments Dear City Clerk Stermer, I hope you are well. Pursuant to Rule 11 (c) of the City of Fresno Rules of Procedure, and on behalf of neighboring property owners, including without limitation neighbor Brent Smittcamp and neighbor Andrew Wanger, we hereby respectfully submit the attached letter from Grassetti Environmental Consulting providing additional/supplemental comments and documents for inclusion in the City's administrative record for Agenda Item #2, ID 23-1470, on the October 19, 2023, City Council Agenda. That agenda item concerns the appeal of the determination by the City of Fresno Planning Commission that a proposed Congregate Living Health Facility to be constructed at 2287 West Bullard Avenue be granted a Conditional Use Permit; the Planning Commission further confirmed that the project was subject to an exemption from the California Environmental Quality Act. The pending appeal challenges both the Planning Commission's adoption of the exemption and its approval of the Conditional Use Permit. Thank you Respectfully submitted, Michael Patrick Durkee, Esq. Michael Patrick Durkee Attorney at Law Todd Stermer, CMC City Clerk, City of Fresno Via electronic mail to October 17, 2023 SUBJECT: COMMENTS ON ENVIRONMENTAL ASSESSMENT AND PLANNING FINDINGS – 2287 WEST BULLARD AVENUE PROJECT (AGENDA DATE: OCTOBER 19, 2023 AGENDA ITEM #2, ID 23-1470) Dear Mr. Stermer; Grassetti Environmental Consulting (GECO) is submitting the following comments and documents on the appeal (“Appeal”) of the determination by the City of Fresno Planning Commission that a proposed Congregate Living Health Facility to be constructed at 2287 West Bullard Avenue be granted a Conditional Use Permit; the Planning Commission further confirmed that the project was subject to an exemption from the California Environmental Quality Act (CEQA).1 GECO is submitting this letter on behalf of the appellant neighboring property owners to the proposed project site. As GECO’s Principal, I have reviewed the relevant documents summarized below with respect to 1) general conformance to requirements of the CEQA, and 2) appropriateness of Conditional Use Permit (“CUP”) findings. I have over 40 years of experience preparing and reviewing CEQA documents and was previously the Zoning Administrator for the City of Richmond, CA. My qualifications are included as an attachment to this comment letter. This letter is based on my review of all of the documents included in the links in the City of Fresno’s legislative Information Center for File Number ID 23-1286, for the Planning Commission’s Final Action of September 6, 2023, referred to as “Staff Report” for the balance of this letter. Where applicable, reference to an exhibit in this letter cites to exhibits attached to the Staff Report. As detailed below, the Environmental Assessment is lacking critical information required to determine the significance of project impacts. In addition, the “Findings per Municipal Code Section 15-1306” fail to accurately and adequately address the project with respect to that code section. 1 The CEQA statutes (Pub. Resources Code, § 21000 et seq.), and the Guidelines for the Implementation of CEQA (Cal. Code Regs., tit. 14, § 15000 et seq.) (Guidelines), detail the protocol by which state and local agencies comply with CEQA requirements. This letter refers to the statute and the Guidelines collectively as “CEQA.” 2 CEQA Issues Inadequate/Incomplete/Unstable Project Description CEQA requires that the project itself must be consistently described, throughout the process of local agency consideration, in terms that are “accurate,” “stable” and “finite.” The Courts, in County of Inyo v. City of Los Angeles (1977) 71 Cal.App.3d 185, held “an accurate, stable and finite project description [is] the sine qua non of an informative and legally sufficient EIR.” For this proposed project, there is no single ‘Project Description” anywhere in the Staff Report and its related exhibits. The Operational Statement filed by the Applicant in June 2022 indicates that the project will consist of two phases. The first phase would be the remodeling and expansion of an existing residence to be operated as a Congregate Living Health Facility to provide “Complex Medical to Basic Medical Care and services.” (Exhibit C to Staff Report). The first phase would also include any necessary infrastructure necessary to support the project. However, this infrastructure is not specified beyond a brief discussion of providing ingress and egress to the project site. The second phase would include two additional structures (reduced by the Fresno Planning Commission to 2 structures) and “any leftover infrastructure that was not done during the first phase.” Again, the type of infrastructure, its location, and potential impacts are not disclosed in the Operational Statement. Further illumination of the Project Description might be found in the Trip Generation Analysis from June 2023. In that document, the traffic engineer provided a description of the project as containing three buildings with over 13,000 combined square footage to accommodate 54 beds in a Congregate Living Health Facility. (Exhibit J to the Staff Report). In July 2023, the Environmental Assessment included a one-paragraph summarized project description that is missing numerous critical components, as listed below. The files also include obsolete/non-final project plans and exhibits, as well as an operational statement. As discussed below, the lack of a single, stable project description conflicts with CEQA’s requirements Further complicating the lack of a coherent, stable Project Description is the change in the project made by the Planning Commission when it reduced the number of structures from 3 to 2. That approval did not include any information about the number of beds per structure or how the different buildings would be operated—further frustrating the ability of persons reviewing the project documents to understand the project being proposed and its potential impacts. In this case, the reader has to piece together sometimes conflicting information regarding the project description from the various documents mentioned above. Even if one were to piece those together, the following information is nowhere to be found: • Number of beds/patients: There is no single disclosure of the number of beds –or the number of patients—to be served by the project. In addition, the various documents include a range. For example, the Environmental Assessment (Exhibit I to the Staff Report) project description summary identifies 9 bedrooms (it leaves unstated as to how many beds per bedroom) in the first building, and includes no discussion of the number of beds in each of the subsequent buildings. However, the October 17, 2023 Peer Review 3 Trip Generation Analysis (Exhibit J to the Staff Report) assumes that with the three buildings originally proposed by the Applicant, the project would contain 54 beds (18 beds/building). At the Planning Commission, the project was reduced to two structures, but there is no mention of the number of beds that would result. The number of beds also impacts the appropriateness of the findings to support the issuance of a conditional use permit, as discussed below. . • Types of Treatment: The Operational Statement says that the facility would provide “Impatient treatment.” While this might be a typographical error to “inpatient treatment,” it highlights the lack of specificity of whether other types of treatment, particularly outpatient, might be provided by the project. • Number of employees – The Operational Statement lists some of the services provided and the types of team members (Exhibit C to the Staff Report). However, as with the number of beds proposed for the project, a firm, fixed count of the number of employees, both per building and in total, is not provided. It is also unclear as to whether the listed staff would per shift or include all three shifts. Moreover, there is no discussion of whether the staffing listed is for the first phase of the project, or whether all three buildings originally proposed in the Operational Statement will overlap and provide services between all of the buildings that make up the project in subsequent phases. Again, given the Planning Commission’s reduction in the number of structures does not illuminate how many staff are required and how they will be distributed, either over time or within the project site. • Number of Patients: None of the project documents include information on the number of patients to be treated at the facilities described, the length of stay, or the anticipated number of patients to be served on a weekly, monthly, or annual basis. Furthermore, neither the method of patient transportation to the project site is disclosed nor the number of visitors is included. • It is unclear what types and quantities of medical wastes would be generated at the facility and how would they be handled/disposed of. • It is unclear what sorts of medical equipment would be installed at the facility. • It is unclear if there would be any on-site laboratory facilities, and/or if there would be lab hoods and associated vents. • While the Operational Statement provides a bullet list of services to be provided, there is no description of the equipment and supplies necessary to provide those services, the types of waste that may be generated by the facility, and the disposal of such waste. Nor is the number of patients who would receive those services provided. • The Operational Statement notes that the project would include “pharmacy” treatment – does that include drug-addition rehabilitation services? • Subdivision of the Project Site. The Operational Statement indicates the project site will be subdivided as part of phase two, but does not provide any further information about that purpose and potential impacts of such a subdivision. Such a change may implicate parking, access, and operations. • Would the project site need to be annexed to Community Facilities District (CFD) 9 to obtain public services? October 17, 2023 Peer Review 4 Under CEQA, if there are minimal stated limitations on the use of a facilities, then the environmental analyses must assess the impacts of the full range of potential uses of that facility (see, for example Laurel Heights Improvement Ass. V. Board of Regents of the University of California (1988). As detailed later in this letter, the Environmental Assessment of the proposed project fails to do so. Further, the project site plan includes numerous requests for alterations from City staff – it is unclear as to whether these have been incorporated into the final project. Even if these changes were made, the Planning Commission conditioned the project to include two buildings rather than three, which would require an entirely new site plan. Impermissible Deferral of Studies to Project Conditions CEQA requires that all studies and mitigation required to assure that project impacts are less than significant be included in the CEQA analysis prior to public review and project approval (see Sundstrom v. County of Mendocino 1988, which states, “The requirement that the applicant adopt mitigation measures recommended in a future study is in direct conflict with the guidelines implementing CEQA. California Administrative Code, title 14, section 15070, subdivision (b)(1) provides that if an applicant proposes measures that will mitigate environmental effects, the project plans must be revised to incorporate these mitigation measures "before the proposed negative declaration is released for public review...." Yet both project description information and several of the studies needed to determine whether the project may have potentially significant environmental impacts that would preclude finding the proposed project exempt from CEQA under Class 32 are deferred to post-approval. Specifically, the Conditions of Approval for the proposed project include: • Preparation of a revised site plan for the 2-building project revision. (Part A, Condition 3) • Revisions to the Operational Statement “to include a description of measures taken to minimize potential noise and lighting impacts on surrounding land uses outside of normal business hours.” (Part A, Condition 9) • “Air District: Comply with the requirements outlined in the attached air district letters [sic] dated November 21, 2022.” (Part B, Condition 1.) The Air District letter (pp 2-3) specifically requests that the City conduct a Health Risk Screening Assessment for the proposed project. Given the uncertain uses of the facilities discussed above, and the existence of an elementary school directly across the street from the proposed facility, such an assessment is essential to identifying impacts. Yet no such assessment has been performed as part of the project environmental assessment. • The Fresno County Environmental Health comments include “the proposed project has the potential to expose nearby residents to elevated noise levels,” and “in the course of remodeling the existing structure, the contractor may encounter asbestos containing construction materials and materials coated with lead-based paints.” However, no quantification of the potential impacts is identified nor their mitigation required. October 17, 2023 Peer Review 5 • Under “Miscellaneous” (Condition 35) the conditions state that “Noise levels shall not exceed…levels described in …the Fresno Municipal Code” but provide no analysis as to whether this is feasible or how it would be assured. Noise studies should be conducted to identify whether the project could result in a significant impact, especially considering the proposed 24-hour operations. • Similarly, Conditions 37states that “Lights shall be placed to deflect light away from adjacent properties…to prevent interference…with enjoyment of surrounding properties.” However, there are no lighting plans or light or glare spillage studies that show what the impacts would be, whether this mitigation is feasible, or how it would be implemented. Lighting plans and studies are essential to identifying the impacts and determining any necessary mitigation. • The conditions include conditions for potential archaeological impacts (Conditions 42 and 43). These appear to be mitigation measures. Note that the project Cultural Resources Report states only that no archaeological studies have been conducted within ¼ mile of the site, not that there are no potential resources or impacts on the site. (J&R Environmental Services, Historic Property Survey for CLHF Project, 2287 W. Bullard Avenue, February 2023, p. 12). Given the combination of lack of studies and the deferral of studies to conditions that appear to be ‘mitigation” under CEQA, the Environmental Assessment is not adequate to determine if significant impacts would occur with the project. Further, a project requiring mitigation measures does not qualify for a CEQA exemption (see Salmon Protection and Watershed Network v. County of Marin (2004) 125 Cal. App. 4th 1098, 23 Cal. Rptr. 3d 321. which states: “The determination of whether a project may impact a designated environmental resource must be made without reference to or reliance upon any proposed mitigation measures. (Azusa Land Reclamation Co. v. San Gabriel Basin Watermaster (1997) 52 Cal. App. 4th 1165, 61 Cal. Rptr. 2nd 447), Reliance upon mitigation measures (whether included in the application or later adopted) involves an evaluative process of assessing those mitigation measures and weighing them against potential environmental impacts, and that process must be conducted under established CEQA standards and procedures for EIRs or negative declarations.”) Land Use and Planning Issues Adequacy of Findings to Support the Issuance of a Conditional Use Permit Approval of the project is premature because of the lack of specificity of the size and operating characteristics of the Project: The Applicant “proposes to convert a 3,310 square foot residential home into an approximately 5,000 square foot CLHF (Congregate Life Health Facility)”. The Applicant further states that the proposed Congregate Life Health Facility “will provide Acute Care Services, Skilled Nursing Care and Complex Respiratory Care on a 24-hour a day basis” and will further offer a “large range of Medical Services includes: Complex Medical to Basic Medical Care and services.”). The Applicant further states its intention to have later phases to include additional structures and to subdivide the lot. (Operational Statement, Exhibit C.) The state of California has adopted a comprehensive framework for providing health services, such as those proposed by the Applicant. A Congregate Living Health Facility is October 17, 2023 Peer Review 6 defined in Health and Safety Code section 1250 as a facility with a maximum of 25 beds when located in a county with a population greater than 500,000. (Health & Safety Code, § 1250(i)(1),(i)(4)(B).) Such facilities are described as providing care that “is generally less intense than that provided in general acute care hospitals but more intense than that provided in skilled nursing facilities.” (Health & Safety Code, § 1250(i)(1).) Currently, the lack of specificity in the record about the number of beds and patients to be constructed as part of the project approvals does not allow for a conclusion whether the proposed project satisfies the State’s definition of a Congregate Living Health Facility. As detailed in this letter, the shifting project description and its lack of specificity and consistency make it impossible to determine the number of beds the project is seeking to provide. This lack of specificity, at a minimum, makes project approval premature until the project’s characteristics are known. Findings Required for the CUP are Erroneous/Unsupported by Fact Even if the above deficiencies were disregarded, the findings necessary to grant the conditional use permit cannot be made, as detailed below. Finding a: The proposed use is allowed within the applicable zoning district and complies with all other applicable provisions of this Code and all other chapters of the Municipal Code; Even if the proposed project were to meet the Health and Safety Code definition of a Congregate Living Health Facility, the City cannot make the findings necessary to support the issuance of a Conditional Use Permit. To support the issuance of the necessary Conditional Use Permit, staff argues that the Congregate Living Health Facility is within the definition of a “Residential Care Facility, General,” under Fresno Municipal Code section 15-6702. Section 15-6702 defines Residential Care Facilities as “facilities that are licensed by the State of California to provide permanent living accommodations and 24-hour primarily non-medical care and supervision for persons in need of personal services, supervision, protection, or assistance for sustaining the activities of daily living…. This classification includes facilities that are operated for profit as well as those operated by public or not-for-profit institutions, including hospices, nursing homes, convalescent facilities, and group homes for minors, persons with disabilities, and people in recovery from alcohol or drug addictions.”(emphasis added.) (Exhibit K) As set forth in the Operational Statement, the proposed facility will “provide Acute Care Services, Skilled Nursing Care and Complex Respiratory Care on a 24-hour a day basis.” The Applicant further describes the project as providing a broad range of medical services, with an extensive medical staff. (Exhibit C.) Staff’s reliance on this land use designation is misplaced, as it focuses on secondary services to be provided and not on the project objectives described by the Applicant: to provide skilled nursing and a broad range of medical services. Thus, City staff is incorrectly focusing on the additional supportive services to be provided when the primary care will be medical. Therefore, this facility is not within the ordinance definition of a Residential Care Facility, General. The project is therefore not eligible for a conditional use permit. October 17, 2023 Peer Review 7 The clearly stated primary purpose of the facility is to provide “complex to basic medical care.” Staff’s reliance on Section 15-6702 is misplaced, as it focuses on secondary services to be provided and not on the project objectives described by the Applicant: to provide skilled nursing and a broad range of medical services. Again, City staff is incorrectly focusing on the additional supportive services to be provided when the primary care will be medical. Therefore, this facility is not within the ordinance definition of a Residential Care Facility, General. The project is therefore not eligible for a conditional use permit. Finding b: The proposed use is consistent with the General Plan and any other applicable plan and design guideline the City has adopted; The Findings’ analysis of the project’s conformance to this requirement states “The project represents an adaptive reuse and an infill opportunity of a partially developed semi vacant lot.” None of this is correct. First, the lot is not “semi-vacant,” but rather has been developed with a single-family house and surrounding yard areas. Second, the project is not primarily an adaptive reuse of an existing house- it proposes a nearly 50% expansion of that house, plus two additional buildings each of which is larger than the existing house (later reduced by the Planning Commission to a total of 2 buildings). Therefore, it is not consistent with the single-family residential land use designation in the City’s General Plan. Finding c: The proposed use will not be substantially adverse to the public health, safety, or general welfare of the community, nor be detrimental to surrounding properties or improvements; The “Conditions” discussion above clearly indicates the potential for light, noise, and health risks that may occur from the project, which could be “detrimental to surrounding properties.” Yet this Finding relies on those Conditions to conclude that “the project will not be substantially adverse to the public health, safety, or general welfare of the community, nor be detrimental to surrounding properties or improvements.” As detailed in the discussion above, the Environmental Assessment and impermissibly deferred studies fail to support this conclusion. Conclusions On the basis of the above analysis, the appeal should be granted as the Environmental Assessment prepared for this project is inadequate to meet basic CEQA requirements. In addition, the proposed Congregate Living Health Facility is not a “Residential Care Facility, General,” as defined in the Fresno Municipal Code. Accordingly, the project is impermissible under the site’s zoning so that the requisite findings for issuance of the Conditional Use Permit cannot be made. Sincerely Richard Grassetti Principal Grassetti Environmental Consulting October 17, 2023 Peer Review 8 Attachments: Qualifications cc: Ms. Jennifer Clark, Director, Planning and Development Fresno City Attorney Michael Patrick Durkee, Esq. GECO QUALIFICATIONS A. INTRODUCTION TO THE FIRM Grassetti Environmental Consulting (GECo) is a specialty environmental planning firm with expertise in environmental assessment, CEQA/NEPA compliance analyses, third party review, CEQA project management, and preparation of geologic and water resource studies. The firm focuses on working with clients towards full disclosure of environmental impacts and development of practical mitigation measures for those impacts. Our working ethic is to efficiently ensure full compliance with CEQA/NEPA regulations and guidelines while minimizing duplicative studies and regulatory confusion. We are proficient in preparing responsive environmental documentation for technically complex projects, and can provide our clients with a working understanding of the appropriate level of effort needed to comply with applicable environmental regulations. We also have expertise in preparing peer reviews of CEQA and NEPA documents, and have earned the respect of project proponents and critics alike. We strive to provide our clients with a level of personal service not generally found in larger firms. The firm’s Principal, Mr. Richard Grassetti, has over 38 years of experience preparing and reviewing environmental documents throughout California. Mr. Grassetti has worked on over 350 environmental impact reports, initial studies, environmental assessments, exemptions, and environmental impact statements. He has substantial expertise reviewing environmental assessments for regulatory compliance and technical adequacy, has conducted over 50 peer reviews of NEPA and CEQA documents, and has testified as an expert witness regarding CEQA adequacy issues. He also has prepared various other environmental analyses including environmental constraint assessments and feasibility studies. Mr. Grassetti has experience in both technical analysis and project management for environmental impact assessments of many types of projects including industrial development, power generation projects, airports, waste management and pollution control projects, mixed use urban development, residential projects, recreation/resort developments, planning studies, transportation improvements, and other infrastructure development. GECo works with a group of affiliated environmental professionals on a regular basis. This collaboration provides our clients with a broad range of expertise, without the overhead burden of a large consulting firm. Our goal is to provide our clients with personalized service tailored to their specific needs. Each individual included on a GECo project team is a highly experienced, senior-level professional with extensive experience working for both public- and private-sector clients. Our services range from initial project scoping through project implementation and monitoring. Our staff and affiliates are highly qualified to assist clients in negotiating the maze of environmental compliance regulations. Through these reciprocal working arrangements, we offer technical experts of the highest caliber at modest cost. Our combined skills and experience offer a complete range of environmental assessment services. GECO QUALIFICATIONS B. REPRESENTATIVE PROJECT EXPERIENCE RECENT URBAN DEVELOPMENT EXPERIENCE Hanna Court Wine Warehouse Project CEQA Initial Study/Mitigated Negative Declaration. GECo prepared the IS/MND for a large wine warehouse project in American Canyon. Major issues were seismic hazards, biological resources, and traffic. Client. Stravinski Development Group and City of American Canyon. Project was approved and constructed after redesign to avoid on-site earthquake fault. Green Island Road Wine Warehouse Project CEQA Initial Study/Mitigated Negative Declaration. GECo prepared the IS/MND for a large wine warehouse project on Green Island Road in American Canyon. Major issues were wetlands, traffic, and air quality traffic. Client. ICG and City of American Canyon. Project was approved and constructed after redesign to add parking lot. Commerce 330 Wine Warehouse Project CEQA Initial Study/Mitigated Negative Declaration. GECo prepared the IS/MND for a large wine warehouse project on Commerce Boulevardd in American Canyon. Project involved subdividing a large parcel into three parcels for potential warehouse use, as well as constructing a road extension to serve the new parcels. Major issues were wetlands, traffic, and air quality traffic. Client. ICG and City of American Canyon. Project was approved and is under construction. Gee Bridge Project IS/MND. GECo is preparing an IS/MND for a bridge on a private parcel in Northern Marin County. Client: Marin County Community Development Department. Albion Monolith Development Plan Initial Study/Mitigated Negative Declaration. GECo prepared a detailed IS/MND for an eight-unit residential project on an open parcel in Marin County near the City of San Rafael. Major issues were biological resources and traffic hazards. Client: Marin County Community Development Department. Hamilton Wetlands/Todds Road CEQA Review. GECo prepared the CEQA Initial Study for an alternative access road for truck traffic to the Hamilton Wetlands Restoration Project in Novato to reduce the project’s potential noise impacts. Client: California State Coastal Conservancy. SOLID WASTE MANAGEMENT PROJECTS Forward Landfill Expansion Project EIRs. GECo prepared four EIRs and Supplemental EIRs for the Forward Landfill in San Joaquin County. Most recently, we prepared of a 17-acre addition to the landfill. Previously, we prepared an EIR and Supplemental EIR for a 170-acre expansion of the Landfill, an EIR for consolidation of the Forward and Austin Road Landfills, and another EIR for a minor addition to the Landfill. Major issues include air quality, health and safety, biological resources, and traffic. Client: San Joaquin County Community Development Department. GECO QUALIFICATIONS WETLANDS RESRTORATION CEQA EXPERIENCE Cascade Canyon Bridges CEQA Initial Study/Mitigated Negative Declaration. GECo is preparing an IS/MND for construction of two bike/pedestrian bridges in the Cascade Canyon Preserve in Marin County. Major issues are biological resources, cultural resources, and noise., Client: Marin County Parks and Open Space District. Rockville Trails Preserve Master Plan IS/MND. GECo prepared an IS/MND for a major open space preserve in Solano County. Project included new trails, a parking lot/staging area, and a new access road. Major issues were biological resources, cultural resources, and traffic safety. Client: Solano Land Trust. Rush Ranch Preserve Master Plan IS/MND. GECo prepare and IS/MND for a master plan for the Rush Ranch preserve, which included both visitor center improvements, trails improvements, and habitat restoration elements. Major issues included biological resources, water quality, and recreation. Client: Solano Land Trust. Bolinas Lagoon Open Space Preserve, Invasive Spartina Management Project Initial Study/MND. GECo prepared a CEQA Initial Study for a long-term management plan to control invasive Spartina species in Bolinas Lagoon. Client: Marin County Parks and Open Space District. Kent Island Restoration at Bolinas Lagoon Joint Environmental Assessment (EA) and Initial Study (IS). GECo prepared a combined CEQA Initial Study and federal Environmental Assessment for a proposal to restore Kent Island’s ecosystem. The EA was for the US Army Corps of Engineers permit, and the IS was prepared for the Marin County Open Space District. Client: Marin County Parks and Open Space District. San Francisco Bay Water Trail Program EIR. GECo assisted in the preparation of the EIR for a “water trail” for small non-motorized boats throughout San Francisco Bay. The project involves designation of 115 access sites as well as policies for stewardship and education. Client: California State Coastal Conservancy. Upper Putah Creek Restoration Project Program EIR. GECo prepared a Program Environmental Impact Report on restoration of approximately 25 linear miles of stream channel of Putah Creek, near Davis, CA. Major issues included biological resources and recreational access. Client: Wetlands and Water Resources, for the Putah Creek Conservancy. Sonoma Creek Marsh Joint Environmental Assessment (EA) and Initial Study (IS). GECo prepared a joint IS/EA for the California Regional Water Quality Control Board (San Francisco Bay Region) and the US Fish and Wildlife Service for a plan to enhance tidal marshes and reduce mosquito production in a 300-acre marsh at the mouth of Sonoma Creek. Client: Wetlands and Water Resources and Audubon Society. Upper Putah Creek Restoration Project Program EIR. GECo prepared a Program Environmental Impact Report on restoration of approximately 25 linear miles of stream channel of Putah Creek, near Davis, CA. Client: Wetlands and Water Resources, for the Putah Creek Conservancy. GECO QUALIFICATIONS Prospect Island Restoration Project. Mr. Grassetti provided CEQA guidance and prepared a number of technical analyses for an EIR on a proposed 1400-acre fisheries enhancement project in the northern Sacramento/San Joaquin River Delta. Client: Stillwater Sciences, for California Department of Water Resources. Dutch Slough Restoration Project/Oakley Community Park EIR. GECo prepared the EIR for a 1400-acre wetland restoration and 80-acre community park on former diked lands in Oakley. Major issues include fisheries, water quality, historic architectural resources, and wetlands. Client: California State Coastal Conservancy. Aramburu Island Shoreline Protection and Ecological Enhancement Project Initial Study. GECo managed preparation of an Initial Study for a proposal by the Audubon Society to stabilize the shoreline and improve bird and seal habitat on the 34-acre Aramburu Island site in Marin County. Client: Wetlands and Water Resources. Salt River Ecosystem Restoration Project EIR. GECo prepared an Environmental Impact Report for the restoration of a large area of former marsh and open channel near Ferndale in Humboldt County. The project included creation of a new seven-mile-long river channel and a 400-acre wetland restoration. Client: Humboldt County Resource Conservation District. Parsons Slough Project CEQA Review: GECo prepared an expanded Initial Study for a tidal sill (dam) project to reduce scour in Parsons Slough, an arm of the ecologically sensitive Elkhorn Slough. Client: Vinnedge Consulting/Elkhorn Slough National Estuary Reserve. San Francisco Bay Estuary Invasive Spartina Control Project EIR/EIS and Addendum. GECo prepared the programmatic EIR/EIS on a plan to control invasive cordgrasses throughout the San Francisco Bay. Mr. Grassetti subsequently prepared an addendum for the addition of a new herbicide to the Spartina Control Program. Client: California State Coastal Conservancy. SCHOOL DISTRICT CEQA DOCUMENTS Distaff Thistle Control Project IS/ND. GECo prepared an IS/ND for the Marin County Office of Education (MCOE) on a project to remove invasive thistles from about 500 acres of rangeland at MCOE’s Walker Creek Ranch. Client: MCOE. Novato Unified School District CEQA Projects. GECo has pprepared over 25 Notices of Exemption and IS/MNDs for the Novato Unified School District. Allen Elementary School Replacement Project Initial Study/Mitigated Negative Declaration. GECo is currently preparing an IS/MND for the replacement of Decima Allen Elementary School in San Bruno. Client: San Bruno Park School District. Mills High School Athletic Fields Modernization Project Initial Study/Mitigated Negative Declaration: GECo is currently preparing an IS/MND for lighting and relocating athletic fields on the Mills High School campus in Millbrae. Client: San Mateo Union High School District. GECO QUALIFICATIONS Capuchino High School Athletic Fields Modernization Project Initial Study/Mitigated Negative Declaration: GECo is currently preparing an IS/MND for lighting and relocating athletic fields on the Capuchino High School campus in Millbrae. It is possible that this document may become a focused EIR due to potential noise issues. Client: San Mateo Union High School District. San Mateo Union High School District New Continuation High School Initial Study/Mitigated Negative Declaration. GECo prepared a detailed IS/MND for a new continuation high school at the site of an existing warehouse building in Burlingame. Client: San Mateo Union High School District. Novato Unified School District GMO Building Initial Study/Mitigated Negative Declaration. GECo prepared the IS/MND for a new grounds, operations, and maintenance building in the Hamilton Air Base area of Novato. Client. Novato Unified School District. Union School District M&O Building Initial Study/Mitigated Negative Declaration. GECo prepared the IS/MND for a new District maintenance and operations building on a vacant portion of the Cinnabar Elementary School grounds in San Jose. Client: Unsion School District. San Marin High School STEM/PAC Initial Study/Mitigated Negative Declaration. GECo prepared an IS/MND for new science and performing arts buildings and relocation of certain athletic fields at San Marin High School in Novato. Client: Novato Unified School District. Novato High School STEM/PAC Initial Study/Mitigated Negative Declaration. GECo prepared an IS/MND for new science and performing arts buildings and relocation of certain athletic fields at Novato High School in Novato. Client: Novato Unified School District. Stevenson/Theuerkauf School Expansion Initial Study: GECo prepared a detailed IS/MND for expansion of two elementary schools, construction of a new preschool, and replacement of the District Office Building on a 15-acre site in Mountain View, CA. Client: Mountain View Whisman School District. Crittenden Track and Field Project Initial Study/Mitigated Negative Declaration: GECo prepared a detailed IS/MND for a project to upgrade an existing track and field, including upgraded lighting, for the Mountain View Whisman School District (MVWSD). Major issues included light and glare and removal of a row of mature redwood trees (visual and biological impacts). Client: Mountain View Whisman School District. New Slater Elementary School IS/MND. GECo is preparing an Initial Study/Mitigated negative declaration for a proposed new 450-student elementary school in the Mountain View Whisman School District. Major issues include traffic, noise, and construction impacts. Client: Mountain View Whisman School District. San Mateo USD District Office Building Replacement Project Initial Study/Mitigated Negative Declaration. GECo prepared a detailed Initial Study/Mitigated Negative GECO QUALIFICATIONS Declaration for a new school district office building to replace two existing buildings in San Mateo. Key staff involved: Richard Grasse OTHER SELECTED CEQA AND NEPA DOCUMENTS San Francisco PUC Water Supply Improvement Program CEQA. GECo assisted in the preparation of the San Francisco Public Utility Commission’s Water Supply Improvement Project Program EIR, as well as two other CEQA documents for individual projects under that program. Major issues include hydrology, water supply, and fisheries. Client: Water Resources Engineering/Orion Associates. State Water Board Water Supply Upgrade Projects CEQA Documentation. GECo prepared approximately 15 CEQA Exemptions and 5 IS/MNDs for small water supply system upgrades throughout California. Client: Northgate Environmental Management and State Water Resources Control Board. Carmel Area Water District Calle La Cruz Pipeline Replacement Project. GECo prepared the IS/MND for replacement of two wastewater lines crossing the Carmel River Lagoon. Major issues included biological resources, cultural resources and water quality. Client: Johnson Marigot Consulting and Carmel Area Wastewater District. Forward Landfill Expansion Project EIR. GECo prepared an EIR and Supplemental EIR for a 170-acre expansion of the Forward Landfill in San Joaquin County. This is the third EIR that GECO and its Principal, Richard Grassetti, has prepared for this landfill over a period of 20 years. Major issues include air quality, health and safety, biological resources, and traffic. Client: San Joaquin County Community Development Department. SELECTED PEER REVIEW PROJECTS John Smith Road Landfill Expansion EIR Peer Review. GECo is currently preparing a peer review of an applicant-prepared EIR on large and controversial landfill expansion in San Benito County. Major issues included air quality, noise, traffic, health risk, land use, and biological resources. Client: San Benito County Resource management Agency Alameda County Solar Projects EIRs Peer Review. GECo prepared peer reviews and comment letters on EIRs on two solar energy projects in agricultural open space lands in eastern Alameda County. Major issues included biological resources, visual quality, and land use planning compliance. Client: Private party in advance of potential litigation. Harris Quarry EIR Peer Reviews. GECo, in association with The RCH Group, conducted peer reviews of two CEQA EIRs for proposed expansions of the Harris Quarry in Mendocino County. The first EIR was rejected by the courts partially on the basis of our review. Client: Keep the Code (Citizens Group). BLM Southern Nevada Water Project NEPA EIS Peer Review. GECo conducted a peer review of a Bureau of Land Management Environmental Impact Statement for a large- GECO QUALIFICATIONS scale project to extract and transport water from rural areas throughout the state of Nevada for use in the Las Vegas area. Major issues were water supply, biological resources, dust/air quality, and loss of agriculture. Client: Confederated Tribes of the Goshute Indian Reservation PG&E San Francisco Facilities Acquisition Project Peer Review. GECo conducted a peer review of a CEQA IS/MND on the City’s proposed acquisition of PG&E facilities. Client: Cox, Castle, Nicholson. Jackson State Forest CEQA Review. GECo prepared a detailed analysis of the CEQA adequacy of the California Department of Forestry’s EIR on a new management plan for the 40,000-acre Jackson State Forest. Major issues included forestry practices, water quality, and biological resources. Client: Dharma Cloud Foundation Lawson’s Landing Master Plan EIR Peer Review. GECo conducted detailed per reviews of numerous CEQA documents for the proposed master plan for the Lawson’s Landing mobile home park and campground in Marin County. Client: Environmental Action Committee of West Marin. Fairfax/Artesa Vineyards Conversion EIR Peer Review. GECo conducted a peer review of an EIR von conversion of forest lands to vineyards in northern Sonoma County. Major issues were biological resources, hydrology/water supply, and land use compatibility. Client: Friends of the Gualala River. Grist Creek Gravel Mining Project Initial Study Peer Review. GECo conducted a peer review of an Initial Study on a proposed gravel mine in Sonoma County. Major issues were fisheries, water supply, and cultural resources. Client: Round Valley Indian Tribes. Morongo Mining Projects Environmental Reviews. GECo provided CEQA, NEPA, and technical consulting to the Morongo Band of Mission Indians regarding two aggregate mines adjacent to their reservation in Riverside County, CA. Client: Law Office of Alexander & Karshmer. Headwaters Forest Project EIR/EIS Review. GECo conducted an expert review of the CEQA and NEPA adequacy and technical validity of EIR/EIS on the Headwaters Forest Habitat Conservation Plan, Sustained Yield Plan, and land purchase. Clients: Environmental Law Foundation; Environmental Protection and Information Center, and Sierra Club. Metropolitan Oakland International Airport Development Plan Environmental Impact Report CEQA Review. GECo performed a critical review and assisted in the preparation of comments and ultimately successful litigation regarding the proposed expansion of Metropolitan Oakland International Airport. Major issues included noise, cumulative impacts, and alternatives selection/analyses. Client: Law Office of John Shordike. San Francisco International Airport Environmental Liaison Office Consulting. GECO conducted various internal peer review tasks associated with environmental studies being prepared for SFIA’s proposed runway expansion. Client: LSA Associates, Inc. GECO QUALIFICATIONS Alamo Gate Permitting Review. GECo performed a critical review and prepared expert testimony and correspondence regarding the adequacy of CEQA and land use permitting and studies for a proposed gate on Las Trampas Road, which would preclude vehicular access to an EBRPD regional park staging area. Client: Las Trampas Trails Advocates. Save Our Forests and Rangelands Expert Review and Witness Services. GECo provided expert review, consulting services, and expert witness testimony on CEQA issues for a successful legal challenge to an EIR and Area Plan for 200,000 acres in the Central Mountain Sub-region of San Diego County. Client: Law Offices of Milberg, Weiss, Bershad, Specthrie, & Lerach. Gregory Canyon Landfill Environmental Processing Review. GECo was retained to review the environmental permitting and CEQA analyses for the proposed Gregory Canyon Landfill in northern San Diego County. Procedural issues include landfill siting requirements and CEQA process compliance. Technical issues include cultural resources, hydrology, endangered species, traffic, and health and safety. Client: Law Offices of Alexander & Karshmer and Pala Band of Mission Indians. GECO QUALIFICATIONS Richard Grassetti PRINCIPAL Expertise • CEQA/NEPA Environmental Assessment • Project Management • Geologic and Hydrologic Analysis Principal Professional Mr. Grassetti is an environmental planner with 30 years Responsibilities of experience in environmental impact analysis, project management, and regulatory compliance. He is a recognized expert on California Environmental Quality Act (CEQA) and National Environmental Policy Act (NEPA) processes, and has served as an expert witness on CEQA and planning issues. Mr. Grassetti regularly conducts peer review and QC/QA for all types of environmental impact analyses, and works frequently with public agencies, citizens groups, and applicants. He has managed the preparation of over 50 CEQA and NEPA documents, as well as numerous local agency planning and permitting documents. Mr. Grassetti has prepared over 200 hydrologic, geologic, and other technical analyses for CEQA and NEPA documents. He has analyzed the environmental impacts of a wide range of projects including infrastructure improvements, ecological restoration projects, waste management projects, mixed-use development, energy development, residential projects, and recreational facilities throughout the western U.S. Mr. Grassetti also has prepared numerous peer reviews of CEQA and NEPA documents for agencies, applicants, Native American tribes, and citizens groups. In addition to his consulting practice, Mr. Grassetti regularly conducts professional training workshops on CEQA and NEPA compliance, and was a lecturer at California State University, East Bay, where he taught courses on environmental impact assessment for 15 years. Professional Services • Management and preparation of all types of environmental impact assessment and documentation for public agencies, applicants, citizens groups, and attorneys • Peer review of environmental documents for technical adequacy and regulatory compliance • Expert witness services GECO QUALIFICATIONS • Assisting clients in CEQA and NEPA process compliance • Preparation of hydrologic and geologic analyses for EIRs and EISs • Preparation of project feasibility, opportunities, and constraints analyses, and mitigation monitoring and reporting plans Education University of Oregon, Eugene, Department of Geography, M.A., Geography (Emphasis on Fluvial Geomorphology and Water Resources Planning), 1981. University of California, Berkeley, Department of Geography, B.A., Physical Geography, 1978. Professional 1992-Present Principal, GECo Environmental Experience Consulting, Berkeley, CA 1994-Present Adjunct Professor, Department of Geography and Environmental Studies, California State University, Hayward, CA 1988-1992 Environmental Group Co-Manager/ Senior Project Manager, LSA Associates, Inc. Richmond, CA 1987-1988 Independent Environmental Consultant, Berkeley, CA 1986-1987 Environmental/Urban Planner, City of Richmond, CA 1982-1986 Senior Technical Associate - Hydrology and Geology - Environmental Science Associates, Inc. San Francisco, CA 1979-1981 Graduate Teaching Fellow, Department of Geography, University of Oregon, Eugene, OR 1978 Intern, California Division of Mines and Geology, San Francisco, CA Professional Member and Past Chapter Director, Association of Affiliations and Environmental Professionals, San Francisco Bay Chapter Certifications Member, International Association for Impact Assessment GECO QUALIFICATIONS Publications and Presentations Grassetti, R. Round Up The Usual Suspects: Common Deficiencies in US and California Environmental Impact assessments. Paper Presented at International Association for Impact Assessment Conference, Vancouver, Canada. May 2004. Grassetti, R. Understanding Environmental Impact Assessment – A Layperson’s Guide to Environmental Impact Documents and Processes. (in press). Grassetti, R. Developing a Citizens Handbook for Impact Assessment. Paper Presented at International Association for Impact Assessment Conference, Marrakech, Morocco. June 2003 Grassetti, R. CEQA and Sustainability. Paper Presented at Association of Environmental Professionals Conference, Palm Springs, California. April 2002. Grassetti, R. and M. Kent. Certifying Green Development, an Incentive-Based Application of Environmental Impact Assessment. Paper Presented at International Association for Impact Assessment Conference, Cartagena, Colombia. May 2001 Grassetti, Richard. Report from the Headwaters: Promises and Failures of Strategic Environmental Assessment in Preserving California’s Ancient Redwoods. Paper Presented at International Association for Impact Assessment Conference, Glasgow, Scotland. June 1999. Grassetti, R. A., N. Dennis, and R. Odland. An Analytical Framework for Sustainable Development in EIA in the USA. Paper Presented at International Association for Impact Assessment Conference, Christchurch, New Zealand. April 1998. Grassetti, R. A. Ethics, Public Policy, and the Environmental Professional. Presentation at the Association of Environmental Professionals Annual Conference, San Diego. May 1992. Grassetti, R. A. Regulation and Development of Urban Area Wetlands in the United States: The San Francisco Bay Area Case Study. Water Quality Bulletin, United Nations/World Health Organization Collaborating Centre on Surface and Ground Water Quality. April 1989. Grassetti, R. A. Cumulative Impacts Analysis, An Overview. Journal of Pesticide Reform. Fall 1986. 1986, 1987. Guest Lecturer, Environmental Studies Program, University of California, Berkeley. GECO QUALIFICATIONS 1 Mary Quinn From:Wanger, Andrew Sent:Tuesday, October 17, 2023 2:12 PM To:Clerk Cc: Chris Subject:Mayor's Appeal of Action Granting CUP Application No. P22-03146 (Final 9_20)) (8002903.1) Attachments:Mayor's Appeal of Action Granting CUP Application No. P22-03146 (Final 9_20)) (8002903.1).pdf Follow Up Flag:Follow up Flag Status:Flagged External Email: Use caution with links and attachments Dear City Clerk Stermer: Please see attached letter for the Oct. 19, 2023 City Council meeting (ID 23-1470). Thank you, Andrew Wanger Andrew Wanger If our account details change, we will notify these to you by letter, telephone or face-to-face and never by email. This email message and any attachments may contain legally privileged and/or confidential information intended solely for the use of the individual or entity to whom it is addressed. If the reader of this message is not the intended recipient, you are hereby notified that any reading, dissemination, distribution or copying of this message or its attachments is strictly prohibited. If you have received this email message in error, please immediately notify us by telephone, fax or email and delete the message and all attachments thereto. Thank you. Clyde & Co US LLP is a Delaware limited liability law partnership affiliated with Clyde & Co LLP, a multinational partnership regulated by The Law Society of England and Wales. Disclosure: To ensure compliance with requirements imposed by the IRS in Circular 230, we inform you that any 2 tax advice contained in this communication (including any attachment that does not explicitly state otherwise) is not intended or written to be used, and cannot be used, for the purpose of avoiding penalties under the Internal Revenue Code or promoting, marketing or recommending to another party any transaction or matter addressed herein. Clyde & Co US LLP October 17, 2023 FRESNO CITY COUNCIL Attn: Todd Stermer, CMC City Clerk, City of Fresno Via email: Re: Appeal of Action Granting CUP Application N o. P22-03146 Dear City Council: Please accept this letter as Notice of Appeal pursuant to Fresno Municipal Code Section 15-5005 of the Planning Commission’s decision to grant, with modifications, Conditional Use Permit Application No. P22-03146 and the Director’s finding that the Project at issue at 2287 W. Bullard Avenue is exempt from environmental review under CEQA. Very truly yours, Andrew G. Wanger 2 APPEAL OF CITY STAFF AND PLANNING COMMISSION ACTIONS REGARDING CUP APPLICATION No. P22-03146 (the Project Proposal) This document provides an overview and summary of the legal and factual grounds supporting our Appeal of the City Staff and Planning Commission actions relating to the Conditional Use Permit (CUP) Application No. P22-03146 and Related Environmental Assessment originally dated June 2, 2023, and subsequently acted on prematurely and without legal authority or compliance by the City Planning Commission on September 6, 2023, as further described below. The proposed “Project” at issue involves the approval of CUP Application No. P22-03146 which involves the alteration of a single family home and residential lot located at 2287 W. Bullard Ave, Fresno, CA 93711 and zoned RS-2 (Very Low Density) to a two building, 9000 square foot commercial medical facility operating as a Congregate Living Health Facility. Appellants Interest in / Relationship to the Subject Property The Appellants are comprised of numerous residential neighbors to the subject property at 2287 W. Bullard Ave. Grounds for Appeal 1. The CUP and the Project at issue fail to comply with CEQA. All “projects” – either “programs” (general plan updates, redevelopment plans, etc.) plans, or particular development proposals – such as the proposal here - must comply with the California Environmental Quality Act (“CEQA”) before action on the plan or development proposal can occur. Pub. Res. Code §§ 21000 et seq.; 14 Cal. Admin. Code §§ 15000 et seq. Our first CEQA concern on Appeal is that CEQA compliance must be concluded first, before a decision is reached, so that CEQA’s information "informs and forms" the substantive decision on the Project proposal itself. For example, CEQA compliance before Project approval can and does inform appropriate mitigation measures, avoidance measures, and/or alternatives to the original Project proposal that can reduce and/or alleviate the proposed Project’s environmental impacts. This information can then be made conditions to, or modifications of, the original Project proposal. However, in the instant case, that statutorily-required protocol has been turned on its head. The City Staff determination that the Project is “exempt” from CEQA constitutes a portion of the neighbors’ overall Appeal. Pursuant to Fresno Municipal Code, that “CEQA Appeal” must be heard by the City Council. That CEQA Appeal remains pending and has not yet been 3 decided. And yet, City Staff, and the Planning Commission ignored that City Council CEQA Appeal, and the City Planning Commission went forward and rendered its decision on the substance of the Project proposal (approving CUP Application No. P22-03146) without the City Council yet determining if CEQA compliance by the Project has been legally secured. That "cart before the horse" approach is the antithesis of CEQA compliance: it makes the CEQA Appeal to the City Council a foregone conclusion, and, in turn, it makes CEQA compliance by the City a “sham,” as the City will now fit its CEQA determination to an already-approved-by-the-Planning Commission-Project instead of shaping the Project approval to the requirements of, and information generated by, CEQA. That is not the law. The Planning Commission cannot legally act on the substance of the Applicant's project proposal until CEQA compliance is determined by the City Council through the CEQA Appeal. Therefore, the Planning Commission decision on the Appeal of the merits of CUP Application No. P22-03146 must be reversed, the City Council must first hear and decide the CEQA Appeal, and then, with CEQA compliance determined, the Planning Commission can use that appropriate CEQA document and its information to determine the merits of CUP Application No. P22-03146. Study first, then decide; not decide first, then study. Our second CEQA concern on Appeal is that adopting an “exemption” as the CEQA compliance for CUP Application No. P22-03146 is not appropriate. Instead, an Environmental Impact Report (“EIR”) must be prepared for the Project proposal (CUP Application No. P22-03146), so that the environmental consequences of that proposal can be studied and understood so that such information can inform and help form the decision on that proposal. As the California Supreme Court has explained, even in “close and doubtful cases,” an EIR should always be prepared to ensure “the Legislature’s objective of ensuring that environmental protection serve as the guiding criterion in agency decisions.” No Oil, Inc. v. City of Los Angeles (1974) 13 Cal.3d 68, 84–85; see also Pub. Resources Code, § 21101, subd. (d).) Many courts have stated that the “EIR is the heart of CEQA. The report . . . may be viewed as an environmental ‘alarm bell’ whose purpose it is to alert the public and its responsible officials to environmental changes before they have reached ecological points of no return.” (Citizens for Quality Growth v. City of Mount Shasta (1988) 198 Cal.App.3d 433, 438 [quoting County of Inyo v. Yorty (1973) 32 Cal.App.3d 795, 810] [emphasis added].) The CEQA Guidelines set forth the “fair argument” test used to evaluate whether an EIR is required: If the lead agency finds there is substantial evidence in the record that the project may have a significant effect on the environment, the lead agency shall prepare an EIR. Said another way, if a lead agency is presented with a fair argument that a project may have a significant effect on the environment, the lead agency shall prepare an EIR even though it may also be presented with other substantial evidence that the project will not have 4 a significant effect. (emphasis added) (CEQA Guidelines, § 15064(f)(1); see also Pub. Resources Code, § 21080, subd. (d) [internal citations omitted].) Moreover, an agency’s failure to gather or analyze information on a project’s impacts can expand the scope of the fair argument standard necessitating the preparation of an EIR. (See, e.g., Sundstrom v. County of Mendocino (1988) 202 Cal.App.3d 296, 311 [“CEQA places the burden of environmental investigation on government rather than the public,” and a lead agency “should not be allowed to hide behind its own failure to gather data.”].) Accordingly, if any commenting party makes a fair argument that the proposed project’s environmental impacts “may have a significant effect on the environment,” the City must prepare an EIR, even if other substantial evidence supports the argument that adverse environmental effects will not occur. (CEQA Guidelines, § 15064(g)(1); see also Sierra Club v. County of Sonoma (1992) 6 Cal.App.4th 1307, 1316 [“[i]f there is substantial evidence of such an impact, contrary evidence is not adequate to support a decision to dispense with an EIR.”].) Here, substantial evidence supports a fair argument that an EIR is necessary, as explained above. (See supra, § C.2-4) Because the Class 32 exemption does not apply, and a “fair argument” exists, an EIR must be prepared for CUP Application No. P22-03146. City Staff determined that the Project (CUP Application No. P22-03146) falls within the Class 32 Exemption for In-Fill Development Projects. (CEQA Guidelines, § 15332.) With respect, Staff is incorrect. That exemption provides: Class 32 consists of projects characterized as in-fill development meeting the conditions described in this section. (a) The project is consistent with the applicable general plan designation and all applicable general plan policies as well as with applicable zoning designation and regulations. (b) The proposed development occurs within city limits on a project site of no more than five acres substantially surrounded by urban uses. (c) The project site has no value, as habitat for endangered, rare or threatened species. (d) Approval of the project would not result in any significant effects relating to traffic, noise, air quality, or water quality. (e) The site can be adequately served by all required utilities and public services. (Id.) The substantial evidence test governs judicial review of an agency’s factual determination of whether a project fits within a categorical exemption. (See, e.g., Don’t Cell Out Parks v. City of San Diego (2018) 21 Cal.App.5th 338, 358; Walters v. City of Redondo Beach (2016) 1 Cal.App.5th 809, 817; Meridian Ocean Sys. v. State Lands Common’s (1990) 222 Cal.3d 153, 169.) As noted above, the City’s conclusion that the project would not result in any 5 significant effects relating to traffic, noise, air quality, or water quality is unsupported by the evidence, much less “substantial evidence”. But even if the Class 32 exemption facially applied, Section 15300.2 of the CEQA Guidelines provides several exceptions to the use of categorical exemptions. (See generally Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086.) Section 15300.2 applies to all categorical exemptions. As provided in Section 15300.2 and elucidated in cases such as Berkeley Hillside, “unusual circumstances” prevent an agency from relying upon a categorical exemption when those circumstances present a “fair argument” that there will be a significant environmental effect. Both “unusual circumstances” and a “fair argument” exist here. First, this Project seeks to construct a commercial medical facility in residential neighborhood that is zoned as such (RS-2). The placement of such a facility would be a first in the area and a radical alteration of the character of the neighborhood. Second, the proposed square footage of the development - 9,000 – far exceeds the vast majority of residences in the area and is disproportionately larger than the homes in the area. Third, there are no RS-2 zoned lots in the neighborhood wherein two commercial buildings have been shoehorned into a single lot. These all support the conclusion that Application raises “unusual circumstances” that are unprecedented in this very low density residential neighborhood. In addition, there is certainly a “fair argument”, as discussed above, that the Project would result in potentially significant environmental impacts. As the discussion below regarding the proposed Project’s inconsistency with Fresno’s Planning and Zoning Law reveals (which factual and legal arguments are hereby incorporated by this reference as if set forth herein in full) approval of CUP Application No. P22-03146 will result in increased traffic, noise, and lighting impacts, and additional structures and parking lots crammed onto an individual residential lot without any attenuation, avoidance, and/or mitigation measures required to reduce those adverse environmental impacts. Our third CEQA concern on Appeal is that the Project proponent has “piecemealed” or “chopped” the Project into separate phases (first phase construction, second phase construction, etc.) and discrete City land use approvals (current CUP, subsequent subdivision map, etc.), instead of presenting the ultimate “whole” of the Project and identifying, evaluating, and properly mitigating/avoiding its ultimate significant adverse environmental impacts, in violation of CEQA. Only an EIR will fully reveal all of the phases, land use approvals, and other aspects of the phased project. Bozung v. Local Agency Formation Com. (1975) 13 Cal.3d 263, 283-284. "This [segmenting] approach is inconsistent with the mandate of CEQA that a large project shall not be divided into little ones because such division can improperly submerge the aggregate environmental considerations of the total project.” Citizens Assn. for Sensible Development of Bishop Area v. County of Inyo (1985) 172 Cal.App.3d 151, 167. 6 In sum, an EIR for the proposed Project (CUP Application No. P22-03146) must be prepared, its significant adverse environmental impacts evaluated, its alternatives discussed (including the “No Project Alternative”), and its avoidance, attenuation, and mitigation measures considered so that the true environmental impacts of this proposal on the immediate neighborhood are fully understood before a decision is reached as to whether this high-density commercial medical use should be allowed in this low density residential neighborhood. Study first, then decide. That is the law. 2. The Proposed Project (CUP Application No. P22-03146) Does Not Comply With Fresno’s Planning and Zoning Regulations. As discussed below, the proposed Project (CUP Application No. P22-03146) does not comply with Fresno’s Planning and Zoning Regulations, including without limitation, its General Plan, Zoning, and Conditional Use Permit requirements. The Project proposal is inconsistent with the City General Plan. The General Plan clearly designates this area of the City as Low Density Residential. In contrast, the proposed Project proposes a very high density commercial medical use. Additionally, the City’s Zoning regulations (discussed herein) – which act to implement the General Plan – reveal the level of General Plan inconsistencies inherent in the Project proposal. For example, the proposed Project (CUP Application No. P22-03146) does not comply with Fresno Municipal Code Section 15-5306. Section 15-5306 provides in pertinent part: A Conditional Use Permit shall only be granted if the decision -maker determines that the project as submitted or as modified conforms to all of the following criteria. If the decision-maker determines that it is not possible to make all of the required findings, the application shall be denied. A. The proposed use is allowed within the applicable zoning district and complies with all other applicable provisions of this Code and all other chapters of the Municipal Code; B. The proposed use is consistent with the General Plan and any other applicable plan and design guideline the City has adopted; C. The proposed use will not be substantially adverse to the public health, safety, or general welfare of the community, nor be detrimental to surrounding properties or improvements; D. The design, location, size, and operating characteristics of the proposed activity are compatible with the existing and reasonably foreseeable future land uses in the vicinity; and E. The site is physically suitable for the type, density, and intensity of use being proposed, including access, emergency access, utilities, and services required; and F. The proposed use is consistent with the Fresno County Airport Land Use Compatibility Plan (as may be amended) adopted by the Fresno County 7 Airport Land Use Commission pursuant to California Public Utilities Code Sections 21670-21679.5. (Fresno Municipal Code, § 15-5306.) The proposed Project’s alteration of the single-family residence at 2287 W. Bullard into a two building, 900 square foot commercial medical operation is a drastic alteration of the property’s use that violates 15-5306 (A-E). Further, the proposed Project violates Fresno Municipal Code section 15-903 (Density and Massing), which Section contemplates a single dwelling per lot for RS-2 zoning. There exists no justification for altering the Project site’s current use given the RS-2 zoning. The unprecedented proposal to build two separate structures on the property and operate them as commercial enterprises with the proposed subdivision of the lot later (into two separate parcels) constitutes an unusual and unacceptable use of the lot . No such similar property use exists in the neighborhood . This is a “single family very low density” zoned neighborhood. The proposed Project (CUP Application No. P22-03146)seeks to double the density of a single lot, alter it from a single family lot to a commercial property housing 36 residents plus staff, operating 24 hours a day, seven days a week and does so without any explanation as to why this lot and why this neighborhood. Additionally, the proposed Project will cause the current zoning to be drastically altered and will result in unacceptable amount of increased traffic, noise, lighting, and additional structures and parking lots on an individual lot. The proposed commercial medical facility with 36 residents will be completely at odds with any other residential lot in the neighborhood. a. Traffic – Bullard Avenue is a highly trafficked thoroughfare essential to the City’s efficient movement of morning and evening commute traffic. CUP Application No. P22-03146 and the Department of Planning documents provide scant information as to how employee, delivery, emergency and waste removal vehicles will impact Bullard Ave with frequent entry into and exit from the commercial facility. b. Noise - The proposed commercial medical facility will generate unusual and never- before experienced noise that will necessarily impact nearby residences. There will be increased vehicle noise, emergency vehicle noise, delivery truck noise, and operational activity involved with the commercial facility. The facility proposes to operate 24 hours a day, seven days a week – offering no break in its noise production to the neighbors residences. There are normal “single family” noises that our neighborhood experiences – occasional dog barking, children playing, basketballs being dribbled. But, we have never had a daily flow of emergency vehicles, waste disposal vehicles, employee traffic that will never cease, break or disappear – it will 8 be omnipresent for as long as the facility operates with no limit on the hour of the day or night as to when the noise can be regulated. This is why cities create residential neighborhoods and commercial districts - to allow for the quiet enjoyment of one’s property after one purchases a residential, very low density property. There are more appropriate sites in the City for the proposed commercial medical facility. c. Lighting – A commercial medical facility that operates 24 hours a day will necessarily require night-time lighting that far exceeds that of a single-family home. The additional light required for two buildings totaling 9000 square feet with at least ten employees and 36 residents will be unusual and excessive for the neighborhood. Further, the Planning Department repeatedly characterized the project as a “residential care facility” when in fact it is not. It is a commercial medical facility more akin to a skilled nursing facility. The proposed residents, as described by the Applicant, likely could not survive without constant medical intervention, e.g, the use of ventilators. Residential care facilities have been established for adult residents able to independently engage in daily living activities in a non-medical setting. Indeed, the Applicant characterized the facility as follows: “Our team of medical professionals will provide Acute Care Services, Skilled Nursing Care and Complex Respiratory Care on a 24-hours a day basis.” [See, June 13, 2022 Infinite Care Living letter describing project] This project cannot be likened to a Residential Care Facility. Under California Code of Regulation, Title 22, Section 87891(a)(8), RCFEs under California law are prohibited from accepting residents who require life support systems such as ventilators. The pending CUP Application specifically states that the 3 building will offer “24/7 Sub Acute Nursing (For Vent and Trach Dependent Patients) and 24- Hour Skilled Nursing Care.”(emphasis added) There can be no dispute that a Congregate Living Health Facility is not an RCFE or even “like” an RCFE. 3. Violations of Appellants Procedural and Substantive Rights By The Planning Commission Render the Planning Commission Decision Legally Flawed. Controlling law requires public officers act with “disinterested skill, zeal and diligence primarily for the benefit of the public.” Noble v. City of Palo Alto (1928) 89 Cal.App. 47, 51. As a result, project proponents and opponents enjoy the right to a fair and unbiased decision-maker. (Cohan v. City of Thousand Oaks (1994) 30 Cal.App.4th 547, 557. Accordingly, a decision-maker is disqualified from participating in a matter if that decisionmaker is biased in favor or against a party involved in that decision. (Nasha v. City of Los Angeles (2004) 125 Cal. App.4th 470, 486. In the instant matter, one of the owners of the Applicant Project is Brian Whelan. Mr. Whelan presented to the Planning Commission on behalf of the Applicant. Mr. Whelan recently ran for elected office. During his campaign. Planning Commissioner Brad Hardie donated $1900 to Mr. Whelan. Further, Mr Hardie appears, based on his disclosures 9 forms, to serve on multiple local Boards of Directors with Mr. Whelan. Mr. Hardie failed to recuse himself from the Planning Commission’s consideration of the the proposed Project (CUP Application No. P22-03146) and actively participated in the hearing on the Appeal – only abstaining from the vote after this conflict of interest was raised at the hearing. A fair process demands impartial proceedings. As California’s Institute for Local Government provides in Chapter 5 (“Fair Process Laws and Merit-Based Decision- Making”) of its treatise Understanding the Basics of Public Service Ethics (2013) (“ILG Guide”): When an official sits in a quasi-judicial capacity, that official’s personal interest or involvement, either in a decision’s outcome or with any participants, can create a risk that the agency’s decision will be set aside by a court . . . Decision-makers are also well advised to step aside on participation in a quasi-judicial matter when the decision-maker has pre- judged the matter. Attributes of having “pre-judged the matter” include having a closed mind or a preconceived and unalterable view of the proper outcome without regard to the evidence. * * * If the violation rises to the level of a denial of due process under constitutional law, the affected individual(s) may seek damages, costs and attorney’s fees. Id. at 73. Some degree of bias in decision-making is unavoidable. But when bias against the Appellants and for the Applicant leads to denial decisions based solely on unreasonable and unsubstantiated conclusions, a “fair process” is the casualty. We respectfully submit that such is the case here. California courts have shown a willingness to find the absence of a fair hearing when one sitting in a position of judgment has shown through words and conduct that he was “not a disinterested, unbiased decision maker.” See, Clark v. City of Hermosa Beach, 48 Cal. App. 4th 1152, 1173 (1995). Likewise, in Nasha v. City of Los Angeles, 125 Cal. App. 4th 470 (2004), the court, in finding an unacceptable probability of actual bias (Id. at 482), focused on a planning commissioner who as president of a homeowners’ association published an unsigned newsletter against the project. The court found that authorship of the article produced an unacceptable probability of actual bias. We submit that the facts in Nasha v. City of Los Angeles are remarkably similar to the situation at hand. We believe, and upon that belief assert, that Commissioner Hardie was inextricably intertwined with the Applicant and a such allowed his obligations as a member of the Fresno Planning Commission to be clouded and impaired. As formal 10 discovery may reveal, we believe that Commissioner Hardie put considerable energy into his support of the Applicant, hoping to influence the Planning Commission’s decisions. We submit that those are not the actions of an unbiased decision maker. As the court in Woody’s Group, Inc. v. City of Newport Beach, 233 Cal. App. 4th 1012, 1027 (2015), concluded, “a person cannot be a judge in his or her own cause.” If Commissioner Hardie’s “cause” was to support and approve this project, and in doing so, to ingratiate himself to the applicant, then he should have recused himself, and not sought to influenc e the remainder of the Planning Commission. He did not recuse himself. Possibly as a result, instead of focusing on the merits of the neighbors' appeal, the Planning Commission (as a whole) succumbed to the pressures caused by the indisputably vocal and Applicant-supportive Commissioner Hardie. In sum, we assert that the Planning Commission’s denial of the appeal was wholly political in nature and was influenced entirely by the campaign contributions and undisclosed relationship between Applicant and Commissioner. The biased denial of the appeal by the Planning Commission should be reversed. Likewise, the Planning Commission violated the Appellants substantive due process rights when the Planning Commission approved CUP Application No. P22-03146. Substantive due process rights “protect against arbitrary government action.” (County of Sacramento v. Lewis (1998) 523 U.S. 833; Ross v City of Yorba Linda (1991) 1 Cal.App4th 954, 960. Conduct that violates Appellants’ right to due process includes, but s not limited to, the failure to afford Appellants the right to be heard on the CUP and its detrimental impact on their neighborhood, the lack of notice to impacted parties, the presen ce of multiple procedural errors during the Planning Commission’s assessment and approval process, the failure to require a CEQA analysis, and the failure to provide an unbiased and fair process. Moreover, the Planning Commission failed to provide a fair process; liability will result if the Appeal is denied. Controlling law makes clear that local decision-makers must ensure that due process and equal protection safeguards are provided when neighboring property owner concerns - like those here - are presented for evaluation and decision. This body of law hinges on fair and impartial proceedings, with neutral arbiters basing their decisions on substantial evidence in the administrative record. California law is consistent with this Constitutional mandate, with the elements of a fair hearing including the requirement that decision makers be unbiased, and that decisions be based on substantial evidence in the record. As California Code of Civil Procedure section 1094.5 provides in pertinent part: (b) . . . The [judicial] inquiry in such a case shall extend to . . . whether there was a fair trial; and whether there was any prejudicial abuse of discretion. Abuse of discretion is established if the respondent has not proceeded in the manner 11 required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence. (c) . . . abuse of discretion is established if the court determines that the findings are not supported by substantial evidence in the light of the whole record. (Id.) As your City Attorney will confirm, Code of Civil Procedure section 1094.5(c) applies to the quasi-judicial project applications that are the subject of this appeal. Such rules of “fairness” serve two basic goals: (i) providing more accurate, principled, and predictable decisions; and (ii) demonstrating to the public that their government will treat them in a just and even-handed manner. The facts of this case support a reasonable conclusion that the Planning Commission was unfair and biased in their decision making, that their appeal denials were politically motivated and lacked any supporting substantial evidence, and that the only substantial evidence in the record supports the reversal of the Planning Commission’s denial of the neighbors' appeal. Consistent with the foregoing, a fair process demands that decisions be based on substantial evidence in the administrative record. As Code of Civil Procedure section 1094.5(c) provides in pertinent part: (c) . . . abuse of discretion is established if the court determines that the findings are not supported by substantial evidence in the light of the whole record. (Id.) Again, as your City Attorney will confirm, Code of Civil Procedure section 1094.5(c) applies to the quasi-judicial project applications that are the subject of this Appeal. Once more, we respectfully submit that the Planning Commission granted the CUP and denied the Appeal, without any substantial evidence in the record supporting their legally- required findings and conclusions. Fairness must be restored: the unsupported denials of the appeal by the Planning Commission must be reversed. The Planning Commission also violated the Equal Protection rights afforded to Appellants. “The federal equal protection clause (U.S. Const., 14th Amendment) and its California counterpart (Cal. Const., art I, section 7, subd (a)) provide that persons similarly situated with respect to legitimate purpose of law must be treated alike under the law. [Citations omitted] Equal protection challenges typically involve claims of discrimination against an identifiable class or group of persons. The U.S. Supreme Court in Village of Willowbrook v. Loch (200) 528 U.S. 562, 564 (Olech), however, held that a plaintiff who does not allege membership in a class or group may state a claim as a “class of one”. (Las Lomas Land Co., LLC v. City of Los Angeles (2009) 177 Cal. App.4th 837, 857.) 12 The Planning Commission’s unequal treatment of Appellants is clearly intentional, appears to be based on animus and/or the belief that Appellants are “NIMBYs” and is not based on any rational or legitimate basis. Likewise, in its consideration of the proposed Project and the Appeal filed by Appellants, the Planning Commission violated 42 U.S.C Sections 1983 and 1985. When two or more persons conspire to deny a citizen or citizens the right to equal protection under the law or injure his or her property for lawfully enforcing the right of any person to the equal protection of the laws – 42 U.S.C. 1985 (2) is violated. The Planning Commission’s arbitrary and capricious decision-making process constitutes such a violation. Further, the deprivation of the Appellants’ rights and privileges as secured by the Constitution and laws by the Planning Commission affords Appellants a remedy under 42 U.S.C. section 1983. The Planning Commission directly denied several neighbors of their federal and state Constitutional and statutory rights to address their government with their grievances. The Planning Commission’s denials were not the product of a fair process. Instead, they were the product of bias and political-insider pressure, possibly created by Commissioner Hardie, as a undisclosed colleague and supporter of the Applicant, and multiplied by the Planning Commission as a whole. Their actions violated the protections guaranteed the appellant under controlling local, state, and federal law. Such violations are actionable in litigation and will be acted upon if the City Council affirms the actions of the Planning Commission. Embrace the rules of “fairness.” Demand adhesion to the law. In return, you will secure more accurate, principled, and predictable decisions, and you will remind your citizens and those who come before the City that they will be treated in a just, lawful, and even - handed manner. The Planning Commission’s project denials must be reversed. The only substantial evidence in the record demands the approval of the neighbors' Appeal 4. The Planning Commission violated the Brown Act (CA Government Code section 54950. The Ralph M. Brown Act was enacted to ensure the public had fair and equal access to agency meetings and to protect against secret actions by public agencies. The Planning Commission is subject to the Brown Act and violated this important statue during the consideration and Appeal process. The violations include, but are not limited to, Appellant comments were limited and even prevented at the public meeting; Closed sessions occurred without notice or description; Materials used by the Planning Commission were not made available to Appellants. For the legal and factual grounds presented, which grounds may be clarified, amplified, and/or amended by subsequent writings and related documentation, Appellants respectfully request 13 that the City Council overrule and nullify the Planning Director’s approval of an exemption for the proposed Project and approval of CUP Application No. P22 -03146, overrule and nullify the Planning Commission’s approval of CUP Application No. P22-03146, and order the preparation of an EIR for the proposed Project, and/or outright deny CUP Application No. P22-03146 for the reasons presented. APPELLANTS 1. Chelsey Juarez & Viktor Zaytsev 2. Leonore (LeeAnn) and Larry Kipp 3. Brent Smittcamp 4. Andrew & Christa Wanger 5. Frank & Lynn Glaser 6. Mark & Mary Schuh 7. Jim & Kitty Burden 8. William & Karen Podolsky 9. Fernando & Hopie Serna 10. Greg & Shari Rainwater 11. Art & Renae Estrada 12. Richard & Carol Yrulegui 13. Ann Wanger 14. Ryan & Lauren Peranick 15. Phil & Jamee Moltini 16. Carol & John Garry 17. Connie & Brad Homen 18. Jim & Kris Maxwell 19. Jennifer & Dr. Erich Lemker 20. Stephanie Krahnke 21. Seth & Kara Merhten 22. Dave Kroeker 23. Monica & Steve Swanson City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID 23-1519 Agenda Date:10/19/2023 Agenda #: REPORT TO THE CITY COUNCIL FROM:TODD STERMER, City Clerk Office of the City Clerk SUBJECT Appearance by Jamie Quezaza Jr. to discuss Fresno Police Department and their responsibilities (Resident District 1) Attachment: Request to Speak Application City of Fresno Printed on 10/12/2023Page 1 of 1 powered by Legistar™ From: To: Subject: Date: Clerk AgendasRequest to Speak Before the Fresno City Council Monday, October 9, 2023 3:58:05 PM External Email: Use caution with links and attachments Name:Jaime Quezaza Jr Address California 93711 District District 1 Phone (5 Email Date You Wish to Speak Before the City Council October 19, 2023 Topic/Subject Rape and Fresno PD and Fresno Sheriff Office not doing your job. IP Address 198.200.238.254 User-Agent (Browser/OS)Google Chrome 117.0.0.0 / Windows Referrer https://www.fresno.gov/cityclerk/ City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID 23-1416 Agenda Date:10/19/2023 Agenda #: 5.-A. CLOSED SESSION ITEM October 19, 2023 SUBJECT CONFERENCE WITH LEGAL COUNSEL-EXISTING LITIGATION Government Code Section 54956.9, subdivision (d)(1) Veronica A. Flores v. City of Fresno, et al.; Fresno Superior Court Case No.: 20CECG01711 City of Fresno Printed on 10/30/2023Page 1 of 1 powered by Legistar™ City of Fresno Staff Report 2600 Fresno Street Fresno, CA 93721 www.fresno.gov File #:ID 23-1529 Agenda Date:10/19/2023 Agenda #: 5.-B. CLOSED SESSION ITEM SUBJECT CONFERENCE WITH LEGAL COUNSEL-EXISTING LITIGATION Government Code Section 54956.9, subdivision (d)(1) Case name:1 Community Compact v. City of Fresno,Fresno Superior Court Case No. 23CECG02740 City of Fresno Printed on 10/13/2023Page 1 of 1 powered by Legistar™